text:
    Harvey Virgil TOLBERT v. STATE of Arkansas
    5344
    428 S. W. 2d 264
    Opinion delivered May 27, 1968

      G. Leroy Blankenship, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Following a jury trial in the Poinsett County Circuit Court, on information filed by the prosecuting attorney, Harvey Virgil Tolbert was convicted of a violation of “The Arkansas Hot Check Law” and was sentenced to five years in the state penitentiary. He has appealed to this court and relies upon the following points for reversal:

“The verdict was not supported by the evidence because the evidence did not establish intent to defraud.
The trial court committed reversible error in permitting the State to introduce five checks as a part of the testimony of Boyce Durham.”

The facts are as follows: The defendant had become acquainted with one R. V. “Buck” Moore, a contractor living in Harrisburg, Arkansas. The defendant spent the night in Mr. Moore’s home on October 1, 1966, and the following morning, being on Sunday, appellant advised Mr. Moore that he was short of cash and requested Mr. Moore to assist him in cashing a check. Mr. Moore went with the appellant to Main Highway Esso Service Station where the operator of the service station first refused to cash appellant’s check, but when Mr. Moore agreed to “stand good” for the payment of the check, the operator agreed to cash it.

The appellant made out a check for $75.00 on a printed check form with blank spaces provided for the name and address of the bank. The check form had printed on its face as follows: “For value received. I represent the above amount is on deposit, in said bank or trust company, in my name, is free from claims and is subject to this check.” The appellant wrote “Citizens Bank of Smithville, Arkansas,” into the spaces provided therefor ; the check was made payable to Main Highway Esso Service Station, it was signed by the appellant and cashed by the operator of the service station. When the check was presented to the Citizens Bank of Smithville, appellant had no account in the bank and payment of 'the check was dishonored for that reason. Upon return of the check to the operator of the service station with the bank’s notation “No Acct.,” Mr. Moore was notified ¿nd he paid the operator of the service station as he had agreed to do.

Appellant was charged with, and convicted of, violation of Act 241 of the Acts of Arkansas for 1959, Ark. Stat. Ann. §§ 67-719 — 67-724 (Repl. 1966). The pertinent portions of which are as follows:

“For convenience this Act [§§ 67-719 — 67-724] may be referred to and cited as ‘The Arkansas Hot ■Check Law.’
“It shall be unlawful for any person to procure any article or thing of value, or to secure possession of any personal property to which a lien has attached, or to make payment of any pre-existing debt or other obligation of whatsoever form or nature, or for any other purpose to make or draw or utter or deliver, with intent to defraud, any check, draft or order, for the payment of money, upon any bank, person, firm or corporation, knowing at the time of such making, drawing, uttering or delivering, that the maker, or drawer, has not sufficient funds in, or on deposit with, such bank, person, firm or corporation, for the payment of such check, draft or order, in full, and all other checks, drafts or orders upon such funds then outstanding.”

.The penalty provision of the act, § 67-723, as it applies to this case, is as follows:

“For a violation of this Act, in the event the amount of the check, draft or order involved is Fifty Dollars ($50.00), or more, punishment shall be by confinement in the penitentiary for not more than ten (10) years, and by a fine not exceeding Ten Thousand Dollars ($10,000).”

Appellant offered no evidence at the trial and the first point he relies on for reversal is settled by § 67-722 of the statute, as follows:

“As against the maker, or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or on deposit with, such bank, person, firm or corporation. The indorsement or stamp of a collecting bank on any check, whether such check be drawn on an out-of-state or in-state bank shall constitute prima facie evidence of presentment without protest.”

The check.for $75.00 upon which appellant was prosecuted and convicted was dated October 1, 1966. At the trial of the case, the state introduced, over appellant’s objection, five additional checks ranging in amounts from $10.00 to $16.25, and dated from October 10, 1966, to October 12, 19.66, drawn by appellant on the Citizens Bank of Smithville, Arkansas, and dishonored for payment by the bank because the appellant had no account in the bank. The original information under which appellant was charged also contained counts in connection with these checks, but because the charges on these cheeks constituted misdemeanors under the statute, they were dismissed from the information on motion of the trial court with direction that they he prosecuted under proper misdemeanor charges in municipal or justice of the peace courts.

These five checks were introduced at the trial, over the objections of the appellant, and the cashier of the bank was permitted to testify thereon for the purpose of showing “the mode, or method, or scheme of operation of the defendant, the motive and his guilty knowledge and intent.” The checks were received in evidence for that limited purpose and the trial court so instructed the jury as follows:

“The Court has admitted testimony of other offenses similar to the one charged in the Information. You will not be permitted to convict the defendant upon such testimony. Evidence of another similar offense, if you believe another has been proven, is admitted solely for the purpose of showing motive, design and particular criminal intent, habits and practices, guilty knowledge, good or bad faith, and you should consider such evidence for this purpose alone and it shall not be considered in fixing any punishment that might be imposed.
The defendant is not on trial for any offense except the alleged offense of the issuance of the check of October the 1st, 1966 in the amount of $75, and the defendant cannot be convicted on testimony of other possible offenses.”

In the light of the trial court’s instructions, we conclude that the trial court did not err in permitting the introduction of the five additional checks for the purpose they were offered and accepted.

In Kerby v. State, 233 Ark. 8, 342 S. W. 2d 412, Kerby was convicted of obtaining money under false pretenses in the sale of corporate stock by false representations concerning the assets of the corporation, and in that case this conrt said:

“. . . [I]n the case at hand Kerby’s actual subjective intent was of controlling importance. Guilty knowledge is an essential element of the crime, for Kerby would have committed no offense if he believed his statements to be true. In such circumstances proof of other similar conduct, not too remote in time, is admissible to aid the jury in determining the intent of the accused. ‘So, when it is material to show that a given act was done with a fraudulent intention, as, for example, in a prosecution for obtaining goods by false pretenses, other disconnected false pretenses in which the presence of fraud is recognized may be proved solely to show the intent. To illustrate: Where the accused had used a fraudulent abstract of title to induce one to sell him goods in exchange for real estate, it may be shown that the accused had on the same day employed the same means to induce another person to sell him goods.’ Underhill, Criminal Evidence, (5th Ed.), § 208. We applied the principle in Myers v. Martin, 168 Ark. 1028, 272 S. W. 856, which although a civil case, is basically similar to the present case. There in a purchaser’s action to recover damages sustained in the purchase of certain bank stock as a result of the seller’s fraudulent representations it was held that the plaintiff could introduce proof to show that the defendant had made like misrepresentations in selling shares of the same stock to others. ‘It tended to show a motive and a general scheme to induce people to invest in the stock of the bank.’ ”

In the case of Larkin v. State, 131 Ark. 445, 199 S. W. 382, we quoted with approval from State v. Raymond, 24 Conn. 204, as follows:

“. . . [Djefendant was charged with keeping intoxi-eating liquors with intent to sell the same in violation of law. William Taylor was allowed to testify that he had purchased of Raymond at his place of business at two different times intoxicating liquors. This was admitted to show that Raymond kept intoxicating liquors with the intent to sell the same. The prosecuting attorney admitted that charges were pending in the superior court against Raymond for making these sales to Taylor. In that case the defendant claimed that the sales to Taylor could not he used as evidence to convict him because if they could it would subject Raymond to two or more prosecutions for the same offense. The court held that the evidence was admissible to prove that he had sold to Taylor other liquor of the same kind in his store. The court said that the evidence of the sales to Taylor was admissible, not for the purpose of convicting the defendant of keeping that liquor for sale, but only for the purpose of showing the intent with which he kept the liquor, for the keeping of which he was being prosecuted. So here the court carefully protected the defendant against conviction of any charge except the one for which he was being prosecuted. Hence we are of the opinion that the court did not err in admitting the testimony of Spriggs and the other witnesses of the sale made to Spriggs.”

In Cain v. State, 149 Ark. 616, 233 S. W. 779, the appellant was charged with, and convicted of, operating a certain gambling house in Hot Springs. One of the errors assigned on appeal was the admission of evidence as to other violations, and on this point we said:

“It is next insisted that the court erred in admitting evidence tending to show that the defendant operated gaming houses at other places in Hot Springs than the Pastime place. There was no error in admitting this testimony to go to the jury. It is true the general rule is that evidence of the commission of other crimes is admissible only when such evidence tends directly or indirectly fo establish the defendant’s guilt of the crime charged in the indictment or some essential ingredient thereof. The evidence of the commission of other crimes of a similar nature about the same time, however,, tends to show the guilt of the defendant of the crime charged when it discloses a criminal intent, guilty knowledge, identifies the defendant, or is' part of common scheme or plan embracing two or more crimes so related to each other that the proof of one tends to establish the other.”

In Wilson v. State, 184 Ark. 119, 41 S. W. 2d 764, appellant was tried and convicted in Van Burén County of the crime of forgery and uttering in connection with a check made payable to R. 0. Jones. The evidence on the part of the state tended to show, that the appellant had drawn a check on the bank of Scotland, bearing the signature of R. 0. Jones, for the sum of $6.00; that said check was returned marked No Acct.; and that there was no R. 0. Jones in Van Burén County. A number of witnesses testified to different checks alleged to have been forged and passed in the same way, and the evidence also showed that the persons whose names were signed to the checks were fictitious persons.. Dates on. the checks covered a period of three years, a,nd all of them ranged in amounts from $2.50 to $12.50 and were passed by the appellant about the same time the check of R. Q. Jones was cashed. The appellant contended that the court erred in admitting testimony relative to other checks than the one to R. 0. Jones.'

In holding the evidence admissible, this court said:

“Evidence of similar forgeries is admissible to show a uniform course of acting from which guilty knowledge and criminal intent may be inferred. In other words, the evidence of other forgeries is admissible, not to prove the commission of the crime for which the party is being tried, but to prove guilty knowledge or intent.”

In the case at bar, the statute placed the appellant under a presumption of fraudulent intent and he offered no evidence to overcome the presumption. He does, however, argue failure of proof of intent to defraud the payee service station since Moore agreed to make the check good and did pay the amount of the check to the payee. One of the fallacies in this argument is that the law does not confine appellant’s intent to the service station alone. Consequently, we hold that under the instruction given as to the purpose for which the additional checks could be considered by the jury, the trial court did not err in admitting them into evidence for the limited purpose they were offered, and that the judgment of the trial court should be affirmed.

Affirmed.

Fogle MAN, J., disqualified.


source: Caselaw Access Project

author: Conley Byrd, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    A. F. HOUSE, Trustee v. James S. SCOTT, d/b/a Scott Lumber Co. et al
    5-4555
    429 S. W. 2d 108
    Opinion delivered May 27, 1968
    [Rehearing denied July 15, 1968.]

      James L. Sloan and Stanley E. Price, for appellant.

      Towner & Wallace and Owens, McHaney & McHan-ey, for appellees.
   Conley Byrd, Justice.

Involved in this appeal are the competing priorities between appellant A. F. House, Trustee; (a successor in interest of Modern American Mortgage Corporation), holder of a mortgage, and ap-pellees and cross-appellant James S. Scott, d/b/a Scott Lumber Company et al, holders of material liens on Lot 27, Plymouth Park Subdivision, an addition to the City, of Little Rock, Arkansas.

It is conceded that the materialmen’s liens have been properly perfected and that the mortgage was recorded before the commencement of construction. All arguments on this appeal concern the construction of the mechanic’s lien act, Ark. Stat. Ann. § 51-605 (1947), and the terms of the mortgage. The provisions of the mortgage here involved are as follows:

“Grantor has applied to the Grantee for a loan in the principal sum of Eleven Thousand Five Hundred Fifty and No/100 Hollars ($11,550.00) to be used solely for and in construction of a one-family residence on the lands above described, and the Grantee has agreed to make said loan for such purposes, and the Grontor is justly indebted to the Grantee for advances made or to be made hereafter by Grantee to Grantor from time to time for such purposes, aggregating the principal sum. aforesaid, each such advance to be evidenced by a negotiable promissory note of Grantor, payable to the order of Grantee, of even date with the date such advance is made and in the principal sum thereof, and each such note to bear interest from date until maturity at Six% per annum and from maturity until paid at 10% per annum, said notes to be due and payable as follows: On or before January 13, 1966. Grantee agrees that the acceptance and recordation of this mortgage binds Grantee, its successors and assigns absolutely and unconditionally, to make said loan and advances. Such advances will be made as requested by Grantor as such work progresses.
“Grantee in its discretion may require the Grantor to furnish to it, its successors or assigns, certificates of supervising architect as to partial completion prior to making any advance which it has agreed to make hereunder.”

Our mechanic’s lien preference statute, § 51-605, provides':

Preference over prior liens — Sale and removal of improvement under execution. — 'The lien for the things aforesaid, or work, shall attach to the buildings, erections or other improvements, for which they were furnished or work was done, in preference to any prior lien or incumbrance or mortgage existing upon said land before said buildings, erections, improvements or machinery were erected or put thereon, and any person enforcing such lien may have snch building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter; Provided, however, That in all cases where said prior lien or incumbrance or mortgage was given or executed for the purpose of raismg money or funds with which to make such erections, improvements or buildings, then said lien shall be prior to the lien given by this act. (Emphasis supplied.)

The record shows that of the $11,550, only $8,277.50' was given by the mortgagee to its disbursing agent, Arkansas Abstract & Guaranty Company, to be spent for the benefit of the mortgagors, Roy Stillman and wife. Only $7,389.30 of this sum was disbursed. Of that, $4,-639.30 went for payment of labor performed and materials used in the construction of the building; $1,700 was paid to the mortgagee to release the lot from a prior mortgage given by John E. Olsen and wife to the mortgagee; and $1,050 was paid to John E. Olsen and wife as the balance due on the $2,750 purchase price of the lot. The record further shows that the mortgagee knew of such lot payments. Construction of the house was not completed but abandoned by Stillman.

The trial court ruled that the $1,050 payment to Olsen was an improper payment; that appellant was obligated to pay the $1,050 plus the remaining unexpended portions of the construction money mortgage into the registry of the court for the use and benefit of the lien claimants, whose liens totaled $4,731.81; that the ^amounts of $183 paid for hazard insurance, $45 for an FHA appraisal fee, and $450 for an attorney’s fee were advances secured by the mortgage, and that when such sums ordered were paid into the court’s registry, the mortgagee would have a lien superior to the mechanic’s lien claimants for the full amount secured by the mortgage.

The points for reversal relied on by the mortgagee are:

I. The Chancellor erred in fastening a lien on un-dishursed construction funds in favor of mechanics and materialmen.

II. There was no legal basis for the chancery court’s preferential treatment of mechanics and materi-almen as to construction funds spent for realty.

Cross-appellant James S. Scott raises the following points for reversal:

I. The trial court erred in declaring construction money mortgage lien to be superior to appellee’s mechanic’s lien.

II. The trial court erred in allowing appellant a credit of $1,700.00 to pay pre-existing mortgage indebtedness.

III. The trial court erred in declaring judgment to appellant for attorney fees and court costs superior to appellee’s mechanic’s lien.

These issues arise as the result of our decisions in People’s Bldg. & Loan Assn. v. Leslie Lbr. Co., 183 Ark. 800, 38 S. W. 2d 759 (1931); Sebastiam Bldg. & Loan Assn. v. Minten, 181 Ark. 700, 27 S. W. 2d 1011 (1930); Ashdown Hardware Co. v. Hughes, 223 Ark. 541, 267 S. W. 2d 294 (1954); Lyman Lamb Co. v. Union Bank of Benton, 237 Ark. 629, 374 S. W. 2d 820 (1964); and Planters Lumber Co. v. Wilson Co., 241 Ark. 1005 and 241 Ark. 1100, 413 S. W. 2d 55 (1967).

In the Mimtem case, we had under consideration a lump sum mortgage wherein the issue was whether the statute (Ark. Stat. Ann. § 51-605) required the lender to see to the use or application of the money raised by the mortgage or whether the purpose of the mortgage was controlling. In holding that the purpose for which, the money was borrowed was controlling, we there said:

“The binding force of a mortgage results from the contract between the parties as expressed in the mortgage, and becomes a lien on the real property from the time it is filed for record. The money borrowed pursuant to the terms of the mortgage is turned over to the mortgagor, and the mortgagee no longer has any control over it, unless there should be a special clause in the mortgage looking to that end. As said by Judge Sanborn, this would require the substitution of the word ‘use’ instead of ‘purpose’ in the statute; and the courts have no warrant to do this. There is nothing in the language used in the statute to indicate that the Legislature intended that the mortgagee must see to the use, or the application of the money raised by such mortgages.” (Emphasis supplied.)

In the Ashdown case the mortgage specifically recited that $4,500 of the $10,000 loan was made to clear the title of the land of an existing loan, and that the balance of the $10,000, which was $5,500, was to be paid out in four installments of $1,375 each upon completion of each of four tourist cabins. We there held that the $10,000 mortgage took priority over material liens such as those involved in this case.

In the Lyman Lamb case the mortgage provided:

“This loan shall be used for the purpose of construction of a dwelling house on the above described property and shall cover and secure additional advances to be made by mortgagee to mortgagors in the total amount not to exceed $14,500.”

We there held that, since the mortgage terms did not bind the mortgagee to make the future advances, made subsequent to the date of the commencement of construction did not take priority over materialmen’s liens.

In the Planters Lumber Co. case, Wilson Co. bad a mortgage similar to the one here involved, in which it had agreed to advance $15,000. The proof showed that Wilson withheld $3,200 of the $15,000 for payment of the lot that it had conveyed to the mortgagor. We there held that Wilson Co. was not entitled to priority for the purchase price of the lot and, contrary to the argument that the mortgagee recitals about the purpose of the loan, under the Minien case, were controlling irrespective of the application of the funds, we said:

“In Minten the lender disbursed the full amount of the mortgage money. In Minten there was no guarantee placed of record whereby the building and loan association was committed to a stipulated advancement for construction purposes. In both these respects the opposite is true in the case at bar.”

Whether valid or not, it will be observed that our cases have been much more liberal with the lender where there was a lump sum advancement for construction money purposes than where future advances were involved. This is partly due to the technical requirements of draftsmanship necessary to make a future advance relate back to the date of the filing of the mortgage, as shown in the Lyman Lamb case, supra.

Our cases point out that the mortgage, when placed of record, is constructive notice to the world of its terms, including the amounts to be advanced during construction of a building. This notice is important to material-men such as appellees in this case. By reading the instrument they are able to ascertain that “as the work progresses” the builder will have available, for the payment of materials, periodic advances from the mortgagee which the builder has contracted will be used solely in the construction. In Jack Collier East Co. v. Barton, 228 Ark. 300, 307 S. W. 2d 863 (1957), we held that a construction money mortgage was not entitled to priority unless the “construction purpose” was stated in the mortgage.

The technical draftsmanship requirements for future advances and recordation of construction money mortgages as set forth in the foregoing cases probably account for the specific language used in the mortgage here involved.

Thus the issue arises: Can the mortgagee who has bound the builder to use the funds “solely for and in construction of a one-family residence” through its own agent knowledgeably apply the funds to uses other than construction (such as the purchase of the lot) and still claim the benefit of the purpose language in the mortgage? We think the answer can be found in the Minten case, where we pointed out that the “purpose recital” of a construction money mortgage could be varied by specific language in the mortgage. Our answer to the question propounded is that where the mortgagee binds the builder to use the money SOLELY in construction of a building, we hold that for purposes of priority the mortgagee is also bound when disbursing the money through its own agent to expend it for “construction purposes only.”

For clarification to the construction industry, we point out that a lender, if it so desires, may make both a purchase money mortgage and a construction money mortgage, both of which could be superior to a mechanic’s lien, but that when it undertakes to combine the two in the same instrument it should follow the Ashdown case.

We also point out that when a mortgage has in good faith been placed of record for construction money purposes, the lender may properly make cash advances to the mortgagor in accordance with its agreement and will not be charged with any knowledge or application of the use of the funds made by the mortgagor even though the mortgagor violates the terms of the recorded mortgage and uses the funds for purposes other than construction. In other words, the only duty east upon the lender by the statute is that it disburse the money for construction money purposes. Once it has disbursed the money to the mortgagor for such purposes, the lender’s obligation under the statute is discharged, except for perhaps those instances involving self-dealings — i. e., it can not put form above substance by handing the money to the mortgagor with one hand and taking it back j.n the other.

We do not intend this opinion to be understood as saying that a lender who in good faith has made a construction money mortgage will not be protected when he is subsequently forced to purchase or pay off an outstanding lien or title to protect its security. Good faith in each instance is the guide.

Although we do not here reach the issue involved in the Minten case, because of the language of the mortgage here at issue, we think it fair to point out to the industry that in the future we wili re-examine the Min-ten case to the extent that it may hold that a lender can knowledgeably disburse construction mortgage money for purposes other than construction and still claim priority over the mechanic’s lien.

Our mechanic’s and materialmen’s lien statutes extend only to land and improvements thereon, Ark. Stat. Ann. § § 51-601 and 51-605 (1947), and do not extend to any fund or money except in the case of a bond executed in favor of mechanics and materialmen úpder Ark. Stat. Ann. § § 51-632 — 51-637, 51-641 1967). Stewart-McGehee Constr. Co. v. Brewster and Riley Feed Mfg. Co., 171 Ark. 197, 284 S. W. 53 (1926). Thus it follows that in the absence of an express contract making some different provision, the exclusive security of a mechanic of materialman is the land or improvement.

Here we can find no language making the material-men third party beneficiaries of the mortgage. Consequently, unless the materialmen are entitled to an equitable garnishment, the trial court erred in requiring the mortgagee to pay into the registry of the court the difference between the face amount of the mortgage and the portions of the mortgage properly advanced for construction purposes. The record is clear that the mortgagor abandoned his construction contract with a partially completed building. Therefore, there was no money owing by the mortgagee to Stillman that an equitable garnishment could reach.

The cross-appellant argues that since the mortgage required a construction of the building, the materialmen are entitled to priority under the People’s Bldg. & Loan case, supra. In that case the vendor of the property,, as a consideration for a $20,000 sale, took a contract in which the vendee paid $500 down and was required to make certain improvements on the property. We there held that the vendor, by requiring the work in question to be done, had subordinated his purchase money claim to the lien of the mechanics and materialmen.

The construction money mortgagee stands in a much different position than the vendor in the People’s Bldg. & Loan case. The first reason is that the statute places the construction money mortgagee in a different position; the second is that the construction money mortgagee furnishes funds with which materials and labor for the improvements are to be paid, unlike the vendor in the People’s Bldg. & Loan case.

The $1,700 returned by Arkansas Abstract to Modern American Mortgage Corporation to release the lot from the: Olsens’ mortgage amounts to simply applying the loan proceeds to the purchase price of the lot, and we hold that the trial court should have treated it in the same manner as it did the $1,050 payment to the Olsens — i. e., neither should have been allowed priority over the materialmen’s lien.

Cross-appellant does not dispute the $183 paid for hazard insurance and the $45 paid for FHA appraisal as advances entitled to priority over its liens. It does contest the allowance for attorney’s fees and court costs. We think counsel is in error to this extent, for counsel fees by statute are assessed as court costs, and we certainly think that court costs are part of the security bargained for in a construction money mortgage.

Therefore we reverse and remand this case to the trial court with directions to allow appellant as mortgagee priority for the amounts actually expended in construction of the building and the court costs, but to disallow the $1,050 and $1,700 expended by the mortgagee’s agent for the purchase of the land. So much of the decree as required the mortgagee to pay funds into the court under the equitable garnishment is also' reversed.

FoglemaN, J., dissents.

John A. Fogleman, Justice,

dissenting. I dissent from this decision for the reasons stated in The First National Bank of Conway v. Conway Sheet Metal Company, Inc., No. 5-4504, 244 Ark. 963, 428 S. W. 2d 293, insofar as the $1,050.00 for the purchase price of the lot is concerned. The statement that the mortgagee is bound, when disbursing the money, to expend it for construction purposes only, clearly overrules Sebastian Building & Loan Ass’n v. Minten, 181 Ark. 700, 27 S. W. 2d 1011, without reservation. The suggestion that following the procedure used in Ashdown Hardware Co. v. Hughes, 223 Ark. 541, 267 S. W. 2d 294, makes a difference, puts a construction on that case which the court did not refer to or suggest when the case was decided.

The distinction between a lump sum loan and installment or future advance loan for these purposes is a strained one, to say the least. The fact that sums are to be advanced seems to me to make little difference insofar as the application of the “purpose” doctrine is concerned. The net result is that we have at least partially abandoned the “purpose” doctrine.

It seems inconsistent to me to say that the mechanics and materialmen are not third party beneficiaries of the construction money mortgage, after having said that they are entitled to look at the records to ascertain that the builder will have periodic advances, contracted to be used solely for construction purposes. I do not believe that it is the purpose of the recording statutes to do more than give notice of the lien claimed by the mortgagee and the means of ascertaining the amount secured. Reliance on them for the purpose suggested by the majority is inappropriate.

As to the $1,700.00 paid to retire the existing mortgage, I cannot see how the position of the appellees was damaged. If the disbursement had not been made, Modern American would still have a prior lien on the lot for $1,700.00. This lien was of record and I find no representation by Modern American that the debt secured thereby was paid prior to the time of the construction money loan, as was the case in Planters Lumber Company v. Wilson, 241 Ark. 1005, 1100, 413 S. W. 2d 55.

I agree that there was no basis for requiring appellant to pay the undisbursed portion of the loan into the registry of the court or to require appellant to disburse it.

I would reverse on appeal and affirm on cross-appeal.


author: Conley Byrd, Justice. Joi-iN A. FoglemaN, Justice,

text:
    A. F. HOUSE, Trustee v. James SCOTT, d/b/a Scott Lumber Company et al
    5-4556
    429 S. W. 2d 62
    Opinion delivered May 27, 1968
    [Rehearing denied July 15, 1968.]

      James L. Sloan and Stanley E. Price, for appellants.

      Tanner & Wallace, for appellees.

      Terral, Rawlings, Matthews & Purtle, for appellees and cross-appellant.
   Conley Byrd, Justice.

This is a companion case to House v. Scott, 244 Ark. 1075, infra. The amounts and the parties are not wholly identical hut the issues are identical except for the point raised on cross appeal by Choctaw Plumbing Company, Inc., that the court erred in not awarding it judgment against Modern American Mortgage Corporation and A. F. House, Trustee, for the amount of its lien.

"We find Choctaw’s contention to be without merit because it had a contract only with Stillman. Its sole remedy under the mechanics’ lien statute is for a lien upon the fixtures and the premises to the extent therein allowed.

There is no evidence here that Modern American and A. F. House, Trustee, were in any way connected with Stiliman’s business other than in their capacity as mortgagees.

Therefore, so much of the trial court’s judgment as required A. F. House, Trustee, to pay into the registry of the court the unexpended funds and that portion which gave the mortgagee priority as to the $1,700 paid to Modern American for the release of the Olsen mortgage is hereby reversed.

Reversed and remanded.

FoglemaN, J., dissents.

Joi-iN A. FoglemaN, Justice,

dissenting. I dissent for the reasons stated in my dissenting opinion in A. F. House, Trustee v. James S. Scott, d/b/a Scott Lumber Company et al, No. 5-4555, 244 Ark. 1075, 429 S. W. 2d 108. I would reverse on appeal and affirm on cross-appeal.


author: Conley Byrd, Justice.

text:
    Jack C. LUKER v. REYNOLDS METALS COMPANY et al
    5-4570
    428 S. W. 2d 45
    Opinion delivered May 27, 1968

      McMath, Leatherman, Woods & Youngdahl and Silas H. Breioer Jr., for appellant.

      Otis H. Turner, for appellees.
   Conley Byrd, Justice.

The issues on this workmen’s compensation appeal are the finality of the Commission’s order finding that appellant’s disability from his heart attack arose out of and in the course of his employment, and the constitutionality of Act 501 of 1967, which provides that if the circuit court has not acted on a workmen’s compensation review within sixty days, the court shall enter an order affirming the same.

The record shows that on May 26, 1967, the Commission found (1) that the heart attack suffered by appellant Luker arose out of and in the course of his employment by appellee Reynolds Metals Company; and (2) that as a result of the heart attack claimant sustained total disability for a period yet to be determined. The order provided, ‘ ‘ . . . the commission expressly retains jurisdiction of this claim for the further purpose of determining the end of claimant’s healing period and the extent of his permanent disability, if any.” No appeal was taken within the thirty days allowed by Ark. iStat. Ann. § 81-1325(b) (Supp. 1967), but on July 28, 1967, appellees filed with the Commission a motion requesting it to enter an order finding that no “final ap-pealable order” had been entered, or in the alternative that the May 26, 1967, order be rescinded and a new order issued clarifying said opinion. The motion was overruled by the Commission on August 24, 1967, and appellees filed their appeal with the circuit court on September 8, 1967. No action was taken by the circuit court within the sixty days allowed by Act 501 of 1967. On November 27, 1967, counsel for appellant mailed a precedent <fo the circuit court for affirmance of the Commission under Act 501. The court refused to enter the order, and on November 29 entered its order finding that the Commission’s May 26 order was so vague and indefinite as not to constitute an appealable final order. It then remanded the matter to the Commission with directions to determine the questions of partial total disability and the end of the healing period.

We do not reach the issue of the constitutionality of the statute (Act 501) or the duty of the circuit court thereunder, for in our opinion the May 26 Commission order was final for purposes of review, and the thirty-day limitation for review had expired, thus depriving the circuit court of jurisdiction in the matter.

The appealability of the Commission’s order in a workmen’s compensation claim is not limited to the final disposition of the matter before the Commission. See McNeely v. Clem Mill & Gin, 241 Ark. 498, 409 S. W. 2d 502 (1966). The benevolent purposes of the act requiring the employer to make payments of compensation and medical expenses during the healing period would be defeated if all contested claims were permitted to lie dormant until the Commission could determine the end of the healing period and the permanent partial disability. Many cases have been before this court in which the healing period lasted for more than a year, particularly those involving heart and back injuries.

The May 26 order determined the employer’s responsibility for the injuries and specifically retained jurisdiction for the “purpose of determining the end of claimant’s healing period and the extent of his permanent disability, if any.” These determinations were sufficiently final for the employer to contest on review (1) its liability to the claimant, (2) whether the evidence established the termination of the healing period, and (3) whether the evidence establishd any permanent partial disability. To this extent we hold it was final for purposes of review.

Reversed and remanded.


author: Carleton Harris, Chief Justice.

text:
    Patricia G. BURDICK v. Richard L. BURDICK
    5-4572
    428 S. W. 2d 248
    Opinion delivered June 3, 1968

      Spencer & Spencer, for appellant.
    No brief for appellee.
   Carleton Harris, Chief Justice.

On July 21, 1965, Patricia Burdick, appellant herein, was granted a divorce from appellee, Richard L. Burdick, was given custody of the three minor children, and was awarded $300.00 per month as alimony and child support. In August, 1967, Mr. Burdick filed a petition requesting that he be granted custody of the minor son, Richard Leroy Burdick, Jr., and that the decree be modified by a reduction in the child support payments and elimination of all alimony. Mrs. Burdick filed a response asking that support payments be increased to $500.00 per month. On hearing, the court granted the custody of Richard Bur-dick, Jr., to his father, with the right for the father to leave the boy in the actual custody of an aunt in Oklahoma, eliminated alimony, and reduced child support payments to $225.00 per month. At the time of the last hearing, Linda Kay, the eldest child, was 16 years of age, Richard was 15 years of age, and Elizabeth Ann was 4 years of age. From the decree so entered, appellant brings this appeal. It is first asserted by appellant that the evidence does not show such a change of conditions since the original decree as to justify cancellation of alimony and reduction of child support payments.

The proof reflects that appellee is a Major in the United States Army, and is stationed at Fort Walters, Texas, near Mineral Wells. He receives pay and allowances of $1,263.73 per month. At the time of the original divorce, Burdick held the rank of Captain, and received pay and allowances of $1,039.03 per month. Ap-pellee admitted that he had originally agreed to pay the sum of $500.00 per month:

“ * * * I agreed, we both agreed, I said I would give her $500.00 a month so she could stay at home with the baby and we agreed to $300.00 a month child support, no alimony in it, just straight child support is what we agreed on and I paid that money until actually I got in debt to where I couldn’t pay the $500.00 any more, so I paid the $300.00 a month.”

The $300.00 per month was taken care of by an allotment, and Burdick sent four additional checks for $200.00; however, two of these cheeks were not paid because of insufficient funds, and were never made good.

Burdick testified that in April, 1967, he was called by the Juvenile Court at El Dorado, and advised that his son had gotten into trouble, and that the boy wanted to live with his father. Appellee went to El Dorado, and the custody of Richard, Jr., was given to him (temporarily, by the juvenile court). Young Bichard accompanied his father back to Texas, and entered school in Weather-ford. He came back to El Dorado for a visit during the summer, stayed about three weeks, and returned to his father. The Major testified that he learned he would be sent to Vietnam around Christmas or the first of the year, and he accordingly placed the boy with his sister, Mrs. Mary Sims, at Enid, Oklahoma; Richard, Jr., attends Junior High School in Enid. After obtaining custody of the son, Burdick reduced his allotment to Mrs. Burdick to $200.00, and testified that he sent $100.00 per month to his sister to take care of young Richard. The witness testified that, after deductions of income tax, social security and the allotments, he was left with approximately $700.00 per month. He said that he was paying $100.00 per month for rent, $50.00 to $75.00 per month for gasoline, and $200.00 per month to a bank in Weatherford, having borrowed money to pay accumulated bills. He further stated that his food cost $7.00 to $7.50 a day; he had laundry and uniform expense; still further, he said:

“* * * I have social obligations which, as I told yon earlier, if you don’t go you’re not a flight commander very long. * * * I have nothing in my bank account. In fact, I told you [his attorney] I will pay you with a postdated check. That sounds like a lot of money but at the end of the month I am broke, period.”

Mrs. Burdick is employed in El Dorado, and earns $305.00 per month, with take-home pay of $246.00. She listed expenditures for the months of July, August, September and October (1967), which appear reasonable, and which average $461.25 per month. This does not include the monthly house rental, which is $100.00 per month, and Mrs. Burdick is $800.00 behind in her house rent. This fact was ^verified by Robert E. Hosford, who owns the property which Mrs. Burdick is renting.

As to the boy, she testified that the aunt has no telephone, and that she is unable to contact her son; that she had been unable to obtain the street address; that her letters had been unanswered. Appellant stated that she and the boy had had friction because he did not wish to abide by her rules and regulations, and that he had gotten into trouble on a charge of shoplifting. She said that she had no objection when he was placed in the temporary custody of his father, and she agreed that the boy probably did not desire to live with her; however, she objected to the provision in the decree placing the actual care of the child with the aunt.

We agree that there has been no change of conditions that would justify reduction of the support money.

It need not be pointed out that general living costs are daily rising, and it is also true that the maintenance and support of the two girls will require greater financial expenditures than were necessary at the time the divorce was granted in 1965. The elder daughter, Linda, is now a junior in high school, and, of course, the younger daughter was only a baby at the time of the divorce. Since the financial situation demands that Mrs. Burdick work outside the home, it is necessary to leave Elizabeth Ann in a nursery, and this item alone amounts to $40.00 per month. Mrs. Burdick pays the G. I. Insurance on her ex-husband out of her own funds, and, as previously stated, her expenditures cannot be said to be extravagant. Certainly, it would not be proper to penalize appellant for obtaining employment, for it would appear that this step was absolutely necessary. Even then, it will be noted that she is eight months behind in her house rent. While she now has only two children to look after financially (as compared to three at the time of the divorce), it is also true that appellee’s pay and allowances have been increased approximately $225.00 per month. It may be true that Major Burdick’s social obligations have increased because of his promotion, but we do not think this fact has lessened his obligation to his children.

As to the custody of the hoy, we are unable to say that the court erred. In the first place, it appears that he would be quite unhappy living with his mother, and she herself testified that she felt that Richard, Jr., did not desire to live with her. The record reveals that, on his last visit to El Dorado in August, the son stayed but little with his mother, preferring to stay with her parents. According to appellant’s testimony, he left his mother’s house when she refused to let him spend the night away from home, and thereafter, did not return.

At the time of the last hearing, young Richard was 15 years of age. While we have said many times that the paramount issue in custody cases is the welfare of the child, we have also said that, in proper cases, the wishes of the child should be given consideration. As long ago as 1906, in Lipsey v. Battle, 80 Ark. 287, 97 S. W. 49, Justice Riddick, speaking for the court, said:

“* * * Courts not only respect the rights and feelings of the parent, but also when the child is of sufficient age they give consideration to its wishes. The child in this case is nearly thirteen years of age. She expressed a decided preference to dwell with her mother. So far as this evidence shows, this mother and child are sincerely attached to each other, and this feeling should not be disregarded, nor the ties of affection sundered, unless the welfare of the child clearly demands that she be separated from her mother. We see nothing in the evidence that requires it.”

This holding has been reiterated many times.

The evidence reveals that Burdick visited his son every other week, and, of course, if he is now overseas, he cannot personally maintain a home for the boy. While the present arrangement cannot be said to be entirely satisfactory, taking into consideration the apparent antipathy of Richard toward his mother, we are unable to say that the Chancellor could have rendered a more suitable order.

In accordance with the views herein expressed, the decree is reversed, with directions to reinstate the order of $300.00 per month alimony and child support; in all other respects, the decree is affirmed.

       There is no mention of alimony at all in this decree.

       Appellant’s brief refers to the court’s order as $200.00 per month, but the transcript reflects that the order was for $225.00 per month. No brief has been filed by appellee in this case.


text:
    James Ray EDERINGTON v. STATE of Arkansas
    5324
    428 S. W. 2d 271
    Opinion delivered June 3, 1968

      John F. Gibson, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. A tty. Gen., for appellee.
   Carleton Harris, Chief Justice.

This is one of the most unusual murder cases to come before this court. J. H. Maroney, a resident of Bradley County, Arkansas, and familiarly known in the neighborhood as “Junior” Maroney, was slain, at home in his bed, between the hours of 1:00 A.M. and 3:00 A.M. on March 30, 1967. His death was caused by a fatal bullet wound in the left side of his head, the bullet having been fired from a small caliber weapon, apparently a .22 rifle. The rifle belonged to Maroney. After an investigation of over a month, appellant, James Bay Ederington, at that time 16 years/ of age, was arrested, and charged with the murder. The case proceeded to trial on July 19, 1967, and concluded on July 22, at which time the jury found Eder-ington guilty of the crime of murder in the second degree, and fixed his sentence at 35 years imprisonment in the State Penitentiary. On August 1, the motion for new trial was denied, and, from the judgment entered in accordance with the jury verdict, appellant brings this appeal. Several points are raised for reversal, the first being that the evidence was insufficient to justify the conviction.

The evidence reflects that Maroney, with his wife and children, lived a few miles south of Banks, Arkansas, there being a number of other families living in the general area, which was known as the Lanark community. The nearest neighbors were Mr. and Mrs. Sam Or-mand, who lived about 400 yards from the Maroney home. About 3:00 A.M. on the morning of March 30, Glenda Maroney, 15-year-old daughter of Junior Ma-roney, rode her bicycle to the Ormand home and notified Ormand that her father had been shot. She requested that a doctor be called. Ormand hurriedly dressed, got in his truck, and drove to the Maroney house. Or-mand went into the home, but did not go into the back bedroom where the body of Maroney had been found. He was not armed: “Well, there wasn’t any light in there, and I just didn’t have the nerve to go on in there.” Ormand then left the house and drove to the home of Ed Green, who dressed and accompanied Or-mand back to the Maroney residence. They ascertained that Maroney was dead. There was no sign of disturbance in the room, and the men did not see anyone around the house. The back door was open, and the back screen was not hooked. O. B. Williams and Therman Williams, brothers, who live about 2% miles from the Maroney home, received notice of the shooting by telephone, and went to the house, where they found other neighbors, Mr. and Mrs. Callaway, Ormand and his wife, and Ed Greem After staying approximately an hour, they went to the home of Maxine Ederington, a widow with six children, who lived about a mile and a half to two miles from the Maroney house. Mrs. Ederington, who had been notified by Peggy Williams (wife of Therman Williams) via telephone about 3:15, of the shooting of Ma-roney, was awake, and the two men drank some coffee at her home. Mrs. Ederington left to go to the Maroney home, and, as she left, according to O. B. Williams, called out to her son, “Jimmy, get up and lock the door,” and he answered from the bedroom, “Well-urn.” The witness testified that he recognized the voice as that of Jimmy, appellant herein. Therman Williams was the first person to locate a .22 rifle (evidently the murder weapon), which was found lying on the ground about three or four feet from the side of Maroney’s truck, the vehicle being parked facing of the front of the house. The rifle was a .22 automatic made by Sears-Roebuck.

Sheriff John Cruce of Bradley County received notice of the shooting about 3:15 A.M., and, with his deputy, Harold Spraggins, proceeded to the Maroney home, arriving there about 3:40 A.M. A number of neighbors from the vicinity were present. During his investigation of the premises, the sheriff saw a box of .22 shells on the outer edge of the dash of the truck, which was taken and subsequently examined for finger prints. The rifle, which was covered with dew, was examined for finger prints, hut none were obtained because of the oily surface of the weapon. Blood was on the bed where Maroney was found, and there was a small hole back of his left ear, caused by the entry of the bullet. No other wounds were found. After the body was removed, the sheriff observed a .22 hull on the bed, which had apparently been under Maroney, and he took this as evidence. On the 31st, Deputy Spraggins went to the home of the Ederingtons, but appellant was in school; his mother took him to the sheriff’s office later, and Spraggins took his finger prints. The cartridge box and finger prints were sent to the F.B.I. laboratories in Washington.

Glenda Maroney, daughter of the deceased, and in the tenth grade at school," testified that she knew appellant well, and rode the same school bus with him each day to school. The families had visited back and forth many times. She testified that Jimmy came by her house on the 29th of March (when school was out for Easier holidays) to show her a fish he had caught in the Ma-roney pond, and he subsequently came back around noon, being brought to the Maroney home in an automobile by another boy, Barney Ross. Glenda was making icing to go on a cake, and asked Jimmy to stir it while she went to the store. Her little sister and brother were there at the time, and when she returned from the store, Jimmy had left, Ross having returned and picked him up. During this time, Junior Maroney was over in the field putting out soda. Glenda stated that she retired for bed on the night of the 29th around 10:00 o’clock, sleeping in the front bedroom with her little sister, Cathy. Her young brother slept in the middle bedroom, and her father slept in the back bedroom. This was where Junior Maroney customarily slept, together with his wife. Glenda said that she was awakened around 1:00 A.M. by the honking of a horn, and she called her father, and told him that someone was out front, obtained his house shoes for him, and he went outside. She heard the callers discussing the fact that they wanted gasoline, and she then went on back to sleep. The witness continued :

“I woke up around 3:00 o’clock and I saw this figure standing at the foot of my bed and I called my daddy. I called him about twice and he just didn’t answer and I got scared. He walked on back through the house and I got up and turned the light on and I saw these glasses laying on the dresser in my room and I knew that no one in our house wore glasses. I knew someone was in there and I went in and turned the light on in my little brother’s room. I stood there beside the door and there was blood all over my daddy’s pillow and I called his name and I heard this rattling noise in the kitchen and I called and he didn’t answer me and so I ran out on the front porch and * * *
“I hollered for Mrs. Ormand two or three times and then I ran out and hopped on my bicycle and ran up there. I was screaming all the way up there and I told them that something had happened to daddy and I told them that I thought he had been shot and I told them to get his gun, get his gun, and I told him to be sure and get those glasses. I hadn’t thought about picking the glasses up until I got up there to Mr. Sam’s.”

When asked if she could identify the person standing at the foot of her bed, she replied that it was “«James Ray Ederington.” This identification was first given to the sheriff on the night following the day of her father’s funeral, which was held on March 31:

“I told him it was Jimmy. I told him about Jimmy’s actions and Jimmy’s motions. That was what made me think it was Jimmy — what made me know it was Jimmy.
“His manner and I saw those glasses and I knew they were his glasses when I turned the light on. When I saw him, doing like that (Witness motions with her head) I knew it was him. Nobody I know does that.
“And the way he walked. He drags his feet when he walks.”

She added:

“I saw him. I just saw him and know.”

When interrogated as to why she did not immediately tell who was in the room, she replied that she was afraid to do so, and she said that the sheriff told her that it would be better if she “didn’t go around” telling that she knew who it was, and he had said that her life was in danger. Admittedly, she had told some persons that she did not know who it was. From the testimony:

“Q. What did you tell the people in the community there? A. I told people I didn’t know who it was, except people who needed to know. Q. What did you tell them? A. I told them that it was Jimmy. Q. What did you tell the people in the community there about who you thought it was? A. I told them that when I realized it wasn’t my daddy, he done like this (Witness indicates a motion of the head), and I’ve seen him do that a thousand times. Q. Is that what you told the people in the community? A. Yes, sir, the ones I thought should know. Q. The ones you thought shouldn’t know, what did you tell them? A. I didn’t tell them anything. I told them that I didn’t know who it was, it could have been a Negro or white person. I told them I didn’t know anything. Q. Do yon know who yon told that to? A. Just about everybody, except Mr. Qrmand, my mother, Margaret Williams, the law officials.”

After Ederington was arrested, he was placed in a cell with a prisoner named Herbert Chambers. Another prisoner, Albert Walker, was also with them a part of the time. Chambers testified that he was told by the sheriff that Ederington might say something about the crime with which he was charged, and the sheriff directed Chambers to give him (the sheriff) any information that might be acquired. The witness stated that Ed-erington first said that he did not kill Maroney, later said that he did kill him, and then subsequently, again denied committing the crime.

John F. Walters of Washington, D. C., a finger print examiner with the Federal Bureau of Investigation, with nearly 20 years’ experience, testified that there was one latent print of value on the .22 cartridge box which had been found in the truck (a thumb print), and he said that this print, and the thumb print which had been taken when Ederington was fingerprinted, were made by the same individual.

Harold Spraggins (the deputy sheriff) testified that the rifle was loaded with 12 cartridges when he took it back to the sheriff’s office; that it would hold a total of 16 cartridges. He explained tests that had been made, and stated that the hull of the cartridge, which had been found on Maroney’s bed was fired from the rifle found by the side of the truck. The witness also said that he found nothing disturbed in the death room; that Maroney’s wallet was in his pants pocket, the pants lying on the table beside the bed; he found $97.00 in the wallet; he was unable to detect any sign' that anyone had tried to break into the house.

G. 0. Runnels, a doctor employed by the State Hospital, testified that Ederington had been examined by the staff, and that appellant had been found to be “without psychosis.”

Appellant testified that he was a good friend of Junior Maroney, and that he had gone fishing, hunting, and on other outings with the deceased. He said that Maroney treated him kindly, had never fussed at him, and he had never had any trouble at all with Maroney. The witness said that he fished at Maroney’s pond on March 29, went to the house and helped Glenda with icing the cake, and he stated that he went to bed at his home about 10:00 P.M. Appellant was awakened by the telephone ringing, at which time his mother was advised that Maroney had been shot; he was in the house when Williams arrived, and answered her when his mother left to go to the Maroney’s and told him to lock the doors. He denied ever stating to Chambers that he had killed Maroney.

Captain L. E. Gwyn, a veteran of 20 years’ service with the Arkansas State Police, testified that he conducted two polygraph examinations of Ederington, who had agreed to take the test. When asked if he knew anything concerning the death of Maroney, or if he was at the house when Maroney was shot, appellant answered, “No.” Mrs. Ederington was also examined, and was asked if she knew who has shot Maroney; she answered: “No.” Gwyn testified that the chart revealed that the answer from Mrs. Ederington was very clearly the truth, but he was unable to interpret the chart made on Ederington himself, because he (Gwyn) “was never able to get him [appellant] in the proper frame of mind.” The officer said Ederington did not refuse to answer any of the questions, nor did he hesitate in giving answers, but the tests were inconclusive. He could not say that appellant was telling the truth, nor could he say that appellant was not telling the truth.

Both Mrs. Ederington and her eldest daughter, Linda, testified that Glenda had told them that she had no idea of the identification of the person that she saw in the room, and appellant’s sister said that Glenda remarked, “Linda, I don’t know if it was black or white.” Cathy Ederington, a younger sister, testified that her brother was at home when she went to bed about 9:30, and that he got up from bed when the telephone call came in the early hours of the morning.

Summarizing the evidence from the standpoint of the state, Ederington was identified by Glenda Maroney as the intruder in the Maroney home on the night of the murder, and very close to the time that the killing took place. She also testified that Ederington’s glasses were lying on the dresser. The .22 caliber rifle was identified as the murder weapon, and the box of shells contained appellant’s right thumb print. Herbert Chambers testified that Ederington said that he had killed Maroney, though before making the statement, and after making it, he also denied any implication in the murder. This evidence, if believed by the jury, was sufficient to sustain the conviction. It is true that no motive was shown, but we have held several times that it is not necessary for the state to prove a motive in order to properly obtain a conviction for homicide. Prewitt v. State, 150 Ark. 279, and cases cited therein.

This question of motive brings us to another asserted error. During the Prosecuting Attorney’s cross-examination of appellant, Ederington was asked:

“Jimmy, at the time you got out of the car late in the evening on March 29, did you or did you not make a remark to Barney that you would like to have sexual relations with Glenda?”
Appellant replied, “No, sir.”

After the defense had closed its case, the state placed Barney Boss on the stand, and asked that he recall the events of March 29, late in the evening, when he and Ederington had returned from Monticello. The record then discloses the following:

“MR. WYNNE:
Q. At the time you dropped Jimmy off at around 6:0O or 6:30, near the Maroney home, did Jimmy make any comment to you that referred to his desire to have sexual relations with Glenda?
A. Yes, sir.
MR. GIBSON: I object.
COURT: Ask what he might have said.
MR. WYNNE:
Q. What did Jimmy say to you?
A. Well — (Witness hesitates)
(Discussion at the Bench, off the record)
THEREUPON,
MR. GIBSON: Show my objections and exceptions.
MR. WYNNE:
Q. Did the Defendant state to you words to the effect that he’d like to have sexual intercourse with Glenda?
A. Yes, sir.
MR. GIBSON: Note my objections and exceptions.”

Appellant argues that this was prejudicial and reversible error, but we do not agree. The record does not reflect that this alleged error was brought forth in the motion for new trial, but even so, we would find no merit in the contention. Let it be remembered that this alleged statement was made late in the afternoon, approximately eight hours before the death of Maroney, and we think the evidence goes to the question of why appellant was allegedly in the Maroney home, and in Glenda’s bedroom. For that reason, we think it was admissible. In Sullivan v. State, 171 Ark. 768, 286 S. W. 939, quoting 13 R. C. L., 910, § 214, this court said:

“* * * ‘Where the purpose of evidence is to disclose a motive for the killing, the courts are very liberal in permitting its introduction, and anything and everything that might have influenced the prisoner to commit the act may, as a rule, be shown.’ Many cases are cited in the note to sustain the text.
“See also 30 C. J. 179, § 406, and Stokes v. State, 71 Ark. 113, and at p. 117, 71 S. W. 248, where we quoted from Mr. Wills on Circumstantial Evidence as follows: ‘It is indispensable, in the investigation of imputed guilt, to look at all the surrounding circumstances which connect the actor with other persons and things, and may have operated as motives and influenced his actions.’ ”

Likewise, during the cross-examination of appellant, the Prosecuting Attorney asked:

“Q. Jimmy, have you ever made the statement that you were going to bash Sam Ormand’s brains in when you got out of jail?
ME. GIBSON: I object. It’s not related to the crime which is charged against the Defendant and is not material and is prejudicial.
(Thereupon, at the Bench, in undertones, for the record, the following proceedings were had:)
ME. WYNNE: Sam Ormand was the first person to go to the house and discovered the body. This Defendant has been heard to make the statement that he was going to bash this man’s brains in if he got out of jail. It is certainly material. Sam Ormand is a material witness.
He denied it and that’s his privilege.
ME. GIBSON: That’s something that happened after the man was arrested and certainly could not add to the jury’s competent evidence. It does not relate to the crime and is prejudicial.
COUET: Objection overruled.
ME. GIBSON: Note our exceptions.”

Appellant answered the question, “No.” After the defense had rested, the state placed Deputy Spraggins back on the witness stand, and asked the following question, “Now, Mr. Spraggins, in your dealings with this Defendant, have you heard him make the remark that he’d like to bash in the brains of Sam Ormand?” The witness answered that he had heard appellant make the remark two or more, possibly three times. The question was objected to before it was answered, and exceptions were noted to the court’s action in overruling the objection. The state contends that this evidence was admissible as a matter of showing appellant’s knowledge, intent, or design. From the brief:

“* * * When the appellant denied making the statement then the State had the right to call a witness in rebuttal to impeach him with prior statements. It was purely testimony concerning acts of a similar nature at about the same time tending to show intent, motive and design which is clearly admissible.”

We do not agree that this testimony was competent. This was entirely a collateral matter, having absolutely nothing to do with the crime with which Ederington was charged. The alleged statement was made some time subsequent to the murder, and apparently while appellant was in jail. It was not an act of a similar nature— it did not happen at about the same time as the killing —and we are unable to see how a statement referring to Ormand throws any light upon the intent or motive for the murder of Maroney. In fact, the only thing the evidence could possibly show was that Ederington was a vicious and violent person — which might have been what the state was endeavoring to show — but it is clearly inadmissible. This testimony would not even have been proper as a matter of impeaching appellant’s credibility, although the question asked appellant on cross-examination was permissible, as a matter of testing-credibility. However, when Ederington answered, “No,” that should have concluded that particular matter. Wright v. State, 243 Ark. 221, 419 S. W. 2d 320.

The court limited neither the question asked, nor the rebuttal testimony of Spraggins, to the matter of credibility. However, we emphasize that this rebuttal evidence offered by Spraggins was inadmissible on all grounds. In Tullis v. State, 162 Ark. 116, 257 S. W. 380, we said:

“* * * The court properly permitted the question to be asked solely for the purpose of testing the credibility of Jewell Tullis. Jewell Tullis answered that she had not made the statements attributed to her, and this should have ended the matter. The court erred in allowing the State to contradict Jewell Tullis by the testimony of Beatrice Norwood, as stated above. A party cannot examine a witness as to collateral matters and then impeach him by proof of contradictory statements.”

In McAlister v. State, 99 Ark. 604, 139 S. W. 684, this court said:

. “ ‘Great latitude is allowed in the cross-examination of a witness touching his residence, occupation and habits, so as to reflect light upon his credibility, and specific acts of immorality may be thus elicited which could not be proved by other impeaching witnesses. ’ But, while it was proper to permit the witness to be asked as to specific acts involving moral turpitude affecting his credibility as a witness, it was error to permit the State to call Dr. Wall for the purpose of contradiction. ‘Where a witness is cross-examined as to a particular act of misconduct relevant to his character for truth but disconnected with the cause on trial, the cross examining party is bound by the answer.’ 7 Encyclopedia of Evidence, page 180, and cases cited.
“ ‘In order to avoid an interminable multiplicity of issues, it is a settled rule of practice that when a witness is cross examined on a matter collateral to the issues he cannot, as to his answer, be subsequently contradicted by the party putting the question. The test of whether a fact inquired of on cross-examination is collateral is this: Would the cross-examining party be entitled to prove it as part of his case, tending to establish his plea.’ ”

The answer, in the present case, to this last question in the citation, is an obvious “No.” Numerous other cases hold in the same manner.

While, in Tullís and McAlister, the questions (which brought on the rebuttal testimony) were asked of a witness (rather than a defendant), the same rules of evidence applicable to impeachment of a witness apply where a defendant takes the witness stand in his own behalf. Castle v. State, 229 Ark. 478, 316 S. W. 2d 701.

We also agree with appellant that the court erred in permitting Margaret Williams, described by Glenda Maroney as her best friend, to testify in rebuttal that Glenda had told the witness early on the morning of her father’s death that she recognized Jimmy Edering-ton as the intruder in her room. The state offered this evidence supposedly as a matter of rebutting the testimony of Captain Gwyn, who had given Glenda a polygraph examination, and had testified that her answer to the question of whether she recognized the intruder had been “No.”

Evidence of Miss Williams was inadmissible. In the first place, it was not even proper rebuttal of the testimony of Captain Gwyn. A rebuttal of the testimony of the officer would have been to the effect that Glenda did not answer, “No,” to his question. However, it was undisputed that this answer was given. At any rate, the evidence was inadmissible, even as an extra-judicial identification. In the case of Burks v. State, 78 Ark. 271, 93 S. W. 983, Burks was convicted of the crime of assault with intent to kill. The prosecuting witness, W. W. Reiblin, the party upon whom the assault was alleged to have been made, testified that Burks was one of his assailants. He was asked by defendant’s counsel if he had not on other occasions stated that he did not recognize the persons who assaulted him. Reiblin denied that this had been done. Witnesses were introduced who testified that Reiblin had made such statements. The court then permitted the state, over the objection of Burks, to offer evidence that Reiblin stated to a witness, a few hours after the assault, that he recognized Burks as one of the assaulting parties. Justice McCulloch, writing for the court, said:

“The question is therefore presented whether or not, where a witness has denied having made a statement contradictory of those made upon the witness stand, and proof is introduced tending to establish such contradictory statements, former statements of the witness consistent with those made by him upon the stand are admissible in support of his testimony.”

This court held that the trial court erred in permitting the state to offer this testimony, and reversed the judgment, stating:

“After all, the effect of proof of previous consistent statements could only be to corroborate the statement of the witness under oath by his own words uttered on another occasion. It would add nothing to his statement upon the witness stand, either as to his testimony on the main issue, or as to his denial of the contradiction. We are of the opinion that the admission of the testimony by the court was improper and prejudicial, and should not have been allowed.”

We are of the view that the error in both instances, L e., the testimony of Spraggins relative to statements of the defendant about Ormand, and the admission of the testimony of Margaret Williams, constituted reversible error. This would he particularly true with reference to the Spraggins testimony, which had no connection whatsoever with the offense charged. In Shaddox v. State, 243 Ark. 55, 418 S. W. 2d 780, quoting from an earlier case, we said:

“In the case under consideration, as in most situations of this nature, we cannot say with certainty that the jurors were prejudiced by the reference to the ‘rap sheet,’ but we are less sure that they were not. Definitely the manner in which the reference was made was improper, and it left open to the jury a broad field of speculation as to appellant’s character and possibly his criminal record.”

The rule was stated in Crosby v. State, 154 Ark. 20, 241 S. W. 380, as follows:

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

Two other matters are urged as points for reversal, one relating to the fact that one of the members of the jury was married to the sister of the sheriff’s wife, and the other relating to evidence which the defense contends was suppressed. This last refers to the fact that blood was also found upon the bed in the middle bedroom. Inasmuch as the first error is not likely to occur again, and appellant is now thoroughly acquainted with all of the evidence obtained by the sheriff, there is no need to discuss whether these points have merit.

Because of the two errors committed, and herein pointed out, the judgment is reversed, and the cause is remanded to the Bradley County Circuit Court.

       Mrs. Maroney was not at home, but was in Little Rock studying for the Poverty Program. Two smaller children, a 4-year-old girl and an 8-year-old boy were in bed in separate rooms.

       Mrs. Ederington did not accompany the Williams brothers, but drove on ahead of them.

       No one was ever able to testify whether the rifle had been placed on the ground by the truck, or had been dropped.

       Subsequent investigation revealed that a minister, Melvin Early, who had been attending a revival meeting at Hamburg, accompanied by Ovelett Gannaway, stopped to buy the gasoline. Early testified that in pulling up to the Maroney house, he parked his car close to Maroney's truck, and noticed the .22 rifle, heretofore mentioned, in the truck. Ovelett Gannaway, who had known Ma-roney all of his life, and had suggested stopping at Maroney’s place for gasoline, testified that it was three minutes until 1:00 o’clock when they stopped at his house.

       There is no testimony that anyone heard a shot fired.

       Ederington, when later placed on the witness stand, testified that he had been fishing the day before the murder in the Ma-roney’s fish pond, and had asked to borrow a particular bait from Maroney; that he was told that the bait was probably in the truck, and in looking for the bait, he picked up the cartridge box.

       During cross-examination of this witness, he stated that there is a trail that leads from his house to the Maroney house through the woods, but he did not know if it was any shorter than the regular route. “I go that way a good bit.”

       Coroner Frazier testified that, in his opinion, Maroney died about 2:30 A.M.

       Although several persons looked for the glasses, they were never found. It is not clear whether it was thought that the intruder had returned and taken the glasses when Glenda ran from the house. Ederington was not interrogated along this line, i. e., he was not asked if he still had the same glasses he was wearing on March 29th, etc.

       In Billings v. State, 52 Ark. 303, 12 S. W. 574, this court discussed the question rather fully, as follows:
      “The general rule is well established, in civil as well as in criminal cases, that evidence shall be confined to the issue. It seems that the necessity for the enforcement of the rule is stronger in criminal cases. The facts laid before the jury should consist exclusively of the transaction that forms the subject of the indictment, and matters relating thereto. To enlarge the scope of the investigation beyond this would subject the defendant to the dangers of surprise against which no foresight might prepare and no innocence defend. Under this rule it is generally improper to introduce evidence of other offenses; but if facts bear upon the offense charged, they may be proven, although they disclose some other offense. The test of admissibility is the connection of the facts offered, with the subject charged. Such connection exists in a variety of cases, and in them it is often proper to prove one offense in a trial for another. The Supreme Court of Alabama has indicated several classes of cases in which this may be done, as follows: First, when necessary to prove the scienter of guilty knowledge, which is an element of the offense charged; second, when the offense charged and the offense proved are so connected that they form part of one transaction; third, when the act proved and the offense charged are similar, and the one tends to fix the intent in the other; fourth, when it is necessary to prove a motive for the offense charged, and there is an apparent relation or connection between it and the other acts proved; and again when it tends to prove the identity of the offender or of an instrument used.”

       In her testimony, Glenda stated that she had made a mistake, and that the answer was inadvertently given because she was nervous and upset in taking the test.


text:
    Jerry HAMMOND and Terry EVANS v. STATE of Arkansas
    5355
    428 S. W. 2d 639
    Opinion delivered June 3, 1968

      Stephens & Lewis, for appellants.

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

Appellants, Jerry Hammond and Terry Evans were convicted in the White County Circuit Court on January 25, 1968, of the crime of burglary and grand larceny, and were sentenced to the Arkansas State Penitentiary for two years on the count of burglary, and one year on the count of grand larceny. From this conviction, appellants bring this appeal. For reversal, it is first asserted that the trial court erred in admitting evidence obtained by the sheriff during a search of Evans’ premises.

The evidence reflects that Pete Cole, a radio engineer in Searcy, together with Earl Baker and Billy Davis, owned a cabin two miles west of Honey Hill Church in White County. The cabin was equipped in the same manner as any house, with furniture, T.V., stereo, and vaiaus other items of personal property. This cabin was broken into and a number, of items stolen therefrom. Cole made a par ial list of property that had been taken, and reported the theft to Sheriff John Davis of Whte Counts On the afternoon of November 30, 1967, the sheriff, together with the Chief of Police of Searcy, Waymon Goree, and Cole, went to the apartment occupied by Emins, and the sheriff knocked on the door. Evans responded, “Come in,” and the three, without identifying themselves, went inside. The sheriff told Terry that he (the sheriff) had heard that this appellant might have some information about the burglary:

“He said, ‘Hell, here it is; you might as well take it; I’ve been in so much trouble already that I’m going to the penitentiary anyway.’ And I said, ‘That isn’t what I came for,’ I just wanted to talk to him because I’d heard he might have some information. Then, I advised him of his rights. * * *
“I told him I had information that he might know something about the burglary of the cabin, and I told him, ‘You know you don’t have to talk to me, that anything you say can be used against you,’ and he said, ‘Hell, here it is.’ ”

Asked whether he advised Evans of his right against self-incrimination, the sheriff replied that he carried a card with him which he would read to suspects, and he said Evans was told that he did not have to say anything, and that he was entitled to an attorney; that, if he couldn’t pay for an attorney, the court would appoint one for him:

“I told him he had the right of an attorney, and I advised him of his rights. I have handled Terry several times before.”

According to the officer, Evans replied that he did not want an attorney, and he suggested that the sheriff take merchandise which Cole recognized, on entering the apartment, as having been in the burglarized cabin. However ,the sheriff refused to take the property at that time, but arrested Evans and obtained a search warrant for Terry’s apartment, and also the apartment of Oscar McDougal, who was also subsequently charged on the burglary count. The information about McDougal was furnished by Terry. After obtaining the search warrant, the sheriff found two red bed spreads, one pole lamp, one white sheet, and five stereo records on this appellant’s premises. A search of McDougal’s apartment revealed one Zenith TV, one stereo record player, records, a lamp, an electric clock, and an assortment of knives, forks and spoons, which were identified by Cole. Evans admitted his part in taking the property. As the officers were searching the apartment, Jerry Hammond, whose car was parked at the back of the apartment, came up, and wanted to know what was going on. The sheriff replied that they were recovering “that stolen merchandise.” Hammond said that he didn’t know anything about it, but Officer Hunnicutt, of the State Police, who was assisting in the search, placed Hammond under arrest, and the sheriff testified that Hunnicutt stated to appellant Hammond:

“Well, you are under arrest, and he [Hunnicutt] said I would rather you didn’t say — he started to say something, and he said I’d rather you didn’t say anything about it. So we arrested bim and placed him in the police car. Fish [Hammond] — we hadn’t placed him when he said that, but about that time Fish came out — Terry came out from under the floor with á box of this while Fish was standing there. And Terry looked up at Fish and said, ‘You might as well tell them, Fish, they’ve caught us anyway.’ He said, ‘I’ve done told them.’ So Hunnicutt told Hammonds again, he says, ‘I’d rather you didn’t say anything,’ and he took him and put him in the police car, and we took him to the County Jail. We loaded that car and the other car with the merchandise that came from under the floor.
“When he got to the County Jail, again on the way to the County Jail he tried to indicate that he was with them and wanted to tell us about it. We told bim again that we didn’t want to talk to him about it. When we got to the County Jail when we was going through his things, taking his things out of his pockets, he told us that he wanted to tell us about it.”

Appellants contend that the evidence obtained both before, and after, the search warrant was obtained, was acquired illegally. A motion to quash the information, and to suppress the evidence was filed by appellants, and this matter was heard by the court in chambers. The court overruled the motion, finding that Evans was advised of his constitutional rights before making any statement; that the search warrant obtained was valid, based upon information given to the sheriff by Cole, and voluntarily by appellant. Appellants say that the initial search was illegal, and assert that Evans did not invite the police and Cole to search his apartment, nor did he waive any constitutional right against an illegal search by saying, “Come in.” There was testimony that Evans was in bed, and appeared sleepy when the officers and Cole entered the apartment, and it is argued that appellant did not understand the consequences of his act in responding to the knock on the door, and that the sheriff and police, chief did not identify themselves before coming in. Appellants rely upon our case of Mann v. City of Heber Springs, 239 Ark. 969, 395 S. W. 2d 557, where we said that “voluntary consent requires sufficient intelligence to appreciate the act as well as the consequences of the act agreed to.” The federal ease of Mapp v. Ohio, 367 U. S. 643, holding that evidence illegally obtained is not admissible in the state courts is also relied upon.

We find no merit in this contention. We do not see that Mapp applies, for we are of the view that the evidence was not illegally obtained. Nor is there any showing that Evans did not have sufficient intelligence to appreciate the consequences of inviting visitors into the room. In fact, it is only argued that he was in bed and looked “sleepy,” or, as the defense counsel expressed it in asking questions, “groggy.” This is hardly sufficient to constitute a defense. In the case of Harris v. Stephens, 361 F. 2d 888, the proof reflected that the sheriff of Drew County went to the home of a suspect at night, and was admitted by the suspect (Trotter), who was wearing blood-stained undershorts. Trotter, being unable to explain the blood stains, was arrested, and taken to the jail and incarcerated. Thereafter, the sheriff, accompanied by city policemen, having received information that Albert Harris had been with Trotter that night, proceeded to the home of Harris and was admitted. Upon receiving an unsatisfactory explanation from Harris as to his earlier whereabouts, the sheriff asked to see the clothes the suspect had worn. Harris’ clothes were stained with blood, and the victim’s wrist watch was found in his billfold. Harris was advised by the sheriff of his constitutional rights, and arrested. The same contentions were made there as appellants presently make, but the United States Court of Appeals (Eighth Circuit) found no merit in these contentions, citing Schook v. United States, 337 F. 2d 563. Here, the sheriff had been advised by owners of the cabin which had been burglarized that approximately $1,500.00 worth of property had been taken. Without making a search, a number of articles were clearly visible which were identified as being part of the property taken during the burglary. Evans was arrested, and the sheriff subsequently obtained a search warrant and found additional property upon returning to the apartment.

The next two points deal with an allegation that the court and prosecutor erroneously called to the attention of the jury the fact that the appellants did not testify in their own defense. The court gave the following instruction :

“Thereupon, the Court, at the request of the Prosecuting Attorney will give the instruction which says to the jury that if they find Defendant, or either of them, had in their possession property recently stolen that this fact is evidence from which inference of guilty may be drawn and is to be considered by the jury in arriving at guilt or innocence; to which counsel for defendants objects; and which said objection is by the Court overruled, to which action and ruling of the Court counsel for Defendants objects: Defendants object to this particular instruction, that it draw[s] inference of guilt by the mere possession of stolen property and which requires defendants to explain in that it would require defendants to testify in violation of their rights of self-incrimination. ’ ’

Now, this is not a correct instruction, mainly because the court did not add, after “their possession property recently stolen,” the phrase, “without reasonable explanation of that possession.” However, it will be noted that the objection treats the instruction as though the latter clause had been used, i. e., the objection is not that the court left out this last phrase, but rather, that the instruction does require an explanation from the appellants — which a correct instruction would have stated.

Appellants argue that this instruction placed them in the position of being compelled to testify, i. e., offer an explanation, and that the .instruction was a judicial comment upon the failure of appellants to deny the charges. In their brief, appellants state:

“* * * It is, in no uncertain terms, an instruction to the jury that the defendants are guilty because they did not deny the charges. The instruction so prejudiced the jury against the defendants, that this alone is ample reason to reverse the verdict.”

There is no merit in this contention, and the court’s overall instructions told the jury that the defendants were innocent until proven guilty; that the presumption of innocence remained with them throughout the trial, and that any reasonable doubt as to their guilt should be resolved in their favor.

It is also argued that certain remarks of the Prosecuting Attorney before the jury amounted to a comment upon the failure of appellants to testify. During closing argument, the prosecutor made the following statements, and those now contended to be prejudicial are italicized:

“The proof’s in here that the McDougal boy admitted it, and the proof’s in here that the other boy, or Jerry Hammond, or Jerry ‘Fish’ Hammond, admitted it. And it’s uncontradicted and it’s undisputed.
“Now then, what does that bring us down *to just purely and simply? We just have no other — there’s no alternative. It’s inconceivable to me of anything other than guilty on burglary, without question. There is even an inference when you’ve found stolen property and the possession of it is not explained. That’s not enough to put you in the penitentiary itself; but, that alone is inference of your guilt. You say, ‘Well, it might happen to me. They might catch me with it.’ You’re going to answer pretty quick where you got it, where you bought it, and what you did with it. We have no such explanation. * * *
“Is he guilty? or is he innocent? If he’s guilty, then talk about the sentence. If there’s extenuating circumstance, then, sure, take into consideration the minimum. That’s why — that’s what minimum sentences are for, if there’s extenuating circumstances. I know of none here. None has been called to your attention here. None has been told you here. * * *
“These aren’t boys we are jerking out of high, school out here and bringing into court, bringing them up here for the first time, and they enter a plea of guilty, beg for leniency, to be placed on probation, be permitted to return back to school with certain restrictions on it by the Court, admit they made a mistake. Gentlemen, that’s not the case. That’s not this case. Not at all.
“They’ve come in here and they’ve pleaded not guilty. There’s been no considerations asked. There’s been no considerations for you to even consider.
Mr. Lewis: Your Honor, this is the fourth time the Prosecuting Attorney’s made comment on the Defendants’ failure to testify.
The Court: No, sir; I don’t think that was a comment on their failure to testify, until you brought it to the attention of the jpry.
Mr. Lewis; We object to it, Your Honor.
The Court: Very well. The objection is overruled.”

In the first place, it will be noted that there is no objection to the first three italicized statements. Even on the fourth occasion, there was no actual objection, defense counsel merely commenting that “this is the fourth time the Prosecuting Attorney has made comment on the defendants’ failure to testify.” It is not clear whether the objection made was to the statement of the Prosecuting Attorney or the statement of the court mentioning that counsel had brought it to the attention of the jury. In either event, there was no exception to the overruling of the objection.

However, entirely aside from the failure to object and except to the rulings of the court, there is no merit in the contention. The first italicized statement can simply refer to the fact that no explanation was given to the sheriff or other officers, of how, or where, the stolen property had been obtained. We cannot visualize any person, innocently holding stolen goods, waiting until he is tried by a jury to explain — rather, he would make his explanation to the officers when they made the arrest. The second comment refers to extenuating circumstances, and certainly that testimony could as properly have been offered by friends or relatives as by the appellants themselves. It is difficult to see how “there’s been no considerations for you to even consider” can be termed a comment on the failure of appellants to take the stand in their own defense. Actually, much stronger statements have been held to not constitute a comment upon the failure to testify.

It is next asserted, “It was prejudicial error for the Prosecuting Attorney to state to the jury in his opening statement material facts without later offering proof in support of them. ’ ’ The transcript does not contain the opening statement of the Prosecuting Attorney, and we accordingly cannot consider this point on appeal.

Finally, it is argued that the trial court erred in admitting into evidence the confessions of the appellants, which it is argued were made before they were adequately advised of their rights against self-incrimination.

As to Evans, the testimony has already been reviewed, and it reflects that all warnings required by Miranda v. Arizona, 384 U. S. 436, were given by the sheriff to Evans, though, at the very outset, Evans stated, “Hell, here it is; you might as well take it; I’ve been in so much trouble already that I’m going to the penitentiary anyway.” There is no evidence that appellant Hammond was given the warnings set out in Mircmda, but there is plenty of evidence that Hammond made these statements spontaneously, and entirely voluntarily, even though being told by Hunnieutt, “I’d rather you didn’t say anything.” There is not a single line of evidence in the record that this statement was not made.

We do not take Miranda to iñean that a man cannot voluntarily open his mouth. In Turney v. State, 239 Ark. 851, 395 S. W. 2d 1 (in which the United States Supreme Court denied certiorari), this court, in distinguishing Turney from Escobedo v. Illinois, 378 U. S 478, said:

“We see no resemblance in the facts related and the facts that are presently before us. Here, Officer Caldwell, of the State Police, arrested Turney at his residence on a Monday at approximately 4:30 A.M., serving a warrant , of arrest, which had been issued by a Justice of the Peace. Caldwell testified that he asked Turney ‘point blank why would a man living in a house like he was, with his job, get involved in something like this, and he said he didn’t know and that he must be out of his mind. He then admitted his part in the theft to me and told me at that time where the property was.’ Thereafter, Turney directed the officers to the location of the stolen property. It will be thus observed that Sergeant Caldwell was not carrying out a process of interrogation for the purpose of obtaining incriminating statements. The simple statement, above quoted, was responded to by the spontaneous admission of guilt by Turney. ’ ’

See also Bivens v. State, 242 Ark. 362, 413 S. W. 2d 653.

Finding no reversible error, the judgment is affirmed.

       A floor type lamp with the base missing, a bed spread, a pile of clothing and a blanket, a part of the property taken, and in plain view, were recognized by Cole when they went into the room.

       McDougal’s conviction is not before this court.

       Hammond also implicated two other hoys, who pleaded guilty-on the morning of the trial of these appellants.

       For instance, in Davis v. State, 96 Ark. 7, 130 S. W. 547, the Prosecuting Attorney told the jury:
      “ ‘He (referring to the defendant) told Bentley and Dr. Cunningham how he had administered the medicine to her to produce an abortion. And it is undisputed and undenied in this case, and he cannot deny it.’ These remarks, we think were but the expression of the opinion of the State’s Attorney as to the weight of the testimony of these two witnesses, and could not fairly be construed to refer to the fact that the defendant had not testified in the case, and did not tend to create any presumption against him by reason of his failure to testify.”
      In Culbreath v. State, 96 Ark. 177, 131 S. W. 676, the opinion recites:
      “Another ground urged for reversal is as to alleged improper remarks of an attorney representing the State in his closing argument. The following are the objectionable remarks: ‘Where was the defendant that day? He has never seen fit to say. He has not shown by any one where he was between the hours of 10 o’clock in the morning and 1:30 in the afternoon.’ Taking the whole statement together, we do not think it can fairly be construed as a comment or criticism on defendant’s failure to testify in his own behalf or as calling attention to that fact. It was merely an expression of the opinion of counsel that the defendant had not adduced evidence accounting for his whereabouts during the hours named.”
      In Sanders v. State, 164 Ark. 491, 262 S. W. 327, the opinion reflects:
      “The prosecuting attorney, in his closing argument, among other things said: ‘It is not denied that the defendant sold the liquors mentioned in the indictment. He has not denied it [emphasis supplied;] Mr. DeBois did not deny it in his argument; Mr. Miller does not deny it in his argument to you gentlemen, and no one else has denied it. The witnesses have testified that they bought it, and so the only question for you gentlemen to determine, under the. law as given you by the court, is whether or not the stuff which the defendant did sell was intoxicating, or contained alcohol.’ The appellant entered a plea of not guilty to the indictment, but did not testify at the trial. He contends that the court erred in overruling his objection to the above argument.
      “When .the remarks of the State’s attorney are considered as a whole, they cannot be fairly interpreted to have reference to the failure of the defendant to testify, but only to the fact that the witnesses had testified that the defendant sold the liquors mentioned in the indictment, and that they had bought the same, and that such fact was undisputed by the testimony.”