author: Richard L. Mays, Justice. John A. Fogleman, Chief Justice,

text:
    Faye FULLER, Administratrix of the Estate of Maggie LONG, Deceased v. C. W. STARNES, M.D.
    79-334
    597 S.W. 2d 88
    Supreme Court of Arkansas
    Opinion delivered April 21, 1980

      Parker, Henry & Walden, by: Troy Henry, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   Richard L. Mays, Justice.

This appeal is from a judgment entered by the trial judge in a medical malpractice action after directing a verdict in favor of the defendant, Dr. C. W. Starnes,- at the conclusion of plaintiffs case in chief. Although plaintiff alleged that Dr. Starnes was negligent in prescribing Demerol to relieve pain of her late mother without disclosing adequate information about the perils of its use, plaintiff did not produce expert medical evidence to establish a disclosure standard for the jury to assess the reasonableness of Dr. Starnes’ conduct. The trial judge concluded that this evidentiary omission was fatal to plaintiff’s case. On appeal plaintiff argues that, even without expert testimony concerning any professional disclosure standard, sufficient evidence regarding medical facts which' Dr. Starnes did not disclose was presented for the jury to assess the reasonableness of his conduct, especially if the court adopts a standard measured by the patient’s informational needs.

The facts are essentially undisputed. Plaintiff, Fay Fuller, took her 86 year old mother, Maggie Long, to the emergency room at St. Bernard’s Regional Medical Center in Jonesboro, Arkansas, at approximately 2:10 a.m. on September 25, 1976, after her mother complained of sharp pains in her left side and her temperature reached 102 degrees. Mrs. Long was seen by Dr. C. W. Starnes, a full time physician at the hospital, who, after concluding that she had pleurisy, indicated that he would give her Penicillin and something for her pain. Although Dr. Starnes asked if Mrs. Long was allergic to any medication, he did not tell her or her daughter what he was going to give her for pain. After Procaine Penicillin was administered to Mrs. Long for her pleuritic condition, she was given 25 mg. of Demerol with 25 mg. of Phenegran in the hip for the relief of pain. Dr. Starnes had at first prescribed 50 mg. of both Demerol and Phenegran but reduced the dosage before the injection occurred.

Demerol is a narcotic analgesic given to relieve pain and Phenegran is given with Demerol to decrease any incidence .of nausea which is sometimes associated with Demerol. When Demerol is given along with Phenegran the activity of Demerol may be increased by approximately 50%, so that an injection of 25 mg. of Demerol and Phenegran would equal, in effect, 37.5 mg. of Demerol. The usual adult dosage of Demerol ranges from 50 to 150 mg.

Although Dr. Starnes advised Mrs. Long to wait in the emergency room to see if she might have a reaction to the medication, he did not inform Mrs. Long or Mrs. Fuller of risks known to be associated with the use of Demerol, such as nausea, vomiting, respiratory depression and decreased blood pressure.

Approximately 20 minutes after the injections, Mrs. Long began having difficulty breathing and eventually stopped breathing. Emergency procedures revived Mrs. Long, but she remained in St. Bernard’s coronary care unit for 17 days after which she was discharged with permanent brain damage. Some two years later she died, apparently from natural causes, on October 18, 1978.

Although the existence of a physician’s duty to warn a patient of hazards of future medical treatment is generally recognized, a wide divergence of views has developed concerning the appropriate standard for measuring the scope of the duty. The minority view is that the duty of a physician to disclose is measured by the patient’s need for information material to the patient’s right to decide whether to accept or reject the proposed medical treatment. See, e.g. Canterbury v. Spence, 464 F. 2d 772 (D.C. App. 1972) cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1973); Cobbs v. Grant, 104 Cal. Rptr. 505, 502 P. 2d 1 (1972); Wilkinson v. Vesey, 110 R.I. 606, 295 A. 2d 676 (1972). Emphasizing the right of the patient to control what happens to his body, the minority view is undergirded by the proposition that what a patient should be told about future medical treatment is primarily a human judgment. The majority view is that the duty of a physician to disclose is measured by the customary disclosure practices of physicians in the community or in a similar community. See, e.g. Govin v. Hunter, 374 P. 2d 421 (Wyo. 1962), Green v. Hussey, 127 Ill. App. 2d 174, 262 N.E. 2d 156 (1970). This view emphasizes the interest of the medical profession to be relatively free from vexatious and costly litigation and holds that what a patient should be told about future medical treatment is primarily a medical decision. Relying on the minority view, plaintiff argues that since Dr. Starnes admittedly did not disclose to Mrs. Long certain known risks associated with the use of Demerol, a jury, applying a reasonable patient standard, could properly conclude that Dr. Starnes breached his duty to disclose' material information to the patient, irrespective of any medical testimony concerning professional medical standards. Even if we were to adopt this view, we would still find great difficulty reversing the trial judge on the basis of the proof in this case. Although the plaintiff established certain known risks associated with the use of Demerol, plaintiff presented no medical evidence concerning their incidence of occurrence or the existence and feasibility of alternative treatment. Such evidence is crucial to the jury’s determination of the materiality of the defendant’s failure to disclose. Napier v. Northrum, 264 Ark. 406, 572 S.W. 2d 153 (1978). Therefore, even under the minority view, medical evidence may be necessary for a jury to appreciate the significance of what was not disclosed and to understand the nature of its irresponsibility.

Although the plaintiff would probably riot prevail if the minority view were adopted, we feel obliged to adopt the majority view and, therefore, hold that the physician’s duty to disclose risks is measured by the customary practice of physicians in the community in which he practices or in a similar community.

We are persuaded by a recent legislative expression which adopts the majority view, effective April 12, 1979: Act 709 of 1979. We perceive no valid purpose in adopting a policy inconsistent with that recently expressed by the legislature to control the facts in this case even though they developed before the legislature formally adopted a physician’s disclosure standard measured by the customary practices of the community physicians. As the trial judge properly recognized, this disclosure standard always requires expert medical testimony for the jury to determine whether a physician’s failure to disclose constitutes a breach of his duty to disclose.

Affirmed.

Fogleman, C.J., concurs.

John A. Fogleman, Chief Justice,

concurring. I respectfully concur in the affirmance in this case, but for an entirely different reason from that given by the majority.

I think the trial court properly excluded the proffered testimony of the two daughters of Maggie Long in response to the following question:

Knowing your mother as well as a daughter could know her, do you think your mother in her right mind would have consented had she known the risks involved with Demerol?

A proffer was made to the effect that each would have answered that, in her opinion, her mother would not have consented, if informed of the risk of Demerol concerning respiratory depression. I do not think that it was ever intended that Rule 701, Ark. Stat. Ann. § 28-1001 (Repl, 1979) be so comprehensive as to encompass any such speculative answer as this. It is not at all reasonable to me to classify this opinion or inference as one rationally based upon the perception of the witness. Appellants have cited no authority to support their contention that it is admissible and I find none.

Since this evidence is not admissible, I find no evidence that Mrs. Long, who was suffering considerable pain, would not have submitted to the injection of the medication had Dr. Starnes discussed the possible risks and alternatives. In the absence of such evidence, the necessary proof of proximate cause was absent. Aetna Casualty & Surety Co. v. Pilcher, 244 Ark. 11, 424 S.W. 2d 181. See also, Shetter v. Rochelle, 2 Ariz. App. 358, 409 P. 2d 74 (1965), modified on another point, 2 Ariz. App. 607, 411 P. 2d 45 (1966); Wilkinson v. Veasey, 110 R.I. 606, 295 A. 2d 676, 69 ALR 3d 1202 (1972); Beauvais v. Notre Dame Hospital, 387 A. 2d 689 (R.I. 1978); Poulin v. Zartman, 542 P. 2d 251 (Alaska, 1975) affirmed on rehearing, 548 P. 2d 1299 (1976).

Since there was this deficiency in the evidence, the granting of a directed verdict was proper. Under this view, it would be unnecessary to decide the question of the necessity of medical testimony as ■ to standards with regard to a physician’s informing his patient of risks, and I feel that the decision of that question should be foregone at this time. There are very valid and persuasive arguments on both sides of the question, and the majority that has produced the majority rule is steadily diminishing.

Since the majority of this court has addressed the question, I suggest that there is another reason for not deciding that question in this case. Expert testimony from medical witnesses is not essential in a medical malpractice case when the asserted negligence lies within the comprehension of a jury of laymen. Pry v. Jones, 253 Ark. 534, 487 S.W. 2d 606. This, in my opinion, is such a case.

Viewed in the light most favorable to appellants, the evidence showed:

Maggie Long was a very small, elderly, delicate lady who appeared to be in her eighties (she was 86). She was so small that both medications given her could not have been injected in one hip. She was very quiet. She arrived in a wheelchair. She did holler with pain, off and on. A licensed practical nurse who administered the dosage of Demerol prescribed by the doctor thought about the effect the medicine would have on her. Warnings about the use of Demerol on patients with respiratory problems are placed in the package with the medication. Mrs. Long was warned about possible adverse reaction to penicillin but was not warned or told anything at all about Demerol, even though she was mentally alert. Mrs. Long asked Dr. Starnes what he was going to give her. The physician only told the patient he was going to give her something for her pain, but did not say what type of medication it would be. Mrs. Long was reasonable at all times before the Demerol was injected.
Mrs. Fuller, the daughter of Mrs. Long, had become concerned about her mother around midnight, because of a rising temperature and a dry, hacking cough which produced pain. She had called the hospital. When she had stated that Mrs. Long had had emphysema and had had pneumonia several times, she was told to bring her mother to the emergency room. Upon arrival at the hospital emergency room at 2:15 a.m., Mrs. Long stated that she had a pain in her left side and a temperature. This information and her respiration and blood pressure readings were noted in the emergency room. Dr. Starnes and Dr. Clopton were noted as admitting physicians of record. The physical history recorded on the hospital records showed: “Initial impression: Acute respiratory infection.” Dr. Starnes noted that Mrs. Long had sharp pains in her left anterior chest, tenderness to pressure, and that it hurt for her to take a deep breath. The doctor first recorded the dosage as 50 milligrams of the Demerol and 50 milligrams of Phenegran, but marked out the entry of these dosages and changed them to read 25 milligrams of each.
The package insert which came with the Demerol (meperidine) reads, in part:
Asthma and other respiratory conditions. Meperidine should be used with extreme caution in patients having an acute asthmatic attack, patients with chronic obstructive pulmonary disease or cor pulmonale, patients having a substantially decreased respiratory reserve, and patients with preexisting respiratory depression, hypoxia, or hypercapnia. In such patients, even usual therapeutic doses of narcotics may decrease respiratory drive while simultaneously increasing airway resistance to the point of apnea.
Dr. Starnes admitted that Demerol is to be used with extreme caution with patients having a substantially decreased respiratory reserve or preexisting respiratory depression. Some of the risks include nausea, vomiting, dizziness, respiratory depression and decreased blood pressure. Dr. Starnes was familiar with other medications that did not have as great an effect on the respiratory system. The medical history taken when Mrs. Long arrived at the hospital disclosed that she had acute respiratory infection. Dr. Starnes determined that she was ill with pleurisy, which he described as an inflammation or infection of the pleura, the membraneous sacs which surround the lungs. He said that if a person could not withstand the pain resulting from pleurisy, they could not breathe as deeply as at other times. The visual pleura are part of the respiratory system. It was Dr. Starnes’ impression that the Demerol caused respiratory depression.
The Physician’s Desk Reference, relied upon by physicians as the primary authority on drugs, discloses the following about meperidine, the chemical name for Demerol:
Meperidine should be given with caution and the initial dose should be reduced in certain patients such as the elderly or debilitated, and those with severe impairment of hepatic or renal function, hypothroidism, Addison’s disease and prostatic hypertrophy or urethral stricture.
The major hazards of meperidine, as with other narcotic analgesics, are respiratory depression and, to a lesser degree, circulatory depression; respiratory arrest, shock, and cardiac arrest have occurred.

Appellants had alleged that Dr. Starnes had been negligent in failing to obtain an informed consent for the use of Demerol, in failing to warn Mrs. Long of the risks known to be associated with Demerol and in failing to heed contraindications in the patient’s condition.

I do not think that a juror with average intelligence would need expert evidence to decide whether there was negligence if the evidence, viewed in the light most favorable to the patient, shows that a doctor, knowing that a weak, debilitated, elderly lady, who had previously had emphysema and pneumonia, was presently suffering from a respiratory infection, or pleurisy, to the extent that she experienced pain from breathing, answered her inquiry by saying that he was going to give her something for pain, and then administered a medication that he knew involved risks to such a person, without advising her of the risk involved.


source: Caselaw Access Project

author: John A. Fogleman, Chief Justice. John F. Stroud, Justice, John I. Purtle, Justice.,

license: Public Domain

text:
    Ronald Dean MATTHEWS et al v. STATE of Arkansas
    CR 79-162
    598 S.W. 2d 58
    Supreme Court of Arkansas
    Opinion delivered April 28, 1980
    Rehearing denied June 2, 1980

      Robert Morehead and Bill Bristow, for appellants.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

On October 27, 1977, the Prosecuting Attorney for the Eleventh Judicial District filed the informations which instituted the actions in which the judgments, from which this appeal was taken, were entered. All the appellants, Ronáld Dean Matthews, Johnnie Lewis Thomas, Ronnie Houston Pucilowski and James Andrew Wise were charged with first degree escape, theft of property, kidnapping and being habitual offenders. Matthews and Thomas were charged with first degree battery. The charges arose from incidents which occurred on October 19, 1977, when the appellants attempted to escape from the Cummins Unit of the Arkansas Department of Correction. They were brought to trial on March 26, 1979. All were found guilty of first degree escape, theft of property, kidnapping and of being habitual offenders. They list two points for reversal, viz:

I
THE CONVICTION IN THESE CASES SHOULD BE REVERSED AND DISMISSED BECAUSE OF APPELLANTS’ BEING DENIED THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO A SPEEDY TRIAL.
II
THE TRIAL COURT ERRED IN NOT TAKING MEASURES TO SAFEGUARD APPELLANTS’ RIGHTS TO FAIR TRIALS FROM BEING INFRINGED UPON BY PRE-TRIAL PUBLICITY REGARDING PLEAS OF GUILTY FORMALLY ENTERED BY TWO OF APPELLANTS.
I

Appellants contend that their rights to a speedy trial were violated by reason of the lapse of a period of one year, five months and one week between the date of the alleged offenses and the date of trial, and one year and five months between the filing of charges and the date of trial. The following additional chronology of events will be helpful to consideration of this case:

October 3, 1977.
October term of Jefferson Circuit Court commenced.
December 6, 1977.
Pamela Baxter of the firm of Morehead and Associates was appointed to represent all of the appellants.
December 30, 1977.
Appellants waived formal arraignment and entered pleas of not guilty.
March 6, 1978.
March term of Circuit Court of Jefferson County commenced.
July 14, 1978.
All charges were set for trial.
July 17, 1978.
Pamela Baxter moved that the cases be continued because she had a previous setting in the civil division of the Circuit Court of Jefferson County, which had been made in March, 1978.
July 19, 1978.
Continuance was granted because of the conflict in defense counsel’s schedule.
October 2, 1978.
October 1978 term of Jefferson Circuit Court commenced.
January 16, 1979.
Cases were set for trial on February 8, 1979.
January 25, 1979.
Cases of Pucilowski and Wise were set for March 26, 1979.
January 30, 1979.
Cases of Matthews and Thomas were set for March 26, 1979.
March 5, 1979.
March 1979 term of Jefferson Circuit Court commenced.
March 29, 1979.
Oral motion for dismissal made. Matthews also made a written motion for dismissal. Both were based upon the assertion that appellants had been denied a speedy trial and both were denied.

The oral motion for dismissal was based upon the contention that trial of appellants was prohibited because more than two terms of court had intervened between the filing of the charges and the date of trial. It was alleged that, because the motion for continuance was made without their approval and without their being consulted, that they were not chargeable with the delay occasioned thereby and, as a result, not only two, but three, terms of court had passed before they were brought to trial. No other ground for dismissal or basis for bar of trial on account of denial of a speedy trial was invoked or mentioned. The only basis for loss of jurisdiction by the Circuit Court alleged by Matthews was the failure to “bring him to Court” by the end of the second term of the court having jurisdiction. He did allege that having a detainer lodged against him for 17 months caused him to remain under armed supervision and constituted cruel and unusual punishment in violation of constitutional rights guaranteed him by the Constitution of the United States.

Appellants rely upon Ark. Stat. Ann. § 43-1708 (Repl. 1977) and Rule 28.1. At the outset, we point out that their reliance upon Ark. Stat. Ann. § 43-1708 is misplaced. It was superseded by Article VIII of the Arkansas Rules of Criminal Procedure. Ark. Stat. Ann. Vol. 4A (Repl. 1977). These rules were adopted by this court by Per Curiam Order entered December 22, 1975, to be effective on January 1, 1976, pursuant to Act 470 of 1971, and in harmony with this court’s constitutional superintending control over all trial courts. Act 470 specifically authorized this court to prescribe rules of practice and procedure with respect to any or all proceedings in criminal cases. Ark. Stat. Ann. § 22-242 (Supp. 1979). Section 4 of the act provided that all laws in conflict with such rules shall be of no further effect after such rules have taken effect.

Consequently, we must, in order to determine whether the rights of appellants to a speedy trial under Arkansas law have been violated, resort to the rules invoked by appellants. They rely upon Rule 28.1(a), which is a part of Article VIII. That rule provides that one charged for any offense and committed to a jail or prison in this state shall be brought to trial before the end of the second term of the court having jurisdiction of the offense, but not to exceed nine months, from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Appellants were not entitled to discharge under Rule 28.1(a), as they might have been under Ark. Stat. Ann. § 43-1708, as construed in Fulton v. State, 178 Ark. 841, 12 S.W. 2d 777. (But see, Leggett v. State, 231 Ark. 7, 328 S.W. 2d 250.) The consequences of a failure to be brought to trial within the time allowed under Rule 28.1 (a) are set out in Rule 30. An incarcerated defendant not brought to trial before the running of that time is not entitled to absolute discharge, as he might have been under Ark. Stat. Ann. § 43-1708. He is entitled to be recognized and released on order to appear, and the time for his trial is then computed pursuant to Rules 28.1 (b) and 28.2. Obviously, appellants could not have been released from custody under the commitments under which they were held at the Cummins Unit of the Department of Correction. Thus, they had a right to be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding such periods of necessary delay as are authorized in Rule 28.3. See Rule 28.1 (b); Wade v. State, 264 Ark. 320, 571 S.W. 2d 231.

The term in which appellants were charged does not count. The expiration of full terms is required. Wade v. State, supra. Therefore, only the March 1978 and the October 1978 full terms had passed when appellants were brought to trial on March 29, 1979, a day of the March 1979 term of the Circuit Court of Jefferson County, which was within the third full term after the charges were filed.

Appellants are also in error when they say they are not chargeable with the excluded period attributable to the continuance granted in this case. They allege that this motion was made without their approval or being consulted. We do not know what the facts are with reference to their knowledge of the motion or the predicament in which their appointed counsel found herself. She filed her motion three days after the case had been set. The previous setting of a case in which she was trial counsel should, and did, take precedence. It was proper for the trial judge to grant a continuance on this ground. The period of delay resulting from a continuance granted at the request of the defendant or his counsel is an excluded period in applying the speedy trial rules. Rule 28.3, Arkansas Rules of Criminal Procedure. This rule is a clear recognition that there will be occasions, such as this one, on which a defendant’s attorney will be compelled to seek a continuance, because of his own situation. If such a provision were not made, a defendant represented by an attorney who was required to honor a prior setting (perhaps of another criminal case) or who was temporarily ill, would, in order that he be given a speedy trial, be put to trial without counsel, or without adequately prepared substitute counsel. Even though such a defendant, if convicted, would probably be entitled to a new trial on account of ineffective assistance of counsel, he would probably be worse off than he would have been by suffering a delay in order that he might be represented by his regular counsel, who presumably is prepared for the trial. We have indicated that such a delay should not exclude a full term of court, if that can be avoided. See, State v. Lewis, 268 Ark. 359, 596 S.W. 2d 697 (1980). See also, Rule 27.3, Arkansas Rules of Criminal Procedure and Commentary, Article VIII.

Appellants also advance an unpersuasive argument that they were denied a speedy trial, or that a different construction should be put upon our rules, when the factors of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) are applied. We find only two of those factors which would raise a question here, i.e., the length of the delay and appellants’ assertion of the right to a speedy trial. But before Barker applies, since the length of delay is only a triggering mechanism, it must be such as to be presumptively prejudicial. The delay here, in compliance with our rules, is not. The reason for the delay, at least in part, was attributable to appellants. Reference has already been made to the continuance because of a conflict in their attorney’s trial schedule. More importantly, there is no proof of actual prejudice because of the delay. It is recognized in Barker that a delay in bringing an accused to trial does not per se result in prejudice to him.

The rules set out in Article VIII of the Rules of Criminal Procedure were an effort to more precisely define what constitutes a “speedy trial” in the interest of persons accused of crime and the public and in clear recognition of Barker v. Wingo, supra. We perceive that there may be a denial of one’s constitutional right to a speedy trial after a period of delay shorter than those permitted under Rules 28 and 30, but a much stronger showing of prejudice would be necessary than that made here to overcome the presumption that a time within the prescribed limits of these rules meets constitutional requirements.

The United States Supreme Court made it quite clear in Barker that unless there is a delay that is presumptively prejudicial, there is no reason to inquire into the other important factors. The delay here was not presumptively prejudicial and the showing of prejudice to the interests, of appellants protected by the speedy trial provision of the Sixth Amendment to the Constitution of the United States was not sufficient to require a dismissal of these charges.

II

Appellants argue that the trial court failed to protect them from newspaper publicity relating to the fact that two of them, Pucilowski and Wise, just three days prior to trial, attempted to accept a plea bargain offered by the prosecuting attorney. This acceptance was later withdrawn. Appellants’ abstract of the record is not adequate to reveal the basis of this contention, but the state has elected to supply some of the deficiencies. The state’s supplemental abstract discloses the motion made by appellants alleging that pretrial publicity had made it impossible for them to have due process and equal protection of the law under the Fifth and Fourteenth Amendments to the United States Constitution. Reference was made therein to publicity given the escape in which appellants were alleged to have been engaged and to the publicity given the agreement of two of them to plead guilty. Appellants submitted articles taken from the Arkansas Gazette and the Pine Bluff Commercial, but neither of them was abstracted, so we cannot assume that these articles were so inflammatory and prejudicial per se that appellants were entitled to relief.

The objection was made before voir dire of the prospective jurors, but was not heard by the trial judge until voir dire had been completed. In ruling on the objection, the trial judge noted that the voir dire indicated that a few of the prospective jurors had read the account but had not formed an opinion, or, at least, those seated had stated that they would arrive at a decision based entirely upon the evidence submitted and the law as given unto them. The voir dire, which was abstracted by the state, strongly supports this finding. The judge stated that he had read the articles pertaining to the offers to plead guilty and was amazed to see that the information disclosed by them was apparently obtained through an interview with appellants’ trial counsel. Be that as it may, the trial court denied the motion to quash the informations and to quash the jury selected, holding that appellants were not being deprived of a fair trial by pretrial publicity.

Appellants now say that the court should have quashed the jury selected, which, of course, would have caused a further delay in bringing them to trial. Appellants did not think enough of their contention to request a change of venue, and the record supplied us would certainly not warrant a change of venue. Few of the prospective jurors were even asked about their familiarity with the pretrial publicity, so appellants’ counsel must not have been impressed with the idea that appellants could not receive a fair trial by jurors drawn from the panel that served. Only two jurors were seated over appellants’ objection. One of these recognized the case from pretrial publicity, but said that he would be able to base his verdict entirely upon what he heard in the courtroom, uninfluenced by what he had read about the case. The other was unsure about his recollection of facts alleged in the case from what he had read and said that he could “divorce” himself from that information, listen to the evidence presented and make a decision from it, saying that “it wasn’t a trial in the paper.”

Appellants have simply failed to show any merit in this point for reversal.

The judgment is affirmed.

Stroud, J., concurs.

Purtle and Mays, JJ., dissent.

John F. Stroud, Justice,

concurring. I disagree with the court’s interpretation of Article VIII of the Arkansas Rules of Criminal Procedure as those rules pertain to a defendant awaiting trial while incarcerated in the Arkansas Department of Correction (more commonly called the state penitentiary) for another offense. In Wade v. State, 264 Ark. 320, 571 S.W. 2d 231 (1978), the rules were interpreted to mean that a defendant incarcerated in the state penitentiary would receive a speedy trial if he is tried before the end of the third full term of court. To reach this result the court cited Rule 30.1(b), also cited in the majority opinion, and held that the provisions of Rule 28.1(a) applied to a defendant held in jail pending trial, but not to a defendant in the state penitentiary. The relevant portion of the latter rule provides:

Any defendant charged with an offense in circuit court and committed to a jail or prison in this state shall be brought to trial before the end of the second full term of the court, but not to exceed nine (9) months . . . (Emphasis added.)

Although neither term is defined by the Rules of Criminal Procedure, jail is defined in Webster’s Third New International Dictionary (1961) as a building for the confinement of persons held in lawful custody as for minor offenses, and prison is defined as an institution for the imprisonment of persons convicted of major crimes or felonies. In 1875 when the legislature adopted Ark. Stat. Ann. §§ 46-701 — 46-706 (Repl. 1977) authorizing the construction of detention facilities by a city council, such facilities were referred to as a city prison. The statute also refers to the attendant facility as “watch houses,” but both terms are archaic and have fallen into disuse. More contemporary language is contained in Ark. Stat. Ann. §§ 46-1201 — 46-1209 (Repl. 1977) adopted in 1973 setting standards for criminal detention facilities which refers to “the State Penitentiary, county jails, municipal jails, and temporary holding units.” I think clearly “jail” means the county or municipal jail and “prison” means the state penitentiary.

The Wade case, now reaffirmed by this case, has construed “jail or prison” as used in Rule 28.1(a) to mean only the county or municipal jail, so that the 9 month limitation does not apply to a defendant already in the state penitentiary. This application of the speedy trial rules causes the defendant in the state penitentiary to be governed by the rule applicable to persons free on bail (trial before the end of the third full term of court), rather than by the rule applicable to persons incarcerated in a county or municipal jail (trial before the end of the second full term of court, but not to exceed 9 months). This construction is blatantly unfair for the reason pointed out by Justice Conley Byrd in his dissent to the Wade case. A prisoner in the state penitentiary is deprived of the right to earn “good time” for good behavior due to a hold order placed on him while he awaits trial for another offense.

I concur in the result of the majority opinion rather than dissent from it, because I believe this arbitrary rule should be changed by formal amendment to the Arkansas Rules of Criminal Procedure with a subsequent effective date, rather than by overruling the Wade case and applying the decision retroactively.

John I. Purtle, Justice.,

dissenting. Appellants were arrested on October 11, 1977, while they were already confined in prison. Arkansas Rules of Criminal Procedure, Rule 28.1 (a) and (b) provide:

(a) Any defendant charged with an offense in circuit court and committed to a jail or prison in this state shall be brought to trial before the end of the second full term of the court, but not to exceed nine (9) months, from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
(b) Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

It is obvious the clear language of Rule 28.1 (a) required the appellants to be released long before the trial date unless there was some exception to the rule which prevented such release. They were brought to trial on March 26, 1979. This is almost a year and a half (17 months) after their arrest. Both two full terms of court and nine months had expired long before they were tried.

Periods excluded from the above-stated rule are set out in Rule 28.3. There are a great number of reasons for holding a prisoner beyond the period set out in 28.1 above. In addition to a number of reasons listed, the final reason is “other periods of delay for good cause.” It does not appear that any of the reasons enumerated caused the great delay in this case nor is a good cause shown, in my opinion.

It appears to me that the nine months provision has been overlooked, and it is the controlling factor in this case. The nine months would have expired on July 10, 1978. If, as the majority argues, the prisoner was merely entitled to be treated as released and the court was given an additional term to try them, that period would have also expired. After July 10, 1978, the October term commenced on October 2, 1978. The March 1978 term ended September 30 and the October 1978 term started on October 2, 1978. The March 1979 term commenced on March 5, 1979. Therefore, one full term of court expired after the nine months period had expired.

The terms of court excluded, what continues to be baffling is the fact that appellants were arrested October 17, 1977, and trial was not even set until July 14, 1978, which was ten months after the date of arrest. Even though a continuance was granted in October, the trial was not reset until January 1978, six months for the continuance and 15 months from the date of arrest. No reason is given for the delay in setting the trial date after the continuance was granted and surely a continuance does not extend free rein to avoid the resetting of a trial date at any time during the foreseeable future.

It is obvious that something is manifestly unfair about a rule which will allow one man to be held a year and a half, in prison, and not be denied a speedy trial when we have previously held that another man held for seven months in prison was denied a speedy trial. See Alexander v. State, 268 Ark. 384, 598 S.W. 2d 395 (1980), and State v. Lewis, 268 Ark. 359, 596 S.W. 2d 697 (1980). If the majority is correct, which I seriously doubt, then it is even more apparent why the rule should be changed to set a mandatory period of time for trials to apply throughout the state of Arkansas.

I am authorized to state that Mays, J., joins me in this dissent.


author: John A. Fog lemán, Chief Justice.

text:
    Gary HAMBLIN v. STATE of Arkansas
    CR 80-33
    597 S.W. 2d 589
    Supreme Court of Arkansas
    Opinion delivered April 28, 1980

      Barry J. Watkins, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   John A. Fog lemán, Chief Justice.

Appellant Gary Hamblin was found guilty of carnal abuse in the first degree, sentenced to five years’ imprisonment and fined $1,000. His appeal is based upon three grounds: (I) The alleged victim, Rosanna Marie Richardson (sometimes called Rosie and sometimes Marie) was incompetent to tesity; (II) The trial court erred in admitting a record of the motel registration into evidence; and (III) The court erred in denying appellant’s motion to strike the testimony of Gordon Ostberg, the owner of the motel at which the offense allegedly occurred. We find no reversible error and affirm.

I

The alleged victim was Marie Richardson, who was 13 years of age at the time of the trial, which was about three months after the alleged offense. She had only completed the sixth grade in school.

Appellant’s argument that this little girl was incompetent to testify is not based upon her capacity to understand the solemnity of an oath or to comprehend the obligation it imposes. Her qualifications in this respect were well ex-tablished. Appellant does contend, however, that the trial judge abused his discretion in holding that Marie was qualified in the sense that she was able to receive and retain accurate impressions to the extent that, when testifying, she had the capacity to transmit to the jury a reasonable statement of what she had seen, felt or heard. Appellant bases his argument upon these facts: In response to a question by the trial judge, after having said that she lived with her mother in Springdale, she said that she did not know the address and later, on cross-examination, her admission that she was not living with her mother conflicted with her earlier answer. She answered that she did not know how long she had lived in Springdale. Although she testified that she knew what sexual intercourse was, she was unable to tell the court what it was until the key phrase “penis in your vagina,” was implanted in her mind by a question asked by a deputy prosecuting attorney during an in camera hearing on the question of the competency of the witness; but, even though she was able to give the trial judge a statement about the alleged offense using the prosecutor’s words, when she returned to the courtroom, she failed to respond to a question about the event in the same words, having said, “Well-uh, he stuck his penis in my — gavina, or whatever.” There were 57 instances in which she failed to answer questions propounded to her, most of which concerned questions pertaining to what allegedly happened between her and appellant in a motel room and some of them were asked after the trial judge had questioned the witness in camera and in the absence of the attorneys for both sides.

If the facts relied upon by appellant were all the record disclosed, we might well agree with appellant that the trial judge had abused his discretion in holding that the witness was competent.

After Marie had failed to answer questions by a deputy prosecuting attorney, most of which called upon her to identify appellant or to tell what had happened after she had gone to a motel room with appellant, the trial judge questioned her. After she had failed to respond to inquiries by the trial judge about the meaning of the words sexual intercourse and about her being nervous or scared, the judge held the hearing in camera. At first, Marie either nodded her head affirmatively or failed to respond to questions by the trial judge, but she gave affirmative answers to questions by a deputy prosecuting attorney whether she knew what a penis was and what a vagina was and stated that “guys” had the former and “women” the latter. Thereafter, she again failed to give any response to the judge’s questions as to what had happened, told the judge she could not answer the questions, and acknowledged that she remembered talking to the deputy prosecuting attorney and telling him the whole story and all details. She would not respond when asked why she could not again tell the details and whether she was afraid of appellant. She finally answered leading questions by saying that she was not answering questions because she was afraid of appellant, but that this was not the only reason; she was also embarrassed and shy. She then said that she could and would go back into the courtroom and answer the questions from the stand, but when she was asked by the trial judge to tell what happened in the motel room, after saying that she and appellant took off their clothes and got in bed, she hesitated until the judge persisted with the question and received the response that they had had intercourse, but she would not be more specific. After persistent questioning by a deputy prosecuting attorney, she gave an affirmative answer to the leading question, “Did he place his penis in your vagina?” Upon further inquiry by the trial judge, she again answered that she was afraid and that she did not want to testify. When the judge asked if she was bothered by too many people and she responded by nodding her head affirmatively, she agreed to tell the judge what happened, if everyone else except the court reporter left the room. When they did, she promptly told the judge that “he” stuck his penis in her vagina. When the judge inquired whether anyone had threatened her, she first failed to respond, but answered when the judge asked whether it was appellant or any of his friends, saying that appellant and two others had told her on the night “this all happened” that they were going to kill her if she told anyone. She then promised that she would answer questions truthfully when they returned to the courtroom. The judge then called the attorneys back into his chambers, advised them what had occurred during their absence, ruled that the witness was competent and advised the attorneys that he felt that the witness was in fear but that she freely loosened up when not crowded by too many people. Thereafter, the witness responded rather readily to questions, although the trial court permitted several leading questions on direct examination. On cross-examination, Marie answered that she was living in a foster home in Alma and not really living with her mother in Springdale.

The trial court has broad discretionary powers in determining the competency of a witness and we do not reverse its ruling in the exercise of that discretion unless there is manifest error or a clear abuse has been demonstrated. Williams v. State, 257 Ark. 8, 513 S.W. 2d 793; Allen v. State, 253 Ark. 732, 488 S.W. 2d 712; Ray v. State, 251 Ark. 508, 473 S.W. 2d 161. We find no manifest error. In view of the immaturity of the witness, her shyness, the natural embarrassment of a young female to discuss an event of this nature in the presence of a number of people, most of whom were male, and her testimony about her fears because of threats she said had been made, we are unable to say that there was any abuse of discretion. In view of the seriousness of the crime and the necessity for testimony of the victim in order to avoid the possibility that an áccused might escape punishment for a serious offense simply because of the victim’s having been put in fear, the trial judge is to be commended for his patience and searching inquiry in making his determination.

The use of leading questions was permissible in this case, in the discretion of the trial judge. It is always in the sound discretion of the trial judge to permit a witness to be asked leading questions on direct examination. Bullen v. State, 156 Ark. 148, 245 S.W. 493. In cases involving very young females, who are alleged to have been victims of crimes of this nature, this court will not distrub the action of the trial judge in permitting leading questions to be asked by the prosecution, if it appeared to him to be necessary to elicit the truth, unless his discretion has been abused. Crank v. State, 165 Ark. 417, 264 S.W. 936. See also, West v. State, 209 Ark. 691, 192 S.W. 2d 135. The youth, timidity and ignorance of the witness are important factors militating against the finding of an abuse of discretion. Murray v. State, 151 Ark. 331, 236 S.W. 617.

II

Appellant says that there was error in the admission of a Flamingo Motel registration card for Room 40 dated February 21, 1979, the date of the alleged offense, emphasizing the fact that this was the only evidence, other than that of the alleged victim, tending to connect him with the Flamingo Motel on that date. On appeal, appellant asserts these deficiencies: insufficiency of the foundation laid for the introduction of this exhibit; absence of any evidence that he had signed the card; absence of any testimony that either he or the victim were in the room for which the registration form was executed; lack of evidence of the identity of the person who gave the information shown on the exhibit; the handwriting on the exhibit being garbled as to prevent accurate reading of the surname of the purported registrant.

There is no contention here, and there was none in the trial court, that the exhibit itself was hearsay. There was no objection in the trial court based upon the failure of the state to identify the person furnishing the information on the card. We will not consider objections made for the first time on appeal. Parker v. State, 266 Ark. 13, 582 S.W. 2d 34 (1979). The objection made in the trial court was lack of relevancy. There is no merit in that objection unless there is merit in the further objection made in the trial court that there was no indication that appellant signed the exhibit.

At the outset, we should say that we do not agree with appellant as to the legibility of the handwritten name on the exhibit. The first name is plainly Gary. The surname could easily be read as Hamblin. It could possibly be read as Hanblin, but we do not think that this fact renders the trial judge’s ruling on relevancy erroneous. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence. Ark. Stat. Ann. § 28-1001, Rule 401 (Repl. 1979). We do not reverse a ruling on relevancy unless we find an abuse of the trial court’s discretion in the matter. Arkansas Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W. 2d 541; Fulwider v. Woods, 249 Ark. 776, 461 S.W. 2d 581; Higdon v. State, 213 Ark. 881, 213 S.W. 2d 621; Turner v. State, 192 Ark. 937, 96 S.W. 2d 455.

The alleged victim testified that she and appellant went to a room in the Flamingo Motel in Springdale and spent the night there. She said that there was one bed in the room and that the walls were green. Gordon Ostberg, the owner and manager of the motel, identified the exhibit as a registration slip from his motel. It bore the name Flamingo Motel in capital letters across the top. He stated that such a registration slip is filled out whenever a room is rented at the motel and that the procedure is for the party renting the room to fill out the upper part of the registration card, which includes the name and address of the registrant. He said that, when he found that it showed only one occupant, he went to the room and asked the occupant to pay an additional $2, plus tax, for the additional occupant, whom he described as a young lady with stringy hair and a speech impediment, which he described as a slurring of the speech. Ostberg said that a red four-door automobile was parked in front of the room. The registration card shows an alteration in that the figures $14.12 are superimposed over $12.36 as the total paid for the room.

The foundation for the admission of this exhibit was not deficient in the respects covered by appellant’s objection. We are unable to say that the exhibit had no relevance.

Ill

Relying upon Ark. Stat. Ann. § 28-1001, Rule 602 (Repl. 1979), appellant contends that Ostberg was incompetent because he was never shown to have personal knowledge of the matter about which he testified. Appellant says that Ostberg could not identify him or Miss Richardson and was not even asked to do so, and that Ostberg never identified the room to which he went to collect the additional rent. Ostberg did not undertake to testify to facts about which he had no knowledge. His entire testimony purported to be the relation of facts that he knew, and there is no indication that he attempted to relate anything he did not know. While he did not say he went to Room 40, he did say that he went to the room when he noted that only one occupant was registered and he related actions there which had been related by Marie Richardson. There was sufficient circumstantial evidence for the jury to find that the room was Room 40.

Appellant did not abstract any motion to strike the testimony of this witness. The only motion we find is one made at the conclusion of the state’s evidence and after appellant’s motion for a directed verdict had been denied. The arguments made in support of this motion would certainly be appropriate considerations in weighing the evidence but would not make it inadmissible.

The motion to strike came late, having been made after the witness had left the stand and had been excused from the trial, without any objection having been made by appellant to this action. In those circumstances, the granting or denial of the motion lies entirely within the discretion of the trial judge. Arkansas State Highway Com’n. v. Stallings, 248 Ark. 1207, 455 S.W. 2d 874; Phelan v. Bonham, 9 Ark. 389. There could be no abuse of discretion under these circumstances, particularly when we find objections, earlier made by appellant, to be without merit.

The judgment is affirmed.


author: George Rose Smith, Justice.

text:
    WESTARK SURGICAL CLINIC, P.A. v. John J. WEISSE
    80-62
    597 S.W. 2d 820
    Supreme Court of Arkansas
    Opinion delivered April 28, 1980

      Warner & Smith, by: G. Alan Wooten, for appellant.

      Harper, Young & Smith, by: S. Walton Maurras, for appellee.
   George Rose Smith, Justice.

On July 1, 1976, the appellant, an incorporated clinic owned by three Fort Smith surgeons, employed the appellee, another surgeon, for one year at a salary of $4,000 a month, with certain other benefits. At the end of the year a disagreement arose between the parties about the terms of a renewal agreement, with the result that their association terminated in mid-July, 1977.

Dr. Weisse brought this action to recover severance pay of $30,000 and other compensation of $5,000, all assertedly due him under the provisions of the one-year contract of employment. That contract was oral, but Dr. Weisse testified that it was based upon a blank form of written contract that did provide for severance pay. The other doctors denied that the contract included any severance pay. The case was submitted to the jury essentially upon that issue of fact, one of the court’s instructions telling the jury that the question, “most simply stated, is whether or not there was a contract to provide Dr. Weisse with salary continuation benefits upon termination or resignation from Westark Surgical Clinic.” The jury returned a $20,000 verdict for Dr. Weisse.

During the trial Dr. Weisse was permitted to testify that while the parties were negotiating for a renewal of the contract the Clinic offered him a salary that was unfairly low and based upon an understatement of the income he had produced for the Clinic during the first year. Mrs. Weisse, who acted as her husband’s bookkeeper, was permitted to testify in detail about errors in the Clinic’s statement of Dr. Weisse’s productivity. The objections to this testimony should have been sustained. The pleadings raised a single substantial issue of fact: whether the original oral contract provided severance pay for Dr. Weisse. What happened a year later, during the renewal negotiations, was not relevant to that issue and was prejudicial to the Clinic, as it put the other doctors in the attitude of having treated Dr. Weisse unfairly and of having falsified the record of his productivity. No such issues were raised by the pleadings.

Reversed and remanded for a new trial.


author: Frank Holt, Justice. Hickman and Stroud, JJ.,

text:
    Elizabeth Ann GLOVER v. Bobby Lee GLOVER
    80-49
    598 S.W. 2d 736
    Supreme Court of Arkansas
    Opinion delivered April 28, 1980
    Rehearing denied June 16, 1980

      Spitzberg, Mitchell, Williams, Gill & Selig. by. William L. Owen, for appellant.

      Wallace, Hilburn, Clayton, May & Calhoon, by: Charles E. Smith, for appellee.
   Frank Holt, Justice.

Appellant and appellee were divorced in 1972. The appellant was awarded custody of their three minor children, and appellee was ordered to pay $190 per month for their support. The appellee was granted reasonable visitation and custody of the children for at least thirty days during the summer. The decree was silent as to which party would be responsible for the children’s medical expenses and insurance. No provision was made for transportation expenses in the event the children were removed from the state. In 1979 the appellant instituted the instant proceeding seeking $6,670 arrearages in child support payments, an increase in child support payments, and contribution for the children’s extraordinary medical expenses. Appellee responded that the arrearages were overstated, he had provided extra support, medical expenses and round trip airfares for the children for several years from California to Arkansas, all of which exceeded any arrearage in child support. The chancellor found that the appellee had spent $537 in additional support for his children, which he was not obliged to provide, and $2,589.44 in airfare in order that his children visit him. He then determined the appellee was $919 in arrears in child support and ordered it paid at the rate of $35 per month. He also found that the appellant was not entitled to an increase in child support and ordered that the parties share equally medical expenses not provided by appellee’s insurance coverage. The appellant appeals from that portion of the chancellor’s order which relates to the child support arrearage and a denial of an increase in child support payments.

The thrust of appellant’s first two contentions for reversal is that the chancellor’s finding that the appellee was deficient in child support payments in the amount of $919 is factually incorrect or contrary to the preponderance of the evidence. Further, the chancellor erred as a matter of law in awarding the appellee any credit for voluntary expenditures made by him for the benefit of the children. These expenditures primarily involve airfares, clothing and gifts for the children for the years 1973 through 1978.

Although we are not insensitive to the generosity of a noncustodial parent, as here, who provides additional support for his children to that expressly ordered by the court, we do not, as a matter of law, give credit for voluntary expenditures. Loomis v. Loomis, 221 Ark. 743, 255 S.W. 2d 671 (1953); and Roberts v. Roberts, 216 Ark. 453, 226 S.W. 2d 579 (1950). This is particularly true in child support cases in view of the fact that the custodial parent makes arrangements for the child’s care “in reliance on a proper compliance with the decree” by the noncustodial parent. Finkbeiner v. Finkbeiner, 226 Ark. 165, 288 S.W. 2d 586 (1956). See also 24 Am. Jur., Divorce & Separation, § 872.

With respect to the approximately $2,600 airfare spent by the appellee, none of the circumstances under which credit may be proper are shown by the appellee. It is true that the appellant did not receive permission from the court to move the children to California from Memphis in 1974, where she resided since 1972 with the children with court approval and by agreement of the parties. Upon learning of appellant’s proposed move to California in 1974, appellee filed a petition to gain custody of his children and the matter was set for a hearing. He apparently abandoned his efforts as there is nothing in the record reflecting the disposition of the petition for custody. The decree and the order permitting removal of the children to Memphis is silent with reference to which party must bear transportation costs for visitation purposes, and there was no agreement between the parties. It was only in the instant proceedings, some seven years after their divorce and her removal from the state, that the appellee first claimed credit for this expenditure or made appellant aware that he was claiming this item as a credit. There was no finding by the chancellor that appellant had violated any court order nor was she, in any manner, at fault. In the circumstances, we hold that the appellant cannot claim credit for the approximately $2600 in airfare expenses. Similarly, with respect to the $537 “additional support in the way of clothes and other incidental expenses” which the chancellor may have considered a credit, we find that these expenditures must also be treated as voluntary contributions.

Consequently, we find the chancellor’s computation of $919 as arrearage is incorrect as asserted by the appellant. Admittedly, the appellee was approximately $2,600 in arrears for the years 1973 to 1978. In 1978, he overpaid an undisputed $600. Therefore, after disallowing any credit for airfare and gifts to the children, the appellee is $2000 in arrearage, which, being due and vested in the appellant, entitles her to a judgment in that amount. Holley v. Holley, 264 Ark. 35, 568 S.W.2d 487 (1978).

The appellant next argues that the chancellor abused his discretion in not ordering an increase in child support after finding the existing amount inequitable. We initially note that the chancellor made no such finding. The decree recited that the “defendant is paying considerably less than the support chart recognizes as equitable based on his net earning capacity.” However, he found that the appellant was not entitled to an increase in child support. Obviously, the chancellor recognized that any reference to “a chart” is only one factor in making his decision. Appellant’s monthly net income, excluding the $190 child support, is $1049 based on her $18,000 salary. She acknowledges that her basic monthly expenses for necessities total $865. Even if we consider her other argument that her maximum for all monthly expenses is $1,116., excluding the children’s special activities and medical expenses, it appears she is annually receiving approximately $1400 in excess of her asserted maximum expenses when we consider her net income plus the court ordered support payments. In two months she was to receive a 10% increase in her salary. It appears that appellee’s monthly net income is approximately $1,380 based on his $26,000 salary. He maintains medical and hospital insurance for the benfit of the children. To enjoy his visitation rights with his children he must, as discussed, bear the annual expense of approximately $550 for the children’s round trip airfare. He has remarried. The appellant must demonstrate a sufficient change in circumstances so as to entitle her to an increase in child support. Riegler v. Riegler, 246 Ark. 434, 438 S.W. 2d 468 (1969). Here, in the circumstances, we are unable to say that the chancellor abused his discretion by refusing to order an increase in support payments.

The appellant’s counsel is awarded $500 for services rendered on this appeal.

Affirmed as modified.

Hickman and Stroud, JJ.,

dissent as to the $2,000 arrearage constituting a judgment which does not permit the court in the exercise of its discretion, to provide for payment by installments.


author: John I. Purtle, Justice.

text:
    Shirley Lee SMITH v. Nona WELCH
    80-59
    597 S.W. 2d 593
    Supreme Court of Arkansas
    Opinion delivered April 28, 1980

      Leon N. Jamison, for appellant.

      Owens & Pikes, for appellee.
   John I. Purtle, Justice.

Two wills were presented to the Jefferson County Probate Court to determine which of the two instruments was the last will and testament of Lamar Cannon, decedent. One will was dated October 13, 1977, and designated Shirley Smith, appellant herein, as primary beneficiary and executrix. The other will was dated October 26, 1978, and designated Mildred Horton as beneficiary and executrix. The probate court admitted the will dated October 26, 1978. Appellant brings this appeal.

We think the trial court was in error in admitting the will of October 26, 1978, and should have admitted the will of October 13, 1977, to probate.

Lamar Cannon was married to Mildred Horton about 24 years. A divorce was granted to the parties in 1958, and Mildred Horton married and divorced twice after the divorce from Lamar Cannon. Sometime during 1977, Mildred Horton moved into the decedent’s house to care for him. It was understood she would strictly be his housekeeper. She moved out of Cannon’s home about a year before he entered the hospital on October 19, 1978.

On his admission to the hospital, Cannon was too weak and too short of breath to get out of bed; and, he was extremely ill. His attending physician stated that on October 19, 1978, decedent was unable to relate a great deal of his medical history because of his shortness of breath. The doctor also stated that it was reasonably possible that on October 26, 1978, decedent did not know the extent of his property without prompting. From October 19, 1978, until his death, on November 7, 1978, Cannon was confined to the hospital.

Mildred Horton, the ex-wife, contacted the lawyer’s office to prepare a will for. Lamar Cannon about October 24, 1978; and, she went to the lawyer’s office and obtained the will on October 26, 1978. In describing the procurement of the will, she stated:

I am the person who called the office to have the will made. *** I brought the will out to the hospital on October 26, 1978. I obtained the will from Horace Fikes’ office. I read it to him and told him what was in it. I went down the hall and got Virginia Broach and Marsha Zibley to come down to witness his signing it. Virginia and Marsha were present when I read it.*** He (decedent) did not tell the witnesses what the document was that he was executing.

One of the witnesses, Marsha Zibley, stated that Mr. Cannon said he knew what he was signing and he said that Mildred Horton read the will to him. She further stated that the testator never said the instrument was his last will. She did not read the document herself. She explained that the decedent looked awfully tired and worn out and that he seemed to be fatigued, tired, and short of breath. Further, she did not see Virginia Broach, the other witness, sign the document. Decedent never requested Marsha Zibley to witness the will. She signed it at the request of Mildred Horton.

The other witness, Virginia Broach, stated that she also acted upon the request of Mildred Horton. She testified that she saw decedent sign the will and that she signed it after Marsha signed, although she did not see Marsha sign the document. She related that Mr. Cannon did not talk about the extent or nature of his property, and she did not hear the will read to him. He did not tell her it was his will. Her statement was: . . I figured that if he wanted us to know he would have told us so.”

So far as can be determined from the record, the will dated October 13, 1977, was in full compliance with the statutory requirements. In fact, the decedent named each of his children in this will and explained why he left the bulk of his property to his daughter, Shirley Smith. On the other hand, the will of October 26, 1978, never mentioned his children by name or stated how many children he had.

The secretary for attorney Fikes testified that she had typed two wills for Lamar Cannon at the direction of Mildred Horton. The will she typed in 1976 is not in question in this matter.

Attorney Fikes testified that he did not know Lamar Cannon and that he had only one telephone conversation with Cannon in relation to the 1976 will. He verified that Mildred Horton had contacted him in reference to writing the 1978 will in which she was named beneficiary.

We are in full accord with the appellee’s argument that a strict technical construction of a will is to be avoided where there is no indication of fraud, deceit, or undue influence. Walpole v. Lewis, 254 Ark. 89, 492 S.W. 2d 410 (1973). In the absence of undue influence, fraud, deceit, or other valid reason, we apply the preponderance of the evidence rule in the matters relating to the execution of a will.

Where the beneficiary obtains the will, a different rule applies. In fact, we stated in Short v. Stephenson, 238 Ark. 1048, 386 S.W. 2d 501 (1965):

Where a beneficiary, under the terms of a will, procures the making of the will, there is a rebuttable presumption of undue influence, and “it is incumbent upon those who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and action as are requisite to render a will legally valid.”***

In the more recent case of Greenwood, Guardian v. Wilson, Adm’x., 267 Ark. 68, 588 S.W. 2d 701 (1979), we stated:

In the case of Hiler v. Cude, 248 Ark. 1065, 455 S.W. 2d 891 (1970), we were asked to hold that our decision in Orr [v. Love, 255 Ark. 505, 283 S.W. 2d 607] meant that the burden of proof shifted where a proposed will is drafted by a beneficiary. That same argument is made by the appellant Greenwood. That is, normally a contestant must prove undue influence and mental incapacity; whereas a beneficiary-drawn will must be shown beyond a reasonable doubt to be free from undue influence and made by a mentally capable person. *** There is no doubt the burden was on the appellee to prove beyond a reasonable doubt that John Wilson was not unduly influenced and that he had the mental capacity to make this will.

It is obvious from the above-quoted cases that the burden was upon Nona Welch, appellee, to prove beyond a reasonable doubt that the decedent had the mental capacity to make a will and that he was not unduly influenced by the beneficiary. The proponents of the October 26, 1978, will have simply fallen far short of the burden required to prove this will was executed by a person who had the mental capacity and freedom of will to execute the instrument.

The case will be reversed and remanded to the Jefferson Probate court with directions to admit the will dated October 13, 1977, as the last will and testament of decedent Lamar Cannon.

Reversed and remanded.


text:
    James Dean VAN CLEAVE v. STATE of Arkansas
    CR 79-32
    598 S.W. 2d 65
    Supreme Court of Arkansas
    Opinion delivered Arpil 28, 1980
    Rehearing denied June 2, 1980

      Michael Dabney, Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant, James Dean Van Cleave, was convicted of capital murder and sentenced to life without parole. He urges seven grounds for reversal that will be set out in order in this opinion.

Debra King was murdered on January 29, 1978, during the course of a robbery. Her death was caused by multiple stab wounds to the chest. During the trial, evidence and testimony were presented which appellant claims were prejudicial. We do not find any of the alleged errors to have been prejudicial for reasons which will be discussed under each ground argued for reversal.

I.

THE TRIAL COURT CLEARLY ABUSED HIS DISCRETION BY UNDULY RESTRICTING VOIR DIRE EXAMINATION OF JURORS BY DEFENSE COUNSEL.

During the voir dire examination of the petit jurors, defense counsel and the court repeatedly exchanged heated remarks which caused the defense counsel to feel the court was preventing proper voir dire examination. In effect, they argue they were forced to accept a jury in violation of the Witherspoon rule. The extent of the voir dire examination by either counsel is a matter which generally rests within the sound judicial discretion of the trial court, and we will not reverse such discretionary rulings unless it appears there was a clear abuse of discretion. Fauna v. State, 265 Ark. 934, 582 S.W. 2d 18 (1979).

Arkansas Rules of Criminal Procedure, Rule 32.2 (Repl. 1977), states as follows:

(a) voir dire examination shall be conducted for the purpose of discovering bases for challenge for cause and for the purpose of gaining knowledge to enable the parties to intelligently exercise peremptory challenges. . . .
(b) . . . The judge shall also permit such additional questions by the defendant or his attorney and the prosecuting attorney as the judge deems reasonable and proper.

Therefore, unless we determine that the trial court abused his discretion in limiting the voir dire examination, we must affirm.

Even before the trial started, this case was fought vigorously on behalf of the appellant. There certainly was no cessation of defense efforts during the voir dire examination. In almost every instance while a juror was being examined, the court interrupted the defense counsel by stating that the court would declare the law and then proceed to ask the prospective jurors if they would follow the court’s reasoning. Although this temporarily interrupted defense counsel, it did not prevent them from coming through the side door or back door and eventually gaining all the information they sought. It appears that both the court and defense counsel were too aggressive in this matter; but, after careful examination of every one of the objections and interruptions, we conclude that the purposes of voir dire on behalf of the defense were effectively carried out by able counsel.

Defense counsel seemed to think they were entitled to use the voir dire for the purpose of getting acquainted with the jurors. They may well get to know a lot about a juror, but they are not free to go in any and all directions for as long as they desire. Even though the trial court attempted to stop voir dire on a number of prospective jurors, they were all questioned rather thoroughly. The alleged errors by the court in curtailing the examination were almost identical with those in Fauna, supra, where we reversed for abuse of discretion. However, in the present case, as previously stated, defense counsel still managed to obtain enough information to make an intelligent decision whether or not to use a peremptory challenge.

The fact that the jurors responded to the court that they would follow the law as given by the court was not sufficient to enable the defense counsel to make a proper determination of whether he should exercise a peremptory challenge as to that juror. Counsel should be allowed leeway to develop the prospective jurors’ attitude toward a particular defense.

In the present case the defense was that of not guilty. The questions and interruptions primarily concerned matters which are customarily given by way of instruction at the close of the case. Had the defense been one of insanity, self-defense, or other specific defenses, the latitude granted the appellant in the voir dire examination would have been greater.

Under the particular facts of this case and the defense of not guilty, we do not believe that we can say the court clearly abused its discretion even though the interruptions were more frequent than appeared necessary.

II.

THE TRIAL COURT ABUSED ITS DISCRETION IN THE UNDUE ADMONISHMENT OF COUNSEL IN SUCH A WAY AS TO SUBJECT COUNSEL TO CONTEMPT AND RIDICULE BEFORE THE PROSPECTIVE JUROR WHO WAS BEING QUESTIONED AT THE TIME.

Mr. Pete Estes, Sr. entered the courtroom during the examination of prospective juror Mary Sue Jones. He conferred briefly with Robert R. Estes, one of the active defense attorneys. Mr. Estes, Sr., a member of the firm of Estes, Estes & Estes, talked with Robert Estes about a personal matter. The court instructed Mr. Estes to get a coat and tie on and sit down if he was going to participate in the case. The- exchange between Mr. Estes, Sr. and the court was in the presence of only this prospective juror.

We stated in McAlister v. State, 206 Ark. 998, 178 S.W. 2d 67 (1944), and quoted with approval in Chapman and Pearson v. State, 257 Ark. 415, 516 S.W. 2d 598 (1974):

No principle is better settled than that a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which tend to influence the minds of the jurors.

Where the trial court’s remarks may be construed as reflecting upon counsel’s knowledge and skill as a lawyer, the rights of an accused are prejudiced and reversal is necessary. McAlister, supra.

We feel it would have been a better practice for the court to have asked Mr. Estes, Sr. to approach the bench and discuss this matter out of the hearing of the prospective juror. But, considering the fact that this juror was excused and did not participate in the case, we do not feel the error was prejudicial.

III.

THE TRIAL COURT ERRED IN REFUSING DEFENDANT ATTORNEY OPPORTUNITY FOR REHABILITATION OF VENIREMEN WHO EXPRESSED SCRUPLES AGAINST IMPOSITION OF THE DEATH PENALTY.

The point argued for reversal here concerns the rehabilitation of veniremen who have expressed scruples against the death penalty. The landmark case is, of course, Witherspoon v. Illinois, 391 U.S. 510 (1968). We believe the Witherspoon rule is confined to cases involving a conviction which carries the death penalty. We recognize appellant’s argument that the underlying principle in such matters is the conviction rather than the sentence.

Almost 500 pages of the transcript in this case involved the examination of the 39 prospective jurors. In some instances it appears the court did improperly attempt to limit the questioning by the defense counsel of matters concerning the attitude of the prospective jurors relating to the death penalty. However, the attorneys for the appellant persisted and rather effectively examined each juror to the extent required by Witherspoon, supra.

We adhere to the holding in Witherspoon, supra, that only the most extreme and compelling prejudice against the death penalty, perhaps only or very nearly a resolve to vote against it blindly and in all circumstances, is cause to exclude a juror. The mere disbelief in the death penalty, or conscientious or religious scruples with its infliction, will not automatically disqualify a juror from serving on a particular case. Only in cases where a juror expresses an unwillingness to consider the death penalty under any circumstances will that juror be excused for cause. We think that the Witherspoon decision does not affect the validity of any sentence other than death, nor does it render invalid a conviction as opposed to the sentence.

We held in the case of Tanner v. State, 259 Ark. 243, 532 S.W. 2d 168 (1976), that objections to questions pertaining to the death penalty on voir dire of prospective jurors in relation to excusal because of their convictions against the death penalty are mooted when the verdict is guilty and the sentence is life without parole.

It is our opinion that the sentence of life without parole renders the holding in Witherspoon, supra, inapplicable to the present case; therefore, any errors of limitation committed by the court in the voir dire stage of the trial are not prejudicial.

IV.

THE TRIAL COURT ERRED IN ALLOWING OFFICER J. D. SNOW TO TESTIFY IN DETAIL ABOUT THE SUBSTANCE OF AN ANONYMOUS TELEPHONE CALL HE RECEIVED CONCERNING THE MURDER.

Officer J. D. Snow was allowed to testify in detail about an anonymous telephone call he received concerning this murder. We think it was improper to allow the officer to testify as to the details of what the anonymous caller told him relating to the manner in which the crime was committed. It was proper to allow Officer Snow to relate the portions of the telephone call which caused him to take the course of action which he subsequently took. He should not have been allowed to give a verbatim account of the entire telephone conversation.

This case is most unusual because after the improper evidence was allowed, the anonymous telephone caller took the stand as a witness and was vigorously and extensively cross-examined about the matters which had been stated previously by Officer Snow. Under these circumstances, we feel the original prejudicial error in allowing the hearsay testimony was cured by the subsequent production of the witness for cross-examination. It is true that the anonymous caller was not originally identified to Officer Snow as Tommy Robbins. However, the record unmistakably shows that Tommy Robbins was the anonymous caller.

The court would have been bound to give an instruction to the effect that the testimony by Officer Snow concerning the anonymous telephone call could be considered only for the purpose of proving that the call had been made. But, no such request was made by defense counsel.

Our holding in Trotter v. State, 215 Ark. 121, 219 S.W. 2d 636 (1949), allows an officer to testify why he went to a certain place and looked for certain evidence or why he took a particular action. We do not think the rules of criminal procedure have changed this ruling. As stated earlier, we think that Rule 801 of the Uniform Rules of Evidence would have properly excluded this evidence, and it should have been excluded. Nevertheless, the subsequent testimony of the witness giving the identical facts was sufficient to overcome the prejudicial error considering the fact that he was most thoroughly cross-examined by defense counsel.

V.

REFERENCE BY PROSECUTOR IN BEHALF OF STATE OF ARKANSAS IN HIS FINAL CLOSING ARGUMENTS THAT, “IF THEY, (THE DEFENDANT), WANTED TO DISPUTE ALL OF THIS, THEY HAVE EXPERTS. THEY COULD EXAMINE IT,” WAS AN IMPROPER COMMENT ON THE DEFENDANT’S FAILURE TO TESITFY, INFRINGING ON THE APPELLANT’S RIGHTS UNDER THE FIFTH AMENDMENT.

During the closing argument the prosecuting attorney stated:

Ladies and gentlemen, you have heard testimony here in this court by these witnesses that counsel for defense have had this stuff, (defendant’s clothing worn on the night in question), since the 27th day of June. If they wanted to dispute all of this, they have experts. They could examine it.

Nobody disputes the absolute right of the accused to remain silent or denies that it is reversible error for the prosecuting attorney to make any reference to the jury concerning the failure of the accused to testify. Therefore, the question here is whether the remarks above amounted to a comment on the failure of the appellant to take the stand.

Appellant cites the case of Adams v. State, 263 Ark. 536, 566 S.W. 2d 387 (1978), as authority for reversal in this matter. In the Adams case the prosecuting attorney stated:

. . . How many witnesses did the defense put on for your consideration?

We think there is a great difference in the statement made by the prosecuting attorney in the Adams case and the statement made in the case before us. It does not appear that the statement objected to in the present case related in any manner to the failure of the accused to take the stand. There was no reference to witnesses at all in the statement made by the prosecuting attorney.

However, much of the testimony concerned the clothing worn on the night in question. The state had produced witnesses, and the defense had vigorously cross-examined them. The matter was properly before the jury.

We still adhere to the theory set forth in Evans and Foust v. State, 221 Ark. 793, 255 S.W. 2d 967 (1953), wherein we stated:

The prosecuting attorney should carefully refrain from using any words or gestures which would be calculated to call the jury’s attention to the fact that a defendant has not testified.

But, in the present case, we do not feel that the prosecutor’s statement went so far as to indicate to the jury that appellant had not taken the stand.

VI.

REFERENCE BY THE PROSECUTING ATTORNEY IN BEHALF OF THE STATE OF ARKANSAS IN ITS CLOSING STATEMENT TO TESTIMONY THAT TOMMY ROBBINS, THE ONLY EYEWITNESS TO THE ALLEGED MURDER,“EVEN SUBMITTED” TO A POLYGRAPH TEST WAS REVERSIBLE ERROR AND THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL.

During the closing argument the prosecuting attorney made the following statement:

Whatever Tom Robbins is . . . you have got to credit him with one thing ... to want to get the thing cleared up and bring it to light. *** Tommy Robbins volunteered this information because it got to him; it broke him down ... he came in and did it. . .he even submitted to a polygraph test; he told you that. Now here is a man that is willing to go all the way and tell it all. ***

All parties agreed that the settled rule in Arkansas is that the results of polygraph tests are not admissible in criminal cases in the absence of mutual agreement. Gardner v. State, 263 Ark. 739 at 756, 569 S.W. 2d 74 (1978). Although we have not had previous occasion to determine whether a reference to a polygraph test is permissible, we note the case of Johnson v. Florida, 166 So. 2d 798 (1964), that neither the results of a polygraph examination nor any allusion to such examination are proper subjects of comment. This is understandable because, whether it was the state or the defense that made the reference to the person taking the test, it would be an obvious attempt to put before the jury the fact that he had taken the test and failed or passed.

We agree that any reference to a polygraph test, in the absence of an agreement or other justifiable circumstances, would ordinarily constitute prejudicial error. However, in the present case the polygraph test was first mentioned by witness Tommy Robbins while he was being questioned by the state; and, no objection by the defense was made at that time. Later, on cross-examination in an unresponsive answer, the witness again made reference to taking the polygraph test; and, no objection was voiced at this time. When the prosecutor mentioned the polygraph test in his closing argument, the appellant’s counsel immediately moved for a mistrial. The court overruled the motion for a mistrial, and nothing further was said about the matter.

In view of the fact that the appellant had not objected at the time the reference to the polygraph was made on two previous occasions, we feel that a mistrial was not justified when the prosecutor made reference to it in the closing argument. There was no request by the appellant for an admonition to the jury following the refusal of the court to grant a mistrial.

We have stated many times previously that a mistrial is an extreme remedy which is appropriate only if justice cannot be achieved by continuation of the trial. Foots v. State, 258 Ark. 507, 528 S.W. 2d 135 (1975).

We are aware of the fundamental rule that the state must adhere strictly to the questions in issue during the closing argument. The questions in issue would include all reasonable inferences and deductions therefrom. Williams v. State, 259 Ark. 667, 535 S.W. 2d 842 (1976).

Ordinarily, neither the defense nor the state may mention a polygraph test. However, considering the fact that the polygraph was mentioned twice without objection prior to the closing argument, we do not think it was prejudicial error for the prosecuting attorney to mention it.

VII.

REFERENCE IN BEHALF OF THE STATE OF ARKANSAS BY THE PROSECUTING ATTORNEY IN HIS CLOSING ARGUMENT THAT THE DEFENDANT NEVER GAVE THE VICTIM AN OPPORTUNITY FOR A COURTROOM TRIAL BEFORE HE KILLED HER WAS EXTREMELY PREJUDICIAL, EMOTIONAL, AND INFLAMMATORY, AND CONSTITUTES REVERSIBLE ERROR.

The final argument presented by the appellant is the prosecuting attorney made an improper closing argument inasmuch as he stated that the appellant never gave the victim an opportunity for a courtroom trial before he killed her. It is argued that the statement was extremely prejudicial, emotional, and inflammatory; and, it amounted to prejudicial error. The exact words of the prosecutor were:

. . . He’s had an opportunity to appear in this courtroom. He has had an opportunity to be tried in a court of law. James Dean, (the defendant), never gave Debbie King that opportunity when he cut the life out of her in the store that night. That is something I want you to bear with and keep in mind as we go on through with the trial of this case.

There is little doubt such statements certainly do have a tendency to arouse the emotions in jurors’ minds. A statement that he repeatedly stabbed her through the heart with a knife as she cried for help would have aroused the same type of feelings among the jurors. However, the latter statement is true; and, it would have been proper for the state to make such statement. It is equally true that she did not have an opportunity to appear. We find no prejudice in the argument. In any event, the objection was not timely made. Jones v. State, 248 Ark. 694, 453 S.W. 2d 403 (1970); O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618 (1972).

Pursuant to Ark. Stat. Ann. § 43-2725 (Repl. 1977), Rule 36.4 of the Arkansas Rules of Criminal Procedure, and Rule 11(f) of the Rules of the Supreme Court, we do not find any objections made by the defense which were overruled to have constituted prejudicial error.

Affirmed.

Hickman, J., concurs in the result.


author: John F. Stroud, Justice.

text:
    W. M. BRIGGS and Ann BRIGGS v. CAPITAL SAVINGS & LOAN ASSOCIATION
    79-333
    597 S.W. 2d 600
    Supreme Court of Arkansas
    Opinion delivered April 28, 1980

      Satterfield & Moody, for appellants.

      Friday, Eldredge & Clark, by: George Pike, Jr., for appellee.
   John F. Stroud, Justice.

This is a suit seeking to declare a promissory note usurious and therefore void the note and the mortgage securing it. The note is clearly usurious unless it falls within the exception of Public Law 93-501, commonly called the Brock Bill. The Chancellor found that the loan was a business loan within the language of the Brock Bill and granted judgment on the counterclaim of Capital Savings & Loan (hereinafter Capital) seeking foreclosure. We agree with the trial court and affirm the judgment.

In the fall of 1976, W. M. Briggs (hereinafter appellant) became involved in a business deal concerning the development of certain real property in Saline County, known as Spring Lake. L. D. Harris, a friend of appellant, and Gene Worsham, the owner of the property, approached appellant about the development plan. Appellant was a successful businessman, having been engaged in the business of building and selling fences for about 30 years. His participation in the project was vital due to his good credit rating, which was needed in seeking financing for the project. The papers were prepared to transfer the land to appellant’s name, but he testified that all three men considered the venture over when they learned there were no H.U.D. funds available. Prior to learning this, Worsham’s interest payment became due on a loan from Capital, secured by a mortgage on the Spring Lake property. Appellant testified that he agreed to loan Worsham the $6,250 needed for the payment, but appellant’s check noted “advance on purchase price — Spring Lake,” presumably pursuant to the Offer and Acceptance previously signed by both Worsham and appellant. The check, drawn on appellant’s business account with Worthen Bank, was presented by Worsham to Capital for the payment on his loan.

Thereafter, in April of 1977, Harris and Worsham approached appellant again and asked him to loan Worsham $150,000 to prevent Worsham from having to default on his loan and lose the property. Appellant agreed and applied for a loan of $110,000 from Capital, offering the property on which his fence company was located as security. After obtaining an appraisal and credit report, Capital agreed to the loan at an interest rate of 9.25%, plus one point as a loan origination fee. Appellant stated that he normally used Worthen Bank for all of his personal and business money matters, but borrowed from Capital in this case because they had made the loan to Worsham. Capital applied the loan proceeds together with appellant’s separate funds to liquidate the Worsham debt. Worsham executed a note to appellant for $150,000, bearing interest at 10% per annum, payable in one year and secured by the Spring Lake property. Later, at appellant’s request, Capital assigned their earlier line on the Spring Lake property to appellant rather than merely releasing the lien.

After making a few payments on his loan, appellant brought suit against Capital seeking to have the note and mortgage held as violative of Article 19, § 13 of the Arkansas Constitution prohibiting the charging of interest at a rate greater than 10% per annum. Capital filed a counterclaim against appellants for the unpaid balance of the note, plus interest and other costs, including attorney’s fees. The parties agreed that the actual rate of interest charged on appellant’s loan was 10.25%, but Capital contends the contract was not usurious due to 12 U.S.C.A. § 1730(E), known as the “Brock Bill,” which provides:

(a) If the applicable rate prescribed in this section exceeds the rate an insured institution would be permitted to charge in the absence of this section, such institution may in the case of business or agricultural loans in the amount of $25,000 or more, notwithstanding any State constitution or statute, which is hereby preempted for the purposes of this section, take, receive, reserve, and charge on any loan or discount made, or upon any note, bill of exchange, or other evidence of debt, interest at a rate of not more than 5 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal Reserve bank in the Federal Reserve district where the institution is located, and such interest may be taken in advance, reckoning the days for which the note, bill, or other evidence of debt has to run (Emphasis added.)

Appellant contends that the loan was not for business, but was merely a personal favor for a friend, and as such does not fall within the provisions of the Brock Bill. At trial, however, Capital produced the Loan Application signed by appellant with ink inserts indicating “commercial loan” and “cash to purchase property.” Capital also introduced a sworn statement signed by appellant at closing entitled “Purpose of Loan Affidavit” which contained the words “to obtain operating capital” typed in a blank concerning the purpose of the loan. Claiming that the language was a cloak for usury, appellant testified that he would not have signed the affidavit if he had noticed it because the loan was not for operating capital. The affidavit also provided:

I understand fully that this loan is a business (or agricultural) loan within the meaning of federal law permitting the charging of interest in excess of ten per cent (10%) per annum for business (or agricultural) loans in the amount of $25,000.00 or more, . . .

Capital asserts that the 10.25% rate of interest was permissible under the Brock Bill and, thus, the note and mortgage should be upheld. Although both parties filed motions for summary judgment, the Court heard the case on its merits and granted judgment on Capital’s counterclaim in the amount of $110,210.80 plus interest, awarded a $2,500 attorney’s fee, and ordered the property sold if the judgment was not paid within 10 days. From the decision of the chancellor, appellants (including Ann Briggs, wife of appellant, who was also a plaintiff, but did not testify) bring this appeal.

Neither party questions the constitutionality of the Brock Bill, and both parties acknowledge that 10.25% interest was a permissible rate of interest under the Brock Bill at the time this loan was made. Appellants’ points for reversal can be condensed to two: (1) the trial court erred in finding that the loan in question was for business purposes, and (2) the trial court erred in finding that any transaction involving real estate is “business.” Addressing the latter point first, we agree with appellants that the trial court overreached in its finding that all real estate transactions are “business” ventures. The purchase of a home by an individual may not be a “business” loan within the meaning contemplated by the Brock Bill. However, this dictum in the decree of the trial court did not prejudice the rights of appellants, nor is it reversible error if the evidence supports the court’s finding that the loan in the present case was for a “business” purpose. Therefore, the only real question to be decided on this appeal is whether the trial court erred in finding that the loan in this case was for a “business” purpose.

There was ample evidence to support the chancellor’s finding that this loan was for business. Capital knew the loan was to be used to pay off the Worsham note as indicated specifically in their commitment letter written to appellants over three weeks before closing, and, in fact, Capital actually applied the loan proceeds to that indebtedness. Capital had in their loan file a copy of the Offer and Acceptance covering the Spring Lake property signed by appellant and Worsham; the $6,250 interest payment made to Capital by appellant on Worsham’s note indicated “advance on purchase price — Spring Lake;” appellant’s Loan Application noted “cash to purchase property;” and appellant admitted on the witness stand that he did not tell Capital that he was no longer trying to buy the property from Worsham. Capital had every reason to believe that appellant’s payment of the Worsham note still related to a purchase of the Spring Lake property by appellant. A lender should be able to rely on the sworn statement of a borrower as to his intended use of the loan proceeds in determining the applicability of the Brock Bill.

While this court considers the evidence on a Chancery appeal de novo, it will not reverse the chancellor unless it is shown that the lower court decision is clearly contrary to a preponderance of the evidence. This court attaches substantial weight to the chancellor’s findings on material issues of fact. Digby v. Digby, 263 Ark. 813, 567 S.W. 2d 290 (1978); Minton v. McGowan, 256 Ark. 726, 510 S.W. 2d 272 (1974); Hampton v. Hampton, 245 Ark. 579, 433 S.W. 2d 149 (1968). The chancellor’s decision was not contrary to the preponderance of the evidence.

Affirmed.