author: Conley Byrd, Justice.

text:
    Pleasant PORTER et al v. Aileen Cammack TOBIN et al
    5-5311
    458 S. W. 2d 145
    Substituted opinion on rehearing delivered October 5, 1970

      Beloit Taylor, for appellants.

      Edwin Dunaway, for appellees.
   Conley Byrd, Justice.

At issue between appellants Pleasant Porter, Bernard J. Birnbach and Beloit Taylor and appellees Aileen Cammack Tobin, Jeanne White Crenshaw, Ann Tucker Williams, Frank Broadus White and Kathryn White Boulware, residuary beneficiaries of a trust established by Kate G. Cammack, deceased, is the amount of fees due Pleasant Porter and Bernard J. Birnbach as trustees and Beloit Taylor as their counsel.

Appellees in the trial court pointed out that the trustees and their counsel had already received $27,000 each for their services to the trust, that their counsel, Mr. Taylor, had received $17,200 for probating Mrs. Cammack’s estate and that Mr. Porter and Mr. Birnbach as executors had received $8,600 each. They then prayed that the court deny any additional fees to either the trustees or their counsel.

The trial court characterized appellants’ request for allowance of fees as one for “additional compensation" or “extra compensation” and denied the trustees’ request. It did allow appellant Taylor $2,500 as an additional legal fee for closing the trust estate. From this order appellants Porter, Birnbach and Taylor appeal.

The record shows that from time to time a partial allowance of fees was made to the trustees and their counsel. Typical of the orders so entered is that of 12-19-68 which provides:

“The Court doth consider, order, adjudge and decree that the accounting of the Trustees of said estate and the distribution of assets therein reflected be and the same is hereby approved and confirmed in all respects, and that each of the Trustees, Pleasant Porter and Bernard J. Birnbach, and the Attorney for the Estate, Beloit Taylor, each be and they are hereby allowed, as partial compensation for their services, the sum of Three Thousand and No/100 Dollars ($3,000.00) to be charged against the ultimate fee to be allowed to each of them, and the Trustees are hereby authorized and directed to make disbursements accordingly, taking credit therefor in their accounting and crediting such amounts against total allowances for services as such allowances may be finally fixed by the Court.”

The record also shows that the trust corpus at the beginning consisted of personalty valued at $121,055.65 and real estate valued at $288,325.00 for a total inventory value of $409,380.65. The real estate was comprised of 242 wholly owned individual parcels and 52 jointly owned parcels. The income of the trust from January 1, 1962, to November 4, 1969, was $1,236,081.14. Of this, $1,008,564.83 came from the sale of real estate— the balance came from profits on personalty, rental income, interest, etc.

A recapitulation of the accounting show the following:

Trust Corpus $ 409,380.65

Income 1,236,081.14

Total to account for $1,645,461.79

Credits:

Paid to Beneficiaries 64,426.57
Income taxes 257,743.97
Gen. Property Taxes 25,993.45
Bookkeeping & Auditing 5.600.00
Abstracts & Title Ins. 1.048.00
Documentary Stamps 1,260.60
Surveys & Engineering 3,712.25
Insurance & Repairs 1,315.50
Miscellaneous 814.16
Fees of Trustees & Attorney 81,000.00
Total Credits 442,914.50

Balance to account for $1,202,547.29

According to the accountings filed, the balance of $1,202,547.29 in the hands of the trustees consisted of realty inventoried at $119,370.00 and the remaining $1,083,177.29 was cash or its equivalent.

At the trial court hearing, appellants called as witnesses Edward L. Wright, Sr., Leon B. Catlett, James H. Rice, Jr., and W. R. Meeks. Appellees called appellants Pleasant Porter and Bernard J. Birnbach as hostile witnesses and rested.

Mr.. Wright testified that he represented the Warren E. Lenon estate, a joint owner of some of the jointly owned Cammack properties. As such representative Mr. Wright had much praise for the skill and ability of the Cammack trustees. Based upon his personal observations, the records and his experience in estate and trust matters, he was of the opinion that an overall fee for the trustees and lawyer for services rendered should be $150,000.00, Against this would be credited the $81,000.00 already paid.

Mr. Leon Catlett, after reviewing the annual accountings filed and the results obtained, concluded that a minimum fee of $165,000.00 for the trustees and the lawyer for the handling of the estate would be most reasonable.

Mr. James H. Rice Jr., Senior Vice President, Trust and Estate Division of the First National Bank in Little Rock, testified that he had been handling trust matters for eighteen years. Based upon an examination of the records and the results obtained it was his opinion that a reasonable fee for the two trustees and the attorney would be in the neighborhood of $160,000.00 to $180,000.00.

On cross-examination Mr. Rice stated that the bank for which he worked had a schedule of basic charges for trusts. The current schedule, adopted August 1, 1969, was necessary because the old schedule proved inadequate. At this point Mr. Rice was asked to calculate what the trustees’ fees would be according to his bank’s schedule. The record thereafter is as follows:

“A. Rent collected, $20,600.00, at five percent, $1,031.00. Notes and accounts collected, $362,-000.00. Basic annual personalty, $4,187,000.00. The calculations on the personalty at one half of one percent for the first $40,000.00 per annum and three eighths of one percent on the excess amounts to a total of $22,50(3.00. On the sale of real estate at $1,177,000.00 at ten percent, $117,000.00. Termination fee on $1,-500,000 at two percent, $30,000.00. The fee on the real estate held in the trust and inventory values over the eight year period, the value is $1,673,000.00. The fee calculated at one half of one percent on the first fifty thousand per annum would be $2,000.00, and three eighths of one percent on the excess, $4,800.00, for a total of $6,800.00. A total of all those figures is approximately $178,000.00.
Q. Now then, if you eliminated the termination fee and eliminated the ten percent real estate commission, what would the total be?
A. $147,000.00 less.
Q. What would the total be? My arithmetic is not very good.
A. $31,000.00.
Q. $31,000.00 total. Now if you used your six percent which you say is now the basic real estate charge but not in effect at the time the trust came into existence what would that be?
A. Approximately $70,600.00.
Q. So adding that to $31,000.00, what do we get?
A. $101,600.00.
Q,. Which is substantially below your first estimate on what would be a reasonable fee, correct?
A. Yes, sir.
Q. Now as you stated you handle many estates. Is not the routine accounting and bookkeeping paid by your trust department out of your ordinary fees for handling the trust?
A. Yes.
Q. Auditing for income tax purposes and other things is an extra charge?
A. Yes.
Q. But the annual accounting routine, unless there is some specific problem, is paid out of your fee?
A. That is correct.”

Mr. W. R. Meeks testified that the general real estate fee charged by realtors in and around Little Rock was ten percent on unimproved property and six percent on improved city property.

Mr. Pleasant Porter, called by the responding residuary beneficiaries as a hostile witness, testified that he had been a long time personal friend of Dan Cammack and that after his death, he and Mr. Birnbach assisted Mrs. Cammack in her affairs. That Mrs. Cammack made one sale of property on her own and that he considered it too cheap. Thereafter he and Mr. Birnbach assisted her in the sales of other property for more than Mrs. Cammack had been offered. Both he and Birnbach refused compensation for their efforts. However Mrs. Cammack gave each of them a city lot to compensate them. As trustees he and Birnbach, together with Mr. Taylor, sold some of the trust real estate to Pratt Remmel; to Dr. and Mrs. Bailey; to Pfeifer Development Company; and to the Airport Commission. On the Gunn property by Rivercliff, the first offer was $40,000 and the eventual sale price was $150,000. Mr. Porter’s testimony as to other duties performed is as follows:

“Q. Now, Mr. Porter, in addition to making these sales, what actual duties as trustee did you perform?
A. All right. We inspected all easements that we made to. Arkansas Power and Light, to U. S. Engineers and I guess I walked a hundred miles up and down that river at Dam Number 7, climbing those hills, arguing with the engineers and arguing with their attorneys and with the handling of that. And all the easements down in the East end. Birnie and I walked the first one down there where the big sewer went through. They started out offering us a thousand dollars for it. We ended up getting better than twenty thousand for it.

Appellant Bernard J. Birnbach, a retired abstractor, called as a hostile witness by appellees, related his personal contacts with both Mrs. Cammack and her husband. As trustee he looked after the taxes and the checks sent to the primary beneficiaries. According to him the first offer on the property sold to the Airport Commission was $300,000 whereas the final sales price was $450,000.

The rule for ordinary compensation to trustees is set forth in Bogert on Trust, 2nd Ed. § 977 as follows:

“The following factors may be influential in enabling the court to reach a conclusion as to the appropriate amount of pay which should be granted the trustee in a given case; the amount of capital and income received and disbursed by the trustee; the wages or salary customarily granted to agents or servants for performing like work in the community; the success or failure of the administration of the trustee; any unusual skill or experience which the particular trustee may have brought to his work; . . . the time consumed in carrying out the trust; the custom in the community as to allowances to trustees by settlors or courts and as to charges exacted by trust companies and banks; the character of the work done in the course of administration, whether routine or involving skill and judgment;.. ..”

With respect to allowances for extra compensation Bogert, continuing in § 977, says:

“Allowances of extra compensation, over and above the statutory rate or the amount usually granted by the court in the exercise of its discretion, are discouraged, and should never be given for the performance of the ordinary duties of a trustee. A showing of the performance of unusually skillful, arduous, or prolonged work should be required, and detailed proof should be demanded.” (Emphasis ours).

We categorize the fees here requested as a request for ordinary compensation rather than one for extra or additional allowances. Furthermore as we review the record a preponderance of the evidence shows that a reasonable fee to the appellants would exceed the partial allowances already awarded by the trial court. While some members of the court differ on the amount, the one figure upon which we agree is that the trustees should not receive less than that charged by banks and trust companies. Consequently we reverse the trial court and direct that it award a fee of $101,600.00, against which the residuary beneficiaries are entitled to a credit of $81,000.00 for the partial allowances already paid.

In making this award, we are aware that Mr. Rice testified that under the bank’s schedule the trustees should bear the burden of bookkeeping expenses, but here the trustees by agreement are voluntarily charging themselves with the payment of all counsel fees — a matter that is ordinarily in addition to the fees charged by trustees. Consequently the bookkeeping charges will be more than offset by the counsel fees assumed.

Our disposition hereof disallows the $2,500 Counsel fees allowed by the trial court.

Reversed and remanded.

George Rose Smith, Jones and Holt, JJ., would deny the rehearing.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    H. L. ABERCROMBIE v. Mike RICHARDS
    5-5307
    455 S. W. 2d 887
    Opinion delivered June 29, 1970

      Ewell McCright, for appellant.

      Hardin ér Rickard, for appellee.
   Frank Holt, Justice.

This is an appeal from an adverse ruling on appellant’s petition to vacate three default judgments.

On January 29, 1969, appellee filed three separate suits for monies owed to him by appellant for various reasons. Appellant answered with a general denial to each claim and asserted one counterclaim. The cases were consolidated and set for trial on April 9, 1969. On that date appellant’s attorney moved for a continuance primarily due to the inability of the appellant to be present because of illness. An unverified written statement from appellant’s housekeeper was offered to the court asserting that appellant was sick and unable to appear. Appellant’s son appeared before the court and orally made a statement to the same effect. After making inquiry as to the nature ot the defenses to the actions, the court announced that it would enter default judgments against the appellant on the three cases, but that if competent medical evidence were produced establishing that appellant was unable to appear and defend because of illness, the judgments would be vacated.

On April 24, 1969, appellant’s attorney filed a written motion to vacate the judgments, stating in part: “That to date no physician has been found to attend said defendant, examine and prescribe for his benefit. That the said defendant is still ill.” The court dismissed this motion on April 29, 1969, finding that: “1. No excusable negligence has been alleged in said motion. 2. No verified affidavit from competent medical authorities are alleged or set out therein.” The March Term of the Circuit Court adjourned; and, upon the opening of the September Term, appellant entered a petition to vacate the judgments. The petition alleged that new evidence had been acquired concerning appellant’s illness and inability to appear on the date set for trial; that this new evidence would prove a casualty and misfortune which prevented him from appearing; that the court has never heard this new evidence; that the court’s dismissal of appellant’s motion to vacate the judgments perpetrated a fraud upon appellant in that he was not informed of the date of the hearing which resulted in said order; and that appellant has a meritorious defense to this cause. From the court’s dismissal of this petition, based upon the pleadings, comes this appeal.

We have often said that, irrespective of other allegations, one cannot successfully set aside a default judgment after term time unless a meritorious defense to the action be alleged and shown. Alexander v. Jones, 233 Ark. 708, 346 S. W. 2d 692 (1961); Sweet v. Nix, 197 Ark. 284, 122 S. W. 2d 538 (1938); Ark. Stat. Ann. § 29-509 (Repl. 1962). In the case at bar, appellant alleged a “meritorious defense.” However, this was a naked allegation and a conclusion of law which did not elaborate or show in what respect a valid defense existed on the actual merits of the case. Consequently, it was not error to dismiss the petition.

Affirmed.


author: W. B. Putman, Special Justice.

text:
    E. L. BREWER et al v. Marlin HAWKINS ARKANSAS SHERIFFS’ ASSOCIATION, Intervenor
    5-4923
    455 S. W. 2d 864
    Opinion delivered June 29, 1970
    [Rehearing denied August 3, 1970.]

      Richard Arnold and Oscar Fendler, for appellant.

      Jack Lessenberry and Gordon, Gordon & Eddy, for appellee.
   W. B. Putman, Special Justice.

This action was filed in May of 1965 by fifteen taxpayers of Conway County, Arkansas, against the appellee, Marlin Hawkins, Sheriff and Collector of Conway County since 1951, seeking an accounting for magistrate court cash bonds placed in his hands during the years 1955 through 1961. A demurrer to the complaint was sustained by the trial court on the theory, among others, that the complaint showed on its face that the cause was barred by limitations. On appeal this Court reversed and remanded, Brewer v. Hawkins, 241 Ark. 460, 408 S. W. 2d 492 (1966), after which the complaint was amended to seek an accounting for the years 1954 through 1966.

At the close of the plaintiffs’ case in chief, the lower court ruled that the three-year statute of limitations, Ark. Stat., § 37-206, foreclosed an accounting for the years prior to 1963 and that state police tickets and daily reports which had been offered by the plaintiffs to show the amount of cash bonds posted with the Sheriff during the periods for which the Sheriff’s receipt books were not available, were not admissible for that purpose.

After the presentation of the defendant’s case in chief and rebuttal and surrebuttal evidence, a final decree was entered holding that appellee Hawkins had failed to account completely for the years 1963, 1964, 1965 and 1966, and a judgment was entered against Hawkins in the amount of $10,082.20. By subsequent order this amount was reduced by allowing additional credits totaling $2,188.94.

From this decree the taxpayers have appealed, assigning as error the ruling of the chancellor on the statute of limitations and his rejection as evidence of the state police tickets and daily reports. Hawkins has cross-appealed from the judgment against him, asserting that the trial judge should have sustained in its entirety his motion to dismiss filed at the end of the plaintiffs’ case in chief.

It was the theory of appellee in filing his motion to dismiss as to the years barred by limitations, that appellants had failed to prove any fraud or concealment on the part of the appellee which would toll the statute of limitations, hence no accounting could be required for the periods prior to three years before the filing of suit. With this the chancellor evidently agreed, and the motion was granted. We believe that in so doing, he committed error.

Irrespective of how it was styled, appellee’s motion at the end of appellants’ case in chief directed to the matter of limitations was designed to test the legal sufficiency of the evidence on that point, as provided in Ark. Stat. § 27-1729. It has long been established that in passing on a demurrer to the evidence, it is the trial court’s duty to give the evidence its strongest probative force in favor of the party against whom the demurrer has been filed and to rule against that party only if his evidence, when so considered, fails to make a prima facie case. Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225 (1950).

Jack Stone, a former Arkansas State Trooper, testified that while stationed in Morrilton between 1954 and 1959, he had on occasion seen the appellee, a justice of the peace who handled most of the magistrate court business in Conway County, and the justice of the peace’s brother filling out the official justice of the peace transcripts (from which the County General Ledger is copied in the County Clerk’s office). According to Stone, appellee would read the names of persons who had been arrested and the charges against them from his official receipt book, and the justice of the peace and his brother would enter the names on the transcript forms. However, Stone testified, the charges shown on the transcript were frequently either a single or a number of lesser offenses than those with which the person was originally charged. Likewise the amounts of money entered in the transcript would vary from the amount in the Sheriff’s receipt book. Usually the fine was shown to be one dollar.

Appellants also called to the stand a number of people who testified about their actual experiences when charged in magistrate court in Conway County, Some of these witnesses testified that they were charged with certain offenses and posted bonds of certain amounts, but an examination of the County General Ledger, pertinent volumes of which were received in evidence, revealed that the magistrate court transcript showed them to have been charged with lesser offenses and to have paid nominal fines.

Harry Frese, a certified public accountant, testified that he had made a comprehensive examination of the relevant county records and had found numerous instances in which there were substantial differences in the offenses charged and the money reported on the County General Ledger and records showing receipts by the Sheriff.

Appellee argues, however, that there could be no fraudulent concealment because the discrepancies were readily apparent from an examination of two separate county records, i, e., the County General Ledger (or justice of the peace transcripts) and the Sheriff’s receipt book. Public records give constructive notice of facts stated therein, it is claimed. This argument, however, overlooks the fiduciary nature of the office of sheriff. A public office is a public trust, and funds officially received are trust funds. Fidelity & Deposit Co. v. Cowan, 184 Ark. 75, 41 S. W. 2d 748 (1931). When such a relationship of trust and confidence exists, it is the duty of the trustee to disclose the true facts and constructive knowledge of fraud is not charged to the public simply because it may be discovered by a meticulous search of public records. 54 C. J. S. Limitation of Actions, Sec. 189(b). See also, Locust Creek Drainage Dist. No. 2 v. Seay, 190 Ark. 739, 81 S. W. 2d 835 (1935).

We hold that a prima facie case was made and that the question of fraudulent concealment was one to be determined after a hearing and weighing of all the evidence.

To prove the amount of money received by appellee as cash bonds, appellants offered in evidence the receipt books kept by appellee as Sheriff. No such receipt books could be found, however, for the period prior to December 21, 1962, and in an effort to establish the cash bonds received by the Sheriff during this time, appellants offered in evidence State Police Tickets and daily reports. Until June 30, 1957, daily reports were required to be submitted by state troopers, including the disposition of all cases in which they had made the arrest. After June 30, 1957, daily reports were discontinued, and only weekly reports were required, but with each such report were sent in copies of tickets issued by the troopers with the disposition of the cases indicated in a space provided for that purpose. The source of the information might be personal observation, the court, or the person who took the bond.

The lower court sustained appellee’s objection to ttiese tickets and daily reports, and this is assigned by appellants as error.

It is appellants’ theory that in the absence of the best evidence, the receipt books, the tickets and daily reports are admissible as business records under Ark. Stat. §28-928.

The language of the Arkansas statute is the same as that of the Federal Business Records Act, 28 U. S. C. A. 1732(a), and the “Model Act” from which both were taken. In the leading case of Hoffman v. Palmer, 129 F. 2d 976 (2 Cir. 1942), affd. 318 U. S. 109, 63 S. Ct. 477, the history of this statutory exception to the hearsay rule and the reasons justifying it are thoroughly explored. The Act was designed to relieve the problems arising from the strictness of the common law rule which requires each clerk or bookkeeper involved in. a transaction to be called or accounted for, thus frequently rendering inadmissible in court records upon which the mercantile and industrial world regularly relies. But the admission in evidence of business memoranda to prove the truth of their contents can be justified only if the circumstances of their making are such as to demonstrate an inherent probability of trustworthiness. As with all exceptions to the hearsay rule, the test of admissibility is “some special greater-than-average reliability in the evidence covered by the exception . . . Leflar, Theory of Evidential Admissibility — Statements Made Out of Court, 2 Ark. L. Rev. 26, 37.

We do not believe that the tickets and reports in question were made under circumstances that create a likelihood of trustworthiness and reliability.

Appellants called six members of the Arkansas State Police to testify concerning the tickets and daily reports, five of whom had been stationed in Conway County. The sixth was the head of the Traffic Records Section. It is apparent from an examination of their testimony that virtually all of them considered the disposition section of their tickets and daily reports highly unreliable. They were only infrequently made from personal knowledge, and virtually never checked for accuracy. The disposition reports served only to gather statistical information of no interest to the state police for the benefit of other departments of state government. Not only were the troopers not motivated to accuracy, but it is apparent that deliberate falsification of the tickets and reports was not uncommon. There was testimony of incidents of state troopers copying tickets actually issued by city police or sheriff’s deputies, apparently in an effort to impress their superiors with their diligence. No efforts were made by the troopers to correct misinformation resulting from the lowering or refunding of bonds, the dismissal of charges or appeal and reversal of convictions. Records so cavalierly kept and patently unreliable cannot be the basis of a charge against the accounts of any public official, and the chancellor was correct in excluding them for that purpose.

Appellee has cross-appealed from the judgment against him urging that the trial court should have granted his motion to dismiss at the end of appellants’ case in chief. Appellee argues that a strong presumption exists that a public official has faithfully performed the duties of his office which appellants did not overcome, that appellee has complied with the statutory accounting requirements and that an erroneous standard was used to determine if an accounting had been made.

Assuming that a presumption of the type described by appellee exists, its only effect was to pass to appellants the burden of going forward with evidence to the contrary. When this was done, the consequences of the presumption were avoided and the issue then became one, of fact not subject to challenge by a motion to dismiss or demurrer to the evidence. See Barnhart, Use of Presumptions in Arkansas, 4 Ark. L. Rev. 128.

It is true that among the Conway County records received in evidence were the official audit reports which concluded that county “accounts . . . were found in good condition . . . with all funds accounted for.” The trial court held, however, that in addition to being required to meet the accounting requirements imposed by the state, the accounts of appellee, as a trustee of public funds, might be subjected to the more searching scrutiny of a technical “audit” as that term is used in the accounting profession. This ruling was correct. A public official may not insulate himself against a strict accounting for public funds entrusted to him simply because routine examination by state auditors has failed to reveal any discrepancies.

We have likewise examined the position of appellee that judgment should not have been rendered against him for the “partial payments” made on fines and costs and find it to be without merit. The money was admittedly collected by the appellee and his obligation to account for it cannot be doubted.

The decree of the lower court is reversed and remanded on appeal and affirmed on cross-appeal.

Holt, J., disqualified.


author: Carleton Harris, Chief Justice.

text:
    STARKEY CONSTRUCTION, INC. et al v. ELCON, INC. et al
    5-5199
    457 S. W. 2d 509
    Supplemental opinion on rehearing delivered September 21, 1970
   Carleton Harris, Chief Justice.

In its petition for re-hearing, appellant points out that the trial court found that the recovery by appellee, First National Bank, of $6,287.00 on the last check given by Starkey, should have been reduced by $858.48, representing the proceeds given Treadway by Eicon, but later paid by Starkey under a consent judgment. This credit would reduce the total judgment of the appellee to $5,428.52. Appellee agrees that this contention and the relief sought should be granted.

It is also pointed out that Starkey should be entitled to retain a judgment against appellee, First State Bank for $425.77, occasioned by a certain payment made by appellant to Barber-Coleman Co., mentioned in paragraph five of the petition for re-hearing. The bank does not dispute this assertion, and the contention is held valid.

All other contentions raised by appellant have been heretofore considered, and are held to be without merit. The petition for re-hearing is accordingly denied except as to the relief afforded in the previous paragraphs.

Appellant also asks for a clarification of the finding against Graybar, this court being requested to specify the appropriate date of estoppel, and whether such estoppel applies as to the amount due Graybar “as to each successive check or whether they are cumulative and the last check estops the entire prior account”.

We held Graybar estopped because of the totality of its conduct. Graybar notified Starkey on October 25, 1967, before any progress payments had been made, that it was handling the electrical materials on the job at Arkadelphia for Eicon, and it requested that checks for the material be made co-payable to Graybar and Eicon covering the material furnished as billed. Yet, despite this request, and despite the fact that Graybar, according to its evidence, knew nothing about the progress payments, Starkey was not notified of the failure to receive payments until June 28, 1968. It was also apparent from the evidence that Graybar had only endeavored to keep the Eicon account under $5,000. Based on these facts, we held Graybar to be estopped.

We are really unable to see that it makes any difference whether the estoppel is held to apply as to the amount due Graybar from each successive check or whether the last check estops the entire prior account, since we are holding Graybar to be estopped on the entire prior account, no effort having been made to collect any money from Eicon until the account exceeded $5,000, and no notice being given to Starkey until June. Under the particular facts of this case, the estoppel would appear applicable in either, or both, instances.


author: George Rose Smith, Justice.

text:
    William Young RADCLIFF v. STATE of Arkansas
    5511
    457 S. W. 2d 847
    Opinion delivered September 21, 1970

      E. V. Trimble, for appellant.

      Joe Purcell, Attorney General; Sam Gibson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, William Young Radcliff, age 17, was convicted of robbery and sentenced to be imprisoned for three years. The only issue argued for reversal is the sufficiency of the evidence.

On September 26, 1969, a disturbance occurred in Little Rock after a high school football game. Randy Alder, 15, testified that a boy whom he was unable to identify put a gun in his back, marched him down the street, and took what money he had, which happened to be only a dime. Robin Gleason, 16, saw the incident and positively identified William Young Radcliff as the youth with the pistol. There was other corroborating testimony for the State, including that of a police officer who took a statement (which the trial court found to be voluntary) in which young Radcliff said that he had pulled his .22 caliber pistol on another boy and walked him down the street for half a block.

The defendant, testifying in his own behalf, denied having taken any money from the prosecuting witness. Young Radcliff said that he had taken his gun with him for protection against “some boys who were going to jump me at the stadium.” He admitted having used the gun in the manner described by the State’s witness, but he said that the other boy had a knife, “and I thought he was going to try and hrrm me with it.” Later in his testimony Radcliff said that the gun had been a play gun which he subsequently threw away because he didn’t want it.

The essential element of robbery — a serious crime —is the violent taking of anything of value from the person of another by force or intimidation. Ark. Stat. Ann. § 41-3601 (Repl. 1964). “It is immaterial of what value the thing taken is. A penny as well as a pound thus forcibly extorted makes it robbery.” Clary v. State, 33 Ark. 561 (1878). Upon the record before us we. have no alternative except to hold that the trial court’s judgment is supported by substantial evidence. That finding concludes our inquiry. We should add that the sentence imposed is the minimum fixed by law. Ark. Stat. Ann. § 41-3602.

Affirmed.


author: Lyle Brown, Justice.

text:
    Lloyd D. MILLER v. STATE of Arkansas
    5515
    457 S. W. 2d 848
    Opinion delivered September 21, 1970
    • H. Clay Robinson, for appellant.

      Joe Purcell, Attorney General; Milton R. Leuken, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant Lloyd D. Miller was convicted of robbery and the jury imposed the maximum punishment of twenty-one years. For reversal appellant contends he was forced to trial in prison garb after being denied the opportunity to obtain civilian clothing. He also attacks as prejudicial certain closing remarks of the deputy prosecuting attorney.

The State offered uncontroverted proof that appellant waited in the home of the prosecuting witness until she arrived after closing her business around 8:00 p.m.; that she was knocked to the floor by being struck with the stock of a shotgun and in other respects roughly treated; that appellant obtained approximately $700 from the witness; and that after his unsuccessful attempt to start her car, appellant left the premises. No evidence was offered to refute any of the summarized testimony.

Appellant was transferred from the penitentiary to the Pulaski County jail on the afternoon preceding the trial. The record shows that appellant and his court-appointed counsel met with the trial judge in chambers just before time for trial.

The Court: Case No. 69173, State of Arkansas v. Lloyd Miller. The charge is robbery. I believe Mr. Robinson wants to make a statement here in chambers. You may proceed.

Mr. Robinson: For the record, you will note that they have sent Lloyd Miller up here from the penitentiary in prison clothes. He got in yesterday afternoon in prison clothes and he is still dressed in prison clothes. He hasn’t had a chance to get any other kind to wear. The prison didn’t furnish any. You can readily tell they are prison clothes with his number on. I think the court can see the numbers.

The Court: I can see the numbers, but I haven’t got a shirt I can let him have.

Mr. Robinson: It is on his pants, too. I see no way he can have a fair trial. It’s just like telling the jury he has a previous conviction. Well, in fact, he has.

The Court: Overruled.

Mr. Robinson: Your Honor, let me make my motion.

The Court: I’m certainly not going to dress him.

Mr. Robinson: I’m not asking the Court to dress him, but some arrangement should be made. I have been appointed in this case and—

The Court: I’m not going to dress him. I don’t think he is entitled to that.

Mr. Robinson: To what?

The Court: To have his clothes taken off — I mean to have the numbers taken off. If you put a patch over them, it’s all right.

Mr. Robinson: I would like to make a motion, your honor.

The Court: You may do so.

Mr. Robinson: Your honor, the defendant was delivered up here from the penitentiary yesterday in prison clothes. I think the court will see that they are prison clothes and they have numbers on them. Obviously, to anybody looking at them, they can tell he is currently incarcerated in the penitentiary. He has had no opportunity to obtain other clothing to wear here to court. To have him go before the jury in this garb is certainly prejudicial to his rights and, therefore, we move that the case be continued, or some other steps be taken to remove this prejudice.

The Court: Overruled.

Mr. Robinson: Save my exceptions.

Based upon the undisputed representations made to the court by appellant’s attorney we conclude that a continuance should have been granted to allow appellant a reasonable time in which to make arrangements for civilian attire. That is because of the rule, supported by a strong majority, that absent a waiver accused should not be forced to trial in prison garb. See Ring v. State, 450 S. W. 2d 85 (Tex. 1970); People v. Shaw, 164 N. W. 2d 7 (Mich. 1969); U. S. ex rel Diamond v. Social Service Department, 263 F. Supp. 971 (Pa. 1967); Collins v. State, 106 P. 2d 273 (Okla. 1940); Brooks v. Texas, 381 F. 2d 619 (1967); Shultz v. State, 179 So. 764 (Fla. 1938); Dennis v. Dees, 278 F. Supp. 354 (1968); Eaddy v. People, 174 P. 2d 717 (Colo. 1946); and Commonwealth v. Keeler, 264 A. 2d 407 (Pa. 1970). The basic rule is summarized in 21 Am. Jur. 2d Criminal Law, § 239:

Since the defendant, pending and during the trial, is still presumed innocent, he is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man, except as the necessary safety and decorum of the court may other wise require. He is therefore entitled to wear civilian clothes rather than prison clothing at his trial. It is improper to bring him into the presence of the jury which is to try him, or the venire from which his trial jury will be drawn, clothed as a convict.

The second point for reversal, namely, that the prosecuting attorney made an improper reference to the defendant’s failure to testify, is not likely to arise at the second trial. That is because the court recognized its impropriety and so informed the deputy prosecuting attorney.

Reversed.


author: John Á. Fogleman, Justice.

text:
    J. A. BROWN and Ethel Brown v. Lorene WINDLAND
    5-5340
    457 S. W. 2d 840
    Opinion delivered September 21, 1970

      Rhine ir Rhine, for appellants.

      Penix ir Penix and Hartman Hotz, for appellee.
   John Á. Fogleman, Justice.

This appeal and cross-appeal involve a decree determining the. boundaries of a tract, of land, 100 feet by 200 feet, conveyed, to appellants’ grantors by appellee and her husband' E. H. Windland, who died in 1966. Appellee is the owner of, and resides upon, the remainder of a 9M-acre tract in the NWX SEM of Section 34, T 17 N, R 5 E, in Greene County from which the Windlands conveyed a lot to Hayden and Nora Carter by deed dated July 7, 1956. The Carters conveyed the same lands to the Browns by deed dated March 26, 1958. The particular description of the lot in both deeds was:

* * * Beginning at a point on ParagouId-Walcott Public Road (Now State Highway No. 25) Nine (9) rods South of the Center of Section Thirty-four (34), Township Seventeen (17) North, Range Five (5) East, run thence South along the gravel country road, Two Hundred (200) feet; thence East One Hundred (100) feet; thence North parallel with west line of said Northwest Quarter (NW 1-4) of the Southeast Quarter (SEM) of said Section, Township and Range, Two Hundred (200) feet to said Paragould-Walcott Public Road (now State Highway No. 25); thence West along said right-of-way One Hundred Feet to the place of beginning.

The 9M-acre tract was acquired by the Windlands on July 2, 1945. The intersection of State Highway No. 25 and Honeysuckle Road is the northwest corner of the tract. The description of the beginning point of the 9!4-acre tract in the deed to the Windlands was identical with that in the deeds to the lot in question. Although Honeysuckle Road is not mentioned in the deed to the Windlands, one of the courses runs "to said Paragould-Walcott Public Road” and the closing course runs 42 rods “in a northwesterly direction with said road * * * to the place of beginning.”

Appellants state that the issue on appeal is the correct location of the lot. The real question is whether the lot description includes any part of the roads. The litigation was instituted by appellee when appellants removed fence posts she had caused to be on what she contends, and the trial court found, to be the east line of the Brown lot. She contends that about 20 feet of the lot lies in Honeysuckle Road, while appellants assert that it was the intention of all parties to convey a lot 200 feet long and 100 feet wide without easements or encroachments. Appellee also contends that, after the litigation was commenced, appellants destroyed a fence that marked the south boundary of the lot and encroached upon her lands for a distance of 20 to 30 feet south of this line.

Aiter hearing the evidence the chancellor found: that the northeast corner of defendant’s lands was correctly marked by an iron stake placed in 1956 by George Wadley, described in the decree as being at a point on the south right-of-way line of Highway 25 approximately 100 feet eastward along said line from a point in Honeysuckle Road approximately 348.5 feet south of the center line of Section 34; that the east boundary line of appellants’ lot runs south from said iron stake a distance of 200 feet parallel with the west line of the NWM of the SEM of the section, and is defined by a rock ledge or wall, grapevines and other vegetation; that appellants’ south boundary line runs west from a point 200 feet south of the iron stake to the center line of the section in the right-of-way of Honeysuckle Road.

Appellants contend that the court’s decree is erroneous because it does not give effect to the intention of the appellee in conveying the lot originally, because it is based on hearsay evidence, because certain distances were described by the court as approximate and because it does not fix the boundary lines with such certainty that they can be located.

Appellants’ argument as to the intention of the parties is based principally upon statements of appellee upon cross-examination that it was her intention to convey a lot 200 feet long and 100 feet wide and some equivocation upon her part whether fences bordering the roads were on boundary lines on the west and north sides of the lot and the 9’4-acre tract. Mrs. Wind-land, however, steadfastly maintained that she and her husband had caused a survey to be made by former County Surveyor George Wadley, now deceased, as the basis for the conveyance to thé Carters and that the sale ánd coriveyánce were actually made áccordirig tó that survey. She identified an iron post which was 100 feet east of the center line of the section and 3.1 feet north of the south right-of-way line of Highway ,25 as one plated’ there by Wadley at that timé. Sincé the weight to bé given to appellee’s testimony depends' so much upon demeanor evidence, we are not disposed to disagree with the chancellor’s statement, in ruling upon an objéc-tión to! repetitive cross-examination; that he understood the witness to have testified that the sále tp Carter was made according to the Wadley survey.

Each of the parties offered the téstimony of a surveyor. ^Appellants state thát the only point of disagreement between the surveyors is the location of the west line of the Brown lot. Appellee’s surveyor located it somewhere in the roadway of Honeysuckle Road, so that about 20 feet of the road would bé included within the Brown , lot. Appellants’ surveyor, Jernigan, com-méncecl his survey by assuming that the west boundary of the Brown lot was marked by a fence, on the east border of Honeysuckle Róad and the north boundary, by a fence on the south right-of-way line of Highway 25. A survey was made by Harvey S. Johnson in 1967, after the death of appellee’s husband, for the purpose of designating separate tracts to be devised to the children of appellee’s three children by her will. In qrder to accomplish this purpose, it was necessary to determine, the boundaries of the Brown lot. Johnson stated that his .survey was, based upon the description in the conveyance tp thé Windlands. He began it at a point on the south right-of-way' line of .Highway 25, nine rods due south of , the center of . the section, which was within Honeysuckle Road. .While lie was not prepared to say that the center, lines of the section and of Honeysuckle Road coincided, he stated, that his survey indicated that they , did, generally, . although he admitted. that exact, coincidence would be unusual. In searching for physical evidence to corroborate the survey, he found the iron pipe later identified by appellée. He also found a rock ledge or wall, 100 feet east of the center line of the section, extending 102.1 feet south from this pipe.

On the other hand, Jemigan’s survey was not based upon the location of the center of the section. In order to connect the northwest corner of the Brown tract to the center, according to his survey, one would have to proceed on a bearing S 7°40' E rather than due south and for a distance of 149.9 feet rather than 148.5 feet. Jernigan admitted that if he had proceeded due south from the center of the section, he would have gone right down through the middle of Honeysuckle Road and ultimately would have reached the approximate location of the rock wall and some grapevines. He said that the iron post referred to previously was pretty close to 20 feet west of the line he considered to be the east line of the Brown lot.

The Johnson survey is supported by other evidence. Sally Westbrook, who had lived in sight of the Brown lot since 1936, testified that after the Browns moved on the lot, they replaced a fence with the rock wall at the same location. Esther Scott, Recorder and Treasurer of Center Hill, had lived on Highway 25 a little over one-quarter of a mile from the Brown property over 25 years and in the vicinity for 68 years. She testified that she had walked up and down the road for 60 years. She recalled the sale of the lot by the Windlands to the Carters and that the Windlands put the fence on the east line of the lot at that time. According to her the Browns filled their lot with dirt up to the rock wall. She said that the county road had been in its present location since she was a small child and that the survey of the center line of the section ran right in the middle of the road, with only slight variation. Jernigan admitted that if he had followed a fence line north of Highway 25 in making his survey, he would have come down through the middle of Honeysuckle Road. The reason for his varying from this course was that he interpreted the words “along” in the deed description to mean that the line ran on the edge of the roads in both cases.

J. A. Brown said that he built the rock wall as a retaining wall in order to fill in his yard, but not to mark the boundary. While the parties agree that there had not previously been a dispute about the east line, there is an irreconcilable conflict as to when the Browns started mowing east of the rock wall. According to the Browns, neither of them ever had any clear idea as to the proper location of the line. They admitted that the iron post was in the line of the rock wall, but said that no one ever told them why it was there. Mrs. Brown did use the iron stake as a guideline for laying the rock wall. When a water line was put through the property some eight or nine years before the trial, ap-pellee had made her contentions about the location of the east line known to Mrs. Brown.

We cannot say, upon the record before us, that the holding of the chancellor as to the intention of the parties was against the preponderance of the evidence.

Appellants place great reliance upon fences found on the eastern edge of Honeysuckle Road and another along the south right-of-way line of Highway 25 when they bought the property. No one actually said that these fences had marked the west and north lines of the Brown property as described in the Windland-Carter and Carter-Brown conveyances, even though the Browns may have assumed this to be the case. On the other hand appellee testified that the Carters always recognized the line indicated by the iron post (on which the Brown rock wall was built) as the eastern boundary of the property. Mrs. Scott testified that the Windland tract was fenced for pasturing cattle until recent years. A pasture fence would not have been placed within the road or highway right-of-way, wherever the property lines may have been, if it would have interfered with the use of the way.

Appellants argue vigorously that Jernigan’s interpretation of the course “along Honeysuckle Road” is correct. The definition of the word “along” when used without such words as “the side of,” “the edge of,” or “the boundary of” does not imply appellants’ interpretation. It is defined as “[l]engthwise of: in a line with or parallel to the length of the boundary of; implying motion or extension upon, at or near, the side of, according to tne context, and. distinguished from across; * * *” Webster’s New International Dictionary, Second Edition; or “in a line parallel with the length or direction of * * * or on a line through the center or central axis of (the boundary runs along the road) — distinguished from across * * *” Webster’s Third New International Dictionary.

While Jemigan’s interpretation of land descriptions has been followed in some cases, there are authorities holding that such a course merely follows the course of the road, street or highway or that the meaning of the word “along” is a matter of construction and intention to be determined from the context in which it is used and the surrounding circumstances. Sweet v. Irrigation Canal Co., 198 Ore. 166, 256 P. 2d 252 (1953); Buck v. Squiers, 22 Vt. 484 (1850); see also Moody v. Palmer, 50 Cal. 31 (1875); People v. Astle, 337 Ill. 253, 169 N. E. 185 (1929). We think that the better rule is expressed in cases so holding. In some cases, the location of the beginning point is an important or determinative factor in the construction given such a phrase as is in question here. See Holloway v. Delano, 64 Hun. 27, 28 N. C. 183, 18 N. Y. S. 700 (1892); Cochran v. Smith, 73 Hun. 597, 26 N. Y. S. 103 (1893).

When w‘e consider that the beginning point of the tract involved lay in Honeysuckle Road (when the course described in the deed was literally followed) and not on its eastern border, along with the evidence as to the actions of the parties, we are compelled to agree with the chancellor’s construction of the lot description. Evidence of Carter’s acceptance of the line and of the subsequent actions of the Browns, evén though not undisputed, is persuasive to indicate that there had been an acquiescence in the line claimed by appellee. See Kittler v. Phillips, 246 Ark. 233, 437 S. W. 2d 455; Vaughn v. Chandler, 237 Ark. 214, 372 S. W. 2d 213; Palmer v. Nelson, 235 Ark. 702, 361 S. W. 2d 641. In this connection there was testimony that the Browns never questioned that the line ran along the rock wall until they sought to buy additional land east of the wall from Mrs. Windland, that the Browns then started mowing east of the rock wall after which Mrs. Wind-land’s son commenced putting up posts on this line, that Mrs. Brown thereafter stated that she was not trying to take that land, but was merely trying to keep the grass out of her grapevines on or near this line, and that Mrs. Brown admitted that she had known for eight or nine years that appellee claimed that the Brown lot did not contain 100 feet east of and exclusive of Honeysuckle Road.

Appellants also argue that the fences and the roads constituted monuments controlling courses and distances. While the general principle may be a correct statement of a rule of law, there is no reference to the fences in the conveyances. There is no evidence that those in place before Carter bought the lot were intended to indicate the boundaries on the north and east sides of the lots, unless some of the equivocal answers of appellee on cross-examination be so considered. What we have heretofore said about the meaning of the word “along” with reference to the roads also prevents the edges of the right-of-way from being considered as controlling.

The rule of law stated is not a controlling one, but one of construction, adaptable to the circumstances and the intentions of the parties, as indicated by 11 C. J. S. Boundaries § 47, 596, cited by appellants. See also 23 Am. Jur 2d 277, Deeds, § 236; 23 Am. Jur. 2d 205, Deeds, § 159. When this matter was first presented to this court, the first maxim of construction stated was that a deed should be construed favorably to and as near the intention of the parties as possible consistent with the rules of law. Doe v. Porter, 3 Ark. 18, 56. The court in that case said that in construing the land description, the court was restricted to the grant itself in determining the intention of the grantor, since there was no ambiguity or uncertainty upon the face of the deed. Subsequently, we have recognized that, while a description in a deed which is clear and unambiguous cannot be set aside by parol proof of the acts of the parties, it is competent to look to the construction placed on the deed by the parties themselves as an aid to ascertaining its meaning whenever it is doubtful. Walker v. David, 68 Ark. 544, 60 S. W. 418. Then, the courts in their endeavor to arrive at the meaning of the description should assume the position of the parties, consider the circumstances of the transaction and read and interpret the words of the instrument in the light of these circumstances. Scott v. Dunkel Box & Lumber Co., 106 Ark. 83, 152 S. W. 1025; American Investment Co. v. Gleason, 181 Ark. 739, 28 S. W. 2d 70. In the Scott case, we held that facts existing at the time of the conveyance and prior thereto might be proved by parol evidence with a view of establishing a particular line as being one contemplated by the parties, when by the terms of the deed it is left uncertain.

We feel that the chancellor appropriately considered the various factors and arrived at a correct result. The edge of Honeysuckle Road cannot be considered as a fixed monument under the wording of this description, and it was proper for the court to determine the intention of the parties as to the location of the west line of the Brown lot. When this was done, the location of the east line was readily determined.

We consider the use of the word “approximately” by the chancery court in designating distances to be of no significance. It appears that the court may have done this in order to avoid any dispute if these distances did not bring one precisely to the Wadley iron pipe. However, in locating the point the decree erroneously places it at a distance of 348.5 feet south of the center line of section 34, even though the chancellor stated this distance as nine rods in his oral opinion given at the conclusion of the trial. Obviously, this is a clerical error and the distance should have been stated as 148.5 feet. Examination of the plats exhibited clearly shows that, in referring to the Johnson plat which showed the location of the Wadley iron pipe, the court mistook the measurement from the center of the section to the southwest comer of the Brown lot for that to the northwest corner.

Appellants also contend that the court erred in designating the northeast comer of the lot as being at the iron pipe, when Johnson placed it a distance of 3.1 feet north of the right-of-way line of Highway 25. We are unable to say that this was erroneous, because the highway right-of-way appears to curve toward the southeast, and the south line of the Brown lot as described runs due east, and not parallel with this right-of-way. It could well be said that this pipe was placed to locate the northeast corner of the tract to be conveyed by the Windlands to Carter.

Appellants’ argument that appellee’s testimony as to the Wadley survey was hearsay cannot be considered, because it was admitted without objection. It was not error for the court to consider hearsay in the absence of an objection. Rinke v. Shackleford, 248 Ark. 941, 455 S. W. 2d 83.

The cross-appeal questions the correctness of the court’s determination as to the south line of the Brown lot, contending that appellee had adverse possession of the disputed area as far north as were 10 posts placed there by her as long ago as Easter 1962. Brown testified that there were only two or three of these posts and that they were set in holes around which the fill dirt was never tamped. He stated that he had pulled up these posts. As pointed out by the chancellor in his oral opinion, appellee’s positions in her pleadings as to the location of this line were inconsistent. The Johnson survey made for appellee locates this line as beginning at a point 200 feet south of the northwest corner. Although appellee says that the posts were pulled up in 1969 after the dispute originated, her testimony as to her possession does not include any other adverse act on her part or that of her late husband. We do not find a preponderance of the evidence to support her burden on this point.

The decree is affirmed on appeal and cross-appeal. The cause is remanded for necessary correction of the decree.

       This- marker, is-.alternatively referred to in the record as an iron post, iron.pipe or ,iron stake. .

       For a discussion of the meaning of the word in a statute see Nicolai v. Wisconsin Power & Light Co., 227 Wis. 83, 277 N. W. 674 (1938).


text:
    Roger Dean MOSBY v. STATE of Arkansas
    5493
    457 S. W. 2d 836
    Opinion delivered September 21, 1970

      John W. Cole, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant and a co-defendánt were charged by information with first degree murder while in perpetration of robbery. The two were tried jointly before a jury, convicted and sentenced to death. We reversed those convictions becáuse of an. erroneously given instruction and also erroneously admitted cross-implicating confessions. Mosby and Williamson v. State, 246 Ark. 963, 440 S. W. 2d 230. On remand, the trial court ordered a severance and upon a retrial, appellant was again convicted by a jury and sentenced to death. From that judgment the appellant, by his court appointed trial counsel, brings this appeal.

We first consider appellant’s assertion that numerous irregularities occurred during the preparation of the jury lists from which the jury that condemned him to death was ultimately selected. Prior to trial, a motion to quash the jury panel was filed. A hearing was held on this motion at which time it was established that one of the three jury commissioners absented himself before the completion of a master list. The two remaining commissioners completed the task of compiling this master list. These two commissioners then selected therefrom the regular and alternate grand and petit juror panels which they sealed in an envelope, endorsed and delivered to the court clerk. The absent commissioner appeared in the clerk’s office the following day and signed the endorsed envelope without having knowledge bf the composition of the various lists which it contained. Numerous other statutory deviations (which are not necessary to consider since they are unlikely to re-occur in the selection' of other jury panels) were also asserted at this hearing. The trial court denied appellant’s motion to quash the panel.

The statutory provisions in effect when these jury panels were selected specified that the circuit court shall select three jury commissioners and charge them upon oath to faithfully discharge their duties as commissioners. Ark. Stat. Ann. § 39-201 (Repl. 1962). The legislative attitude as to the strict performance of these duties is emphasized by a subsequent section which prescribes a penalty to be imposed upon any commissioner whc fails to attend and perform the duties required of him. Section 39-204. Similarly, other provisions demonstrate the seriousness of this matter. The selection of the grand and petit jury lists by only two commissioners constituted a substantial departure from the plain statutory mandate and, therefore, furnished a sufficient basis, as comprehended by Ark. Stat. Ann. § 43-1911 (Repl. 1964), for appellant to challenge the jury panel. See Keese v. State, 223 Ark. 261, 265 S. W. 2d 542 (1954); Rutledge v. State, 222 Ark. 504, 262 S. W. 2d 650 (1953); Shockley v. State, 199 Ark. 159, 133 S. W. 2d 630 (1939); Wiley v. State, 191 Ark. 274, 86 S. W. 2d 13 (1935).

However, irregularities affecting the selection of the jury panel warrant a new trial only if timely objection was made prior to the verdict and if resulting prejudice is shown. Underdown v. State, 220 Ark. 834, 250 S. W. 2d 131 (1952). Furthermore, an appellant is in no position to assert that he was prejudiced by such irregularities unless he has exhausted his peremptory challenges. Keese v. State, supra; Rutledge v. State, supra; Wiley v. State, supra. In the instant case, appellant registered a timely objection and exhausted his peremptory challenges. The state contends that the appellant has, nonetheless, failed to demonstrate any resulting prejudice since “the record utterly fails to show that the * * * commissioners chose anyone but honest, upright and fair persons as members of the panel * * In Underdown v. State, supra, it was noted that:

“* * * there is no contention that an incompetent, disqualified or partial juror was forced on the defendant. No substantial rights of the defendant
appear to have been in any manner affected by the alleged irregularity. It is well settled by statute and our decisions that we do not reverse a judgment for harmless and non-prejudicial error.”

The irregularity complained of in that case s was the failure of the jury commissioners to certify the lists as required by § 39-208. When the omission was discovered, the trial court immediately took extensive measures to cure the irregularity and to effectively protect Underdown against any possibility of resulting prejudice.

In the case at bar it has already been determined that a substantial irregularity existed in the manner of the selection of the jury panel from which was selected a jury that assessed a death sentence. Other jurisdictions have held that any substantial deviation from the statutorily prescribed procedure constitutes prejudicial error per se. See Tarrance v. Commonwealth, 265 S. W. 2d 40 (Ky. 1953); State v. Dobbs, 244 P. 2d 280 (Wyo. 1952); People v. Mack, 367 Ill. 481, 11 N. E. 2d 965 (1937). This attitude was aptly stated in Tuley v. State, 204 S. W. 2d 611 (Texas Crim. App. 1947), wherein it was said:

“The statute law of this state provides for the mode, manner and method by which a venire is to be drawn from which a jury is to be selected to try one accused of a capital offense. A denial of the rights extended by such statutes constitutes prejudicial error. This is fundamental and basic.
Having reached the conclusion that appellant was not furnished a venire drawn in accordance with the mandate of the statutes, the question of harmless error is not presented.”

The jury system is historically the most efficient means devised by man in his constant search to achieve fairness and justice. Our legislature has sought to safeguard against any imperfections. In the case at bar, we must hold that the selection of the jury panel by only two commissioners, upon objection by appellant and subsequent exhaustion of his peremptory challenges, was ndt in accordance with the clear legislative mandate and constituted prejudicial error.

The appellant also contends for reversal that the court erred by making the following comment to the prospective jurors during voir dire:

“There have been numerous questions propounded to the jury. The court will, at the conclusion of the case, instruct the jury as to the law of the case. One of the instructions will be concerning the situation that the defendant did testify and in the event he didn’t testify concerning that situation.”

This case was previously reversed because an instruction was given, over objection by appellant, concerning his failure to testify. Mosby and Williamson v. State, supra. See, also, Criminal Procedure — Jury Instruction on the Failure of an Accused to Testify, 24 Ark. L. Rev. 127 (1970). That decision contained the following language from Russell v. State, 240 Ark. 97, 398 S. W. 2d 213 (1966):

“If the accused is to have the unfettered right to testify or not to testify he should have a correlative right to say whether or not his silence should be singled out for the jury’s attention.”

Based upon the record before us, we cannot say whether the remarks of the court upon voir dire were invited or not. So, in that state of the record, the fact that the trial court brought appellant’s silence or non-silence as a witness to the jury’s attention during voir dire rather than during final instructions is of no consequence. The appellant’s “correlative right to say whether or not his silence should be singled out” was infringed upon just the same. The prerogative of so alerting the jury was exclusively within the option of the appellant.

Nor is there merit in the state’s position that any error was “waived by the request for that instruction.” A waiver results from an election between two or more alternatives. Such an election necessarily implies freedom of choice. Here, however, the voir dire comment impinged upon his choice and thereby denied him the unfettered correlative right to freely determine whether such an instruction 'should be given. In the circumstances, a waiver cannot be said to have resulted. The present situation is analogous to the recent case of Farmers Co-Op Ass’n. Inc. v. Garrison, 248 Ark. 948, 454 S. W. 2d 644, wherein we held that a party should not be confronted with the dilemma of seeking favorable instructions at the cost of waiving his objection to an error when that error was the very cause compelling that party to request such an instruction.

Finally, we deem it necessary to discuss the appellant’s contention that the court erred in refusing to permit him to make a portion of his closing argument to the jury. At common law, the accused, at least in capital cases, was entitled to make an unsworn statement to the jury at the close of the case. This privilege was afforded to him because, not being considered a competent witness for his own defense, he could not testify in his own behalf and, furthermore, he was often made to stand trial without benefit of counsel. However, the practice of allowing the accused to so address the jury was nonetheless maintained to some extent after the passage of the Prisoner’s Counsel Act in 1837 which conferred the right to counsel on those accused of crime and the passage of the Imperial Criminal Evidence Act in 1898 which made defendants competent witnesses in their own behalf. See Annot., 17 A. L. R. 253 (1922) and 77 A. L. R. 2d 1233 (1961). Subsequent cases in this country concerning a defendant’s right to make an un-sworn statement to the jury have varied both in rationale and result. The Constitution of the State of Arkansas, Article 2, Section 10, provides that one accused of crime “* * * shall enjoy the right to be heard by himself and counsel.” In Williams v. State (omitted from Vol. 54 of Ark: Reports), 16 S. W. 816 (1891), this court inferentially indicated that a defendant represented by counsel also has the right to be heard in person, provided he exercises that right at the proper time. This case was decided subsequent to the enactment of Ark. Stat. Ann. § 43-2016 (Repl. 1964) which provides that an accused shall be a competent witness in his own behalf; and, therefore, the state constitutional right to be heard in person is independent of the right to testify in one’s own behalf.

Here, after appellant’s court-appointed counsel had made the initial portion of the closing argument, he requested that appellant be permitted to make the final portion personally. This was the first time the court was apprised of this desired procedure. The court refused appellant’s request, stating as the reason for its ruling: “Because he didn’t testify.” This basis is not supported by either the common law or case authority in this country. An unsworn statement before the jury remains just that regardless of whether or not the defendant has previously testified and been subjected to cross-examination. This is clarified as well as emphasized by the fact that a defendant who chooses to proceed pro se may make, a closing argument without first being required to testify.

In the case at bar, however, we are not of the opinion that prejudicial error was necessarily committed in this regard. After a careful study of the pertinent case law of other jurisdictions, we are disposed to subscribe to the rationale of the Supreme Court of Missouri. Section 18(a), Article I, of the Constitution of Missouri, V.A.M.S., provides that in criminal prosecutions “the accused shall have the right to appear and defend, in person and by counsel; * *. In State v. Velanti, 331 S. W. 2d 542 (Mo. 1960), that constitutional provision was interpreted as follows:

“If defendant had insisted upon personally conducting his defense, without being represented by an attorney, he would have had the right (absent certain exceptions) to have done so. See State v. Warren, Mo. Sup., 321 S. W. 2d 705, and Supreme Court Rule 29.01, 42 V.A.M.S. However, since he accepted the services of a court-appointed attorney and permitted him to conduct his defense, defendant had no absolute right to personally address the jury and thus supplement the argument of his counsel. Whether defendant would be permitted to so participate in the trial was a matter within the sound discretion of the trial court.” [citing cases]

Likewise, we think that this matter is best resolved by the sound discretion of the trial court in order that it may maintain order, prevent unnecessary consumption of time or other undue delay, and preserve its dignity and decorum. See United States v. Foster, 9 F. R D 367 (D. C. S. D. N. Y. 1949).

We deem it unnecessary to discuss other contentions for reversal by appellant since these asserted errors are not likely to occur upon a retrial.

Reversed and remanded.

Byrd, J., disqualified and not participating.


text:
    Bill STOUT v. STATE of Arkansas
    5509
    458 S. W. 2d 42
    Opinion delivered September 28, 1970

      Harold C. Rains, Jr., for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, Bill Stout, brings this appeal from a conviction on charges of burglary and grand larceny. For reversal, eight points are asserted, but the first five all deal with whether the testimony was sufficient to support the convictions; more particularly, it is contended that the evidence corroborating the testimony of the alleged accomplice was insufficient to sustain the charges.

Jerry Thomas, a nephew by marriage of appellant, testified in detail how he and Stout burglarized the Ransom Grocery. Appellant and his wife lived approximately thirty yards from the store, renting these premises from the owner of the grocery, Mrs. W. H. (Stacy) Ransom. Thomas testified that he and his father were visiting Stout and his wife on August 25, 1969; that sometime past midnight, after quite a bit of drinking, Stout suggested (and the witness agreed), breaking into the Ransom grocery store. Stout threw a brick through the store window, and he (Thomas) then went into the building, and handed various items to Stout, including shirts, candy, a box of chewing gum, a number of cartons of cigarettes, and $2.00 in cash. The witness said that they returned to the Stout residence and subsequently hauled the articles that they had taken to the home of a friend in a truck. The next day the two, using Stout’s blue 1962 Ford station wagon, picked up some of the merchandise for the purpose of selling it in Ft. Smith. Thomas said that they sold a number of cartons of cigarettes, selling them both by the package and by the carton. He related that the appellant sold about 35 cartons, and he said that, after selling the cigarettes, he and Stout had about $30.00 each. The two were subsequently arrested by Sheriff Bill Vickery and Deputy Sheriff Frank Neal. Thomas then directed the sheriff to the location of the balance of the stolen merchandise, and the witness identified the shirts in court.

Other proof reflected that Stout rented arid lived in the house near the Ransom grocery, and that a brick had been used to break the window as testified to by Thomas. Stacy Ransom stated that between 50 and 60 cartons of cigarettes, shirts, and other merchandise had been taken. She also identified the shirts as having been part of the property, likewise some shoe laces, and a carton of cigarettes which had been recovered and was stamped “Ransom’s Grocery”. She said the cartons of cigarettes were of the value of at least $3.00 a carton and that part of the shirts were $3.98 each and part $2.98 each.

Sheriff Vickery testified that he received information that the occupants of a blue Ford station wagon with license number AMJ 680 were selling cigarettes, and after making a license check, he ascertained the license had been issued to a Mr. G. L. Stringer. He learned that Stout was purchasing this station wagon from Stringer. During the investigation of the burglary the sheriff said that he saw this particular station wagon parked at the Stout house, along with a Ford pick-up truck. Four packages of cigarettes, representing four different brands, were found in the truck. The sheriff further stated that Leroy Williams, who had purchased some of the alleged stolen cigarettes, identified Stout as the seller.

Officer George W. Willis of the Ft. Smith Police Department, testified that he received the report of the Ransom burglary, and during the course of his investigation, found that merchandise bearing the stamp of the Ransom Grocery was being sold by two persons who were driving a blue Ford station wagon with the license number AMJ 680.

Leroy Williams, Jr., testified that he bought cigarettes from two white men who were operating a blue station wagon. He said that he bought nearly three cartons, paying close to $3.00, and he identified one of the cartons. On cross examination, Williams testified that the cartons that he purchased were “opened”, while those exhibited to him were not opened, and he said he didn’t know whether Stout and Thomas were the same men who sold the cigarettes to him. However, previous to this last statement, and also on cross examination, the record reveals the following testimony:

“Q. Who did you buy your cigarettes from?
A. From two white fellows.
Q. Did you ever see them before?
A. No, Sir, I never did.
Q. And you haven’t seen them since?
A. Yes, Sir, I have seen them since.
Q. It was in this Court Room is that correct?
A. It was in the court house.”

Williams stated that he turned over the three cartons of cigarettes that he had purchased to . Willis.

Appellant did not testify, nor was any relevant evidence offered on his behalf.

The test of sufficiency of corroboration has been stated to be whether, if the testimony of the accomplice is eliminated from the case, the rest of the testimony and evidence is sufficient to establish the commission of the offense and the connection of the accused therewith. Froman v. State, 232 Ark. 697, 339 S. W. 2d, 601. In Beasley v. State, 219 Ark. 452, 242 S. W. 2d. 961. quoting from an earlier case, we said:

“The rule in this state is that the corroborating evidence need only tend to connect the defendant with the commission of the offense, and not that such evidence of itself be sufficient, and where there is sufficient evidence tending to connect the defendant with the offense, its sufficiency is a question for the jury, together with that of the accomplice.”

Appellant complains that the testimony of Willis, connecting Stout with the offense, was based on knowledge gained from other persons, and was thus hearsay evidence. A sufficient answer to this statement is that no objection was made to the testimony of Officer Willis relating to the sale of the cigarettes. Appellant also refers to the testimony of Williams, and says that Williams could not identify appellant, and that that witness also stated that the cartons he purchased had been opened, while those exhibited to the witness at the trial were not opened. We have already commented that the testimony of Williams is somewhat in conflict. As for the fact that the cartons were not opened, Vickery testified that the cartons had been opened but that he closed and taped them in order to hold the cartons together. The total evidence mentioned was ample to present a jury question as to the guilt of Stout.

- Appellant says that Mr. Stringer could have been subpoenaed by the state for the purpose of identifying the station wagon and its whereabouts at the time of of the burglary, as well as the persons to whose home the stolen merchandise had been taken. As already stated, the state’s evidence was sufficient to connect Stout with the burglary without this last evidence, and of course, appellant could have subpoenaed these same witnesses to testify in his behalf, had he desired to do so.

It is asserted that the state failed to prove that the value of the goods stolen was in excess of $35.00. We do not agree. Mrs. Ransom testified to the value of the articles taken from the store, which was far in excess of that amount. Appellant says that the articles identified at the trial as being taken from Ransom’s grocery did not reach a value of $35.00, the state offering only four cartons of cigarettes, and the shirts, as property alleged in the Information to have been stolen. It is true that 50 or 60 cartons of cigarettes were not offered into evidence — but under the proof, this could not be done. The evidence reflected that most of the cigarettes had been sold, and could not be recovered. There is, of course, no requirement that all alleged stolen property must be exhibited before a conviction can be obtained. In a great number of instances, stolen property cannot be recovered, and of course, it is almost impossible to identify money taken in a mercantile burglary. The testimony of Mrs. Ransom was sufficient on this point.

Complaint is made that the state was allowed to offer in evidence various items of property which it asserted were taken from the grocery, these items however not being included in the Information filed against Stout. We need only point out that when this objection was made, the court instructed the jury to disregard testimony relative to any item supposedly taken from the grocery store except items which were mentioned in the Information.

Finally, it is asserted that the punishment fixed by the jury on the grand larceny charge was excessive. The jury fixed the appellant’s punishment at three years on the burglary charge and twelve years confinement on the grand larceny charge. Appellant says that the grand larceny penalty constituted cruel, unusual, and excessive punishment and could only have been rendered as a result of passion and prejudice on the part of the jury; that "the crime alleged to have been committed herein was very ordinary and routine and certainly did not call for a sentence of this character or length”.

In Blake v. State, 244 Ark. 37, 423 S. W. 2d, 544, we stated that it is within the power of the legislature to classify crimes and to determine punishment, and that after such punishment is so fixed, until it is declared unconstitutional, no sentence under it can be regarded as cruel and unusual. In the present instance, we certainly do not find the punishment to be cruel and unusual. It does not exceed the statutory limit; in fact, the statute authorizes a penalty of up to 21 years imprisonment in the state penitentiary for this particular offense.

On the whole case, we find no prejudicial, nor reversible error.

Affirmed.

       There was no objection to this testimony.

       John Ames, a police officer, testified on behalf of the defendant, that about 3:30 P.M. on the day following the burglary,, he had arrested Stout and his wife for being drunk. This occurred some two hours after Stout was allowed to leave the sheriff’s office following preliminary interrogation relative to the burglary.

       Ark. Stat. Ann. § 41-3907 (Repl. 1964)


text:
    Cecil GOODIN v. FARMERS TRACTOR & EQUIPMENT COMPANY
    5-5301
    458 S. W. 2d 419
    Opinion delivered September 28, 1970
    [Rehearing denied November 2, 1970.]

      John F. Gibson, Jr., for appellant.

      Bridges, Young, Matthews & Davis; By: William R. Holland, for appellee.
   George Rose Smith, Justice.

The defendant-appellant, Cecil Goodin, purchased from the plaintiff-appel-lee, Farmers Tractor & Equipment Company, a combination of dirt-moving equipment that we will call simply a tractor. The transaction was a credit sale upon monthly payments. When Goodin fell behind in his payments Farmers repossessed the tractor and sold it at public sale, Farmers itself being the only bidder. Farmers then brought this action under the Uniform Commercial Code to recover an asserted deficiency of $3,313.75. Ark. Stat. Ann. § 85-9-504(2) (Add. 1961). Goodin defended primarily on the ground that his signature to the contract had been obtained by fraud. At the conclusion of a jury trial the presiding judge directed a verdict for Farmers in the full amount sued for. Goodin makes three separate arguments for reversal.

First, Goodin contends that the trial court misinterpreted the parol evidence rule in excluding parts of Goodin’s testimony having to do with the manner in which he was defrauded. In fact, as will appear when we reach the appellant’s third point for reversal, most of his assertions of fraud were admitted without objection and appear in the record. If other evidence was actually excluded, there was no offer to show what the testimony would have been, and consequently we cannot say that prejudicial error occurred. City of Prescott v. Williamson, 108 Ark. 500, 158 S. W. 770 (1913).

Secondly, the proof shows that Farmers, after repossessing the tractor, sold it to itself at public sale for $250 and credited that amount upon Goodin’s indebtedness. Goodin now insists that Farmer’s bid was so inadequate as to violate that provision of the Commercial Code which requires that “every aspect of the disposition [of the collateral] including the method, manner, time, place and terms must be commercially reasonable.” § 85-9-504(3). The pivotal question is whether Goodin sustained his burden of creating an issue for the jury as to whether the seller’s procedure was “commercially reasonable.”

We agree with the trial court’s conclusion that Goodin failed to raise an issue of fact for the jury. The plaintiff Farmers, in presenting its case in chief, offered testimony to prove that the condition of the tractor, when repossessed, was “very poor — close to scrap.” One witness said that “the engine was torn apart, and there were several boxes of pieces. It had rained in the engine, and we didn’t find all the pieces when we repossessed it.”

Farmers not only gave notice of the proposed sale by six separate newspaper publications but also notified Goodin and a preceding purchaser, Jim Stratton, by personal letters. Yet no bidder except Farmers appeared at the sale, which was kept open for three hours. W. D. Jones, the president of Farmers, testified that the bid of $250 was reasonable, that he would have sold the tractor to anyone else at that price before it was overhauled at a cost of about $2,000, and that at the time of the trial his company had been trying unsuccessfully for some four months to sell the tractor at an asking price of $5,000.

Goodin, to establish his defense, offered only the testimony of William D. Hale. Hale testified that, on some date which he could not approximate, he offered a Farmers salesman $3,700 for the tractor, having heard that there was that much against the machine. The salesman refused the offer, saying that Farmers also had a $2,000 shop bill on the tractor and wanted $5,000 for the machine. Hale in turn refused the counteroffer.

Upon the question at issue the Commercial Code is explicit: “The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself [our italics] sufficient to establish that the sale was not made in a commercially reasonable manner.” Ark. Stat. Ann. § 85-9-507(2). Yet that precise proof — that a better price could have been obtained by a sale at a different time and in a different method— comprised the only substantial evidence adduced by Goodin upon the point at issue. What little case authority there is upon this provision of the Code indicates that decidedly stronger proof is needed to establish commercial unreasonableness. See, for example, Mercantile Financial Corp. v. Miller, 292 F. Supp. 797 (E. D. Pa. 1968); A. J. Armstrong Co. v. Janburt Embroidery Corp., 97 N. J. Super. 246, 234 A. 2d 737 (1967) and J. F. England’s Sons v. Liggett, 82 S. D. 656, 152 N. W. 2d 583 (1967). In view of the precise language of the Code we are unable to say that the appellant’s meager proof made the necessary prima facie showing that Farmers’s public sale was not commercially reasonable.

Thirdly, Goodin insists that he adduced substantial evidence of fraud on the part of Farmers in the inducement of the contract. Hence, argues Goodin, the trial court was in error in directing a verdict for Farmers in the amount of $3,313.75 — the full amount sued for. We of course state the facts in the light most favorable to Goodin’s position.

On July 9, 1966, before Goodin had entered the picture, Farmers sold the same tractor — as a used machine and without warranty — to Jim Stratton for a total time price of $6,928.88, payable in a deferred down payment of $1,005.08 and 36 monthly installments of $164.55 each. After Stratton had paid the down payment and five monthly installments he had no further use for the machine and asked Farmers to resell it for him. At that time, according to the Stratton-Farmers contract, the sum of $5,101.05 was still due According to the proof introduced by Farmers, Goodin purchased the tractor for that sum and obligated himself by signing the original contract that had been executed by Stratton.

When Goodin was sued on the contract he filed an answer asserting fraud on the part of Farmers. Specifically, he said that he could not read o;. write and that he signed the contract upon the salesman’s representation that the amount still owed on the tractor was about $4,000.

At the trial Goodin testified that he informed the salesman for Farmers that he could not read or write (though he admitted in his testimony that he could read numbers and sign his name). Goodin testified that the salesman assured him that only $4,000 was due on the contract, that the document offered to Goodin for signature was a new contract rather than the one already signed by Stratton, and that a schedule of payments would be sent to Goodin by mail. According to Goodin’s theory of the case, all three statements were false and call for a cancellation of the contract for fraud.

For the most part we find Goodin’s contentions to be without merit. He cannot have been prejudiced by the fact that he was induced to sign the old Stratton contract rather than a new one, because Goodin admits that he understood the price and terms to be the same in either event. Again, it is not material that Farmers failed to send Goodin the promised schedule of payments, for Goodin actually made six monthly payments in the correct amount of $164.55 each. That conduct was certainly a waiver of any complaint that Goodin may have had with respect to the schedule.

In one particular, however, Goodin’s proof of fraud was substantial and material. He testified that he was unable to read or write, that he informed the salesman of that fact, and that he signed the contract upon the salesman’s representation that the recited price was $4,000. Despite the fact that Goodin’s pleadings had stated his position in precise detail, Farmers made no effort to disprove Goodin’s asserted inability to read. Under our holding in Fenter v. Obaugh, 17 Ark. 71 (1856), the jury could have found that the Farmers salesman was guilty of fraud.

It does not follow, however, that Goodin is entitled to a complete reversal of the judgment. According to his own testimony, he intended to purchase the tractor for $4,000 instead of for the unpaid Stratton balance of $5,101.05. Hence, even if the jury had accepted Goodin’s version of the matter in its entirety, there should still have been a verdict for Farmers in the amount sued for, less $1,101.05. It follows that the trial court’s error in directing a verdict may be corrected with complete justice, as far as Goodin is concerned, by offering Farmers the opportunity to remit the excess of $1,101.05. If such a remittitur is entered by Farmers within seventeen calendar days the judgment as so reduced will be affirmed; otherwise the judgment will be reversed and the cause remanded for a new trial, with Goodin recovering his costs in either event.


text:
    Billy THOMPSON v. STATE of Arkansas
    5521
    458 S. W. 2d 40
    Opinion delivered September 28, 1970

      Howell, Price, Howell & Barron, for appellant.

      Joe Purcell, Attorney General; Sam Gibson, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Billy Thompson was convicted of (1) unlawful entry into a building with intent to commit a felony, and (2) forcible and felonious entry into vending machines located inside the building. On motion of the prosecuting attorney a screwdriver and a tire tool were marked for identification. The witness upon whom the State was relying to connect those implements with the accused was unable to identify them. We are asked to hold that prejudicial error was committed which entitled Thompson to a mistrial.

The evidence of the State was brief and uncon-troverted. Pike Bowling Lanes had experienced burglaries on Monday nights. Those incidents occurred between 2:00 a.m., when the night operator closed the premises, and the time for opening the following morning. On the particular Monday night in question the night operator inspected the premises to determine that no outsiders were in the building, locked the doors, and left at the usual time. The manager of the bowling alley, instead of leaving the building, went to his office, closed the door, and reclined for the remainder of the night, the plan being to thwart any attempted burglary. The manager’s head was resting against die office door and some fifty minutes after retiring the door was bumped against his head. The intruder stuck a gloved hand through the door as if to remove any obstacle against the door. Armed with a shotgun, the manager opened the door and was faced by appellant and another man. The latter succeeded in escaping but appellant fell to the floor, dropping a screwdriver. Appellant was held in custody until officers shortly arrived.

Inspection of the premises revealed that a rear window had been forced open; twelve vending machines had been jimmied; over $200 had been gathered and was contained in a bag just outside the office; and a lug wrench, foreign to the premises, was discovered.

Officer Holley testified that he had in his possession the screwdriver and tire tool found on the premises and it was through that witness that the State proffered the instruments for the limited purpose of being marked for identification. Officer Holley was the first witness and presumably it was anticipated that the proper foundation for introduction as exhibits would be made by a subsequent witness. Louis Dillinger, the manager of the bowling lanes, was the State’s last witness. He testified that he did not see the tire tool at the time of appellant’s apprehension. A mistrial was requested and denied but the court admonished the jury not to consider it as evidence. With respect to the screwdriver, Dillinger testified that he saw appellant drop one, but the witness was unable to say that the one proffered for identification was actually the instrument which was dropped. The court sustained appellant’s objection to the introduction of the exhibit and admonished the jury to disregard it as evidence.

The question on appeal is whether the evidence pertaining to the screwdriver and tire tool, which were not ultimately connected with the accused, calls for a reversal. The answer to the problem is found in the general rule as evidenced by such cases as Rogers v. State, 60 Ark. 76, 29 S. W. 894 (1894), and Goynes v. State, 184 Ark. 303, 42 S. W. 2d 406 (1931). Error in admitting incompetent testimony is generally cured by excluding it, but if it is manifest that the prejudicial effect of the evidence remains despite the exclusion and influences the verdict, the error is not cured by the admonition. See 24B C. J. S. Criminal Law, § 1915 (8). We are unable to perceive, even by stretching the imagination, that the verdict of guilty or the amount of the sentence, was affected by the challenged evidence. Appellant’s guilt was clearly established by competent testimony. Considering all the circumstances the punishment was far from being severe. Actually the evidence of instruments used was purely collateral.

Still another rule of law is significant in this case. Trial courts have broad discretion in admitting evidence on condition that subsequent evidence be supplied to competently connect the conditioned evidence with the offense. If the connecting evidence is not forthcoming a proper admonition to the jury to disregard the conditional evidence is sufficient, subject of course to the exception pointed up in Rogers and Goynes. Rushing v. State, 182 Ark. 101, 29 S. W. 2d 1079 (1930).

Appellant asks us to pronounce a new rule of law. He wants us to hold that when a prosecutor presents an exhibit for identification and he knows or should know it cannot be connected with the accused, "the trial court should upon objection presume unfair conduct and declare a mistrial.” We are cited no authority and are not aware of any precedent to support such a rule. Suffice it to say that we do not consider the proposed rule either reasonable or necessary to the procurement of a fair trial and that it would do violence to our present rules of trial procedure.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Keith ROGERS v. STATE of Arkansas
    5523
    458 S. W. 2d 369
    Opinion delivered September 28, 1970
    [Rehearing denied November 2, 1970.]

      Jeff Duty, for appellant.

      Joe Purcell, Attorney General; Sam Gibson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was convicted of the larceny of a boat and trailer belonging to Maxwell’s Esso Station. His appeal questions the sufficiency of the evidence to support the jury verdict. Viewing it in the light most favorable to the state, we find it sufficient.

Morris Maxwell, proprietor of the station, kept boats and motors as stock-in-trade. On the night preceding February 5, 1970, he left one boat resting on a trailer chained to a light pole on the north side of the station. About 2:30 a.m. on February 5, Officers Paul Wood and Harold Flowers were patrolling the street in front of the station and saw a Thunderbird automobile backed up to the boat and a man standing behind the auto. They drove their patrol car to the next driveway on the street and watched the car at the station. When they saw this car pull out from the station, they pursued it to a driveway of a fire station on another street and blocked the Thunderbird there as the driver attempted to turn it around. The driver was identified by Paul Wood as the defendant and the person seen behind the vehicle at Maxwell’s station. The officers looked into this automobile and saw a pair of bolt cutters lying on the right front floorboard. There was a trailer hitch on the rear of this vehicle. The defendant was arrested and searched. He had a small, cheap .22 caliber gun in a coat pocket. The officers then returned to the Maxwell station with the defendant in custody. There they found that the boat had been moved from its previous position and the chain by which it was secured to the lamp post cut.

The bolt cutters and chain were taken to the police station and on February 6 delivered by the Chief of Police to Paul McDonald, who was in charge of the State Police Firearms Identification Laboratory. McDonald testified that when a tool is manufactured, machine marks are left which are identifiable in the marks made by that tool. It was his opinion that the severed link of the chain had been cut by that particular set of cutters. It was stipulated that the boat and trailer were never removed from Maxwell’s premises.

The principal argument advanced by appellant is that the evidence fails to show that the defendant ever had such possession and control of the boat and trailer adverse to the owner to constitute the crime of larceny. This argument is based upon the fact that the tongue of the trailer supporting the boat was only lifted off a block upon which it rested, and that no evidence showed that the trailer was ever hitched to defendant’s automobile. We find this argument invalid.

We have said that the requisite element of asportation in larceny cases may be found from the slightest removal of goods from the place where they were left by the owner. Anderson v. State, 200 Ark. 516, 139 S. W. 2d 396; Reynolds v. State, 199 Ark. 961, 136 S. W. 2d 1028. The fact that the property was not actually removed from the owner’s premises does not make the thief’s dominion over it incomplete nor preclude a finding that there was an asportation. Banks v. State, 133 Ark. 169, 202 S. W. 43. In cases from other jurisdictions, it has been held that: moving a safe in a building five feet before the owner arrived is an asportation, Caruso v. State, 205 Tenn. 211, 326 S. W. 2d 434 (1958); removal only a hair’s breadth is sufficient, Gettinger v. State, 13 Neb. 308, 14 N. W. 403 (1882); the slightest change of location is sufficient, Lundy v. State, 60 Ga. 143 (1878); the least removal of a thing from the place it was located is sufficient. Wombles v. Commonwealth, 317 S. W. 2d 169 (Ky. Ct. App. 1958); the act of asportation is complete when the property taken is moved from its original position regardless of however slight may be the change of position, Blakeney v. State, 31 Ala. App. 154, 13 So. 2d 424 (1942), reversed for error in instructions, Blakeney v. State, 244 Ala. 262, 13 So. 2d 430 (1943).

It was reasonable for the jury to infer that appellant, with larcenous intent, cut the chain by which the boat and trailer had been fastened to the light pole, and removed them from their original position where they were supported by a concrete block in order to fasten the tongue of the trailer to the hitch on his vehicle. The evidence was sufficient to show asportation and felonious intent.

The judgment is affirmed.