text:
    Gean LEWIS v. J. C. LEWIS
    73-117
    502 S.W. 2d 505
    Opinion delivered November 26, 1973
    [Rehearing denied January 14, 1974.]

      G. E. Snuggs, for appellant.

      Nolan, Alderson ir Jones, for appellee.
   John A. Fogleman, Justice.

The marital difficulties of these parties were before this court in Lewis v. Lewis, 248 Ark. 621, 453 S.W. 2d 22. Appellant Gean Lewis was also appellant on that occasion, when we reversed a decree of divorce on the ground of indignities to the person granted on a counterclaim filed by appellee J. C. Lewis in appellant’s suit for separate maintenance. Our reversal was based upon the doctrine of recrimination because we found that the record showed the parties to be equally at fault. We remanded the case for further proceedings not inconsistent with the opinion rendered. It appears that the chancery court later awarded appellant temporary support and maintenance and attorney’s fees and the right to occupy the dwelling house in which the parties lived before separation.

In September, 1970, appellee filed another suit for divorce, alleging indignities to the person and adultery, stated as conclusions only. Appellant denied these allegations and counterclaimed for separate maintenance and support of a minor child. This case was dismissed on January 4, 1972, for want of prosecution. The present action was filed by appellee September 28, 1972. In this complaint, he alleged three years’ separation without cohabitation as grounds for divorce. Appellant admitted in her answer that the^ parties had lived apart but alleged that they had sexual relations since their separation, specifically in March, 1971, upon appellee’s promise to return to their home and conjugal relations, and that this action was recriminatory. The chancery court granted a divorce to appellee, denied alimony to appellant and denied her any property except for furnishings and appliances in the home occupied by her.

For reversal, appellant contends the court erred by granting a divorce on the uncorroborated testimony of appellee, by finding that appellant’s testimony about sexual relations between the parties was not corroborated and that this failure of proof justified appellee’s failure to produce corroborating evidence, by denying appellant homestead and dower rights and by denying her any support and maintenance by appellee.

Of course, corroborating testimony is as essential to the granting of a divorce on the ground of three years’ separation as it is in any other case. But, as in any other case, where it is plain that the divorce action is not collusive, the corroboration may be comparatively slight. Owen v. Owen, 208 Ark. 23, 184 S.W. 2d 808; Allen v. Allen, 211 Ark. 355, 200 S.W. 2d 324. The acrimony emanating from this record dispels any thought of collusion between these parties. Still, to constitute corroborating evidence there must be testimony relating some substantial fact or circumstance independent of the plaintiff’s testimony which would lead an impartial and reasonable mind to believe that material testimony of the plaintiff is true. Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598.

Appellant's major argument on this point is based upon the inability of appellee’s corroborating witnesses to account for every moment of his time, particularly in view of appellant’s positive testimony that the two met on numerous occasions and, on at least one of them, kept an all-night rendezvous for the agreed and accomplished purpose of copulation. If her testimony was accepted as true, of course there was not a three-year separation without cohabitation because this court has defined the word “cohabitation” in the divorce statutes to mean “sexual intercourse.” Ross v. Ross, 213 Ark. 742, 213 S.W. 2d 360. The chancellor seems to have rejected appellee’s version as incredible, because he stated in his findings upon which the decree was based that he did not believe, in view of the history developed in the course of the litigation before him, that appellee would defeat his cause of action for divorce by engaging in sexual intercourse with appellant on a single occasion. In arriving at this conclusion, as a fact finder, he drew the permissible inference that appellant’s failure to produce the witnesses (her niece and nephew) she had stated would corroborate her testimony in this regard was indicative of their inability to do so, particularly when appellant had been given time to produce the witnesses, after which her attorney expressed doubt that the testimony of some of them would have any probative value. See Arkansas State Highway Commission v. Phillips, 252 Ark. 206, 478 S.W. 2d 27. Of course, we seldom reverse a chancellor’s findings as to credibility, particularly where, as here, the witnesses appeared before him. Marine Mart v. Pearce, 252 Ark. 601, 480 S.W. 2d 133 Massey v. Price, 252 Ark. 617, 480 S.W. 2d 337; Dodds v. Dodds, 246 Ark. 313, 438 S.W. 2d 54. We cannot do so here upon a cold, written record. It should be noted that appellee flatly denied that the incident upon which appellant relies ever occurred.

This leaves the case turning upon the adequacy of the corroboration of appellee, insofar as this point is concerned. His corroborating evidence cannot be called conclusive because the parties had lived in the same city, El Dorado, and admittedly had seen one another on many occasions. Appellee had lived with his sister, Mabel Adams, and her invalid husband, since August 10, 1969, the alleged beginning date of the three-year separation. Mabel Adams testified that Lewis had spent not more than six. nights away from her home in more than three years next preceding her testimony. She included in these nights occasions when he accompanied her Und her husband in going to Texarkana. Even most of these occasions, she said, he would eat supper at her house before leaving, and she fixed breakfast for him every morning before he went to work at 7:00 to 7:30. She said her brother had never been out late at night, but admitted that she did not know where he went whenever he left her house after supper, as he did on numerous occasions.

Johnny Ray Lee said that he had worked with Lewis in the employ of Hampton Construction Company off and on for 20 years, and that he saw Lewis every day when they worked on the same job. He testified that, during the preceding three years, Lewis had spent four or five nights with him when the two were going fishing early the following mornings. James Crain testified that his father-in-law owned the Hampton-Crain Construction Company, to which Crain had come in 1960 and by which Lewis had been employed for 15 years. Crain said that he had seen Lewis on the job'several times every day, but had not seen Lewis with appellant in two or three years. He said appellant often came by the job where Lewis was working, but would just sit in the car for several hours at a time without speaking to anyone. He stated that Lewis attended church regularly, going Sunday mornings and nights, Wednesday nights and any other time there was a church function. John Hampton testified that Lewis was a dependable carpenter and had been employed by his company for more than 15 years. He corroborated Crain’s testimony about Lewis’ church attendance.

Lewis testified he had talked to appellant five or six times over the three-year period, had only seen her at night in passing uptown, and had spent only three, four or five nights away from the Adams home. He said that any other nights spent away from that house had been spent with the family at Texarkana on occasions such as holidays. He said that during the period he had spent the night with Johnny Lee when they wanted to get an early morning start on a fishing trip. We agree with the learned chancellor that it would have been virtually impossible for appellee to have produced witnesses, other than himself, who, singly or collectively, could account for his whereabouts every hour during the three-year period. Certainly, it was not intended that one seeking to establish this ground for divorce should have to produce corroborating evidence which would show the lack of cohabitation as convincingly as might be required to show nonaccess in paternity cases. The corroboration here is admittedly slight, yet it seems that Lewis called as witnesses those who would be most likely to know his whereabouts most of the time during the three-year period. We are unwilling to say the chancellor erred in finding the testimony of these witnesses was sufficient, in this bitterly contested case, to lead an impartial and reasonable mind to believe that the material testimony of Lewis was true.

The denial to appellant of property rights and support also presents a difficult problem. The chancellor’s findings of fault are only implicit in his denial of alimony and his holding that she was not entitled to any of appellee’s property or interest threin, except for the furnishings and appliances located in the home at 1225 Rock Island Street. Appellant gives us little aid on these points. The complete argument of appellant on them reads:

The Chancery Court was in error, of course, in returning to Gean Lewis the property she brought to 1225 Rock Island Street at the request of her husband, in full settlement of the property rights of the wife, and the wife’s right of support and maintenance by her husband. Rose v. Rose, 254 Ark. 607, 495 S.W. 2d 524; McCormick v. McCormick, 246 Ark. at p. 344, 438 S.W. 2d 341.

In Rose v. Rose, 254 Ark. 605, 495 S.W. 2d 524, we said that the chancellor should render a ruling as to which party is at fault if the wife seeks alimony or a property division, and a divorce is granted upon the ground of three years’ separation. In McCormick v. McCormick, 246 Ark. 348, 438 S.W. 2d 23, we said when a divorce is granted on this ground, the question as to who is the injured spouse is then considered in the settlement of property rights and the question of alimony.

It has been suggested that these issues should not be considered by us because the failure to argue them constitutes a waiver. See Commercial Standard Insurance Co. v. Coffman, 245 Ark. 1005, 436 S.W. 2d 83. It has been implied that we will pass upon such assignments of error as are called to our attention in appellant’s brief gnd argument. Fitzhugh v. Leonard, 179 Ark. 816, 19 S.W. 2d 1010. Appellant had stated these points as follows:

Error of the Chancery Court in its finding and judgment that the wife, Gean Lewis, is not entitled to homestead and dower rights in the properties of her deserting husband.
Error of the Chancery Court in its finding and judgment that the wife, Gean Lewis, is not entitled to support and maintenance by her deserting husband, J. C. Lewis.

The rule of waiver should not be as strictly applied in an equitable proceeding as in one at • law, because an appeal in chancery opens the whole case for review as to all points raised in the court below and the law and facts are examined the same as if there had been no decision at nisi prius and a decree rendered upon such record. Woodruff v. Core, 23 Ark. 341; Arkansas Bankers’ Association v. Ligon, 174 Ark. 234, 295 S.W. 4; Grayson v. Bowie, 197 Ark. 128, 122 S.W. 2d 536. This does not mean the record is thrown open for a search for error or that a mere statement of a point requires review. It does mean, however, that appellant’s argument, scant as it is, must be taken to be sufficient to raise the issues. It is significant that appellee has taken it to be so without any suggestion that these points have been waived.

The finding of the chancellor in this regard seems to have been made without any actual determination of fault or finding as to who was the injured party. He said:

Here the Defendant does not seek alimony or a division of property because she denies Plaintiff’s grounds for divorce: She does, however, seek separate maintenance and possession of the home which the Court assumes requires it to determine the question of alimony and division of property. The “injured party” as used above means the party not at fault or the party at less fault. In Lewis v. Lewis, supra, the Court denied the Plaintiff herein a divorce under the doctrine of recrimination. The Court stated “However, the rule in Arkansas is that recrimination is applied only where the parties are equally at fault.”
The parties lived together as husband and wife a little over three years. Plaintiff has furnished the Defendant a home to live in since they separated in August of 1969 and has paid her $20.00 per week support since June of 1970. The Court is of the opinion that the Defendant is not entitled to alimony or any of the Plaintiff’s property or interest therein except for the household furnishings and appliances located in the home at 1225 Rock Island Street, which should be awarded the Defendant.

When we consider that, on the previous appeal from a decree on September 16, 1969, the parties were found by us to be equally at fault, a determination that appellant was not entitled to a property division or alimony must be based, to a great extent, upon evidence before the court in this case. Yet, this evidence was devoted almost exclusively to the question relating to the extent of the period of separation without cohabitation. We have held that where there is fault on both sides, alimony should be awarded. Clarke v. Clarke, 201 Ark. 10, 143 S.W. 2d 540. In that case, we overruled the chancellor’s denial of alimony and awarded $30 per month until the decree became final and $15 per month thereafter. We have also held that, even though the wife was principally at fault in the separation, she should receive an allowance for support where the evidence does not warrant the conclusion she was altogether to blame or that the husband was not partially responsible for the separation. Grytbak v. Grytbak, 216 Ark. 674, 227 S.W. 2d 633. Again we modified a decree denying relief to the wife by awarding alimony. In neither case was there any evidence that there was any substantial amount of property involved. It does appear that in this case there is a dwelling house which constituted the marital abode and in which appellant has lived since the separation. Ordinarily, where the wife is less at fault, or where she is the injured party, she would be entitled to the statutory award of an interest in the husband’s property, but her wealth and income are to be considered in determining whether she receives the full amount. Alexander v. Alexander, 227 Ark. 938, 302 S.W. 2d 781.

The holding of this court as to fault on the appeal in the previous case is not res judicata of appellant’s property and alimony rights because of our finding that the parties were equally at fault, according to Narisi v. Narisi, 233 Ark. 525, 345 S.W. 2d 620. However, we have said it would be res judicata of the issue of fault at that time. Carty v. Carty, 222 Ark. 183, 258 S.W. 2d 43. The statute does leave the court a wide latitude in considering matters and events beyond the usual scope of inquiry. In determining who is the injured party, any material and relevant evidence pertaining to matters and events both preceding and following the separation may be admitted. Narisi v. Narisi, supra; Alexander v. Alexander, supra.

The trial court in the first instance and this court, on appeal, are vested with broad powers and a wide latitude of discretion in determining the proper award of. dower and alimony when a divorce is granted on this ground. Narisi v. Narisi, supra; Martin v. Martin, 225 Ark. 677, 284 S.W. 2d 647. However, it is clear that there should be a determination of fault or of who is the injured party as a basis for the exercise of that power.

The general rule in equity cases is that, with the evidence fully developed, we should decide the case here without remanding it to the chancery court. Narisi v. Narisi, supra. We have, however, exercised our power to remand any case in equity for further proceedings when it is clear to us that the chancery court’s decision has been based upon an erroneous theory, where we cannot determine from the record before us the rights and equitites of the parties and where the chancellor is in a better position to pass upon the issues because of his familiarity with the circumstances and considerations surrounding the issue. Wilson v. Rodgers (on rehearing) 250 Ark. 355, 468 S.W. 2d 739, 750.

This is a case coming clearly within the exception to the general rule. A compelling factor in our determination to remand is the peculiar situation which obtains with reference to the records of prior litigation between the parties. Appellant, at the incepton of the trial in this case, asked to be heard on her motion for disqualification of the chancellor, even though her attorney acknowledged that he was aware of a previous order denying that motion. The attorney then offered the entire records in the two preceding cases in support of the motion for disqualification. The court reversed a ruling on this offer and proceeded to hear evidence. After the trial had been completed, the court entered an order denying the request for admission of these records. We find no other attempt to introduce these records into evidence in the present case, even though they or part of them, might be material and relevant on the question of alimony and property allowances. To say the least, it would seem likely that there would be much more evidence in those cases about the nature and extent of the property and income of the parties than appears in the record of this case, as abstracted. Courts cannot take judicial notice of their own records in other causes therein, even between the same parties. Murphy v. Citizens Bank of Junction City, 82 Ark. 131, 100 S.W. 894; Yarbro v. Gentry, 245 Ark. 602, 433 S.W. 2d 381.

Appellant has filed a motion for judgment in this court pursuant to a motion for accounting filed in the case previously appealed to this court and for attorney’s fees on both appeals. This motion is not sufficient to confer jurisdiction on this court as to the accounting. Apparently, appellant is laboring under the misapprehension that the present case and the previous one are the same case, but they are not. The present appeal is from the chancery court’s decree in appellee’s action for divorce on the ground of three years’ separation, filed more than two years after our decision on the appeal in the previous case. That case was remanded for further proceedings not inconsistent with our opinion. Lewis v. Lewis, 248 Ark. 621, 453 S.W. 2d 22. If appellant’s motion has been acted upon in the trial court, no appeal has been docketed in this court and our jurisdiction in the matter was terminated by the issuance of our mandate. Consequently, we cannot act on that portion of the motion. Appellant’s request for an allowance of attorney’s fees on the prior appeal is belated, to say the least, and we decline to act upon it after the lapse of more than two years. Our refusal to act is without prejudice to appellant’s seeking an allowance for attorney’s fee on that appeal in the trial court in any consideration given by that court to the overall question of allowance of such fees in that case, if the case is still pending and the question of liability for attorney’s fees has not been finally disposed of therein. In view of our remand of the case presently on appeal, it seems that the better procedure would be for the chancery court to consider the appropriate amount to be allowed appellant for attorney’s fees for services in that court and this one when further proceedings are concluded. It is so ordered.

We affirm the decree insofar as it awards a divorce to appellee, but we remand the case for further consideration of the issues relating to settlement of property rights and the questions of alimony and attorney’s fees.

Byrd, J., dissents as to the reversal.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    FIRST FEDERAL SAVINGS AND LOAN Association of Pine Bluff v. PINE BLUFF NATIONAL BANK et al
    73-142
    501 S.W. 2d 226
    Opinion delivered November 26, 1973

      Coleman, Gantt, Ramsay ir Cox, for appellant.

      Jones, Matthews ir Tolson, for appellees.
   J. Fred Jones, Justice.

This is an appeal by First Federal Savings and Loan Association of Pine Bluff from a trial court order overruling its motion to set aside a judgment rendered against it under a mandate from this court pursuant to an opinion we delivered on February 12, 1973, wherein Pine Bluff National Bank was the appellant, Billy E. Parker was the appellee, and First Federal Savings and Loan Association of Pine Bluff was a garnishee. See Pine Bluff Nat'l Bank v. Parker, 253 Ark. 966, 490 S.W. 2d 457. The single point relied on by First Federal on this appeal is stated as follows:

“The trial court erred in failing to reverse its prior judgment in favor of frank Parker as directed by the opinion and mandate of this court.”

According to the record in Pine Bluff Nat'l Bank v. Parker, supra, Pine Bluff National sued Billy Parker for a debt past due and sued out a writ of garnishment against First Federal. First Federal-, as garnishee, answered on April 4, 1969, that it held funds deposited to the account of Billy Parker in the amount of $13,231. Pine Bluff National and Billy Parker then worked out a compromise agreement whereby Parker paid a lump sum on the debt to Pine Bluff National and a consent judgment was entered for the balance of the debt in the amount of $24,600. Under the agreement, recited in the consent judgment, Billy Parker executed three installment notes for the $24,600 balance, and Pine Bluff National released approximately $20,000 worth of its security interest in certain automobiles which Billy Parker had pledged as security for the original debt. The consent judgment recited that First Federal, the garnishee, would hold the savings account above referred to for a period of 61 days and if by that time Billy Parker was in default on his installment notes, the court would enter an order directing First Federal to pay over the $11,231 to Pine Bluff National. Such default occurred, and on April 17, 1970, judgment was entered by the trial court finding Billy Parker in default, and ordering First Federal to pay the $11,231 to Pine Bluff National.

On July 2, 1970, First Federal filed a motion to set aside the judgment against it as garnishee. It alleged that it had erred in answering that Billy Parker had $11,-231 on deposit with it, and alleged that the mistake had not been discovered until the entry of the judgment against it for the $11,231. It alleged that the savings account was actually a joint account in the names of Frank Parker or Billy Parker and it prayed permission to file an amended answer to the original interrogatories. The trial court granted First Federal’s motion and entered an order setting aside the judgment against the garnishee and permitting it to file an amended answer. Pine Bluff National appealed to this court from that order and we held that the trial court had a right to set aside its orders in term time and refused to pass upon Pine Bluff National’s claim to the funds because that issue had not been resolved by the trial court and we dismissed the appeal. Pine Bluff Nat’l Bank v. First Fed. S & L, 250 Ark. 600, 466 S.W. 2d 249. First Federal did amend its answer setting out the joint account, and Frank Parker filed an intervention claiming to be the sole owner of the funds in the joint account. The trial of the case then continued before the court, sitting as a jury, and the trial court rendered judgment with findings and conclusion as follows:

“1. That the Court had authority to set aside the Judgment entered on April 17, 1970 and permit the Garnishee to Amend its Answer, thus placing all parties in the same position with regard to their legal rights that they had prior to the filing of the Answer by Garnishee.
2. That a joint account is garnishable only to the extent of ownership of the debtor.
3. The savings account in question is solely owned by Frank Parker and that First Federal Savings & Loan Association of Pine Bluff should be directed to release the savings account to Frank Parker individually. In the event a Supersedeas bond in the sum of $11,231.00 is filed by the plaintiff within thirty (30) days, then said amount is to be held by the garnishee.
IT IS, THEREFORE, by the Court, considered, ordered, adjudged and decreed that the savings account in question be and is hereby found to be owned by Frank Parker and that First Federal Savings & Loan Association of Pine Bluff be and it is hereby ordered and directed to release the savings account to Frank Parker, individually. In the event a Supersedeas bond in the amount of $11,231.00 is filed by the plaintiff within thirty (30) days then said amount is to be held by the garnishee.”

Only Pine Bluff National appealed from that judgment and we said:

“The bank does not appeal from the court’s findings as to the respective rights between Frank Parker and First Federal Savings. The court committed no error in permitting Frank Parker to intervene because the court had that right by virtue of our holding in the first appeal. Furthermore, Frank Parker had a right to establish his actual ownership of the account because that was a garnishment proceeding. Hayden v. Gardner, 238 Ark. 351, 381 S.W. 2d 752 (1964). Pine Bluff National contends that the court erred in refusing to grant it a judgment against First Federal because, acting in reliance on the first judgment, the bank released certain automobiles which Billy Parker had pledged as security for the original de:bt. That contention is meritorious.”

We conclude it would be a waste of judicial effort to quote further from our opinion of February 12, because we consider the language clear and the conclusion we reached supported by the case law cited. The first sentence in the above quote from our opinion disposed of the issue on appeal pertaining to the savings account as such. We found merit in Pine Bluff National’s contention as above set out and we reversed and remanded with the following directions:

“The trial court is directed to enter judgment in favor of Pine Bluff National and against First Federal in the amount of the garnishment together with interest.”

As pointed out in our original opinion, no appeal was perfected from the trial court’s finding that the funds in the hands of First Federal belong to Frank Parker, and the correctness of that holding has never been before us.

First Federal argues on this appeal that the trial court erred in complying with the mandate of this court, in that it only entered judgment against First Federal in favor of Pine Bluff National as specifically directed by this court, but failed to set aside its prior judgment in favor of Frank Parker as was also intended and directed by tbis court when we employed the word “reversed.” First Federal argues that had we intended the judgment in favor of Frank Parker to remain unaffected, we would have so indicated by employing the usual phrase — “affirmed in part and reversed in part.” The answer to this argument is that if the trial court’s findings that the funds in the hands of the garnishee actually belong to Frank Parker and its order to pay same over to Frank Parker amounted to a judgment in favor of Frank Parker against First Federal, there was no appeal by First Federal from such judgment. Certainly Pine Bluff National had no interest in Frank Parker’s account with First Federal. It simply relied, to its detriment, on the verified answers to interrogatories propounded by it to First Federal ás garnishee in a suit it filed against Billy Parker. The trial court correctly complied with the mandate of this court and the judgment is affirmed.

Affirmed.

Harris, C.J., not participating.


author: Conley Byrd, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. O. A. ALLEN, et ux
    73-149
    501 S.W. 2d 243
    Opinion delivered November 26, 1973

      Thomas B. Keys and Philip N. Gowan, for appellant.

      Joe T. Gunter and Hugh L. Brown, for appellees.
   Conley Byrd, Justice.

This is the second appearance of this eminent domain action. In Arkansas State Highway Commission v. Allen, 253 Ark. 46, 484 S.W. 2d 331 (1972), we reversed a $27,000 judgment upon a jury verdict. On retrial the jury awarded damages in the amount of $23,750. For reversal of the judgment entered thereon the Commission raises the two points hereinafter discussed.

POINT No. 1. The Commission here contends that the trial court erred in refusing to rule as to the admissibility of alleged comparable sales testified to by the landowner and his expert witness. We find no merit in the contention. The record shows that both the landowner and his expert used some comparable sales, but the record does not demonstrate that such sales were not comparable. Neither can we find any merit in the suggestion that the trial court committed error in refusing to rule on the comparability of such sales before the witness had testified relative to the sales.

POINT NO. 2. The landowner’s expert testified that the highest and best use of the subject property was for commercial and residential uses. The Commission now contends that the Patton to Fisher comparable sale used by the expert should have been struck because it was subsequently used for a commercial or industrial use. We find no merit in the contention.

Affirmed.


author: Frank Holt, Justice.

text:
    Phillip H. HENSON, a/k/a Robert V. SCHEICK v. STATE of Arkansas
    CR 73-114
    501 S.W. 2d 619
    Opinion delivered November 26, 1973

      Williams & Gardner, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted of the crime of rape in 1964 and his punishment was fixed at life imprisonment. We reversed in Henson v. State, 239 Ark. 727, 393 S.W.2d 856 (1965). Upon a change of venue and a retrial in 1966, a jury again found appellant guilty of rape and assessed his punishment at life imprisonment. From a judgment on that verdict comes this belated appeal permitted by our per curiam order dated January 29, 1973. Present counsel was appointed for appeal purposes.

Appellant first contends for reversal “the court erred in allowing the testimony of Dr. Walter P. Harris to be admitted because his opinion was formed by using information obtained through a doctor-patient relationship which is privileged.” Dr. Harris examined appellant on two occasions during the time he was awaiting trial and incarcerated. The first examination was at the behest of appellant’s wife that he be examined by the state hospital authorities as to his mental condition. The court ordered two local doctors, including Dr. Harris, to conduct the requested mental examination. Before the petition was withdrawn, Dr. Harris examined the appellant and diagnosed him as a sexual psychopath and not insane. In the former appeal, Henson v. State, supra, we held that Dr. Harris’ examination as to appellant’s mental condition was not violative of the doctor-patient relationship. In the case at bar it clearly appears that Dr. Harris did not rely in any manner whatsoever upon the second examination, based upon a physical complaint by appellant, in forming his opinion concerning appellant’s mental state. We perceive no violation of the doctor-patient relationship.

Appellant next contends “the court further erred in allowing Dr. Harris to testify as to the defendant’s sanity as he was not qualified to render such opinion and because such testimony, since there was no plea of insanity, served only to prejudice and inflame the senses of the jury.” We first observe that it appears the doctor’s qualifications as a physician were admitted by the appellant’s trial counsel on two occasions. Further, there was no objection as to his qualifications raised at the trial. We cannot consider an issue raised the first time on appeal. Nash v. State, 248 Ark. 323, 451 S.W.2d 869 (1970). When the doctor testified as to appellant’s psychopathic mental condition, an objection was made stating “***if we are talking about generally. This defendant is who we are trying. We are here on a specific case for a specific defendant.” The court answered “[W]ith reference to the specific offense it will be sustained. Lay the proper foundation.” The doctor then proceeded to give his opinion as to appellant’s mental condition and no objection was renewed. Thereafter, appellant’s counsel proceeded to cross-examine the doctor with reference to the mental examination. We cannot say in the absence of proper objections that reversible error occurred.

Appellant next contends for reversal that the “court erred in failing to grant a mistrial of the case after each of several highly prejudicial remarks were made by witnesses for the prosecution.” The prosecuting witness testified that after raping her appellant assaulted her again a short time thereafter. The court sustained appellant’s objection and admonished the jury to disregard the prosecutrix’s statement that “[H]e attacked me again.” The sheriff testified that upon arresting the appellant he told him “he was under arrest for the rape of this girl, and there was two girls — one living over here and one — .” He was interrupted by an objection from appellant’s counsel. The trial court sustained the objection and, as requested, admonished the jury to disregard this testimony. Appellant also complains that the testimony of an aunt of the prosecutrix was prejudicial when she testified that her niece (prosecutrix) was “[Cjrying, screaming she was scared to death. *** I went to the phone and called the sheriff’s office. And she said, ‘If you do that, he will come and kill us every one.’ ” The court again sustained the objection of appellant’s counsel and, as requested, admonished the jury to disregard the prosecution’s statement that “he will come out here and kill us every one.” In each of these enumerated three instances, the asserted error was corrected by the cautionary instructions given by the court. Stepps v. State, 242 Ark. 587, 414 S.W.2d 620 (1967).

Nor do we find any prejudicial error in the state trooper’s testimony that the defendant, when arrested, stated that “I won’t go with the son of a bitch [another officer], but I will go with you.” We cannot perceive how this remark by the witness was prejudicial as to appellant’s guilt or innocence of the alleged offense.

Appellant further contends that the "court erred in failing to strike and strongly admonish the jury not to consider testimony of Cora Williams when she related the statement of her niece as told to her by her daughter.” The prosecutrix went to Mrs. Williams’ house immediately following her ordeal with appellant. The prose-cutrix went in the bathroom with her sister and Mrs. Williams’ daughter. It appears that the aunt overheard their conversation. Mrs. Williams testified “[S]he told my daughter, that she had been attacked and when I told them to come out, if they didn’t I would tear the door off the hinges, and when they come out, Wanda was crying.” Appellant’s attorney objected saying "[T]hat is not a spontaneous statement — that is too remote.” Thereupon, the trial court sustained the objection. It does not appear that appellant requested a cautionary instruction or that the prosecutor continued interrogating the witness further as to the asserted hearsay testimony. Also, let it be remembered the prosecutrix had previously testified that she had been attacked by appellant. We perceive no prejudicial or reversible error.

Affirmed.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    GULF OIL CORPORATION v. Richard R. HEATH, Director of the Department of Finance and Administration
    73-126
    501 S.W. 2d 787
    Opinion delivered December 3, 1973

      Cockrill, Laser, McGehee, Sharp & Boswell, John E. Bailey and William G. Duck, for appellant.

      Walter Skelton, Karl Daley Glass Jr., John F. Gautney Jr., Alexander W. Nisbet, Dewey Moore Jr., and /. R. Nash, for appellee.
   Carleton Harris, Chief Justice.

This appeal relates to a suit for refund of franchise tax assessments totaling $46,129.74, which appellant, Gulf Oil Corporation (hereinafter called Gulf) paid under protest for ¿he years 1970, 1971, and 1972. In 1968, appellant amended its Articles of Incorporation so as to provide for a two for one stock split by reclassifying and changing its outstanding shares of stock from par value of $8.33 1/3 per share to no-par $4.16 2/3 per share stated value. In 1969, Gulf duly filed its franchise tax reports and paid taxes in the total amount of $12,349.62 for those years. This amount was computed by Gulf on the basis that the reclassification of its stock from par value to no-par stated value did not change the amount of capital of the corporation represented by its no-par stated value shares of stock. Appellee refused to accept these payments on the basis that Ark. Stat. Ann. § 84-1837 (Repl. 1960) required that the value of no-par stock be computed at $25.00 per share and an additional payment from Gulf was demanded in the amount of $61,708.12 covering the aforementioned period. This amount was paid under protest. The commissioner was requested to conduct an informal hearing for the purpose of determining the proper basis for the computation of the amount of taxes due, and at such hearing, Gulf contended that under the statute, the commissioner possessed discretionary authority to disregard the presumed statutory value of $25.00 per share and to compute the tax on the basis of the aforementioned stated value of the no-par value stock. The commissioner disagreed, holding that he was required under the aforementioned statute to compute Gulf’s franchise taxes on the no-par value stock on a basis of $25.00 per share. Suit was instituted by appellant in the Pulaski County Chancery Court wherein judgment was sought for the asserted overpayment, and Gulf also sought a restraining order restraining appellee from assigning for franchise tax purposes an arbitrary value of $25.00 per share on the no-par stated value stock. Appellee demurred to the complaint, which demurrer was sustained by the trial court, and appellant, electing to stand upon the complaint, same was dismissed for want of equity. From the decree so entered, appellant brings this appeal. For reversal, three points are asserted which we proceed to discuss.

It is first contended that the Corporate Franchise Tax Act, Act 304 of 1953 (Ark. Stat. Ann. § 84-1833— 84-1842 [Repl. I960]), made decisive changes in the substance and administration of the Corporate Franchise Tax Act then in existence, Act 367 of 1923, by creating only a rebuttable presumption as to the value of no-par value stock and by granting appellee discretionary authority to compute the amount of franchise tax on the basis of the stated value of said no-par stock. This argument is based on the fact that the present statute, heretofore cited, uses the phrase “such shares of no-par value shall be deemed [our emphasis] to be of the par value of Twenty-five Dollars ($25.00) per share”, while Act 367 of 1923 used the language “such shares shall be taken [our emphasis] to be of the par value of Twenty-five Dollars ($25.00) each.”

In State v. Margay Oil Corporation, 167 Ark. 614, 269 S.W. 63, this court held that the 1923 act was valid; that the state may make reasonable classifications of corporations for taxing purposes if all corporations of the same class are treated alike, and further held that the $25.00 per share figure given no-par value stock was reasonable. There was apparently no contention on the part of Margay that the words “be taken” created anything other than a conclusive presumption. In Gilliland Oil Co. v. State, ex rel Attorney General, 171 Ark. 415, 285 S.W. 16, we said:

“The question of the validity of the act of 1923, supra, fixing the taxable value of nonpar value stock, and the question of the application of that statute to foreign corporations, must be treated as foreclosed by the decision of this court in State v. Margay Oil Corporation, 167 Ark. 614.”

On appeal to the United States Supreme Court, that court, in a short Per Curiam, affirmed Margay on the authority of Roberts & Schaefer Co. v. Emmerson, 271 U. S. 50. In the cited case, the court said:

“The only question with which we need be concerned is whether there are such differences between the two privileges to issue the two classes of stock, as to constitute a proper basis for classification for purposes of taxation, so that the amount of the tax in the one case may be based on the issue price of the stock, and in the other upon the maximum price at which it may be issued, regardless of the price at which it actually is issued.”

The court held there was such a basis.

Accordingly, our statute which used the words “be taken” has been held valid, and the court has said that a state has the right to make reasonable classifications; this, of course, included our own classification wherein the value of no-par stock was set at $25.00 per share.

Though admitting that under the 1923 act, there was a conclusive presumption that no-par value stock was to be taxed at the value of $25.00, the commissioner having no discretion to find otherwise, appellant contends the use of the word “deemed” in the present statute only creates a rebuttable presumption and the commissioner is free to follow or reject the $25.00 figure.

It is asserted that Section 6 of Act 304 (Ark. Stat. Ann. § 84-1838), when read in conjunction with Section 5 (Ark. Stat. Ann. § 84-1837) of the act, supports this construction. We do not accept this argument for we agree with appellee that Section 6 refers back to Section 4 (Ark. Stat. Ann. § 84-1836)._

We do not attach the importance to the change from “be taken” to “deemed” that is argued by appellant. In the first place, we do not have a situation where only one word was changed; rather, the entire section has been re-written and there have been numerous changes in words used. In the next place, practically all judicial construction of the word “deemed” is contrary to the argument of appellant. Only one case is cited holding with appellant, viz., the North Dakota case of Kleppe v. Odin Township, 169 N.W. 313, where the district court construed the word “deemed” to be a disputable presumption. In Harder v. Irwin, 285 F. 402, the District Court for the Northern District of New York, said:

“The word ‘deemed’ has been judicially defined. In Leonard v. Grant (C. C.) 5 Fed. 11, 16, it is stated that:
‘ “Deemed” is the equivalent of “considered” or “adjudged,” and therefore whatever an act requires to be “deemed” or “taken” as true of any person or thing, must, in law, be considered as having been duly adjudged or established concerning such person or thing, and have force and effect accordingly.’

“In U.S. v. Doherty, (D. C.) 27 Fed. 730, 734, it was thus defined:

‘ "‘Deem” means “judge;” “determine on considera-uon.” The primary meaning of the word is to form a judgment; to conclude on consideration.’ Words and Phrases, First Series, ‘Deem.’
“There are several other judicial expressions of the word ‘deemed,’ among them being in Walton v. Cavin, 16 Q.B. 48, 81, where it was stated that where a person was ‘deemed’ to be a soldier it must be understood to mean that he was thereafter to be taken in that capacity. Also, in Cardinel v. Smith, 5 Fed. Cas. 45, 47 No. 2, 395, the statute provided that dealers in canned goods under certain circumstances shall be deemed to be manufacturers and the court stated that they were to be held liable as manufacturers, notwithstanding that they were not such in fact. Other cases to the same effect are Lawrence & Co. v. Seyburn, 202 Fed. 913, 121 C.C.A. 271; Michel v. Nunn (C.C.) 101 Fed. 423, 424.”

In H.P. Coffee Company v. Reconstruction Finance Corp., 215 F. 2d 818, the question of the meaning of the word “deemed” arose and the court stated:

“It is said that the word must be construed as raising only a rebuttable presumption that the subsidy has been paid on all coffee which an importer has in his terminal inventory, and that this presumption disappears on proof by an importer that, in fact, he has received no subsidy payments thereon. This contention flies directly into the teeth of the generally accepted definitive import of the word ‘deemed’ and almost unanimous judicial determination that the word, when employed in statutory law, creates a conclusive presumption. E.g., United States v. Davis, 1 Cir., 50 F.2d 903; Harder v. Irwin, D.C., 285 F. 402; Intagliata v. Shipowners & Merchants Towboat Co., Cal. App., 151 P. 2d 133, subsequent opinion 26 Cal. 2d 365, 159 P. 2d 1; King v. McElroy, 37 N.M. 238, 21 P. 2d 80; Commonwealth v. Pratt, 132 Mass. 246. See 11 Words and Phrases, Deem, pp. 478 - 482. Absent qualifying language, or ambiguity, we must give to the word ‘deemed’, as employed in the emphasized language of paragraph 1 (f) (iii), its natural import.”

We cannot agree that there is significance in the use of the word “deemed” rather than “taken”, and accordingly find no merit in this contention, holding that the language of the act creates a conclusive presumption as to the value of the corporation’s no-par stock.

It is next asserted that if the tax act in question created a conclusive and irrebuttable presumption, Amendment Fourteen to the United States Constitution is violated, and the act is unconstitutional. Appellant calls attention to the cases of Schlesinger v. Wisconsin, 270 U. S. 230 (1926), Heiner v. Donnan, 285 U. S. 312 (1932), and Mourning v. Family Publication Service, 411 U. S. 356. In Schlesinger, the court held that a conclusive statutory presumption that all gifts of a material part of a decedent’s estate made by him within six years of his death were made in contemplation of death, created an arbitrary classification and conflicted with the Fourteenth Amendment. In Heiner, the court held a congressional act violative of the Fifth Amendment, said act creating a conclusive presumption that gifts made within two years prior to the death of the donor were made in contemplation of death, and we cannot see that Mourning (which dealt with the Truth in Lending Act) adds anything to the holdings in those cases. Of course, none of these cases dealt with a franchise tax and the most recent case cited by appellant, Vlandis v. Kline, et al., 412 U. S. 441, decided by the United States Supreme Court on June 11, 1973, deals with the residency of students attending state supported institutions in Connecticut. In fact, we find no recent case involving a franchise tax. Both appellant and appel-lee agree that in Shanahan v. United States, 447 F. 2d 1082, the Circuit Court of Appeals for the Tenth Circuit, in construing the internal revenue statute, stated that a conclusive presumption will be upheld so long as it is reasonable. Appellant recognizes that there are statutes in other jurisdictions applying a value to shares of no-par stock, but asserts that this fact is not persuasive.

Let it be remembered that appellant voluntarily brought itself within the statute at issue, having full knowledge of the law as it had existed since 1953, it having paid the tax on par value stock until 1969. In H. P. Coffee Company v. Reconstruction Finance Corp., supra, the complainant contended that if the term “deemed” was construed as a conclusive presumption, such construction would conflict with the due process clause of the constitution. Though this case dealt with a contract between the parties, we think the observation of the court, in holding contrary to this contention, was interesting. The Court said:

“Having brought itself within the terms of the provisions by its own voluntary act, complainant cannot say that the logical result offends against the due process clause.”

Actually, the question here at issue was decided adversely to the present appellant when we disagreed with its argument relative to there being a difference between the meaning of the words “deemed” and “be taken”, and accordingly held that “deemed” creates a conclusive presumption. Such construction leaves the holding in Margay controlling.

Finally, it is contended that if a conclusive and ir-rebuttable presumption as to the value of no-par stock was created by the statute, then said franchise tax as applied to corporations with no-par stock is unconstitutional since it creates a discriminatory classification between tax assessment at par as opposed to no-par stock because no practical or legal differences exist between the two classes of stock. The view taken by appellant is contrary to Roberts & Schaefer Co. v. Emmerson, supra, and New York v. Latrobe, 279 U.S. 421. We have already quoted from Emmerson, and in the last mentioned case, the court said:

“It is said that the tax computed on the number of non-par shares at a flat rate may bear little relation to the property and business of the corporation within the state and consequently corporations having like property and business within the state, but with a different non-par capitalization, may be required to pay a different tax. But this is equally true of corporations having par value stock, even though full value be paid in on its issue. Par value and actual value of issued stock are not synonymous and there is often a wide disparity between them. Par value has long been a familiar basis of computing a franchise tax upon foreign corporations, and when otherwise unobjectionable has been repeatedly upheld by this Court.***
“The kind and number of shares with which a foreign corporation is permitted to carry on its business within the state is a part of the privilege which the state extends to it and is a proper element to be taken into account in fixing a tax on the privilege. It may be assumed that if the doing of business with a greater number of non-par shares is not deemed by the taxpayer to be a valuable privilege, it will reduce the number of shares as the statute permits. ***
“Nor is such a tax to be deemed a denial of equal protection because a different measure or method of computing the tax is applied to corporations having non-par stock from that applied to corporations having stock of par value.”

Here, too, if appellant, as stated in its point for re-ver sál, feels that there is no difference between the two classes of stock, it is, of course, free to return to the par value stock. And, if there is no difference, the question immediately arises as to what potential benefits necessitated the change. Without going into detail, suffice it to say that we do not agree that there are no longer any differences between the two types of stock; while the differences may not be as distinct or as easily ascertainable as at the time of Roberts & Schaefer Co. v. Emmerson, supra, and State v. Margay Oil Corporation, supra, nonetheless, differences do remain. For instance, one of the vital differences between par value and no-par value stock lies in the method of fixing the consideration to be paid by the subscriber to the capital of the corporation, i.e., a main difference is that par stock must be issued for at least its par value, while no-par stock may be sold for any consideration fixed by the directors. At any rate, we do not detect such changes as would vitiate the Supreme Court decisions in Emmerson and Margay; if, however, we are incorrect in this conclusion, the proper place for nullification of the rulings there rendered is the United States Supreme Court — not this court.

Affirmed.

Fogleman J., concurs.

John A. Fogleman, Justice,

concurring. I concur because Act 304 of 1953 was a comprehensive new act governing franchise taxes and not simply an amendment or, for that matter, even a re-enactment of Act 367 of 1923, which was somewhat more limited in scope. Otherwise, since the word “deemed” is not necessarily completely synonymous with the word “taken,” I would attach great significance to the change of words.

      The original suit was brought against A. B. Hervey, Jr., Acting Director of the Department of Finance and Administration, but was revived in the name of Richard R. Heath, Director of such department as the successor in office to Hervey.

      Pertinent provisions of those sections read as follows:
      “Section 4. ***Each corporation, the tax for which is fixed in lump sums by this act, which shall fail or refuse to file its report or shall fail or refuse to furnish the information necessary to the proper determination of the tax hereunder on or before June 20th of the reporting year, shall pay the maximum tax herein provided for corporations of this particular classification, and each other corporadon which shall fail or refuse to file its report or shall fail or refuse to furnish the information necessary to the proper determination of the tax due hereunder on or before June 20th of the reporting year, shall pay a tax at the rate herein provided based on its entire outstanding capital stock whether or not all or only a part of its capital is employed in Arkansas, and the Commissioner shall accordingly, on the basis of information available to him from whatever source, including prior reports, charge and collect such tax. ***
      “Section 5. In any case in which the par value of the shares of a corporation is required to be stated in any report required' under the provisions of this act, if such shares are without par value, the number of such shares shall be stated, and, for the purpose of computing the franchise tax by this act prescribed, such shares of no par value shall be deemed to be of the par value of Twenty-five Dollars ($25.00) per share.
      "Section 6. The Commissioner, from the facts reported and from any other facts coming to his knowledge bearing upon the subject, shall compute the amount of the tax by each of said corporations at the applicable rate or rates hereinbefore provided, *#*”.

      From appellant’s brief:
      “We are also familiar with statutes from other states which apply a presumed value to each share of no-par stock which said statutes are completely irrelevant to a correct interpretation of Ark. Stats. 84-1837. We are not challenging the constitutionality or reasonableness of those statutes. Such statutes are not persuasive in this case unless appellee can prove the constitutionality and reasonableness of each of those statutes, as applied to the facts and law involved herein.”


author: George Rose Smith, Justice.

text:
    BILL DYER SUPPLY COMPANY, Inc. v. STATE of Arkansas
    CR 73-90
    502 S.W. 2d 496
    Opinion delivered December 3, 1973
    [Rehearing denied January 14, 1974.]

      Kent J. Rubens and Oscar Fendler, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, the operator of a discount store near Blytheville, was fined $50 for having sold certain articles on Sunday in violation of our Sunday closing laws. Ark. Stat. Ann. §§ 41-3812 et seq. (Supp. 1971). The only issue raised on appeal is the constitutionality of the statutes.

Such statutes have been sustained so frequently by this court and by the Supreme Court of the United States that an extended discussion is unnecessary. In fact, the appellant concedes that most of its available contentions have already been rejected and are therefore not reargued. Under our practice the appellant waives any contention that is not argued. Sarkco, Inc. v. Edwards, 252 Ark. 1082, 482 S.W. 2d 623 (1972).

The trial in the court below was perfunctory, the parties merely stipulating to facts showing that the defendant had sold articles on Sunday in violation of the statutes. It is now insisted that our Sunday closing laws are not sufficiently comprehensive to achieve the legislative purpose of creating a uniform day of rest. That argument was rejected in Two Guys From Harrison-Allenton v. McGinley, 366 U.S. 582 (1961), where the court held in substance that the legislature might confine its explicit prohibition to those businesses that were "particularly disrupting the intended atmosphere” of the day of rest. In the same vein it is argued that our statutes are arbitrary and discriminatory in permitting the sale of some commodities while prohibiting the sale of others. On its face the act is not arbitrary. For instance, the enumerated prohibitions avoid such necessaries as food and drugs. Since we cannot say that the legislative classification could not be sustained upon any conceivable state of facts, the appellant’s attack upon the statute must fail for want of proof that arbitrary classification is involved. Green Star Supermarket v. Stacy, 242 Ark. 54, 411 S.W. 2d 871 (1967); Taylor v. City of Pine Bluff, 226 Ark. 309, 289 S.W. 2d 679 (1956), cert. den. 352 U.S. 894 (1956).

Affirmed.


author: Lyle Brown, Justice.

text:
    SOUTHERN CREDIT CORPORATION v. J. Clary ATKINSON, Sheriff of Dallas County
    73-130
    502 S.W. 2d 497
    Opinion delivered December 3, 1973
    [Rehearing denied January 14, 1974.]

      James R. Howard, for appellant.

      Lawson E. Glover and David M. Glover, for appellee.
   Lyle Brown, Justice.

By this suit appellant sought judgment against appellee for failure to make and file a return on an execution issued out of the Hot Spring County Circuit Court. The execution was directed to the sheriff of Dallas County because the judgment debtor resided in that county. Appellant filed a motion for summary judgment, which was denied. Then at the trial of the case appellant moved for a directed verdict, which was likewise denied. The jury returned a verdict for appellee and appellant here contends the trial court erred (1) in not granting the motion for summary judgment, and (2) in denying its motion for a directed verdict.

The court was correct in denying the motion for summary judgment. Counter affidavits were filed by ap-pellee in which it was sworn that the execution was actually served, a return made thereon, and mailed to appellant’s attorney. That allegation, as we shall later discuss in more detail, raised a justiciable issue for the jury.

An abridgment of the brief testimony is necessary to an understanding of our holding on appellant’s other point, namely, that it was entitled to an instructed verdict. The circuit clerk’s record was introduced to show that a judgment was entered in the case of Southern Credit Corp. v. Bobby Erwin, that an execution thereon was issued and was never returned. Appellee, the sheriff, was called by appellant. He testified that the execution was sent to him by appellant’s attorney; that he received two copies; that he made his return on one copy and mailed it to the attorney who sent it to him. The first witness for appellee was Dan Buford, a deputy sheriff in Dallas County. He said he accompanied the sheriff to the home of Bobby Erwin in Fordyce; that they found nothing on which to levy; that they returned to the sheriff’s office; that Buford made out a bill for the cost of levying the execution; that the sheriff made out the return; and that the bill and the execution document were placed in an envelope and dropped in the mail basket in the sheriff’s office. Bobby Erwin testified that the sheriff and his deputy came to his home with the execution, serving a copy thereof on him, but that he had no property on which to levy. Sheriff Atkinson testified he received the execution in the mail from attorney Howard from Little Rock and within a few days went to the home of Erwin, along with his deputy, and served the execution; that he found no property on which to levy; that he made a return on one of the copies and mailed it along with Deputy Buford’s bill to attorney Howard. “I mailed it back to him because I received it from him. I usually do that. Most lawyers like to see what is on the return. I usually go ahead and serve the papers and then bill the attorney for it. I was paid for the service of this execution.” In other words appellee was saying he mailed the' execution and the bill for services in the same envelope and attorney Howard responded by sending back a check for the service.

At the close of appellant’s (plaintiff’s) case, plaintiff made a motion which is usually made by defendant — motion for a directed verdict. In the first place, the sheriff, as appellant’s witness, testified that he mailed the execution to appellant’s attorney, from whom the sheriff received the execution. That testimony, absent explanation, could have caused the jury to conclude that the failure to file the execution with the clerk was caused by appellant’s attorney. In the second place, “a directed verdict for the plaintiff is a rarity”. Hales & Hunter Co. v. Wyatt, 239 Ark. 19, 386 S.W. 2d, 704 (1965). “A directed verdict at the close of the plaintiff’s evidence should be sparingly granted”. Jeanes v. Milner, 428 F. 2d 598 (1970); Spink v. Mourton, 235 Ark. 919, 362 S.W. 2d 665 (1962).

Appellant’s final argument is that it should have been granted a directed verdict at the close of all the evidence. That is based on the theory that the failure of the sheriff to return the execution to the clerk within the time required by statute, is not excusable in the law. Ark. Stat. Ann. § 30-431 (Repl. 1962) says: “All executions shall be returnable sixty days from their date”. Ark. Stat. Ann. § 29-208 (Repl. 1962) says judgment shall be rendered for the plaintiff against a sheriff for failure to return an execution. Many of our early cases literally interpreted and strictly enforced the quoted statutes. For example, see Herr & Co. v. Atkinson, 40 Ark. 377 (1882); Jett v. Shinn, 47 Ark. 373, 1 S.W. 693 (1885). In cases subsequent to those cited, our court has somewhat receded from its original “hard line” attitude. One of the leading examples is the case of Bickham v. Kosminsky, 74 Ark. 413, 86 S.W. 292 (1905). Kosminsky sued Sheriff Bickham and his sureties for failure of the sheriff to return an execution within the statutory period. The defendants answered that the attorney for the plaintiffs in connection with the judgment had insisted that the sheriff hold the execution beyond the statutory period. The court sustained a demurrer to the answer. This court reversed, holding that the answer presented a good defense. This court said:

Those who propose to invoke against officers the severe penalties of the statute upon which this motion is based must be careful to do nothing which directly or indirectly contributes to the omission of duty complained of. Simms v. Quinn 58 Miss. 221. This statement may reach further than was contemplated in Jett v. Shinn, but it well illustrates the application of the rule announced in Jett v. Shinn, that the act or instructions of the party in interest in preventing the return is a defense to the officer.
The plaintiff in execution has a right to control the execution by himself or attorney, and, having such right, the officer must follow his instructions.
This authority of the plaintiff must not be exercised to cause the sheriff to omit a statutory duty; but if it does cause him to do it, the plaintiff cannot take advantage of it.

In a somewhat similar state of facts, the trial court held that the failure of the sheriff to return the execution was due to the instructions of the plaintiff. Wilkerson v. Mobley, 152 Ark. 124, 237 S.W. 726 (1922). This court affirmed and said:

The statute in question is highly penal, and a party invoking it must bring himself within both the letter and spirit of it. Therefore, he can do nothing which directly or indirectly contributes to the omission of the duty complained of and still hold the sheriff answerable under the statute.

The latest pronouncement on the question which has come to our attention is Hamilton v. Pan American Southern Corp., 238 Ark. 38, 378 S.W. 2d 652 (1964). There we said: “In dealing with a statute of this kind it is well established by our decisions that it 'must be strictly construed in favor of those upon whom the burden is sought to be imposed’ ”.

We summarize the undisputed evidence which we think made a justiciable issue of fact. Sheriff Atkinson testified that he received the execution from attorney Howard, not from the clerk; there was a cover letter which instructed the sheriff to mail his bill to the attorney; he mailed the execution and the bill to the attorney in the same envelope and there was a prompt return of a check for services; he mailed it to the attorney because he received it from the attorney (this fact is of considerable significance to us); and further, that was his custom in his nine terms in office because the lawyers wanted to see what was on the return. From the unchallenged facts it could have been reasonably deduced that the execution could have been lost in the attorney’s office. Additionally, when the process was sent to the sheriff, not by the clerk, but by the attorney, the latter may have contributed, indirectly at least, to the sheriff’s returning the execution to the attorney. This is not to say that the attorney is subject to criticism because it is common knowledge that sheriffs ofttimes send their returns to counsel. And, of course, it goes without saying, we are not concluding that is what did in fact happen; we are only saying that the trier of facts could reasonably make such conclusions.

Affirmed.


text:
    Eugene E. MANN v. Delbert HUGHES et ux
    73-151
    502 S.W. 2d 465
    Opinion delivered December 3, 1973
    [Rehearing denied January 14, 1974.]

      Gus R. Camp, for appellant.

      Lee Ward, for appellees.
   Lyle Brown, Justice.

Appellant and appellees are the owners of adjoining tracts of land near the city of Piggott. The tracts are on the north side of the street and this case grows out of a dispute as to the boundary line between the two pieces of property. The difference between the parties concerns, roughly, some eighteen feet. Appellant bases his claim on a surveyed line; appellees contend that the true line is one established by common consent and acquiescence of the adjoining owners for some ten years. The main contention for reversal is that the chancellor erred in finding from a preponderance of the evidence that the boundary had been fixed by common consent and acquiescence.

At one time the parents of appellant owned both parcels of land. Appellant received his deed from his father in 1961. The elder Mr. Mann conveyed the Hughes (appellees) tract to Ezra Hardin and wife in 1958; the Hardins conveyed to appellees in October 1967. Evidently no survey was made by either of the parties to this case at the time of their acquisition.

Mrs. Hardin testified that she and her husband (now deceased) acquired title in 1958 and moved on the plot of ground in 1962. She said there was an old fence between the Hughes and Mann tracts, and described the old fence as being in close proximity to the boundary line which the court later fixed. She said she told appellant “maybe the fence angled down through there” and told him that if so, he could set it back, but that was never done and “we just always counted the fence the line”.

Appellee Delbert Hughes testified that at the time he bought the property there was a fence, wooden and woven wire running northerly between the properties and that this fence was pointed out by Mr. Hardin as being the boundary. He said there were shrubs and flowers, and a garden which he regularly planted, within the disputed strip; that appellant never attempted to use the disputed strip for any purpose; that in 1969 appellant approached the witness for permission to cause to be constructed a sewer line through the disputed strip, and that permission was granted but the line was never installed.

Witness Walter Riddle testified for appellees. He said he had been familiar with the property for the last twelve years. In times past he had hauled livestock to the slaughterhouse which was operated on appellant’s property. He said that during those years there was a fence between the properties of the parties hereto and his description of the location also coincided with the line later fixed by the chancellor. He said “there was shrubbery, flowers, rose bushes and everything set on the inside on either side”.

Appellant testified he had been familiar with the property since the time his father owned it. He said in years past there had been an old north and south fence between the properties which was located between the survey line and the line testified to by appellee Hughes and his witnesses. He said the fence upon which appellee relies for a consent boundary was not in existence in March 1963. He testified that the first part of that fence was started by him in 1963 and completed by working spare time at different intervals. He said part of the fence north of the slaughterhouse was built by him to trap animals. He testified the south part of the fence was built “to keep people from the east side from seeing how big a mess I had over there”. He insisted the fence was partly burned and the rest of it was taken down, all in 1969. He denied that the Hardins occupied the disputed area when they owned the tract. He said at the time the Hardins lived there he had no use for the disputed area and gave Mr. Hardin permission to use it as a garden.

Appellant’s wife substantiated most of her husband’s testimony. She added that appellee Hughes was agreeable to a survey and quoted him as saying: “What’s a few feet this or that?” She said Hughes declined to pay any part of the cost of survey and also objected when her husband started erecting the fence on the surveyed line.

There was other testimony on both sides and we have given consideration to all of it. No useful purpose would be served by abstracting the testimony of each and all the witnesses. The location of the fence upon which appellee relies as the boundary by acquiescence is certainly not one-sided; in fact the testimony created a close question of fact. “When the evidence is conflicting or evenly poised, or nearly so, the judgment of the chancellor on the question of where the preponderance of the evidence lies is considered as persuasive.” Clark v. Mathis, 253 Ark. 416 486 S.W. 2d 77 (1972).

Appellant contends that the line established by the court is not straight or properly described. We do not agree. The line fixed by the court first runs “northerly” to a point 4 1/2 feet east of a concrete slab and then runs due north the rest of the way. That description was very nearly in line with the description of the location of the old fence relied upon by appellees.

Appellant insists that the court erred in admitting into proof appellees’ exhibit six. That was a picture introduced by appellees which was not mentioned in the interrogatories submitted to appellees. We find no prejudicial error or element of surprise. The picture is very similar to another picture introduced in evidence as exhibit five.

The court erred, says appellant, in permitting appel-lee Hughes to testify as to what his grantor (since deceased) told appellee about the location of the line. In the first place the testimony was invited by a question on cross-examination. In the second place it was admissible as an exception to the hearsay rule. Thacker v. Hicks, 215 Ark. 898, 224 S.W. 2d 1 (1949); Texas and N.O. Ry. Co. v. Broom, 53 Tex. Civ. App. 78, 114 S.W. 655 (1908); Knight v. Knight, 178 Ill. 553, 53 N.E. 306 (1899).

Affirmed.


author: John A. Fogleman, Justice.

text:
    GRIFFITH LUMBER COMPANY, An Arkansas Corporation v. B. F. CONNOR
    73-124
    502 S.W. 2d 500
    Opinion delivered December 3, 1973
    [Rehearing denied January 14, 1974.]

      Butler and Hicky, for appellant.

      Rieves ér Rieves, for appellee.
   John A. Fogleman, Justice.

Appellant Griffith Lumber Company contends that a judgment, awarding appellee Connor $3,000 as damages on Connor’s suit alleging breach of contract for construction of a summer home for Connor on Horseshoe Lake in Crittenden County, is erroneous. Its points for reversal assert insufficiency of the evidence to support the verdict and error on the part of the trial court in instructing the jury. We find no reversible error.

It is undisputed that Connor entered into a contract in February, 1969, with Griffith Lumber Company, acting through the manager of its Hughes office, W. D. Luns-ford, to erect the house, according to plans and specifications prepared by an architect, who did not make any specifications as to air conditioning. Connor contended that, under the contract, the lumber company was to design and install adequate heating and air conditioning. He alleged that appellant breached the contract by failing to substantially complete the building, by not following the plans and specifications and through defective workmanship. He also alleged that Griffith Lumber Company had acknowledged by a letter dated December 16, 1969, that the air-conditioning system was defective. Appellant’s defense was, to a great extent, bottomed upon the contention that Connor had accepted the work, except for the air conditioning, and that the air-conditioning system was adequate for the area it was intended to serve. By an amended complaint, Connor alleged damages totalling $5,236 of which $3,150 was for purchasing and installing a new air-conditioning system, $483 for repairing a fireplace, installing an exhaust fan in a bathroom and finishing a runway in an attic; $1,000 for installing a pocket door and reworking and repairing inside construction to conform to the plans and specifications; $28 for installing insulation for ducts according to the plans and specifications; and $575 for repair to windows to make them watertight, installing base and base shoe and repairing water damage.

The jury returned its verdict for Connor for $3,000. The evidence was in sharp contradiction on many points. Appellant states its point for reversal for insufficiency of the evidence thus: “The verdict of the jury was contrary to the law and the weight of the evidence.” Of course, we cannot consider the weight of the evidence and must affirm if there is any substantial evidence to support the verdict. Horn v. Shirley, 246 Ark. 1134, 441 S.W. 2d 468; Wasson v. Warren, 245 Ark. 719, 434 S.W. 2d 51; Dunaway v. Troutt, 232 Ark. 615, 339 S.W. 2d 613. We find substantial evidence to support a verdict in the amount for which it was rendered.

Appellant first contends there was no evidence to show that there were any latent defects in the work. The alleged latent defects of which Connor complained, other than the air conditioning, consisted largely of the items for which he claimed damages. Connor told of having occupied the house for about two weeks in late June or early July, 1969, while appellant’s employees were still doing some work there, and, after an absence of four or five days, having returned and found that water had run down through the ceiling in two bedrooms and a hallway. He said he found later that a pocket door was useless because it had been improperly located and installed, that cold air was coming into the bathroom because of the lack of a set of louvers on a suction fan in the attic, that brick falling in the fireplace caused it to disintegrate when the first fire was built, that water was coming through windows in the porch (or playroom), that linoleum flooring had curled up because of appellant’s failure to install quarter round or base shoe and that plywood flooring had not been installed in the attic as called for by the plans. Except for the pocket door, Connor maintained he did not discover these defects until after December 16,1969, the date of the final payment of the contract price by him, and the delivery of a letter by Lunsford, acknowledging problems with the air conditioning and the responsibility of appellant to see that the unit operated satisfactorily and to replace it if it did not.

Connor said he complained to Lunsford, who promised to correct the defects, but Lunsford died before he could do so. Connor admitted that some corrections had been made, but testified that, after Lunsford’s death, he talked to Mr. Griffith, the president of appellant, who promised to take additional corrective measures, but failed to do so. Herschel Manning, a licensed Arkansas contractor engaged in commercial and residential building in the area and a Carrier Air Conditioning dealer, testified that the reasonable cost of replacing the three-ton air-conditioning unit with a five-ton was $3,150. His estimates of costs for repairing other defects and for supplying deficiencies in the work generally support the amounts claimed by appellee.

Appellant contends, however, that Connor waived any claim for all these alleged defects and omissions, except for the air conditioning, by taking possession of the property in June of 1969 and making final payment on the contract price on December 16, 1969. We cannot agree that there was a waiver here as a matter of law. Most of the authorities relied upon by appellant on this subject are based upon the assumption that the owner accepted the work with knowledge that it had not been done according to contract, or under circumstances from which such knowledge would necessarily be imputed, or upon contract provisions different from those here. Some of them clearly recognize that the general rule as to waiver of defects by acceptance does not apply to latent defects. See, e.g., 13 Am. Jur. 2d 59, Building and Construction Contracts, § 55; Guschl v. Schmidt, 266 Wis. 410, 63 N.W. 2d 759 (1954). In the case of latent defects, according to these authorities, before there can be a waiver, the defect must be known by the owner or discoverable by him by reasonable inspection, or there must have been a reasonable time and opportunity for discovery by due diligence. Others recognize the owner’s right to recoupment, set-off or recovery of damages on account of the defective character of the work due to material noncompliance with the contract when timely objection was made, even though, because of use and occupancy, he may not be heard to deny the contractor’s right to recover the contract price. See Bush v. Finucane, 8 Colo. 192, 6 P. 514 (1885); Katz v. Bedford, 77 Cal. 319, 19 P. 523 (1888); Guschl v. Schmidt, supra. Some of these authorities clearly recognize the existence of questions of fact as to whether the defects complained of were latent, and whether timely objections were made by the owner. This seems to be consistent with our holdings in similar situations. Dutton v. Million, 114 Ark. 330, 169 S.W. 1183.

In one of the few cases on the subject in Arkansas, it was held that when work contracted for has been done substantially in accordance with the terms of the contract, or where there has been an acceptance of the work by the owner, the contractor may, notwithstanding defects therein, recover the contract price, less the. cost of correcting such defects. Fitzgerald v. LaPorte, 64 Ark. 34, 40 S.W. 261. In that case, it was said that continued use of the building did not necessarily constitute an acceptance of the work.

If Connor’s testimony was found worthy of belief, there was a question of fact involved. It is true that the contract provided for payment of $2,500 when the house was turned over to Connor and accepted, but it also provided that a balance of $1,500 “be held” for 120 days after Connor received the house. This was a clear provision for possible deficiencies and omissions in performance of the contract. This payment was not made until December 16, 1969, and was made then, according to Connor, because Lunsford said he needed the money. Connor said that, at the time, he was unaware of any of the defects he discovered except for the air conditioning and the pocket door, and that Lunsford had made a number of repairs to the house between June and December. It is logical to believe that some of the matters of which Con-nor complained would not have been discovered until winter weather caused them to be revealed. Connor also claimed that when he moved into the house, Griffith had retained and still had a key to the house.

In Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W. 2d 518, in treating the matter of waiver, we had this to say:

Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. It may occur when one, with full knowledge of the material facts, does something which is inconsistent with the right or his intention to rely upon it. Sirmon v. Roberts, 209 Ark. 586, 191 S.W. 2d 824. In the cited case, we said that conduct amounting to waiver should be carefully inspected and all evidence upon the subject impartially scrutinized.

We readily agree that there was substantial evidence tending to show that Connor had accepted the work and had waived appellant’s noncompliance with the contract, if any, except as to air conditioning. But there was definitely a fact question on the score, which was resolved against appellant by the jury.

Appellant’s argument relating to evidence about the inadequacy of the air-conditioning system is based for the most part upon its contention that the only witness who testified that the air conditioner to be supplied by appellant was to be a unit with a five-ton capacity was Connor and that his testimony was sharply contradicted by Delton Cummings and Marion Bobby Latham, that the initial plans called for a place on a glass-enclosed porch or playroom for the two-ton unit, admittedly installed by Connor, that the three-ton unit installed by appellant was quite adequate for the rest of the house and that a five-ton air conditioner in addition to the two-ton unit would have been far in excess of Connor’s needs and would have increased his contract price. Appellant points out that the lips of Lunsford, its manager, have been sealed by death, but argues that Connor’s testimony is outweighed by the fact that the building plans called for the separate window air conditioner on the porch, together with the testimony of Latham that, at the request and upon the instruction of Lunsford, he figured the air-conditioning load for the house exclusive of the porch and that the three-ton unit was more than adequate for that purpose.

But we cannot reject the testimony of Connor or find it insubstantial solely because we might think that it is outweighed by other evidence or on the basis of credibility. The determination of credibility was totally within the province of the jury. Bradberry v. Gower, 247 Ark. 700, 447 S.W. 2d 124; St. Louis-Southwestern Ry. Co. v. Holwerk, 204 Ark. 587, 163 S.W. 2d 175; Lewis v. Shackleford, 203 Ark. 500, 157 S.W. 2d 509; Lloyd v. James, 198 Ark. 255, 128 S.W. 2d 1019. We could only reverse the jury verdict upon the conflicting evidence presented if we could say there was no reasonable probability that the facts could be as related by Connor and as the jury found, even though we might think that his version was highly improbable. Green v. Harrington, 253 Ark. 496, 487 S.W. 2d 612; Beard v. Coggins, 249 Ark. 518, 459 S.W. 2d 791; Blissett v. Frisby, 249 Ark. 235, 458 S.W. 2d 735; Fields v. Sugar, 251 Ark. 1062, 476 S.W. 2d 814; Rhodes v. Bernard, 248 Ark. 869, 454 S.W. 2d 318, 47 A.L.R. 3d 961. So long as a party’s testimony relates to matters that might or might not have existed, and his right to recover is dependent upon the truth or falsity of his testimony, it is evidence of a substantial character and, if believed by the jury, is sufficient basis for a recovery by him. Independent Stave Company v. Fulton, 251 Ark. 1086, 476 S.W. 2d 792.

Connor testified that:

He had no experience in heating or air conditioning. He had an architect in Memphis, Tennessee, where Connor lived, draw up plans and specifications for the house, which covered everything with the exception of air conditioning. He negotiated the contract with Lunsford, gave him a set of blueprints and told him that it was up to the contractor to furnish a set of prints showing heating and air conditioning, but that, in no event should there be less than five tons of air conditioning, after which Connor told Lunsford that he was marking his own set of plans accordingly and Lunsford said, “I’m marking mine.” Lunsford “reached over” and, Connor assumed, did mark the print which Lunsford worked from and had in his possession until he ended the job. The set of plans in Connor’s possession bore the notation “no less than five ton air conditioning” in Connor’s handwriting but he did not put it on any other set, even the extra set which he furnished his attorney and which was exhibited to appellant’s attorney when Connor’s discovery deposition was taken.

The contract dated February 27, 1969, which Connor testified was drawn by Lunsford, provided for the house to be built according to plans and specifications for $19,-000, with everything furnished except floor covering. Connor stated he did not know that the air-conditioning unit appellant installed had a three-ton capacity rather than a five-ton capacity until Delton Cummings, a Carrier Air Conditioning dealer, was sent by the distributors to calculate the load at the house long after the house construction was completed and after Lunsford’s death. He also testified he installed a second unit on the porch as an auxiliary unit at his own éxpense and Lunsford understood this. It was for the jury to decide whether to believe this witness. Since they apparently chose to do so on this point, we are bound by their decision.

Appellant’s complaint about jury instructions falls upon the basis of what we have said heretofore. Its requested instruction number one is premised upon the assumption that Connor was barred from any recovery except for any breach of the contract relating to air conditioning and for that reason would not have been a correct instruction. Appellant’s objection to instructions given at the request of appellee is not well taken because it is based entirely on the same premise. Appellant’s argument on both points is based upon its contention that there was a waiver of any defects as a matter of law. It appears to us that the issues were properly submitted to the jury.

Since we find no error, the judgment is affirmed.


text:
    Samuel J. WATSON v. STATE of Arkansas
    CR 73-131
    501 S.W. 2d 609
    Opinion delivered December 3, 1973

      Sam Gibson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant contends we should reverse his conviction of robbery, asserting that there was error in the admission into evidence of his purported confession, and in the court’s refusal to give his requested jury instruction relating to the voluntariness of his confession, and that the evidence was insufficient to support the verdict. We find reversible error in the admission of the alleged confession.

We have for some time been committed to an independent determination of the voluntariness of a confession based upon an examination of the entire record, whenever an attack is made upon federal constitutional grounds. Harris v. State, 244 Ark. 314, 425 S.W. 2d 293; Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311; Scott v. State, 251 Ark. 918, 475 S.W. 2d 699. The question of voluntariness must be determined by looking to the whole situation and surroundings of the accused. Dewein v. State, 114 Ark. 472, 170 S.W. 582; Boyd and Byrd v. State, 230 Ark. 991, 328 S.W. 2d 122; Mitchell v. Bishop, 248 Ark. 427, 452 S.W. 2d 340. Upon our examination, the findings of the trial court are not shunned but are given considerable weight in resolving evidentiary conflicts and respectful consideration on the crucial issue. Our examination of the record leads us to the inescapable conclusion that, when the totality of the circumstances surrounding Watson at the time is viewed, the state failed to meet its burden of showing his statement was made freely and understandingly without hope of reward or fear of punishment, as we have always required for the admission into evidence of a statement made by one in custody. Mitchell v. Bishop, supra; Boyd and Byrd v. State, supra.

Among the factors to be considered in determining this issue are: the age and the intellectual strength or weakness of the defendant, the manner in which he is questioned, the presence or absence of threats of harm or inducements in the form of promises or favor (Dewein v. State, supra; Williams v. State, 69 Ark. 599, 65 S.W. 103; Barnes v. State, 217 Ark. 244, 229 S.W. 2d 484), and the delay between the advice of constitutional rights required by Miranda and the giving of the confession. Summerville v. State, 253 Ark. 16, 484 S.W. 2d 85; Scott v. State, 251 Ark. 918, 475 S.W. 2d 699. Where threats of harm or promises of favor or benefit are used to wrest a confession, it may be attributed to those influences. Brown v. State, 198 Ark. 920, 132 S.W. 2d 15. In order to be admissible, a confession must be free from official inducement proceeding either from hope of gain or the torture of fear. Bullen v. State, 156 Ark. 148, 245 S.W. 493. Holding out to a simple person that she would be awarded a very light punishment, if she confessed having stolen money, has been held sufficient inducement to make her confession involuntary and its admission into evidence reversible error. Porter v. State, 206 Ark. 758, 177 S.W. 2d 408.

Viewing the testimony in the light most favorable to the state, as we must in order to give the circuit judge’s holding appropriate weight, examination of the entire record discloses that:

Appellant, known as Joe Joe, was 17 years of age. His parents, who now live at Fort Smith, realized when he was in the third grade that he had a problem arising from his inability to learn. He was then sent to a Child Guidance Center for a long period of time, and was assigned to “special education” all along. He had been referred to the Arkansas Rehabilitation Services for vocational evaluation by the training school. Intelligence tests administered to young Watson revealed that he was “dull normal” and had achieved a level of third grade in spelling, 3.9 in reading and 5.7 in arithmetic. Such a person can make a living, handle money and live a semblance of a normal life. When arrested on January 4, 1973, he was attending the State Rehabilitation Center at Hot Springs. He was arrested by Hot Springs police detective Abernathy, who testified he advised Joe Joe of his constitutional rights. He was transported from Hot Springs to Malvern by Hot Spring County deputy sheriff Lloyd Smith, who conducted most of the interrogation of appellant. He did not see either of his parents until after he had signed the confession, and he did not want to call his uncle or his grandmother, with whom he lived in Malvern.
Abernathy testified he used a standard printed form utilized by the Hot Springs Police Department in advising Watson of his rights. When asked specifically to state the rights of which he advised Watson, Abernathy replied he told Watson of his right to remain silent and that any statement made by him would be used against him in court. Abernathy then said he read the form to Watson, and as he read each item and after asking appellant if he understood, placed a check mark in a box provided on the form for that purpose, and then handed the form to Watson to read. Thereafter, he said, Watson signed the form and the officer signed a certification on the form. This form was handed to Smith when he picked up Joe Joe at the Hot Springs Police Department and Smith received an affirmative answer to his inquiry of the prisoner as to whether he had signed this form. Although Smith said he asked Joe Joe twice thereafter whether he knew his rights, there was no evidence that anyone other than Abernathy had attempted to advise Joe Joe of any of the rights not stated on the form. According to Smith, he took Joe Joe into the sheriff’s office upon their arrival in Malvern, and, after asking if Watson knew his rights, said, “I don’t want you to tell me no story. Tell me the truth, and we will get things over with.” When Joe Joe asked “How long will I have to stay here?” Smith replied “Maybe a day or maybe two weeks. I don’t know, until we are thoroughly convinced that you are guilty or not guilty.” The next day Smith read the form to Watson again, and after Watson again confirmed the fact that he had signed the form, Smith asked “You want to talk to us about it or go the hard way?” and added “We are going to find out before I let you go.” When Joe Joe accused Smith of trying to “pressure” him, the officer said he replied “Come on. You are going back upstairs until you quiet down.” They were on their way upstairs when Joe Joe told Smith he wanted to talk to the sheriff, saying “I want to get this over with. I want to tell him about it.” Smith read the rights form to Watson again before the confession was signed. Watson’s mother testified that Smith had admitted to her that he had promised to talk to the judge, with whom he had good connections, about imposing a light sentence ánd suspending it so Joe Joe could go back to the rehabilitation center, if Joe Joe should sign the statement. This testimony was not contradicted.

Our review of the record discloses that, in view of appellant’s mentality and the statements made to him by the deputy sheriff, the advice to Watson about his constitutional rights may not have been given with sufficient clarity to enable him to understand that, if he desired, and was unable to employ a lawyer, a lawyer would be appointed before he was questioned. The form employed to advise appellant of his rights sets them out as follows:

1. Anything you say may be used against you in a court of law.
2. You have the right to use a telephone.
3. You have the right to remain silent.
4. You have the right to request a lawyer of your own choice.
5. You have the right to have your lawyer with you during questioning.
6. If you cannot afford a lawyer and want one, a lawyer will be provided for you in a court of law.
7. If you decide to answer questions now without a lawyer present, you still have the right to stop answering at any time until you talk to a lawyer.

In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the United States Supreme Court said:

The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.
* * #
This does not mean, as some have suggested, that each police station must have a “station house lawyer” present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation.

The opinion also points out that the burden is clearly on the state to establish a waiver of rights.

Appellant was advised that he had a right to have a lawyer provided in a court of law, if he could not afford one and that, ‘if he decided to answer questions without a lawyer present, he would have the right to stop answering at any time until he did talk to a lawyer. This can easily be construed to mean that he could stop the questioning until a lawyer had been appointed. It has been held that advice that an attorney would be appointed “at the proper tíme,” even though a slight deviation from the Miranda prescription, will not negate the overall effectiveness of the warning. Tasby v. U.S., 451 F. 2d 394 (8th Cir. 1971), certiorari denied, Feggett v. U.S., 92 S. Ct. 1273, 405 U.S. 992, 31 L. Ed. 2d 459.

This warning is not as defective as that condemned in Moore v. State, 251 Ark. 436, 472 S.W. 2d 940, where the form relied upon contained the statement “We have no way of giving you a lawyer, but one will be appointed for you, if you wish, when and if you go to court.” There the implication that a lawyer could not be appointed before the accused’s case came up in a court is clear. It is not clear that the provision of an attorney in a court of law would be postponed beyond “a proper time” in this case. This situation is also quite different from that in Reed v. State, 255 Ark. 63 498 S.W. 2d 877, where it was admitted that it was only indicated to the accused that, if he did not have an attorney before he went to trial, the court could appoint one for him. Still, it remains doubtful that young Watson, with his intellectual weakness, would have understood, either before or after the coercive and inducive language used by the officer, that he had the right to ask that a lawyer be appointed for him before interrogation.

All doubts about the voluntariness of a confession must be resolved in favor of individual rights and constitutional safeguards. Smith v. State, 240 Ark. 726, 401 S.W. 2d 749. In view of Watson’s limited mentality, the coercive nature of Smith’s interrogation and the lack of clarity in the only advice given to Watson as to his constitutional rights, when we resolve all doubts in his favor, we are compelled to hold that the confession was involuntary, because it was obtained through duress, threats of harm, and á promise of favor or reward, condemned in such cases as Dewein v. State, supra, without adequate warnings as to his constitutional rights. In so doing, we have given respectful consideration to the holding of the trial court and resolved any conflicts in the evidence in favor of that ruling.

We need not discuss appellant’s other points extensively. The question of voluntariness of the statement is unlikely to arise on retrial, but it appears to us that the circuit judge’s instructions, given without objection, adequately covered the matter of the consideration to be given the confession by the jury, particularly in view of the fact that no specific instruction was requested.

In view of the positive identification of Watson by the victim of the “purse-snatching” of which appellant was accused, the evidence without the confession was legally sufficient, but admission of an involuntary confession must be taken to be prejudicial and reversible error.

For the error indicated, the judgment must be reversed and the cause remanded. It is so ordered.

      As explained in Needham v. State, 215 Ark. 935, 224 S.W. 2d 785, 790.