author: John A. Fogleman, Justice.

text:
    James MEYERS Jr. v. STATE of Arkansas
    5738
    484 S.W. 2d 334
    Opinion delivered September 11, 1972

      John F. Gibson Jr., for appellant'.

      Ray Thornton, Atty. Gen., by: James A. Neal, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Upon trial de novo, on appeal from the Municipal Court of Little Rock, appellant James Meyers, Jr., was convicted of breach of the peace in violation of Ark. Stat. Ann. § 41-1412 (Repl. 1964) and resisting arrest in violation of Ark. Stat. Ann. § 41-2801 (Repl. 1964). On this appeal he contends that the evidence was insufficient to support a conviction on § 41-1412 and that the court erred in applying § 41-2801 to an off-duty policeman attempting an arrest for a misdemeanor without a warrant.

We deem the evidence sufficient to support the conviction for breach of the peace when it is viewed in the light most favorable to the state. In pertinent part, Ark. Stat. Ann. § 41-1412 (sometimes known as the “Peace and Tranquility Act”) provides:

If any person shall make use of any profane, violent, vulgar, abusive or insulting language toward or about any other person in his presence or hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault, shall be deemed guilty of a breach of the peace, and upon conviction thereof shall be punished by a fine of not less than five [$5.00] nor more than two hundred dollars [$200] or by imprisonment in the county jail for not less than one [1] nor more than six [6] months, * * *

Mike Carter, a patrolman for the Little Rock Police Department, was employed as a security guard for the Downtowner Motel in Little Rock from 10:30 p.m. on August 7, 1971, until the early morning hours of August 8. He was not assigned to regular duty with the police department during these hours, and was not paid by the city for this work.

The Arkansas High School All-Star Football Game was played on the evening of August 7. Meyers and a group of youths, who were in Little Rock on account of the game, had gathered in Room 208 at the motel. Carter said that around 11:0.0 p.m. persons gathered around this room were drinking beer, laughing and talking loudly and congregating around the front door so as to block the balcony, which constituted the only passageway to and from the rooms on that floor. He testified that he advised these persons to remain inside their rooms and off the balcony. Carter stated that each time he passed this room at intervals of 10 or 15 minutes, he would have to advise from two or three to six or seven of these individuals to get back in the room because they were loud and boisterous. On some of these occasions, but not all, according to Carter, Meyers was among those out on the balcony. Finally, about 12:45 a.m. on August 8, Carter and Officer Forrest, another policeman employed by the motel, approached Room 208. Both officers were in uniform and wearing badges. The officers advised three or four of the party (including Meyers) to go back inside the room and that they would be arrested unless they remained inside. As one member of the party started closing the door after those on the balcony had gone inside the room, Carter heard Meyers, who was standing at the back of the room, say “Get f — -d, you g- d— pigs.” Officer Carter testified that he prevented the closing of the door and advised all of the occupants of the room, four males and two females, that they were under arrest. Carter called for aid and he and Officer Forrest and Officer Dozier escorted those arrested to an elevator. Five of them entered on Carter’s instruction, but Meyers did not. Carter said that he took Meyers by the right arm and told him to go into the elevator, but that Meyers jerked away and swung at Carter. Carter said that he dodged and that the two fought briefly. After he struck Meyers three times with a “slapper,” Meyers said “Don’t hit me anymore, I’ll go.” Meyers went into the elevator, and was transported to the police station.

„ ..Officer Forrest corroborated Carter’s testimony for the most part. Forrest heard the words “s.o.b.” and “pig” called out by someone in the room. He identified Meyers’ voice as that of the speaker. Forrest heard a scuffle outside the elevator and saw Carter and Meyers fighting each other for a few seconds, but because he was inside the elevator did not observe the cause of this commotion. Officer Dozier was called to assist the other officers after the arrest was made. He heard Meyers refuse to go into the elevator when instructed to do so by Carter, and saw Carter reach for his “slapper” and Meyers raise his left arm in a manner as if he were preparing to strike Carter.

Dianne Coulter and David Reeves, two of the occupants of the room and good friends of Mevers, heard someone yell “pig” after the officer had directed the party to stay in the room and close the door. These witnesses and others contradicted Carter and Dozier on other points. Meyers also contradicted the testimony of these officers, but stated that he had taken the blame tor calling the officer a “pig” only because Carter had already hurt Johnny Clark, another member of the party whom the policemen had accused. Of course, in determining the sufficiency of the evidence, we must view it in the light most favorable to the state, as we have.

Appellant argues that the words “or to cause a breach of the peace or an assault” are indicative of the object of the law to prevent disturbances, i.e., breaches of the peace or assaults, not to prevent specific language from being spoken. Upon this premise, he postulates that Meyers could not be guilty of violation of this statute under any view of the testimony because Carter testified that the words did not make him angry, and it is not comtemplated that one who is a police officer would assault a person in custody by reason of a remark addressed to him. He cites and relies upon People v. Lukowsky, 94 Misc. 500, 159 N.Y.S. 599 (1916).

We have consistently held that the question whether the language used was, in its common acceptation, calcullated to arouse the person addressed to anger to produce a breach of the peace is one for the jury. Ruffin v. State, 207 Ark. 672, 182 S.W. 2d 673. We have recognized that the question would depend upon factors such as the relation of the parties, the circumstances under which the language was used, and the manner of the speaker. State v. Moser, 33 Ark. 140. The particular question posed by appellant does not appear to have arisen in this state. The case relied upon by appellant does lend some support to his argument, but it is a decision by a single judge of the Court of General Sessions of New York County which appears to be contrary to the weight of authority. Although there are other cases in the State of New York which seem to follow the tenet expressed in Lukowsky, its reasoning has been described as fictional. See City of St. Paul v. Morris, 258 Minn. 467, 104 N.W. 2d 902 (1960), cert. denied, 365 U.S. 815, 81 S. Ct. 696, 5 L. Ed. 2d 693 (1961). The Minnesota Court pointed out that this reasoning has been vigorously repudiated in other jurisdictions and that decisions in New York on the question do not consistently follow the doctrine. See also, e.g., People v. Sadowsky, 149 Misc. 583, 267 N.Y.S. 762 (1933); People v. Clarke, 12 N.Y.S. 2d 8 (1939); People v. Jones, 63 N.Y.S. 2d 399 (1946); Lippert v. State, 207 Misc. 632, 139 N.Y.S. 2d 751 (1955); People v. Fenton, 102 Misc. 43, 168 N.Y.S. 725 (1917).

Other courts have held that the fact that abusive language is addressed to a policeman or other law enforcement officer does not prevent it from constituting a violation of the statute. Lane v. Collins, 29 Wis. 2d 66, 138 N.W. 2d 264 (1965); Myers v. Dunn, 126 Ky. 548, 104 S.W. 352, 13 L.R.A. (n.s.) 881 (1907); State v. Chaplinsky, 91 N.H. 310, 18 A. 2d 754 (1941). aff’d 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942); City of St. Petersburg v. Calbeck, 121 So. 2d 814 (Ct. App. Fla. 1960); City of DeSoto v. Hunter, 145 Mo. App. 430, 122 S.W. 1092 (1909). Since we feel that these courts follow the better reasoning and express the weight of authority, we reject the reasoning and doctrine of Lukowsky. While we fully recognize that police officers must exercise considerable restraint in the performance of their duties, we agree with the Supreme Court of Minnesota that there is no sound reason why a peace officer must be subjected to indignities that go far beyond what any other citizen might reasonably be expected to endure. This idea has also been expressed in New York in People v. Fenton, supra, where Mr. Justice Gibbs, affirming the conviction of two truck drivers for disorderly conduct, and holding that language addressed to a police officer was conduct tending to a breach of the peace, said:

Gratuitous insolence to police officers, tending to cause disturbance and disorder upon a public highway, is far too commón in this city and should not be encouraged. It seems to me that it tends to lessen the respect of the community for law and order, which the police officer in the legitimate discharge of his duties represents.

Since we do not consider appellant’s theory on this point to be sound, we find the evidence sufficient as to the charge of breach of the peace. See also, Hearn v. State, 34 Ark. 550; State v. Styfco, 2 Conn. Cir. 610, 203 A. 2d 610 (1964).

In pressing his second point, appellant bases his argument upon a premise contrary to that upon which his discussion of the first point is founded. He says that he cannot be guilty of resisting arrest because Carter was not a policeman, but an employee of the motel. He relies upon St. Louis, I. M. & S. Ry. Co. v. Hackett, 58 Ark. 381, 24 S.W. 881. There we considered a jury instruction offered by a railroad company in the defense of an action brought by one who had been shot by a night watchman employed by the company to protect its depot, warehouse, buildings and cars at the foot of Rock Street in Little Rock, and who had been commissioned as a deputy sheriff, so that he could make arrests. The instruction assumed that a deputy sheriff could be employed as an officer of the law to guard the property of a private individual or corporation which was not in the custody of the law. We did not hold, or suggest, that one so employed did not have the power to make an arrest under proper circumstances. The language of the opinion clearly dispels any such idea. We said:

The question is, was Gallagher, at the time he fired the pistol shot, acting in the course of his employment as night watchman for the railway company? If he was, the company is liable in damages for any wrongful act of his in the course of his employment, resulting in injury to another, though he exceeded his authority as such night watchman. If the act was done by him in the service of the company, in the course of his employment, and injury resulted therefrom, the company is liable in damages resulting from the injury, if the act was wrongful or performed in such a negligent manner that its negligent performance caused the injury. Of course, if the act causing the injury was outside of the course of the servant’s employment, — disconnected with the service of the company, — then the company would not be liable. The fact that Gallagher had been appointed a deputy sheriff, to enable him to make arrests, because he was watchman for the railroad company, could not exempt the company from liability for his acts as such watchman. If the act had been committed in the discharge of, or in the endeavor to discharge, his duties as deputy sheriff, though wrongful, and in excess of his authority as deputy sheriff, the railroad company would not have been liable, though the deputy sheriff and his principal, the sheriff, might have been. But this case presents no such aspect. * * * (58 Ark. at 387, 24 S.W. at 882.)
* * * The principal case relied upon by counsel for appellant, Tolchester Beach Improvement Co. v. Steinmeier, 20 Atl. (Md.) 189, is not like the case at bar, and does not contravene the principles announced. In that case it clearly appeared that the officer who did the injury was not acting in the line of his employment, but was seeking only to enforce the criminal law, as he believed; and as he was an officer, though he had accepted private employment from the company, the company was not liable for his official acts. There is a correct line of distinction in these cases, which the circuit court seems to have followed in his instructions, leaving the question of fact properly to the jury. It was not for the court to tell the jury that Gallagher, when he fired the shot, was or was not acting in his capacity of deputy sheriff, or that he was or was not acting in the course of his employment by the company as night watchman. These are questions of fact for the jury to determine, and we think the evidence warrants their verdict. (58 Ark. at 388-9, 24 S.W. at 883.)

For these reasons and those hereinafter discussed, we do not consider that case as controlling authority.

Arkansas Statutes Annotated § 41-2801 provides that if any person shall knowingly and wilfully obstruct or resist any sheriff or other ministerial officer in the discharge of any official duty in case of felony or any other case, civil or criminal, he shall be guilty of a misdemeanor. See Stuart v. State, 222 Ark. 102, 257 S.W. 2d 372. A city policeman is a ministerial officer within the meaning of this section. Drifoos v. City of Jonesboro, 107 Ark. 99, 154 S.W. 196. A city policeman is a peace officer under our Criminal Code. Ark. Stat. Ann. §§ 45-403, 41-101 (Repl. 1964); Drifoos v. City of Jonesboro, supra. No exception is made for any time when the officer is not working a designated shift or when he is working for a private employer while off his regular duty. A city policeman may, upon view, arrest any person who may be guilty of any crime against the laws of the state. Ark. Stat. Ann. § 19-1706 (Repl. 1968). Further, it is his duty to suppress all breaches of the peace and to apprehend all persons in the act of committing any offense against the laws of the state. Ark. Stat. Ann. § 19-1705 (Repl. 1968). There is nothing in any of our statutes to restrict the right of a policeman to make an arrest at any particular time of the day, week, month or year or to limit his duty to do so to the hours designated for his regular work shift.

Other jurisdictions have held that the fact that a peace officer is employed and paid by public or private agencies other than those having direct responsibility for law enforcement at the time an offense is being committed, or is about to be committed, neither impairs his right to make an arrest or take appropriate action to prevent the crime nor relieves him of his duty as a police officer in that respect. United States v. Hutchins, 268 F. 2d 69, 83 A.L.R. 2d 447 (6th Cir. 1959); Benedict v. Police Pension Fund Commissioners, 35 Wash. 2d 465, 214 P. 2d 171, 27 A. L. R. 2d 992 (1950); People v. Peters, 18 N. Y. 2d 238, 273 N. Y. S. 2d 217, 219 N. E. 2d 595 (1966), aff’d 14 Misc. 2d 470, 254 N. Y. S. 2d 10 (1964), aff’d 24 App. Div. 2d 989, 265 N. Y. S. 2d 612 (1965), aff’d sub nom. Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); Washington v. New York City Housing Authority, 24 N.Y. 2d 912, 249 N.E. 2d 481, 301 N.Y.S. 2d 642, aff’g 31 App. Div. 2d 700, 295 N.Y.S. 2d 845 (1969); Simms v. State, 167 Tex. Cr. R. 315, 319 S.W. 2d 717 (1958); Monroe v. State, 465 S.W. 2d 757 (Tex. Crim. App. 1971); Bourque v. Lohr, 248 So. 2d 901 (Ct. App. La. 1971). Statute^ such as Ark. Stat. Ann. § 19-1712 (Repl. 1968) limiting the time when a city police officer may be required to work do not have the effect of limiting his right or duty to make an arrest during the hours or days when he is not being required to devote his time to the performance of his official duties. See Simms v. State, supra. He is, in a sense, on duty 24 hours a day, seven days a week and is not relieved of his obligation to preserve the peace while “off duty.” Monroe v. State, supra; People v. Peters, supra.

Since appellant has not demonstrated that the circuit court committed error in finding him guilty of the offenses, we must affirm the judgment.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. O. A. ALLEN et al
    5-5960
    484 S.W. 2d 331
    Opinion delivered September 11, 1972

      Thomas B. Keys and James N. Dowell, for appellant.

      John T. Gunter and Hugh L. Brown, for appellees.
   J. Fred Jones, Justice.

This is an eminent domain case involving 11.74 acres of land taken by the Arkansas Highway Commission from a 13.75 acre tract belonging to the appellees, O. A. Allen and wife, in connection with highway construction near Beebe in White County, Arkansas.

Mr. Allen testified that before the taking, his land, including the improvements thereon, was worth $33,410 and after the taking that portion of the land remaining was only worth $10, leaving the amount of his damage or just compensation at $33,400. It was stipulated by the parties that the value of the improvements in the taking amounted to $7,310. Mr. Terrill Huff testified as an expert appraiser for the owner. He testified to before and after values of $22,361 and $63 respectively, leaving a difference of $22,-298 as his estimated amount of damage or just compensation. Adams and Mashburn testified as expert appraisers for the Highway Commission. They estimated the total damages or just compensation at $12,700 and $12,-950 respectively. The jury returned a verdict in favor of the Allens for $27,000 and judgment was entered thereon. On appeal to this court, the Highway Commission relies on the following points for reversal:

“The trial court erred in refusing to strike the testimony of the landowner as to the value of the property before the taking.
The trial court erred in refusing to exclude from the consideration of the jury sales alleged to be comparable by the landowner, who was not in fact familiar with the properties involved.
The trial court erred by commenting on the evidence and by refusing to exclude from the consideration of the jury, as a basis for witness Huff’s opinion, sales that did not meet legal standards of comparability.
The trial court erred in refusing to exclude the testimony of witness Huff based upon subdividing the property into lots and selling the individual lots over a period of time.
The verdict is excessive and is not supported by substantial evidence.”

We deem it unnecessary to discuss separately each of the specific points as designated by the appellant, because the judgment of the trial court must be reversed for the primary reason that both Mr. Allen and his expert witness, Mr. Huff, employed the wrong method in arriving at their opinion as to the market value of the land involved. Instead of basing their opinions on the open market value of the entire tract, on the date of taking, if sold for its highest and best use as future residential building plots, both Allen and Huff based their opinions on the aggregate of their estimated number and value of the building plots into which the acreage could be divided and eventually sold. This procedure was thoroughly condemned in the case of Ark. State Highway Comm’n v. Watkins, 229 Ark. 27, 313 S. W. 2d 86, where we adopted language from Nichols, Eminent Domain, Third Edition, § 3142 (1), as follows:

“ ‘It is well settled that if land is so situated that it is actually available for building purposes, its value for such purposes may be considered, even if it is used as a farm or is covered with brush or boudlers. The measure of compensation is not (emphasis supplied) however, the aggregate of the prices of the lots into which the tract could best be divided, since the expense of cleaning off and improving the land, laying out streets, dividing it into lots, advertising and selling the same, and holding it and paying taxes and interest until all the lots are disposed of cannot be ignored and it is too uncertain and conjectural to be computed. The measure of compensation is the market value of the land as a whole, taking into consideration its value for building purposes if that is its most available use.’”

A sample of Mr. Allen’s testimony in this connection appears in the record as follows:

‘‘Q. Mr. Allen, what, in your opinion, was the fair market value of your property, just as it was sitting there, 13.75 acres, prior to the Highway Department ever coming into your life?
A. Well, you mean what I could have accomplished with that property?
Q. That’s correct.
A. I would say $33,410.
Q. $33,410?
A. Yes, sir, by selling it in acre tracts.
Q. I want to make sure that I understand you correctly. You are saying that the highest and best use would be to sell it in small acreage tracts?
A. Yes, sir, I would say in acre tracts.
Q. For dwellings, or for what purpose?
A. I would say for dwellings. That property would sell as small acreage tracts for homesites.
# * #
Q. Then what, in your opinion, would be damages or just compensation, or just payment to you for the lands taken by the Highway Department, and damages suffered to your remaining land? What, in your opinion, is the just compensation?
A. Well, in my opinion, the way I could have sold it in lots, I think the land was worth $33,410; well, I have the acre left that I don’t value anything, so I’ll say, so deducting that, in my opinion, I think would figure out $33,400.”

Mr. Allen then testified as to what he considered other comparable land sales in the community where small building sites sold for around $1,500 per acres, but he testified that he had not seen these properties and in fact knew nothing about them except their acreage and sale price. As an example, the one acre plot near Beebe which sold for $1,500 as testified by Mr. Allen, was from Pride to Hubbard and on cross-examination he testified as follows:

“Q. On this Pride to Hubbard sale in March of 1970, have you ever seen that property?
A. I know approximately where it is; it’s right off the highway.
Q. Have you ever seen the property?
A. Well, it’s been years ago; it’s been 25 years ago since I’ve been down that road.
JL TP Tr
Q. But you really don’t know what the condition of it was at the time it sold?
A. Well, not exactly, no. I think it was sold for home-sites, so it must have been a field or something.
# # #
Q. And what kind of road does it have going back to it from the highway?
A. Well, it used to be about a half gravel road; now, I haven’t been down in that country for years.
Q. So you really don’t know what is on each side of this acre, or anything about it, do you?
A. No, I don’t.”

Mr. Huff testified that in his opinion the before taking value of the property was $24,110 and that its highest and best use would be to sell off in lots or plots for residential purposes. It is obvious from the record that Mr. Huff based his overall $24,110 valuation on the aggregate of what he thought the property would sell for if sold in one or two acre plots.

“Q. You placed a per acre value on the entire tract?
A. That’s right, provided it could be used as I suggested, sell it off in acre to two-acre plots.
Q. Could you give us. a breakdown as to what that per acre value is, assuming it was sold?
A. About $1,200 an acre.” (Emphasis added).

The reason for the invalidity of Mr. Huff’s testimony in this connection is pointed up in the record by an objection from Mr. Allen’s attorney when Mr. Huff was asked on cross-examination about how long he would estimate that it would have taken from the date of taking to have sold the property in one and two acre plots. The record on this point appears as follows:

“MR GUNTER: Your Honor, I don’t know that the question is relevant because this could take one year, it could sell in six months. It would be too speculative for the witness to try to answer. We are concerned with the fair market value and highest and best use on July 25, 1968.
THE COURT: I think the question would go to the extent of the market. You may proceed.
BY MR. GRAVES:
Q. About how long do you think it would take, in your opinion, how long would it take from July 25, 1968, to sell thirteen lots out there?
A. That would be pure speculation if I made that. I wouldn’t say.
Q. You wouldn’t expect he could sell them all on the same day, on that one day, would you?
A. No, sir.
Q. So if you sold this in individual lots the way you are talking about, you are assuming, then it would be sold over some period of time, at least, aren’t you?
A. That’s right.
Q. Well, since we are concerned with what it would sell for on July 25, 1968, you didn’t think you ought to value this as of that date?
A. As a whole?
Q. Yes, sir.
A. As a whole it is not big enough to farm.
Q. Well, the whole thing wouldn’t be sold the way you talked about on the one day, though, would it?
THE COURT: That wouldn’t be necessary, Mr. Graves. He wouldn’t have to consider that it would all be sold on that day.
MR. GRAVES: As I understand it—
THE COURT: The question is, what is the market, his opinion of the possible market value.
MR. GRAVES: On that date.
THE COURT: Yes, sir. It doesn’t have to be sold on that date.
MR. GRAVES: But he’s basing it on selling it one lot at a time. I’m moving that this Court exclude his testimony on that basis.
THE COURT: Overruled. I don’t think it has any merit.
MR. GRAVES: Note my exception.
Pass the witness.”

In testifying as to what he considered to be comparable sales, Mr. Huff testified concerning three sales to purchasers having the right to exercise the poweir of eminent domain in the acquisition of the property purchased. The appellant’s motion to strike Mr. Huff’s testimony pertaining to these sales should have been granted but since this case must be reversed for the reasons already stated, wé only urge the reading of our decision in Yonts v. Public Service Co., 179 Ark. 695, 17 S. W. 2d 886, before the cause is tried again on remand.

The judgment is reversed and this cause remanded for a new trial.

Reversed and remanded.


text:
    William Jasper DUNCAN v. STATE of Arkansas
    5746
    484 S.W. 2d 340
    Opinion delivered September 11, 1972

      Jerry W. Faubus, for appellant.

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

William Jasper Duncan was convicted in the Pulaski County Circuit Court on the charge of possessing stolen property and was sentenced to three years in the state penitentiary.

The facts appear as follows: On the night of January 9, 1971, Gary Ketcher’s 1957 green Chevrolet automobile with a “hood bubble” on it, disappeared from a private driveway where he had parked it in the Indian Hills area of North Little Rock. Parts of the disassembled automobile, including the transmission, were recovered by the police from a garage under an apartment occupied by Issac Warren Raymond and his wife on Scott Street in Little Rock. The items were recovered from the garage after Jimmy Wayne Wyles was apprehended while transporting Ketcher’s automobile motor from Raymond’s garage. Both Duncan and Wyles were arrested and chárged with having in their possession, with the intent to deprive the true owner thereof, certain stolen goods consisting of an automobile engine, a transmission, a gear shift mechanism, tools, a tool box, a generator, a battery, a steering wheel, a car radio, a tape player and assorted tapes, the property of Gary Ketcher. Ketcher identified the various parts of his automobile at the police headquarters and the items were released to him with the exception of a tape player and some small items which were placed in evidence as exhibits at the trial. On appeal to this court Duncan relies on the following points for reversal:

“There was no proof that appellant ever had in his possession any of the items introduced at the trial.
The items allegedly in appellant’s possession were never introduced in evidence at the trial and no item allegedly stolen was ever found to be in appellant’s possession.”

As to appellant’s first point, Ketcher testified that while he was waiting to testify at the preliminary hearing in municipal court, Duncan approached him and offered to recover the remaining parts of the automobile and offered to help him reassemble the automobile if he would agree not to prosecute.

Issac Warren Raymond testified that in January, 1971, he was living in an apartment over a private garage at 1511 Scott Street in Little Rock and that he kept the garage locked with a combination lock. He testified that he was acquainted with Duncan and Wyles and that Duncan had an automobile in his garage where it was being worked on. He testified that Duncan and Wyles contacted him on Saturday night, January 9, and tried to get him to go with them to get a motor and transmission for Duncan’s automobile. He said he refused to go with them and that the following morning at 3:15 a.m. Duncan woke him up and wanted to put some automobile parts in his garage. He testified that he went downstairs and unlocked the door to the garage, at Duncan’s request, and that after he went back upstairs, he and his wife heard Duncan and Wyles putting things in the garage. He testified that Duncan returned to his apartment about 7:00 p.m. that Sunday evening and told him what he had placed in the garage.

“Q. What was the nature of those conversations?
A. Well, he told me about what he had brought in that night.
Q. What did he say he brought in?
A. He said he brought in a transmission for his car and had some wheels and a set of headers.
Q. Did he say what kind of car he got the transmission off of?
A. Yes, sir, he did.
Q. What kind?
A. It was a green, ‘57 Chevrolet.
Q. Did he say anything about the hood of the car?
A. It did have a hood bubble on it.
Q. Did he say what he did with the car?
A. He said that, well, he told me he was going to take it to a barn off on the old England highway and that he brought some other cars there before.”

On cross-examination this witness testified as follows:

“A. I was asleep, but somebody knocked on the door, and my wife heard it. She went down and she seen Jackie Duncan. She come upstairs and told me that Jackie wanted to talk to me, so I came downstairs, and Jackie said he had some stolen automobile parts that he wanted to put in the garage.
Q. Some stolen automobile parts?
A. Right.
Q. All right. What happened then?
A. Then, I opened the combination lock, and he put some stuff in there.”

Amy Raymond, the wife of Issac Raymond, testified that she heard Duncan state that they were going to steal an automobile and get the transmission. She corroborated her husband’s testimony as to the appearance of Duncan at their apartment at 3:00 a.m. on Sunday morning requesting access to the garage.

In Fuller v. State, 246 Ark. 138, 437 S. W. 2d 780, we approved a statement found in 76 C.J.S, § 6 b, as follows:

“In order to satisfy the requirement of possession of the goods by accused, actual, physical, or manual possession is not necessary, but constructive or potential possession or control will be sufficient.”

As to the second point, Ketcher identified the stolen goods as belonging to him by marks he had placed on them and he so testified at the trial. Duncan did not testify at the trial and the identity of the automobile motor, the transmission and other parts as coming from Ketcher’s stolen automobile was never seriously questioned. The appellant has cited no law, and we know of none, that requires all stolen items to be made exhibits in evidence at the trial of the accused in order to sustain his conviction for having possessed them.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    James NOWLIN et al v. STATE of Arkansas
    5747
    484 S.W. 2d 339
    Opinion delivered September 11, 1972

      Harold L. Hall, for appellants.

      Ray Thornton, Atty. Gen., by: James A. Neal, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellants James Nowlin, Bruce Nowlin and Gary Nowlin were convicted of third degree rape for having sexual intercourse with a girl under 16 years of age upon the uncorroborated testimony of the prosecuting witness. They contend that such uncorroborated testimony is insufficient to sustain a conviction. We have held to the contrary in numerous cases. See Ragsdale v. State, 132 Ark. 210, 200 S.W. 802 (1918): Rogers v. State, 237 Ark. 437, 373 S.W. 2d 705 (1963); Skaggs v. State, 234 Ark. 510, 353 S.W. 2d 3 (1961); and Powell v. State, 231 Ark. 737, 332 S.W. 2d 483 (1960).

Affirmed.


author: Frank Holt, Justice.

text:
    Paul FLESCHNER v. STATE of Arkansas
    5748
    484 S.W. 2d 342
    Opinion delivered September 11, 1972

      H. Allan Dishongh, for appellant.

      Ray Thornton, Atty. Gen., by: John D. Bridgforth, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

In 1963 a jury found appellant guilty of rape and assessed his punishment at life imprisonment in the state penitentiary. Eight years later the appellant filed a pro se petition for post conviction relief seeking to vacate that judgment pursuant to Criminal Procedure Rule 1. From the order of the trial court denying appellant’s petition comes this appeal. Appellant’s only contention for reversal is that the court erroneously failed to grant appellant’s petition for post conviction relief inasmuch as his testimony at the evidentiary hearing, wherein he was represented by present court-appointed counsel, demonstrated that he “was unable to adequately defend himself at the time of the trial because he was under the influence of narcotic drugs.” We find no merit in this contention.

The basis of this complaint was not asserted among the several allegations contained in appellant’s pro se petition for post conviction relief. Ark. Stat. Ann. (1971 Supp.), Criminal Procedure Rule 1, p. 107, (H) provides: “All grounds for relief available to a prisoner under this rule must be raised in his original or amended petition.” Nor can a ground for relief which is available to a petitioner be raised for the first time on appeal. See Orman v. Bishop, 245 Ark. 887, 435 S.W. 2d 440 (1968); Credit v. State, 247 Ark. 424, 445 S.W. 2d 718 (1969); Ballew v. State, 249 Ark. 480, 459 S.W. 2d 577 (1970), Carney v. State, 250 Ark. 205, 464 S.W. 2d 612 (1971).

Furthermore, we find no merit in appellant’s argument even if he had properly raised his unalleged contention in his pro se petition. Appellant testified that at the time of his trial he had used narcotics for 30 years and he was under the influence of narcotics at the time of his trial to such an extent he was unable to adequately assist his trial counsel in the preparation and presentation of his defense. It is undisputed that preceding his trial he was committed to the state hospital for a 30-day sanity examination and observation and found legally sane bv the hospital authorities and able to stand trial) Appellant admits that at his trial he testified in his own behalf and he knew he was being tried for the alleged crime of rape which he denied. However, he says he did not realize the seriousness of the offense. Appellant, also, admits that he did not make known to his trial attorney or the court that he was a narcotics user. Two officers testified that when appellant was arrested and interrogated he did not appear to be under the influence of narcotics. Appellant expressed satisfaction with his court appointed trial counsel.

In the circumstances, we are of the view there was sufficient evidence that the petitioner was mentally competent at the time of his trial and, therefore, the court correctly held that appellant’s constitutional rights were not violated.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Leon BACKUS v. STATE of Arkansas
    5752
    484 S.W. 2d 515
    Opinion delivered September 18, 1972

      Lohnes T. Tiner, for appellant.

      Ray Thornton, Atty. Gen., by: John D. Bridgforth, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, Leon Backus, was charged with the crime of unlawful possession of drugs with the intent to deliver, under the provisions of Act 590 of 1971 (Ark. Stat. Ann. §§ 82-2601-38 [Supp. 1971]). He was also charged with being an habitual criminal. On trial, Backus was found guilty of the current charge (possessing marijuana with intent to sell or deliver to other persons), admitted two previous felony convictions, and the court then instructed the jury as to the penalty prescribed under Ark. Stat. Ann. § 43-2328 (Supp. 1971) for a third felony offense. Thereupon the jury retired and fixed appellant’s punishment at five years imprisonment in the Arkansas Department of Correction, and a fine of $15,000. From the judgment so entered comes this appeal.

The state, though recognizing that in Bennett v. State, 252 Ark., and State v. Cosentino, 252 Ark., both handed down on March 13, 1972, we held that a violation of Article IV, § 82-2617 constituted a misdemeanor rather than a felony, argues that Backus should simply have been sentenced to serve the sentence in the county jail rather than the Department of Correction; in other words, the jury found him guilty but rendered an illegal sentence, and it is urged that it is only necessary to send the case back for re-sentencing. We cannot agree. The penalty was fixed by the jury after they had been instructed that the punishment should be in accord with that provided for a third felony offense under the Habitual Criminal Act; of course, as stated, here the current, or third offense, was only a misdemeanor. A very similar situation arose in McIlwain v. State, 226 Ark. 818, 294 S.W. 2d 350, where Mcllwain was charged with the commission of a felony and, on conviction, because of a previous felony conviction, sentenced under the provisions of the habitual criminal statute. This court, in reversing the judgment of conviction, held that the current offense was only a misdemeanor and stated:

“Nor does the habitual criminal statute have the effect of converting a misdemeanor into a felony. **** Although it encompasses prior convictions in the federal courts and in other state courts, it is clear that the statute is applicable only when both the prior and present convictions are for felonies. **** The habitual criminal statute increases the maximum penalty for a second felony conviction, but it does not purport to raise the grade of a second offense by transforming a mere misdemeanor into a felony.”

The state argues however that Backus could not have been prejudiced even though the habitual criminal statute had been invoked because the penalty given by the jury was no more than appellant could have received under Act 590. Again, we are not persuaded by this argument. It is true that Act 590 of 1971 provides imprisonment of not more than five years and a tine of not more than $15,000 (or both) for the offense for which Backus was convicted; section 43-2328 (the section for third felony offenders under the habitual criminal law) provides as follows:

“If the third offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for a determinate term not less than three (3) years more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for the offense, unless the maximum sentence is less than the minimum sentence plus three (3) years, in which case the longer term shall govern.”

Accordingly, under the instructions of the court, it was necessary that the jury fix appellant’s sentence at not less than three years and one day, or not more than five years. But can anyone say that the jury ignored the two previous felony convictions in assessing punishment for Backus? Would not this evidence be calculated to increase the sentence? In fact, the purpose in passing the Habitual Criminal Act was to increase the punishment for repeated offenders. Certainly, we cannot say that the jury would have fixed the same punishment even though they had not been apprised of the previous convictions. In Crosby v. State, 154 Ark. 20, 241 S.W. 380, we said:

“Where the effect of an erroneous instruction or ruling of the trial court might result in prejudice, the rule is that the judgment must be reversed on account of such ruling, unless it affirmatively appears that there was no prejudice. No such showing is reflected by this record.”

This has been the law in this state since, at least, 1899, and has been reiterated dozens of times.

It follows that the judgment of the trial court was erroneous.

A third point for reversal relating to comments of the trial judge in replying to questions from the foreman of the jury is not likely to occur on re-trial and thus requires no discussion.

In accordance with what has been said, the judgment is reversed and the case remanded.

It is so ordered.

Fogleman, J., not participating.

       The Extraordinary Session of the General Assembly of 1972 enacted Act 67, which amended Act 590 of 1971, and, inter alia, made such a violation a felony.

       See Magness v. State, 67 Ark. 594, 50 S.W. 554, where this court, quoting from Deery v. Cray, 5 Wall. 807, said: “It is a sound principle that no judgment should be reversed in a court of error when the error complained of works no injury to the party against whom the ruling was made. But whenever the application of this rule is sought, it must appear so clear as to be beyond doubt that the error did not and could not have prejudiced the party’s rights.”


author: George Rose Smith, Justice.

text:
    L. C. ROWE et ux v. DRUYVESTEYN CONSTRUCTION COMPANY et al
    5-6019
    484 S.W. 2d 513
    Opinion delivered September 18, 1972

      Frank W. Booth, for appellants.

      Jones, Gilbreath & Jones, for appellees.
   George Rose Smith, Justice.

Danny Rowe, aged 16, was killed on July 16, 1969, in the course of his employment, when the walls of a ditch in which he was working collapsed. The appellants, Danny’s parents, filed this claim for death benefits under the workmen’s compensation. The Commission directed the employer and its insurance carrier to pay the funeral expense allowed by the statute. Ark. Stat. Ann. § 81-1315 (a) (Supp. 1971). The Commission, however, denied the claim for death benefits, because it was stipulated that Danny’s parents were not wholly or partially dependent upon him for support. This appeal is from a circuit court judgment affirming the Commission’s decision. The appellants also filed an action at law for wrongful death, which is being disposed of today in a companion case. Rowe v. Druyvesteyn Const. Co., 253 Ark. 67, 484 S.W. 2d 512 (1972).

The Commission was right. The workmen’s compensation law provides for the payment of death benefits only to those persons who were wholly or partly dependent upon the decedent. Ark. Stat. Ann. § 81-1315 (c) and (i) (Repl. 1960). Parents not dependent upon their son are not entitled to death benefits under the statute. Sherwin-Williams Co. v. Yeager, 219 Ark. 20, 239 S.W. 2d 1019 (1951).

The appellants insist that Danny was illegally employed and that they are therefore entitled to double the maximum death benefits provided by the statute. The Commission found that Danny was not illegally employed at the time of his death. We need not review that issue of fact, for the Commission’s decision was correct even if Danny’s employment had been contrary to law. The compensation law provides that when death is sustained by a minor employed in violation of federal or state statutes pertaining to minimum ages for employment, the death benefits provided by the act shall be doubled. Section 81-1310 (e) (Supp. 1971). No death benefits are payable, however, to parents not dependant upon the decedent, as we have said. We find nothing in the statute to indicate a legislative intent to abrogate that rule with respect to a minor employed in violation of the law. We are not authorized to amend the compensation statute by inserting a provision that the legislature did not see fit to include.

Affirmed.


text:
    Hogan GREEN v. STATE of Arkansas
    5753
    484 S.W. 2d 517
    Opinion delivered September 18, 1972

      Gibbs Ferguson, for appellant.

      Ray Thornton, Atty. Gen., by: James A. Neal, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, charged with having forged and uttered a check for $45.00, was tried by the court without a jury, was found guilty only of the charge of uttering, and was sentenced to imprisonment for six years. He argues three points for reversal.

First, it is insisted that the State’s proof does not sustain the conviction. That contention is without merit. The State proved that on June 7, 1971, the accused, Hogan Green, was in the place of business of Bob’s T.V. Service in McGehee. At that time he was paid $4.00 by check, for having assisted in the moving of an air-conditioning unit. The owner of the business testified that on that occasion Green had access to the firm’s checkbook, from the back of which three blank checks were later found to have been removed. On the following day one of those missing checks, imprinted with the firm’s name, was cashed by Green at a liquor store in McGehee. The check, in the sum of $45.00, was made payable to “Henry Graves” and was signed by “Bob Lancaster” — both apparently fictitious names. Green denied having cashed the check and now argues that in any event the State failed to prove that he knew the signature to be a forgery. The trial court, however, evidently believed the testimony of the State’s witnesses, which was amply sufficient to support the conclusion that Green knew the check to be a forgery when he cashed it.

Secondly, the six-year sentence is attacked as being excessive, on the ground that the trial judge was misled as to the maximum punishment provided by the statute. After both sides had rested the court inquired, “What is the penalty on uttering?” to which the prosecuting attorney replied, “Two to twenty-one, I believe, Judge.” The answer should have been two to ten years, Ark.. Stat. Ann. § 41-1806 (Repl. 1964), though there are two closely related offenses for which the maximum punishment is twenty-one years. Sections 41-1810 and 41-182.3..

We find no error. The record does not indicate that the trial judge, in fixing the sentence, was influenced by the prosecutor’s statement. To the contrary, the trial judge, after having announced his finding of guilt, inquired about Green’s prior convictions. Green stated that he had one previous conviction, for forgery and uttering, upon which he was then serving a six-year sentence. The court then imposed the sentence now on review, and added: “If you don’t get in any further trouble or anything, that means about a year, I think, the way they count vour time now. It will be about a year, I think, additional time.” Thus it appears that the court arrived at the sentence not by reference to the possible maximum but by reference to the actual time that Green could be expected to serve. Moreover, the record shows that the appellant elected to take an immediate appeal to this court, so that the trial judge was not afforded an opportunity to consider the contention now being made.

Thirdly, Green’s court-appointed attorney states that he is associated with the deputy prosecuting attorney for Desha county, although that deputy took no part in the trial. A similar situation was considered in McDonald v State, 249 Ark. 506, 459 S.W. 2d 806 (1970). There the facts were more favorable to the accused than they are here; for in McDonald the two attorneys were brothers, and the deputy was present in the courtroom during the trial. We stated that the deputy’s brother and law partner should not have been appointed as attorney for the defendant, but our study of the record convinced us that the accused had received a fair trial. Here, too, we think the better practice would have been for the court to appoint some other lawyer as counsel for Green, but, as in the case cited, we find nothing in the record to indicate that the relationship between the two attorneys operated in any way to the prejudice of the appellant.

Affirmed.


author: Lyle Brown, Justice.

text:
    L. C. ROWE And Myra ROWE v. DRUYVESTEYN CONSTRUCTION CO.
    5-5969
    484 S.W. 2d 512
    Opinion delivered September 18, 1972

      Frank W. Booth, for appellants.

      Jones, Gilbreath & Jones, for appellee.
   Lyle Brown, Justice.

L. C. Rowe and Myra Rowe, his wife, filed this action in tort against Druyvesteyn Construction Company, to recover for the death of their minor son. The trial court granted appellee’s motion for summary judgment on the basis of a finding that the son was the statutory employee of Druyvesteyn and was therefore relegated to the exclusive remedy of our Workmen’s Compensation Act. Appellants here contend that the court erred in finding that the Workmen’s Compensation Act applied to the facts of this case and, secondly, that the court erred in finding there was no question of fact to be determined.

From the statement of facts in the briefs, and the meager abstract, it appears that the background facts are undisputed. Danny Rowe, son of appellants and sixteen years of age at the time of the accident, was employed by Druyvesteyn’s subcontractor. The latter carried no compensation insurance. Appellants filed a claim for workmen’s compensation death benefits against Druyvesteyn. That claim was denied and appealed to this court. It is being disposed of this date in Rowe v. Druyvesteyn Construction Company, 253 Ark. 63, 484 S.W. 2d 513 (1972). This action now before us was filed in tort, alleging that appellee’s negligence caused tne death of young Rowe.

Appellants’ first point to the effect that the Workmen’s Compensation Act does not apply in the factual situation, can be quickly answered. In an opinion by Hon. John E. Miller, senior district judge, the precise question was answered. Huffstettler v. Lion Oil, 110 F. Supp. 222 (W. D. Ark. 1953). There it was said:

In essence, then, the Arkansas decisions lead the court to believe that to hold that once a relationship of a statutory employer and statutory employee arises, such parties have the same rights and the same liabilities under the Act as if they were employer and employee by reason of a contract of employment. That is, when the Act provides that the ‘rights and remedies herein granted to an employee...shall be exclusive...’ such provision applies to statutory employees as well as contractual employees, and therefore plaintiff, being a statutory employee of Lion, has only the rights and remedies granted him by the Workmen’s Compensation Law of Arkansas.

It should be made clear that in Huffstettler the injured employee was working for a subcontractor of Lion Oil and the subcontractor carried no liability insurance. In that situation, of course, Judge Miller held that the claimant was a statutory employee of Lion Oil. Thus it can be seen that the fact situation was identical to the facts in the case before us.

With respect to the second point — that the court erred in finding there was no question of fact to be determined — we are wholly unable to evaluate the affidavits supporting the motion for summary judgment and any contravening affidavits. That is because they are not abstracted, which of course violates our Rule 9 (d).

Affirmed.


author: John A. Fogleman Justice.

text:
    MILLERS CASUALTY INS. CO. of Texas v. Claude HOLBERT
    5-5977
    484 S.W. 2d 528
    Opinion delivered September 18, 1972

      Teague, Bramhall, Davis ir Plegge by: Thomas M. Bramhall, for appellant.

      Wright, Lindsey if Jennings, for appellee.
   John A. Fogleman Justice.

The circuit judge granted appellee’s motion for a new trial of his claim against appellant for losses on account of vandalism and malicious mischief which he asserted came within the coverage of insurance policies issued by appellant. The jury verdict on appellee’s claim for damage to a duplex dwelling house was for appellant. On a claim for damage to an apartment, the verdict fixed the loss at only $5,800, although appellee claimed that the loss amounted to $15,000, and introduced evidence which might have sustained such a verdict. The basis for granting a new trial was the circuit judge’s opinion that there were prejudicial errors in his giving of instructions to the jury. The judge stated that he had given inherently erroneous instructions covering issues that never should have been submitted to the jury.

Appellant argues that this action constituted an abuse of the circuit judge’s discretion because there was only one portion of one instruction which might have been deemed erroneous and that the court and the attorneys all knew when it was given that it was erroneous in that the jury was told that it should find for appellant if any portion of appellee’s loss was caused by his own neglect, rather than diminish the recovery to the extent that this neglect caused loss. Appellant then argues that the error in the instruction was cured by the jury verdict, because the jury did not allow appellee the full amount of damages to the apartment building to which the instruction would have applied but actually did what it should have, i.e., diminished the recovery by allowing only $5,800.

We are unable to say that there has been any abuse of discretion in this case regardless of whether the instructions were erroneous or correct. We have held that a trial judge who explained in detail that, by refusing an instruction, he had, in his opinion, failed to present the issues, exercised his inherent power to grant a new trial in his sound discretion, and not arbitrarily. Hardin v. Pennington, 240 Ark. 1000, 403 S.W. 2d 71. Here the circuit judge explained in detail that he should not have submitted to the jury the issue of appellee’s neglect at or after the occurrence or an issue relating to the occurrence of the loss at a time when the hazard insured against had been increased over that existing when the policy was sold and delivered. He also stated that the errors he found were not cured by other instructions given. By analogy to the Hardin case there was no abuse of discretion unless the jury verdict itself can be said to clearly demonstrate that it did not result from the instructions the circuit court felt were erroneous.

Appellant contends that the verdict was the result of a compromise and not because of any alleged error in the instruction. We are unable to discern the basis of the jury verdict. At least since our decision in Fulbright v. Phipps, 176 Ark. 356, 3 S.W. 2d 49, we have recognized, however, that, even though a verdict for a plaintiff is inconsistent because it is for a lesser amount than that clearly indicated by the evidence, the judgment should be for the amount of the verdict, unless the trial judge finds it contrary to the preponderance of the evidence, in which event he should grant a new trial. There we recognized, and properly so, as we have continuously done, that many verdicts for a partial award result from compromise in the jury room. See Davis v. Ralston Purina Co., 248 Ark. 1128, 455 S.W. 2d 685; Alexander v. Mutual Benefit Health & Accident Assn., 232 Ark. 348, 336 S.W. 2d 64.

Continued recognition of the necessity for such compromises is essential, to the endurance of the jury system, and an important component of our adversary system of justice. Still, we cannot say that the trial judge abused his discretion in granting a new trial here. In Fulbright, we emphasized the duty of the trial judge to grant a new trial after the rendition of such a verdict when it is against the preponderance of the evidence. His discretion is not abused when, as here, he concludes that errors committed by the court must have misled the jury. The trial judge’s remarks clearly indicate that he felt, without regard to any statements made by jurors, that there were issues improperly submitted to the jury and that the evidence was such that a jury could have only reached a verdict by considering these issues and by resorting to speculation and conjecture.

We find it unnecessary to consider the correctness of the instructions given, to express any opinion as to the preponderance of the evidence or to speculate upon the means by which the jury reached its verdict. We simply do not find any abuse of discretion under these circumstances.

Accordingly, the judgment is affirmed.


text:
    C & B CONSTRUCTION CO. et al v. NASHVILLE SCHOOL DISTRICT NO. 1
    5-5730
    484 S.W. 2d 519
    Opinion delivered September 18, 1972

      Anderson & Slagle and Barber, Henry, Thurman, Mc-Caskill ¿r Amsler and John M. Loftin Jr. and Thurman ir Safly, for appellants.

      Don Steel and Royce S. Weisenberger Jr. and Graves & Graves, for appellees. .
   J. Fred Jones, Justice.

This is an appeal by a prime contractor, C & B Construction Co. and its insurance carrier, National Surety Corporation, as well as its subcontractor, George Garrison Co., Inc. from a judgment of the Howard County Circuit Court for $37,077 in favor of the plaintiff-appellee, Nashville School District No. 1, in a suit for damage from a breach of warranty in the construction of the roof on a new school building. The original complaint filed by the school district alleged damages in the amount of $60,000 for removing and repairing the built-up roof on the school building and in the amount of $5,000 for water damage to the interior of the building. The original complaint was later amended by alleging damages in the amount of $32,077 for replacing the roof and praying judgment for $37,077 rather than $65,000.

The facts necessary to this opinion appear as follows: On May 2, 1966, the Nashville School District No. 1 entered into an agreement with an incorporated architectural firm to design a high school building with the additional duties of assisting in procuring construction contractors, conducting inspections to determine the dates of substantial and final completion, and issuing final certificate of payment to the contractors.

On June 13, 1967, the District entered into a contract with C & B Construction Co. for the construction of the building for the contract price of $566,603. C & B then entered into a subcontract with George Garrison Co. whereby Garrison undertook to install all roofing, sheet metal, skylights and aluminum siding as per plans and specifications, and as set out in the prime contract, for the sum of $28,154. C & B, as prime contractor, installed a metal roof deck as a part of the building and apparently as called for in the amended plans and specifications. Subcontractor Garrison then installed a two-ply built-up asphalt roof on the metal decking.

The work was completed on or about April 26, 1968, and a few days later a severe hailstorm occurred in the area and some damage to school property was then noted. In September, 1968, the prime contractor was notified by telephone that there were leaks in the roof of the school building and in December, 1968, the prime contractor was notified in writing by the architect that the roof had been leaking and had been damaged by the hailstorm. Subcontractor Garrison attempted to repair the roof damage caused by the hail and in doing so found that the roof had cracked at the juncture of the covered walkways and classroom areas, and over areas where the metal decking had changed directions. Mr. Garrison was directed to sweep back the gravel and apply a flood coat of asphalt on the entire roof. This was done and paid for by the insurance company. The entire building was completed and accepted by the District upon recommendation of the architect in October, 1968. In the summer of 1969 the roof began to blister over its entire surface and it continued to leak.

The District sued the prime and subcontractors on express and implied warranties in connection with the services rendered in constrúcting the roof, and also joined material manufacturers as well as the architect as parties defendant. The District alleged that the architect was negligent in that it specified an inadequately designed roofing system which was unfit for the purpose intended and that it failed to properly supervise the construction. Each of the defendants filed answers of general denial and cross-complaints against each other.

By agreement of the parties a jury was waived and the case was tried before the trial judge as a jury. The court found that the new facility was substantially complete on July 30, 1968, and final payment on the contract price was made by the District on February 26, 1969. The court further found that the roof was a total failure; that the cost of replacement would amount to $32,077 and that damage to the interior of the facility because of leakage amounted to $5,000. The court further found that the failure of the roof was caused by the presence of moisture at the time of construction and because of defective workmanship. The court found that moisture existed between the layers of felt at the time of application and, therefore, a good bond could not be obtained between the materials; that this condition caused blistering when heat was subsequently applied; that this in turn caused ply separation and by reason thereof, the roof ultimately became a total failure.

The trial court awarded judgment in favor of the District against C & B Construction Co. and its surety for $37,077 and cost on the original complaint. After finding that subcontractor Garrison carelessly and negligently installed and constructed the roof, and that such negligence was the proximate cause of the roof failure, the trial court awarded judgment over in favor of C & B Construction Co. and National Surety Corporation on their cross-complaint against the subcontractor Garrison for $37,077. The complaint and cross-complaints were dismissed as to the other parties to the lidgation.

On its appeal to this court the appellants rely on the following points for reversal:

“The court’s findings and conclusions that the roof failure and the damages allegedly sustained by the District were solely and proximately caused by the negligence and carelessness of Garrison in the application and installation of the roof is contrary to the law and the evidence in the instant case.
The trial court erred in dismissing the complaint of the Nashville School District and the respective cross-complaints of appellants as against the architects.”

The question on this appeal is not whether we would have rendered the same judgment the trial court rendered if we had been sitting in his place as the trier of facts in this case. The only real question on this appeal is the fact question of whether there is substantial evidence to support the judgment reached by the trial court in this case, and we are of the opinion there was.

It is clear from the evidence that in constructing the roof, the prime contractor built the deck upon which the roof was to be constructed by the subcontractor Garrison. In constructing the roof, in this case, rigid pieces of insulating material were first stuck to the steel roof deck with hot asphalt mopped onto the deck. Asphalt was then mopped onto the insulation and then 37 inch wide felt was rolled onto the hot asphalt. Another coat of asphalt was applied to the surface of the first layer of felt and another layer of felt was applied. This was covered with another coat of asphalt to which gravel was then applied. The prime and subcontractors blame the architect and each other for the failure of the roof, and they offered some evidence in support of their contentions. There is substantial evidence in the record, however, in support of the trial court’s view as above set out.

Mr. Gouge, the roofing superintendent for Garrison Co., testified that the steel decking was improperly designed and installed without provisions or allowances for expansion joints. He testified that he observed splits in the roof and attributed them to the lack of expansion joints in the decking. He testified that all the leaks he observed started at places where expansion joints should have been, but that in some instances the water could get on the metal decking then run 21 feet before coming through. He testified that the blistering is a separate problem from splitting and the causes are different. He testified that the blistering was caused by moisture between the felts but that in his opinion the moisture got between the felts following the hailstorm soon after the roof was finished, and that when asphalt was applied following the hailstorm, it sealed the moisture in. He testified that in his opinion the leaks were caused by the breaks in the roof and that the breaks were not caused by the blistering. This witness testified that it was his opinion as early as August, 1968, following the hail on April 27, 1968, that it would be necessary to install a new roof on the building. He testified that in his opinion the hail caused punctures which in turn eventually caused air pockets, but that air pockets did not cause leakage, consequently, none of the leakage was caused by the hail.

Mr. Theodore W. Holowchak, a construction consultant from Birmingham, Michigan, called by the architect, testified that he examined the roof on September 23 and that in his opinion the roof was a total failure. He testified that a blister or ply separation may occur because of any one of several conditions. He said that moisture in the materials at the time of application will cause blisters. He said that the materials may absorb moisture by improper storage or by coming in contact with moisture when the roofing is applied. He said that blisters in a roof will occur when moppings are not continuous or where the felts are not groomed in. He said that blisters may also occur when the bitumen is not warm enough. This witness then testified in part as follows:

“Q. Mr. Holowchak, if you will, tell the Court what you found when you inspected that roof.
A. Well, the general walk-over of the roof indicated that there were numerous blisters in all areas of the roof which were not located in any specific area. In addition, there was a rupture that was noted in one area. There was also a ridging which coincided with the over-hang area in the classrooms. This was just a visual observation that was made at that time. Because of the occurence of the blisters or the ply separations, three roof probes were made in various locations. The first probe indicated that when the top aggregate surfacing and the top ply was removed that the blister was occurring between the top and the bottom ply, and it was caused because there was a dry spot on the bottom ply or the top ply, or the first ply on the roof. The mopping was not continuous of bitumen, and as a result of the dry spot, the ply separates. In the second location, another roof probe was made. The areas were selected at random because there were so many. The roof probe indicated that the ply separation occurred between the top ply and the bottom ply, and the moppings on the bottom ply was continuous; however, the top ply had not been firmly seated, and there was a dry spot there, and this was the cause of that blister. We felt that since the blisters that were probed were typical, we decided to take a look at a good area, or an area that appeared from the surface to be perfectly flat and firm. When this was done, we didn’t find any blisters. There wasn’t any ply separation. However, there was a dry spot, which means that there wasn’t any bitumen, or mopping was not continuous on the edge of the roof probe. And we put the probes back.
Q. Now, you inspected the entire roof?
A. Yes, sir.
Q. In your expert opinion is it a total failure?
A. Yes, sir.
# * *
Q. ... As I understand it, your expert opinion is that the leakage of this roof was caused by blisters or separation of the plys. Is that correct?
A, Yes, sir.
Q. Now, in what manner would these blisters allow leakage?
A. Punctures and things of that sort. Mechanical breaks.
Q. Ruptures in the air pockets?
A. Right.
Q. Which would cause holes, would it not?
A. Yes.”

Ray Parker, one of the architects, testified that moisture caused the separation of the bond; that when the temperature goes up to 160° the moisture changes to water vapor and pulls the plys apart causing blisters, then at higher and lower temperatures the moisture condenses to water and the blisters continue to grow. He said that moisture may occur as a result of wet insulation; that it may be trapped during application; that it may occur as a result of vapor migration from the bottom side and various other reasons. He testified that he found some minor conditions of separating and wrinkling on the roof involved. He said that the weakest area in the roof was at the joints in the insulation and he agrees that the roof is a total failure because of the numerous blisters on the surface. Parker testified that the splits he observed in the roofing did not go completely through to the deck. He said that the weakest places in the entire system were over the insulation joints and that when a split occurs it follows the joint. He testified that the cracks in the roof occurred in a direct line with the felt runs and not across.

Dietrick Neyland, another architect, testified that he helped design the building involved; that he did not consider structural expansion joints necessary when the plans were changed from concrete slab to steel in the decking. He said that four expansion joints were inadvertently left in the plans, and while they were not necessary they did no harm. He agreed with the other witnesses that the roof was a total failure because moisture had gotten between the plies of the roof.

Mr. Van Elder, a general contractor familiar with built-up asphalt roofs, testified that he examined the roof in July, 1970, and found numerous blisters, separation of felt and cracking conditions. He testified that in his opinion moisture caused the condition and that it could not be repaired without replacing the roof. He testified that he was of the opinion that the moisture was trapped in the roof at the time of its installation rather than following a hailstorm after the roof was completed.

Mr. Arthur Corbell, also a general contractor with experience in built-up asphalt roof construction, testified that he examined the roof in the latter part of July and concluded that the roof was a total failure. He testified that he thought two or three things entered into the cause of the failure, the primary one being moisture in the material prior to its application to the roof. He testified that he was of the opinion that hail could have contributed to the damage, but that it did not cause the condition he found. This witness examined the building along with Mr. Van Elder and he agreed with Van Elder that the total damage because of water leakage amounted to $5,721.

Mr. Clarence H. Jones, a roofing contractor from Hot Springs, testified that the cost of replacing the roof would be $32,077. He testified that he inspected the roof in October and that in his opinion, the entire roof would have to be replaced. He testified that he did not think hail could cause the type of damage he found in the roof. He said that hail might cause a roof to leak but that water getting into a roof wouldn’t cause air pockéts unless the hole is sealed off with water left in.

Mr. A. E. Montgomery, a roof consultant and expert from North Little Rock, testified that he examined the roof in September, 1970; that he made pictures of the roof and took cut out samples from the roof and analyzed them. He testified in part as follows:

“A. . . . Let me say this, these blisters that I am discussing here are blisters that are running almost continuous across the roof, as shown in the pictures. They are spaced approximately 17 to 19 inches apart. This has to be a factor in the sample cutting.
Q. First, before you go to your cutting, what does the fact that you have blisters every 17 to 19 inches denote to you as a roof expert?
A. It denotes that the problem is occurring, for some reason or another, at the lap, because the felts are lapped 19 inches over the preceding felt—
Q. All right, sir.
A. It would indicate that the moisture was coming at the insulation joint, or at the joint of the second ply.”

This witness testified that his first sample taken from the roof was 12 inches wide and 16 inches long cut from across a blister. He testified that the blister extended the entire width of a classroom, and that similar blisters occurred every 17 to 19 inches consistently throughout the entire roof. He said that the first sample showed that the insulation was dry and that the coated felts were firmly bonded to the insulation. He said that no insulation joint occurred at the point from which this particular sample was cut. He said that in the second sample there was a considerable amount of free water found in the blistered area and that “the blister occurred at the joint where the coated felt edge joined the insulation, but the separation was between the coated felts. Both layers of the coated felts were firmly bonded to the insulation.” He said that this sample showed a sufficient amount of asphalt and actual bonding with the exception of this separation. He testified that the next cut or sample was taken at the joint of the classroom and corridor wall, but not directly over an area that had leaked. He said this sample showed approximately one-fourth inch joint opening between the thick and thin insulations on the roof and corridor deck. He said the insulation was dry and that the separation between the coated felts was approximately seven inches wide. He said the sample had a crack in the blistered, area and that “the crack in the top sheet did not show in the bottom sheet.” This witness testified that one of the samples showed that the two layers of felt had bonded together but were pulled apart in the blister caused by moisture. He said the moisture, in his opinion, was in the felt at the time it was placed on the roof. This witness pointed out that the felt used in this roof was a “coated” felt rather than a soft treated felt and he testified in part as follows:

“A. In my opinion, the moisture was trapped into the coated felt, between the coatings into the felt area, and it was applied that way. And then, of course, as the sun hit it and the heat came up, it caused the blisters. In other words, it began to escape out the lower edge of the felt.
Q. How could this moisture have been trapped into these felts?
A. Actually there’s only two ways that it could basically have been trapped in the felts. One of them was in the manufacturing process itself, and the other one would have been improper storage on the job, or improper storage not necessarily on the job, it could have been anywhere.”

This witness testified that in a two-ply roof almost perfect conditions are necessary to satisfactory installation. He testified that the blisters appearing consistently along the edge of the felt indicated to him that the moisture had been absorbed in one end of the rolls of felt. He explained this as a “wick” type of procedure.

“Q. How would it pick up moisture?
A. Wicking in between the coatings. See, you have a saturated felt, and then your coatings on each side, and this gives you a wicking effect it it’s exposed to moisture sitting on the ground or elsewhere.”

This witness then testified as to splits in the roof as follows:

“Q. And there were some splits in this roof, were there not?
A. Yes.
Q. And they were probably caused by the movement, were they not?
A. Well, again, and I will have to qualify this opinion, the fact that the joint that I did cut, the bottom ply of felt was not cracked, but only the top part of the blister was cracked, which would indicate the cracking was coming from the top rather than from the bottom.
Q. And that could very well be, couldn’t it?
A. Yes.
Q. I mean, if you had something weaker at the top, for example.
A. Correct. When it blistered it was weaker.”

We conclude that the trial court’s findings and judgment are supported by substantial evidence in the record and the judgment of the trial court must be affirmed.

Judgment affirmed.


text:
    James Arthur HOWERTON v. STATE of Arkansas
    5750
    484 S.W. 2d 514
    Opinion delivered September 18, 1972

      Thomas B. Tinnon, John T. Lavey, Bart G. Mullís, Eudox Patterson and Oscar Fendler, for appellant.

      Ray Thornton, Atty. Gen., by: James A. Neal, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

This appeal comes from the trial court’s denial of appellant’s Petition for a Writ of Error Coram Nobis by which appellant seeks to set aside a one-year penitentiary sentence imposed by a jury in 1969 based upon a charge of grand larceny. He never appealed his sentence. After serving six months, appellant was released upon parole. For reversal of the trial court’s order, he now contends that the court erred when it admitted appellant’s entire confession in evidence over his objection.

This same contention was presented by appellant in the recently related case of Howerton v. State, 252 Ark. 803, 481 S.W. 2d 698. In considering the admissibility of this identical confession, there we said that if the confession was in fact inadmissible then the remedy was by appeal and not by a belated collateral attack upon the judgment. Furthermore, we observed that due to passage of time the question of admissibility of his confession is actually moot, inasmuch as there is presently no possibility that appellant could ever be required to serve the six months balance of his sentence. In the case at bar, it follows that we find no merit in appellant’s renewed assertion.

The appellant next asserts that the trial court’s actions and attitudes during the trial impeded the defense by appellant’s court appointed counsel. The remedy, as in Howerton v. State, supra, to correct this alleged error was by direct appeal rather than this belated collateral attack to expunge the approximately three year old sentence.

Affirmed.

Fogleman, J., not participating.


text:
    Troy ACUFF v. STATE of Arkansas
    5755
    484 S.W. 2d 698
    Opinion delivered September 25, 1972

      Jeff Duty, for appellant.

      Ray Thornton, Atty. Gen., by: Robert H. Crank, Asst. Atty. Gen. for appellee.
   Carleton Harris, Chief Justice.

Troy Acuff was charged with assault with intent to kill Kenny Bowen. On trial, Acuff was found guilty and his punishment fixed at eighteen months imprisonment in the Arkansas Department of Correction. From the judgment entered in accord with the verdict, appellant brings this appeal. For reversal, it is simply contended that the court should have directed a verdict of not guilty, and the question therefore is whether there was substantial evidence to support the conviction.

Mrs. Roy Deatherage, a resident of Pleasure Heights in Benton County, testified that appellant lived on top of a little hill about 200 feet from the Deatherage home which was located near the foot of the hill. She said that on the evening of September 6, 1971, Acuff drove up to her house and asked for her husband, but the latter had already retired. They talked for a few minutes and the witness stated that Acuff had been drinking and she could smell the odor of alcohol on his breath. While talking, her son, Danny Deatherage and two brothers-in-law, Kenny and David Bowen, ages 15 and 17 respectively, came up and they talked awhile. During the conversation, the boys mentioned that they were going to sleep in the Deatherage car which was parked some distance from the house. Acuff had some chickens in his pickup truck and asked if they would help unload them, and David went with appellant to his home, helped unload the chickens, came back and went to the car. Mrs. Deatherage retired for the night and subsequently heard shooting coming from the hill near the Acuff chicken pen. “Well, I just heard some shotgun shots up on the hill, and I wondered, you know, what he was shooting at, Mr. Acuff was shooting at.” She said she thought something was after his chickens and she went outside and commented to the boys that she wondered what Troy was shooting at. She then went back into the house, awakened her husband, and suggested that he “go see what was wrong with Mr. Acuff”. About that time, she heard one of the boys scream, ran to the door, jerked it open and observed the boys running to the house. She said there were two shotgun blasts while they were running. One shot hit David in the corner of the left eye and one in the forehead.

David testified that after he returned from helping unload appellant’s chickens, he got in the back seat of the car, Kenny being in the front seat, heard some shots, and stepped out of the car. The witness stated that he heard three of four shots and then he was struck, and he thought that he heard two shots while he was running to the house. Before being hit, David stated that he saw Acuff standing on top of the hill, firing the gun.

Kenny, who never did get out of the car until his brother was shot, corroborated the testimony of David, except that he could not see who was doing the shooting.

Clay Bowen, a part time worker for the sheriff, and a brother of the two Bowen boys, together with Deputy Sheriff Larry Anglin and two other officers, investigated the shooting and made the arrest of appellant. Deputy Sheriff Anglin testified that the shotgun was located in the bedroom; three empty shotgun shells, which had contained No. 4 shot, were found near the top of the hill. Another shell was found in front of the Acuff home. Anglin stated that Acuff had been drinking. William Fox, a neighbor, testified that some weeks after the shooting he talked with Acuff:

“I was in my yard and Mr. Acuff was in Arthur Lee’s yard and there was another gentleman with him, and he motioned for me to come over. And I went over there and he just said, ‘Hi,’ and I said, ‘Well, what the hell happened up here?’ And he said, ‘Oh, it was an accident.’ He says, ‘The gun jammed.’ He said, ‘I must have turned to clear it and it went off.’ ”

Ronnie Todd, also a resident of Pleasure Heights, testified that he talked with Acuff subsequent to the shooting:

“Well, he said he didn’t know what they was doing if they wasn’t stealing gas out of his pick up and that’s all he said.”

Acuff testified that on the day in question he had gone to Fayetteville, and on his return stopped at the Deatherage house to get one of the boys to help him unload some chickens; he said that he had drunk about three beers. One of the Bowen boys said that he would help him unload. “Well, I didn’t pay no attention. I never did know the name. It was the biggest boy, the biggest one of the two.” He said that after they unloaded the chickens, he thanked the boy for helping him. He decided he wanted to try his gun because he was going to trade it for a deer gun, and he fired at some cans and an old refrigerator. Acuff said that he fired three shots and then stated:

“I started to reload the gun and it jammed and I turned around to the right a little bit to where the light would shine on my gun and I pulled it back and slammed it up real hard and it went off.”

Appellant emphatically denied any intent to kill, or to injure, anyone, and said that he had never had any trouble with Deatherage or the boys. The law relating to the offense of assault with intent to kill has been stated many times by this court. In Lewis v. State, 209 Ark. 51, 189 S.W. 2d 641, this court said:

“One of our most recent cases is that of Craig v. State, 205 Ark. 1100, 172 S.W. 2d 256, wherein we said: ‘In order to sustain the charge of assault with intent to kill proof of two distinct elements are necessary: (1) a specific intent to take life, and (2) facts which would have been sufficient to have sustained a conviction of murder if death had resulted from the assault, [citing cases] ... Although the State is required to prove that the defendant actually intended to kill, it need not depend upon declarations made by the defendant to establish such fact. While the intent to kill cannot be implied as a matter of law, it may be inferred from facts and circumstances of the assault, such as the use of a deadly weapon in a manner indicating an intention to kill, or an act of violence which ordinarily would be calculated to produce death, or great bodily harm. In determining whether or not the intent to kill should be inferred, the trier of the facts may properly consider the character of the weapon employed and the way it was used, the manner of the assault and the violence attendant thereon; the nature, extent and location on the body of the wound inflicted, if any; the state of feeling existing between the parties at and anterior to the difficulty; statements of the defendant, if any; and all other facts and circumstances tending to reveal defendant’s state of mind, [citing cases]”

We think the evidence falls short of sustaining the charge of assault with intent to kill. It might be stated at the outset that no reason appears in the record as to why the charge listed Kenny Bowen as the intended victim. This 15 year old boy had no arguments, or difficulties, with appellant whatsoever, and did not even live at the Deatherage home. According to Acuff, he did not know the names of the two Bowen boys, and identified the one who helped him with the chickens as the “biggest one of the two”. Kenny, as stated, did not go to the Acuff premises to unload the chickens, but rather went to the car on the Deatherage premises to spend the night. In other words, it is puzzling why appellant was charged with intent to kill Kenny rather than David, the boy who was shot. Even so, the question of motive is quite elusive. In fact, in only two places in the record do we find any possible reason for an intentional shooting. Mrs. Deatherage testified that her husband had taken Acuff to visit with his (Acuff’s) daughter and her husband. Apparently, from her testimony, Acuff was angry because his youngest daughter, age 13, was going to stay with the older daughter and her husband rather than with him. It would appear that when Acuff reached the daughter’s home, he was quite angry, and Deatherage went to Acuff’s daughter and son-in-law the next day and apologized for taking appellant to their home. Mrs. Detherage said that appellant was displeased because Deatherage apologized to these people for taking him to their house. However, Acuff’s reaction does not seem to have been more than displeasure. Mrs. Deatherage said that he made no threats and, in fact, asked her if she would talk with his youngest daughter and try to get her to come back home. Mrs. Deatherage agreed to do so. The only remaining testimony that reveals a possible motive was that of Ronnie Todd. From the record:

“Q. Did you ever discuss what happened on this date, on September the 6th?
A. No.
Q. What did he say?
A. Well, he said he didn’t know what they was doing if they wasn’t stealing gas out of his pick up and that’s all he said.
Q. Where did this converation take place?
A. His daughter’s house.
Q. Do you recall the date?
A. No, I don’t.”

This ended the examination of Todd, and the prosecuting attorney never, at any time, pursued the matter further. It is difficult to give this statement much weight for the evidence does not reflect that the boys were near the pickup truck after Acuff drove it to his home and unloaded the chickens with the help of David. Of course, another state witness, William Fox, testified that Acuff said the shooting was an accident; that his gun jammed. There is no other evidence that would indicate any malice or animosity on the part of Acuff toward any member of the Deatherage family. Mrs. Deatherage testified that they had been good friends with Acuff; that he had a garden and let the Deatherages use the garden; that he permitted the Deatherages to hook up to his meter on the electric line; that he permitted them to store furniture in his home (some of it still being there); that he furnished his pickup truck to help haul lumber for her husband; that he moved the Deatherages’ household furniture from Springdale when they moved to Pleasure Heights; that he never made any charge for any of these services. Mr. Deatherage corroborated his wife’s testimony as to the friendship between the parties. David likewise testified that there had never been any trouble with Acuff and that he had been a “good neighbor”.

Can the intent to kill or commit great bodily harm be inferred from the facts related? We think not. There was no disagreement, or altercation between the parties, no arguments and no threats, which generally precede an offense of this nature. Mainly however, the weakness of the state’s case lies in the fact that the parties had been friends for quite some time, and, according to the testimony of Mrs. Deatherage, Acuff could not have been a better neighbor. Let it be remembered that one cannot be guilty of the offense of assault with intent to kill unless he would have been guilty of murder in the event of the victim’s death. In Craig v. State, 205 Ark. 1100, 172 S.W. 2d 256, we pointed out that both the intent to kill and facts sufficient to establish murder if death should result are essential to sustain a conviction. Such evidence is not in this record.

Summarizing, the evidence, without being more fully developed, cannot sustain the charge of assault with intent to kill; however, this is not to say that it would not sustain a lesser offense. The judgment of the Benton County Circuit Court is accordingly reversed, and the cause remanded.

It is so ordered.

Byrd, J., would reverse and dismiss.

       Mrs. Deatherage estimated the distance to be 200 feet "out” from the house; Mr. Deatherage said 100 feet; David Bowen said it was “right in front of the house.”

       A mercury vapor light was located west of the Acuff house, and the evidence reflects also that the porch light was burning at the time of the shooting. When asked what Acuff was shooting at, David replied, “He was shooting at nothing". When asked which way he was shooting, David reiterated several times, “Out the hill”. Finally, he was asked if Acuff was shooting toward his (David’s) left and the witness answered, “Uh, huh”.