text:
    Ronald Jack CAMPBELL v. STATE of Arkansas
    CR 78-144
    576 S.W. 2d 938
    Opinion delivered February 19, 1979
    (Division II)

      Paul D. Groce, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Ronald Jack Campbell was tried on February 16,17,18 and 21, 1978, on a charge of murder in the first degree for the killing of Harvey Edgar White on May 17, 1972. He was found guilty and sentenced to life imprisonment. The charge was made by information filed on May 24, 1972, two days after the arrest of Campbell in Memphis, Tennessee. He entered pleas of not guilty and not guilty by reason of insanity on June 5, 1972, and was then committed to the Arkansas State Hospital for a period of 30 days for observation and examination. On October 2, 1972, the Circuit Court of Pulaski County, upon an adjudication of insanity, committed him to the state hospital, where he was confined (except for periods between March 17, 1976 and July 16, 1976, and December 18 and December 19, 1976 when he was in “escape status”) until August 31, 1977, when the circuit court ordered that he be remanded to the Pulaski County jail to be held to await trial on the charge.

For reversal, appellant relies upon the following points:

I
THE TRIAL COURT ERRED IN DENYING APPELLANT’S WRIT OF HABEAS CORPUS IN THAT SAID FIVE-YEAR DETENTION WAS UNLAWFUL *M THAT THE APPELLANT WAS CONFINED IN VIOLATION OF ARK. STAT. ANN. § 41-607(2) (REPL. 1977) WHICH REQUIRES CIVIL COMMITMENT IN COMPLIANCE WITH ARK. STAT. ANN. § 59-408 (REPL. 1971), WHEN CONFINEMENT IS IN EXCESS OF ONE YEAR.
II
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO DISMISS BASED ON HIS RIGHT TO A SPEEDY TRIAL WHICH WAS ABRIDGED BY THE FIVE-YEAR DELAY.
III
THE TRIAL COURT ERRED IN PERMITTING, OVER APPELLANT’S OBJECTION, THE INTRODUCTION OF STATE’S EXHIBITS 2 AND 3, WHICH WERE PICTURES OF THE DECEASED’S BODY WHEN THEY CONTAINED ONLY SOME MATERIAL OF PROBATIVE VALUE AND WERE NOT VERY RELEVANT TO THE TESTIMONY OF ANY OF THE WITNESSES; AND THEY WARE HIGHLY PREJUDICIAL.
IV
THE TRIAL COURT ERRED IN NOT DIRECTING A VERDICT FOR THE APPELLANT AS PRAYED FOR IN APPELLANT’S REQUESTED INSTRUCTION NO. 1 BECAUSE APPELLANT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT HE HAD A MENTAL DISEASE OR DEFECT AT THE TIME OF THE ALLEGED OFFENSE.
V
THE TRIAL COURT ERRED IN NOT GIVING APPELLANT CREDIT FOR THE TIME SPENT IN CUSTODY WHILE AWAITING TRIAL IN THIS MATTER.

We find no reversible error and affirm. We will discuss appellant’s points in the order listed.

I

On June 11, 1977, appellant filed a petition for writ of habeas corpus. In it, he alleged that his detention was unlawful because he was confined for more than five years in violation of Ark. Stat. Ann. § 41-607 (2) (Repl. 1977), which he contends required compliance with Ark. Stat. Ann. § 59-408 (Repl. 1971). The former section provides that any detention after one year from the date of admission be under normal civil commitment procedures. A hearing on this petition was held on July 12, 1977, but a decision was postponed until briefs were filed. In his brief, appellant invoked provisions of the Arkansas Criminal Code, which became effective on January 1, 1976. See Ark. Stat. Ann. § 41-101 (Repl. 1977). The petition was denied on August 30, 1977. On September 6, 1977, the trial was continued until a later date, in order to give appellant time to appeal to this court. Notice of appeal and a designation of record were filed September 22, 1977. Another notice of appeal, reciting that a transcript had been ordered, was given on September 27, 1977. An extension of 90 days for the filing of the transcript was granted on December 20, 1977. It was not filed here until September 18, 1978. This was more than seven months after the judgment was entered. It appears that the delay was the result of appellant’s withdrawal of his earlier notice of appeal in order to include this appeal with the appeal of the judgment of conviction.

The denial of the petition for habeas corpus was a final, appealable order. See, Fulks v. Walker, 224 Ark. 639, 275 S.W. 2d 873. Neither appellant nor the trial court could extend the time for lodging the transcript to a date more than seven months after the entry of that judgment. Ark. Stat. Ann. § 27-2127.1 (Supp. 1977).

Appellant, however, contends that non-compliance with Ark. Stat. Ann. § 59-408 pursuant to § 41-607 (2) invalidates his conviction. In any event, Ark. Stat. Ann. § 41-607 (2) has no application to appellant, who was committed to the state hospital “until restored to reason,” in accordance with Ark. Stat. Ann. §§ 59-411 — 59-413 (Repl. 1971) on October 2, 1972, more than three years before § 41-607 (2) went into effect. Appellant seeks to bring himself into the coverage of the act by invoking § 41-102 (4), which provides that a defendant in a criminal prosecution for an offense committed prior to the effective date of the Arkansas Criminal Code may elect to have the construction and application of any defense to the prosecution governed by the provisions of the code. He takes the position that his election made § 41-607 (2) applicable.

There is no merit to this contention. By no stretch of the imagination can it be said that the provisions of this section are a defense to the prosecution of appellant. The application of § 41-102 (4) is governed by Ark. Stat. Ann. § 41-110 (3) (Repl. 1977), defining a defense under the code. A defense is any matter: (1) so designated by the code, or (2) so designated by a statute not a part of the code, or (3) involving an excuse or justification peculiarly within the knowledge of the defendant on which he can fairly be required to introduce supporting evidence. The disposition of one found mentally unfit to proceed with a trial because of mental disease or defect cannot possibly be considered a defense under the code. Furthermore, there is nothing in Ark. Stat. Ann. § 41-607, or the chapter of which it is a part, to indicate any legislative intent that this section should have any retroactive or retrospective effect.

II

Appellant filed a motion to dismiss the information on the ground that he had been denied his constitutional right to a speedy trial by reason of his confinement for over five years. This motion was filed on December 15, 1977. Appellant alleged that there had been a deliberate and purposeful delay by the state which had prejudiced him and prevented him from being able to properly prepare his defense. It appears that appellant’s confinement was in full compliance with the law then applicable. The report from the state hospital to the circuit court made on July 17, 1972, was that appellant was insane at the time of the mental examination and probably was insane at the time of the commission of the alleged offense and requested that he be committed to the state hospital for treatment. A hearing on this report was held in the circuit court on October 2, 1972. Appellant and his court-appointed attorney were present. As a result of this hearing, appellant was committed to the Arkansas State Hospital until such time as he was restored to reason, pursuant to Ark. Stat. Ann. §§ 59-411 — 59-413.

In presenting his motion in the trial court, appellant first relied upon Ark. Stat. Ann. § 43-1308 (Repl. 1977), which provided that nothing in the act under which the circuit court committed him should prevent a trial of a defendant at an adjourned day or special term of court prior to the next regular term of court after the entry of an order for observation and examination. We agree with the trial judge that this section was inapplicable. It merely permitted a trial prior to the next regular term, in order to minimize motions for observation by defendants as a dilatory move.

It appears that some member of the staff of the state hospital had reported to the court at the hearing on the petition for habeas corpus held on July 12, 1977, that the staff was in the process of reevaluating Campbell’s status and that the trial judge then requested that a copy of the evaluation be forwarded to the court as soon as it was completed. The report was dated August 11, 1977. The following significant facts were revealed by it:

At a psychiatric staff conference held at the hospital on July 17, 1972, the professional opinions of a majority of those present was that Campbell was psychotic and that the diagnosis should be schizophrenia, schizo-affective type. Campbell had been involved in psychotherapy and group activity programs since he had been in the hospital. Because of the feelings of some of the staff who had worked with Campbell, it was decided to reevaluate his mental status after his second successful escape in December, 1976. Outside consultation services of a psychiatrist and a psychologist in private practice who had not had any prior contact with Campbell were obtained. Thereafter, a special psychiatric staff conference was held. Both outside consultants and members of the hospital staff participated. Professional opinion was divided as to Campbell’s mental status at the time of the alleged offense and at the time of the current examination and as to whether he had schizophrenia. Most of the participants agreed that Campbell had a character (personality) disorder with neurotic traits. The consensus was that Campbell was not mentally ill to the degree of legal irresponsibility at the time of the special examination and that he did have the mental capacity to understand the proceedings against him and to assist effectively in his own defense. Opinion was equally divided as to Campbell’s mental illness to the degree of legal irresponsibility at the time of the commission of the alleged offense. The consensus was that he would most probably resort to aggressive or violent behavior as he had done in the past. Opinion was divided as to whether Campbell’s behavior was the result of a character disorder or because of a psychotic process.

Because of the divided professional opinion and because of the many legal, social and ethical issues involved, it was recommended that Campbell be returned to a court for disposition as the best means of resolving the issues.

The procedures which resulted in the commitment of Campbell were the direct result of his plea of not guilty by reason of insanity. He has never requested that he be brought to trial, either before or after his petition for habeas corpus, or before or after the filing of his motion to dismiss. Under these circumstances, Campbell is in no position to complain about not having been tried on this charge earlier.

The constitutional right to a speedy trial is not absolute; it is necessarily relative and among the principal factors to be assessed are the reason for the delay and the good faith, or lack of it, on the part of state officials. Randall v. State, 249 Ark. 258, 458 S.W. 2d 743; Curan v. State, 260 Ark. 461, 541 S.W. 2d 923, cert. den. 434 U.S. 843, 98 S. Ct. 144, 54 L. Ed. 2d 108 (1977). The delay in this case was initiated by appellant’s plea of insanity. Since the trial court followed the statutory procedures prescribed in such a case, there is no reason why the time elapsed solely as a result of following these procedures in according him due process of law should not be chargeable to the defendant. See O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618. We have said that the constitutional right to a speedy trial is violated only by vexatious, capricious and oppressive delays manufactured by the ministers of justice. Leggett v. Kirby, 231 Ark. 576, 331 S.W. 2d 267, cert. den. 362 U.S. 981, 80 S. Ct. 1073, 4 L. Ed. 2d 1018 (1960). A speedy trial is a trial conducted according to fixed rules, regulations and proceedings of law, free from vexatious, capricious or oppressive delays manufactured by ministers of justice; and what constitutes a speedy trial must be determined from the varying circumstances of each particular case with reference to the practical and efficient operation of the law. Randall v. State, supra. There is no indication that officials of the state have not acted in complete good faith. There was good reason for the denial of appellant’s motion to dismiss.

Ill

The photographs to which appellant refers in relation to this point for reversal show the nude body of White. One of them showed White lying on his back on a hospital examin rag table, it showed dried blood on his chest and ribs and on the side of his face and head. The blood on the face and head of the body emanated from open wounds on the cheek and the bridge of the nose. The other photograph showed the body on its right side with an individual pointing to an entrance wound in the back of the body. It showed a considerable quantity of blood on a sheet on which the body was lying. Appellant complains of the display of blood and the prominent exposure of the buttocks of the body as inflammatory. He contends that the probative value of the photographs was substantially outweighed by unfair prejudice resulting from their inflammatory nature. Appellant’s objection was made in camera, after these photographs, along with several others, had been offered through the testimony of a police detective. It was based upon Ark. Stat. Ann. § 28-1001, Rule 403 (Supp. 1977). The state offered these photographs to corroborate the testimony of Phyllis Thorne, who was present at the time of the shooting of White, as to the actual shooting and the circumstances surrounding it, and to show the wounds in order to enable the jury to understand what had taken place and the motivation and intent of the accused. The trial judge excluded five photographs on the basis of appellant’s objection.

The Uniform Rules of Evidence, of which the rule on which appellant relies is a part, do not change the Arkansas law as drastically as appellant seems to think. As appellant points out, we said in Rodgers v. State, 261 Ark. 293, 547 S.W. 2d 419, the test in determining whether a photograph should be admitted or facts stipulated should always depend upon the question whether the inflammatory nature of the photograph is outweighed by its probative value, and, that, if it in some way enables the jury to understand the testimony, its admissibility lies within the sound discretion of the trial court. Appellant argued that the photographs were unnecessary because he would not contend during the trial that he did not commit the acts alleged, but would assert that he was not guilty by reason of insanity. The fact that photographic evidence is cumulative or unnecessary by reason of admission by a defendant of the facts disclosed by the photograph will not, standing alone, render it inadmissible. Perry v. State, 255 Ark. 378, 500 S.W. 2d 387.

The nature, extent and location of the wounds were relevant and material, at least on the questions of intent and state of mind. Appellant’s defense of insanity did not relieve the state of the burden of proving every element of the charge of murder in the first degree, including premeditation, deliberation and intent, beyond a reasonable doubt. Leland v. State, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952). Even if the mental disease or defect did not constitute a defense, evidence of it was relevant on the question of his culpable mental state and especially on the element of premeditation. Ark. Stat. Ann. § 41-602 (Repl. 1977). Thus, it is clear that appellant’s admissions, or rather his failure to contest the evidence pertaining to his acts, did not change the state’s burden of proof.

The trial court’s exclusion of some of the photographs is indicative of an exercise of some discretion in the matter. See Perry v. State, supra. The photographs were corroborative of Miss Thorne’s testimony that the victim was shot twice and that one of the shots was fired into his back while he was lying prone. We cannot say that there was any abuse of the trial judge’s discretion in weighing the probative value of the two photographs admitted against the danger of unfair prejudice, waste of time and needless presentation of cumulative evidence.

IV

Appellant contends that we should overrule such decisions as Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72, through which we have held that, on appellate review of evidence relating to insanity (or mental disease or defect), this court will not attempt to determine where the preponderance lies, but will affirm the judgment if there is substantial evidence to support the jury verdict on which it is based. This we decline to do. In cases such as this, the jury’s decision depends to a great extent upon evaluation of credibility of witnesses and determination of the weight to be accorded to their testimony, particularly when expert opinions are critical to the issue.

Appellant argues that the trial court should have directed a verdict because the state’s evidence on the issue cannot be considered persuasive when compared with that offered by him. Of course, the trial judge could not have directed a verdict upon weighing the evidence and finding it to preponderate in favor of appellant. Mental disease or defect is an affirmative defense if, as a result thereof, the defendant, at the time of the offense with which he is charged, lacked the capacity to conform his conduct to the requirements of law or to appreciate the criminality of his conduct. Ark. Stat. Ann. § 41-601 (Repl. 1977). Since it is an affirmative defense, the defendant was required to establish it by a preponderance of the evidence. Ark. Stat. Ann. § 41-601, -110 (Repl. 1977) and commentary. And, as we have always held, the question of preponderance is primarily one for the jury, and a judge may direct a verdict only when no fact issue exists. Oakes v. State, 135 Ark. 221, 205 S.W. 305; Sherman v. Missouri Pacific RR. Co., 238 Ark. 554, 383 S.W. 2d 881; Harris v. State, 262 Ark. 680, 561 S.W. 2d 69. See also, McCully v. State, 141 Ark. 450, 217 S.W. 453; Davis v. Britt, 243 Ark. 556, 420 S.W. 2d 863; Hankins v. State, 133 Ark. 38, 201 S.W. 832. If appellant’s argument is taken as an assertion that the testimony on behalf of the state was not substantial in reliance upon holdings in cases such as Arkansas Pollution Control Com’n. v. Coyne, 252 Ark. 792, 481 S.W. 2d 322, that to be substantial, evidence must be valid, legal and persuasive, we disagree. The evidence appellant considers non-persuasive was the testimony of Drs. Albert F. Rosendale and W. R. Oglesby, who were permitted to express opinions as experts. It is true that we are not required, on appellate review, to accept as substantial evidence the opinion of an expert when it clearly appears that it is opposed to physical facts, common knowledge, the dictates of common sense or is pure speculation. Easton v. H. Boker & Co., 226 Ark. 687, 292 S.W. 2d 257. See also, Arkansas State Highway Com’n. v. Byars, 221 Ark. 845, 256 S.W. 2d 738. By no stretch of the imagination can it be said that the opinion of either of these doctors is opposed to physical facts, common knowledge, or the dictates of common sense. The infirmities alleged by appellant would seem to suggest that the opinions of these witnesses were based upon speculation because: (1) Dr. Rosendale at first accepted the contrary opinion of Dr. C. V. Taylor (who testified on behalf of appellant), but formed a different opinion some eight or ten months after the alleged crime; (2) Dr. Rosendale never administered or required any mental test to assist him in arriving at his opinion; (3) Dr. Rosendale only had contact with appellant about six times over a period of five years; and (4) Dr. Oglesby had only one brief contact with appellant before forming his opinion. As we view the testimony, these circumstances had a bearing on the weight to be given to the testimony of these witnesses, but not on its substantiality.

Before stating the reasons we find the testimony of these doctors to be substantial, we should note that there was little, if any, basis for an issue as to Campbell’s ability to appreciate the criminality of his act on the day of the alleged crime. The gist of his defense is that he killed White upon his conviction that he should commit a crime or crimes so terrible that he would be apprehended, so he could be society’s “guinea pig” in determining what caused people to commit horrible crimes. The opinions, then, are of greatest significance on the question of Campbell’s capacity to conform his conduct to the requirements of law.

Dr. Rosendale is employed as a psychiatrist by the Arkansas State Hospital. He is in charge of Rogers Hall, where Campbell was confined. He was on leave and not present at the time of Campbell’s first “staffing.” When he returned, he accepted the staff diagnosis of Schizophrenia, Schizo Affective Type, Depressed. After six or eight months, he formed his own opinion that Campbell’s mental condition was nothing more than a character disorder (which is non-psychotic) and a belief that, at the time of the alleged offense, Campbell was able to conform his conduct to the requirement of law or appreciate the criminality of his act. He stated that Campbell had only approached him about a half dozen times and had always gone to female personnel to express his wants and that this information was passed on to the doctor. Based upon the general observation of Campbell, Dr. Rosendale expressed the opinion that Campbell was a very adept manipulator.

Dr. W. R. Oglesby is Deputy Commissioner for Psychiatric Services and a psychiatrist at the Arkansas State Hospital. Based upon his observation and information and data obtained from records pertaining to Campbell, including the reports of outside pscyhologists and psychiatrists hired by the hospital to interview Campbell, this witness expressed the opinion that Campbell had an antisocial personality, is not a psychotic person, and that he was able to conform his conduct to the requirements of the law. He believed that a statement by Campbell as to his motivation for the killing, made to the police when he was arrested in Memphis, was not a delusional statement, but a rationalization, i.e., in psychiatric terms, a superficially reasonable or plausible excuse for his actions. He said that Campbell lacked socialization, was unable to resist urges to do violent or wrongful acts, and had no internal sense of guilt or empathy for others. He said that Campbell was able to offer plausible rationalizations in psychiatric terms because he had been psychiatrically contaminated by having undergone transactional analysis. Dr. Oglesby expressed the opinion that appellant was a “con-artist” — as are many people with antisocial personalities.

In viewing the testimony of Drs. Rosendale and Oglesby, we note that Campbell had, before the crime with which he was charged, been an outpatient at the Community Mental Health Center on the state hospital grounds. Dr. Taylor also found Campbell to be a very competent, manipulating person and the cause of considerable difficulty because of his intelligence. The governing rule of evidence permits an expert witness to base his opinion upon, or to draw an inference from, facts or data in the particular case perceived or made known to him at or before the hearing. Ark. Stat. Ann. § 28-1001, Rule 703 (Supp. 1977); Field, A Code of Evidence for Arkansas?, 29 Ark. Law Rev. 1, 29; Arkansas State Highway Com'n. v. Russell, 240 Ark. 21, 398 S.W. 2d 201; Amos v. Stroud, 252 Ark. 1100, 482 S.W. 2d 592.

V

Finally, appellant invokes Ark. Stat. Ann. § 41-904 (Repl. 1977) as a basis for reversal. The trial judge did not give credit for the time spent in custody as directed by that statute, which is a part of the Arkansas Criminal Code. This requirement is not a defense, as defined by the code, so appellant’s invoking the defenses provided by the code did not bring this section into play. Under Ark. Stat. Ann. § 41-102 (3) (Repl. 1977), provisions of the code do not govern punishment. An offense is punished in accordance with law as it existed when the offense was committed.

The governing law at the time of the offense of which appellant was found guilty provided that the sentencing judge might, in his discretion, credit time already served in jail or other place of detention. Ark. Stat. Ann. § 43-2813 (Supp. 1975). There is no abuse of discretion here, and appellant has not asserted that there was.

Appellant also relies upon Smith v. State, 256 Ark. 425, 508 S.W. 2d 54, in which we held that the court must give credit for pretrial incarceration where a defendant was held in custody on a bailable charge and was prevented from posting bail solely because of his indigency. Appellant’s being held in custody was not attributable to his indigency. Even if appellant were otherwise entitled to credit for the time he was held in custody, there is simply no way to credit this time against a life sentence. Life less five years is a period not susceptible of prognostication. A life sentence is for the natural life of the person sentenced and is not based upon mortality tables or any other formula. Furthermore, the record does not disclose that appellant asked in the trial court that he be given credit against his sentence. We will not consider such a question for the first time on appeal. McCoy v. State, 259 Ark. 607, 535 S.W. 2d 439.

OTHER MATTERS

We agree with appellant’s attorney that the court’s holding that a minister was not qualified as an expert on the question of appellant’s mental disease or defect was not reversible error because it was not abuse of the court’s discretion.

Appellant has not pointed out any other objections made by him and not sustained in the trial court. The Attorney General has given transcript references to others, which he did not consider of sufficient merit to treat by legal argument, but did not otherwise identify them. We have examined the record and find no error to the prejudice of appellant. Specifically, we find no reversible error in the following:

1. Denial of appellant’s motion to conduct a voir dire examination of prospective jurors in chambers.
2. Testimony about the actions of a woman who was with appellant at the time of his arrest.
3. Objection to the testimony of this woman relating to other crimes committed by the defendant, who later took the witness stand himself and testified about the crimes committed by him.
4. Inquiry by the prosecuting attorney of a minister who testified on behalf of appellant as to whether he knew the meaning of the term “psychiatrically contaminated,” in spite of the fact that the trial judge refused to permit the witness to testify as an expert witness.
5. A question of this minister by the prosecuting attorney concerning a possible statement made by appellant on the night before the commission of the offense with which appellant was charged, to which an objection was, in essence, sustained and the answer to which was not prejudicial to appellant.
6. Questioning of Dr. Taylor by prosecuting attorney about a 1977 “staffing” with reference to appellant’s mental condition in 1972 over appellant’s objection that the later “staffing” was irrelevant.
7. Questioning of Dr. Taylor concerning disagreement among those who examined defendant on the diagnosis of schizophrenia.
8. The trial judge’s inquiring of Dr. Taylor whether Campbell was, in the opinion of the witness, schizophrenic at the time of the trial, which was answered in the affirmative.
9. The prosecuting attorney’s statement that Dr. Taylor based his opinion on statements contained in a confession by appellant at the time of his arrest, in the form of a question which was never answered, over appellant’s objection, on which appellant never obtained a ruling.
10. Appellant’s attorney’s objections to Campbell’s testifying, after the trial judge had advised Campbell that he did not have to testify, that the jury could not draw any inference of guilt from the fact that he did not take the witness stand, and that he would be permitted to testify if he wanted to, in spite of his attorney’s advice not to do so.
11. Inquiry by prosecuting attorney of appellant whether his saying that he had committed a prior offense as “self-punishment” was his idea or that of a psychiatrist who had examined him, to which appellant objected as calling for hearsay evidence. Appellant iater stated that he thought of it.
12. The statement and actions of a woman who was with appellant at the time of his arrest that appellant had kidnapped her in Dallas and her testimony to that effect, after appellant had testified that he had approached her and requested, while showing her his .38 caliber pistol, that she drive him somewhere.
13. The statement of a nurse at the state hospital that, in the five years she had been in daily contact with the appellant, she had not seen signs of mental illness of appellant.
14. Objections to instructions given by the court at the request of the state, all of which were general objections.
15. Appellant’s objection to the trial judge’s questioning of the minister whom appellant sought to qualify as an expert.
16. The trial court’s refusal to give appellant’s requested instruction that a finding of not guilty by reason of insanity would not necessarily mean that the appellant would be released from confinement.

The judgment is affirmed.

We agree. Harris, C.J., and Holt and Hickman, JJ.

       The advisability of the prosecution’s introducing all persuasive evidence has been heightened, not only by the risk of failure to eliminate all reasonable doubt about every element of the offense charged, but also by the hazard of dismissal to avoid double jeopardy, if an appellate court finds the evidence insufficient to support a verdict of guilty. Pollard v. State, 264 Ark. 753, 574 S.W. 2d 656 (1978).

       An abnormality manifested only by antisocial conduct is not a defense for mental disease or defect. Ark. Stat. Ann. § 41-601 (2) (Repl. 1977).


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    WEISER-BROWN OIL COMPANY v. Margie Gould SNEED and ARKANSAS WESTERN OIL COMPANY
    78-255
    577 S.W. 2d 1
    Opinion delivered February 19, 1979
    (Division I)

      Keith, Clegg & Eckert, for appellant.

      Ball & Mourton, for appellees.
   Conley Byrd, Justice.

The Sneed brothers, Malcolm H., Hugh M., W. J. and Sebron Travis Sneed, Jr., entered into a partnership agreement in 1946, providing that any mineral interest theretofore or thereafter acquired in any lands, wherever located, was partnership property even though such interests may have been conveyed to only one or less than all of the partners in their individual name or names. The Partnership Dissolution Agreement of April 1967, confirmed the 1946 Partnership Agreement as to all mineral interests so acquired prior to March 1, 1967. However, the mineral interests herein involved were not included in the April 1967 Dissolution Agreement. Both the 1946 Partnership Agreement and the April 1967 Dissolution Agreement were duly recorded in Johnson County.

This litigation arises out of a deed dated January 9, 1967, wherein Curtis Kinard, et ux, conveyed to S. T. Sneed, Jr. and Margie G. Sneed, husband and wife, the minerals here in question. February 21, 1967, S. T. Sneed, Jr. conveyed the minerals to Margie G. Sneed. S. T. Sneed died on August 1, 1971, with Margie G. Sneed surviving. Margie G. Sneed leased the minerals to appellee, Arkansas Western Oil Company, on January 21, 1974. On July 16, 1974, a gas well on the mineral lease was completed with an estimated value of $1,320,000.00. Appellant, Weiser-Brown Oil Company, acquired its lease from Malcolm H. Sneed, Hugh M. Sneed and W. J. Sneed on September 23, 1975.

The three surviving Sneed brothers and appellant Weiser-Brown Oil Company brought this action to declare that each of the three brothers owned a one-fourth interest in the Kinard minerals and that the lease to appellee, Arkansas Western Oil Company only conveyed a one-fourth interest. The chancellor found that the mineral interests purchased from Kinard were purchased with partnership funds and that each of the three surviving brothers was entitled to a one-fourth interest therein subject, however, to the lease of appellee, whom the court found to be a bona fide purchaser for value and without notice. Only Weiser-Brown Oil Company has appealed. It contends that the recordation of the 1946 Partnership Agreement and the April 1967 Dissolution Agreement constituted constructive notice that the mineral interest acquired from Curtis Kinard was partnership property. Cited in support of its argument is Abbott v. Parker, 103 Ark. 425, 147 S.W. 70 (1912).

To support the chancellor’s decision that appellee’s lease from Margie G. Sneed covered all of the mineral interest acquired from Curtis Kinard, appellee relies among other things on Ark. Stat. Ann. § 65-110(3) (Repl. 1966), which provides:

“(3) Where title to real property is in the name of one or more but not all the partners, and the record does not disclose the right of the partnership, the partners in whose name the title stands may convey title to such property, but the partnership may recover such property if the partners’ act does not bind the partnership under the provisions of paragraph (1) of Section 9 [65-109], unless the purchaser or his assignee, is a holder for value, without knowledge.” (Emphasis ours.)

Appellant, to counter appellee’s contention, contends that the recordation of the 1946 Partnership Agreement and the April 1967 Dissolution Agreement disclosed “the right of the partnership” within the meaning of Ark. Stat. Ann. § 65-110(3), supra, so as to defeat the claim of appellee. We disagree with appellant for the reasons hereinafter stated.

In Abbott v. Parker, 103 Ark. 425, 147 S.W. 70 (1912), we held:

“A purchaser of lands takes them with constructive notice of whatever appears in the conveyance which constitutes his chain of title; if sufficient appears therein to put a prudent man on inquiry, which would, if prosecuted with ordinary diligence, lead to actual notice of right or title in conflict with what he is about to purchase, and he fails to make such inquiry, the law will charge him with the actual notice he would have received if he had made it.”

As we interpret the italicized portion of Ark. Stat. Ann. § 65-110(3), supra, the term record refers back to the record of the title held in the name of one or more but not all of the partners — i.e. the title acquired by S. T. Sneed, Jr. and Margie G. Sneed from Curtis Kinard. To overcome this construction of the statute, appeilant, relying upon Snyder v. Bridewell, 167 Ark. 8, 267 S.W. 561 (1924), contends that the 1946 Partnership Agreement was an instrument in the chain of appellee’s title.

In Snyder v. Bridewell, supra, the Nashville Lumber Company had mortgaged to Lesser-Goldman Cotton Company “all property owned by the Nashville Lumber Company or afterwards acquired by it, in Howard and other counties in Arkansas.” Before foreclosure the Nashville Lumber Company conveyed the property in dispute by specific and definite description to the Graysonia-Nashville Lumber Company. Lesser-Goldman Cotton Company foreclosed on the land which was purchased by Bridewell at the foreclosure sale. Bridewell brought suit to recover from Snyder the remaining purchase price due in the sale from Bridewell to Snyder. The trial court overruled Snyder’s contention that, because of the specific description in the conveyance to Graysonia-Nashville Lumber Company, Bridewell acquired no title at the foreclosure sale. In upholding the trial court we pointed out that such a description was valid where a conveyance furnished a key by which the land sought to be conveyed can be identified. We there pointed out that a “description covering all the lands owned by said company in said counties is definite enough to satisfy our registration laws.” From the statements in the majority and concurring opinions it appears that the property involved was owned by the Nashville Lumber Company at the time of the execution of the mortgage — i.e. we do not interpret the decision as saying that such a description is sufficient to furnish a key to the description of any property acquired after the execution of the mortgage. Consequently, we cannot agree that the 1946 Partnership Agreement would be an instrument in the chain of title conveyed in 1967 by Curtis Kinard to S. T. Sneed, Jr. and Margie G. Sneed.

Furthermore, since the Kinard conveyance was to S. T. Sneed, Jr. and Margie G. Sneed, husband and wife, Margie G. Sneed was a purchaser of an estate by the entirety from Kinard and following the death of her husband became the sole owner of record for purpose of conveying title. Therefore appellee, in checking the title to the Curtis Kinard mineral interest, had every right to disregard any conveyances made by S. T. Sneed during his lifetime, Branch v. Polk, 61 Ark. 388, 33 S.W. 424 (1895), since Margie G. Sneed would at that time stand of record as the sole surviving purchaser of the Kinard mineral interest.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and Purtle, JJ.


author: Darrell Hickman, Justice.

text:
    Warren GOLDEN v. STATE of Arkansas
    CR 78-172
    576 S.W. 2d 955
    Opinion delivered February 19, 1979
    (Division II)
    [as Modified on Denial of Rehearing March 12, 1979.]

      Ed Alford, for appellant.

      Bill Clinton, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Warren Golden was convicted of first degree battery and, having two previous felony convictions, was sentenced to 25 years in the penitentiary.

Golden alleges three errors on appeal: a continuance should have been granted because a key defense witness was absent; inflammatory photographs were admitted in evidence; and, the court commented on the evidence. We find no error and affirm the judgment.

Golden was drinking whiskey with a man named Witt Wick, Jr. during the afternoon and night of January 8, 1977, and the next morning. They started drinking in DeQueen and ended up on a rural road. Apparently they built a fire beside the road and continued to drink and talk. They got into an argument, the subject of which is unknown, and Golden beat the other man with a rock. Thinking he had killed the man, Golden called the sheriff’s office from his brother’s house and said, “I had to kill a man to protect myself.” Officers searched the scene and could not find a body. Later that day, Witt was found on a nearby farm, was taken to the hospital, treated and subsequently released. Witt was not a witness, his whereabouts being unknown.

Golden’s defense was a lack of intent. His attorney had subpoenaed Dr. W. J. Jones, a physician, in connection with this defense. The witness, although served, did not appear at the trial and it is alleged it was error to try Golden without this witness.

After the jury was impaneled, all parties announced ready for trial. After the witnesses were called to be sworn, the defense discovered several witnesses absent. There was a conference in chambers which is not reported. At noon, after the State had presented eight witnesses, the appellant’s attorney offered an objection to proceeding in the absence of the witnesses. The defense said Dr. Jones’ presence was necessary. It was determined that Dr. Jones had been served but was not present. The trial judge tried to get the parties to stipulate what the doctor’s testimony would be. They could not because the defense said the doctor would testify he had treated Golden for black outs, or seizures; the State, having questioned Dr. Jones, said the doctor would testify that he had only treated Golden once and there was no record of black outs. It turned out that the appellant’s lawyer had not actually spoken with the doctor, did not know him, and was relying solely on what someone else told him. The court ordered the sheriff’s office to continue to try to locate the doctor and ordered the trial to proceed.

At the conclusion of the State’s case, the appellant did not renew his motion for a continuance. Instead, the trial judge asked the appellant’s attorney how many witnesses he would call. The lawyer said:

It looks like I haven’t got but two or one unless Dr. Jones shows up.

The trial judge remarked:

I don’t know whether you’ve heard this report or not, but the sheriff stated he had called his office and called his residence and was unable to locate him.

The grant or denial of a continuance is a matter within the trial court’s discretion. Unless there is an abuse of this discretion we will not reverse the trial judge. Holland v. State, 260 Ark. 617, 542 S.W. 2d 761 (1976). In making such a judgment, a trial judge should consider whether there is good cause, taking into account the consent of opposing counsel, and also the public interest in a prompt disposition of the case. Rules of Crim. Proc., Rule 27.3 (1977).

The trial judge took all reasonable steps to locate and produce the witness. Golden’s lawyer, not having talked to the witness, could not personally verify what the testimony would actually be. Also, at the close of the State’s case, it was not insisted that the trial be continued. We conclude the trial judge did not abuse his discretion.

Photographs taken at the hospital of the victim were admitted over the appellant’s objection. It is argued the photographs had no independent probative value and only served to inflame the passions of the jury. The photographs were black and white depicting the victim’s bloody head. However, the charge was first degree battery, a serious offense. An element of first degree battery is the intent to inflict serious physical injury. Ark. Stat. Ann. § 41-1601 (Repl. 1977).

Again, the decision was one within the sound discretion of the trial judge. Davis v. State, 246 Ark. 838, 440 S.W. 2d 244 (1969). We find no abuse of that discretion.

The trial judge made this statement just before reading the jury instructions about confessions:

Members of the jury, you dealt with a confession in this case.....

The judge then went on to give five instructions about confessions, touching on the burden of the State to prove voluntariness, the province of the jury to accept or reject a confession, the weight to be accorded such statements, and the need for corroboration. It was not until after the instructions were given, closing arguments were completed, and the jury retired, that an objection was made to the judge’s statement. It is argued it was a comment on the evidence, contrary to Ark. Const. Art. 7, § 23. The appellant should have objected at the time of the statement. Objections regarding instructions should be made before or at the time they are given. Rule 13, Uniform Rules for Circuit and Chancery Courts, Ark. Stat. Ann. Vol. 3A (Supp. 1977).

Even if this were error, it does not appear to be the kind that could not have been cured by an admonition. Also, considering the instructions given on a confession immediately thereafter, it is not obvious that a mistrial should have been declared. Gammel & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976).

Warren Golden had a fair trial, free of prejudicial error and the judgment is affirmed.

Affirmed.

We agree. Harris, C.J., and Fogleman and Holt, JJ.


text:
    Renice SMITH v. STATE of Arkansas
    CR 78-196
    576 S.W. 2d 957
    Opinion delivered February 19, 1979
    (Division II)

      James P. Massie, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

The Pulaski County Circuit Court, sitting as a jury, found Renice Smith guilty of theft by receiving, and Smith, having been convicted of two previous felonies, was sentenced to five years in the penitentiary.

The only issue on appeal of this case is the validity of a search and seizure. The trial judge found the search lawful and admitted into evidence several items seized from Smith’s residence, including a Magnavox color television set. We find on appeal the search was in violation of the Fourth Amendment of the United States Constitution and reverse the judgment of the trial court.

Two Little Rock policemen learned on November 23, 1976, that a Magnavox color television set that had been stolen in July, 1976, in a burglary, was pawned at the Square Deal Pawn Shop on November 19, 1976, by Renice Smith, and was taken out of pawn by Smith on November 20, 1976. The policemen had the serial number of the television taken in the burglary and it matched the number on the pawn ticket.

The officers routinely checked their outstanding warrants and found two hot check warrants outstanding on Smith. They proceeded to Smith’s residence on November 24, 1976, at 7:30 a.m. and took with them the hot check warrants and a burglary report which listed items, including the Magnavox television set, taken in the burglary.

According to the officers’ testimony, and theirs is uncommonly identical, they knocked on Smith’s door and he came to the door in a state of undress. They arrested him for the hot check charges and he invited them in so he could get dressed and accompany them downtown. They asked if they could look around, and seeing a Magnavox television set, they compared the serial numbers and found it the same as the stolen one; other items reportedly stolen in the same burglary, including golf clubs, tennis rackets and a radio were also observed in the residence and listed on the burglary report, but there were no serial numbers available. A closet was searched and some clothes were seized. The officers thought, but were not certain, that the closet door was open.

Both officers insisted that Smith invited them in and they asked for permission to search the premises which was granted.

Smith’s story is somewhat different. He said he went to the door and one officer flashed a warrant, told him he wanted to talk to him about some hot checks, and when the officer wanted to come in, he simply stepped aside. The officer turned around and left, came back with another officer and they informed him he was under arrest for the hot check charges and was told he was going downtown. He proceeded to get dressed and one officer talked to him while he was dressing and the other officer searched the place including all the rooms, under the bed and dresser drawers.

Smith said he never granted, nor was he asked to grant, consent to search. He was simply placed under arrest and they came in his residence.

Later, at the police station, Smith said they asked for written consent to search his residence and he declined.

The officers deny that they went to Smith’s residence to search for the items taken in the burglary. They said they had no probable cause for a warrant and, therefore, they did not obtain one.

The police officers ’ protestations that they had no intention of searching Smith’s residence belies the facts; their first interest in this matter was when they learned that Smith had pawned and redeemed a stolen television set. It was then they went to their files and found warrants outstanding for hot checks. They took with fhem a list of the stolen items that were taken in a particular burglary and that list included the television set in question. Smith was placed under arrest before they entered his residence, was in their custody at the time they gained entry.

There are two conceivable grounds on which the search could have been valid.

First, there is the doctrine authorizing a seizure of contraband in “plain view.” These items were clearly in plain view once the officers were inside the residence. Items seized in plain view of an officer are lawfully seized if entry or the initial intrusion was lawful; if discovery of the object was inadvertent; and, if the incriminating nature of the object was immediately apparent. U.S. v. Johnson, 541 F. 2d 1311 (8th Cir. 1976).

It was admitted that none of the items appear to be incriminating by their nature; they were stock items available to consumers throughout commerce. Certainly there was no inadvertent discovery. The initial intrusion could only be lawful if consent was given.

Then, the only lawful basis for this search would be on the second ground, consent.

The State, as it should, bears a heavy burden to prove that a warrantless search is voluntary. King v. State, 262 Ark. 342, 557 S.W. 2d 386 (1977). That burden is to prove by clear and positive testimony that that consent was freely and voluntarily given. Rodriquez v. State, 262 Ark. 659, 559 S.W. 2d 925 (1978).

. . . And where the defendant is under arrest, as here, that burden is particularly heavy.....
. . . “This burden on the Government is particularly heavy in cases where the individual is under arrest. Nonresistance to the orders or suggestions of the police is not infrequent in such a situation; true consent, free of fear or pressure, is not so readily to be found, (citations omitted).”

U.S. v. Kowal, 197 F. Supp. 401 (D.R.I. 1961).

We have simply the testimony of the parties and the circumstances of the case. On appeal, we make an independent determination considering the totality of the circumstances to see if the State has met its burden. We find in this case that the trial court’s decision was clearly erroneous. Pollard v. State, 264 Ark. 753, 574 S.W. 2d 656 (1978).

Smith was under arrest and in custody of the officers at the time it was alleged that consent was given. Under such circumstances genuinely voluntary consent must be clearly shown. There is no doubt that one of the purposes, if not the purpose, of going to Smith’s residence was to look for the stolen items. This is the reason the officers became interested in the case. They said they did not obtain a warrant because there was no probable cause. We would disagree with this assessment based on the record before us.

In conclusion we find that this search and seizure was unlawful in violation of the Fourth Amendment of the United States Constitution and the judgment of the trial court in that regard is reversed and the cause is remanded.

Reversed and remanded.

We agree. Harris, C.J., and Fogleman and Holt, JJ.


author: John I. Purtle, Justice. Carleton Harris, Chief Justice, George Rose Smith, Justice, Frank Holt, Justice, Darrell Hickman, Justice,

text:
    Linda Joyce RAINS v. John ALSTON et ux
    78-152
    576 S.W. 2d 505
    Substituted Opinion on Denial of Rehearing delivered February 19, 1979
    (In Banc)

      Stephen A. White, for appellant.

      Warner & Smith, by: J. H. Evans, for appellees.
   John I. Purtle, Justice.

This matter is considered upon the Petition for Rehearing filed herein by the appellant on December 14, 1978. The Petition for Rehearing is denied; however, we are at this time issuing this substitute opinion. We feel that, in the interest of justice and fairness to everyone concerned, our opinion of November 27, 1978, should have been more fully explained.

With regard to the Petition for Rehearing, the appellant relies on the “full faith and credit” of a sister state, in particular, an Order of the Domestic Relations Court of Dallas County, Texas, dated December 30, 1976, wherein custody of the minor child was awarded to the appellant. We have examined Texas law and determined that the finality of a former judgment respecting custody of children of divorced parents obtains so long as conditions remain the same, and, in order to change or modify a former judgment, complainant must allege and prove that circumstances have so materially changed since rendition of the judgment as to render it to the best interest of the minor child to modify the judgment. Bezner v. Sawyer, 217 S.W. 2d 858 (Tex. Civ. App. 1949); Goodman v. Goodman, 236 S.W. 2d 641 (Tex. Civ. App. 1951). Even so, there is no indication in the record that the child was ever in the jurisdiction of the Domestic Relations Court of Dallas County, Texas, during the time the action was pending. However, it is clear that the child was in Franklin County, Arkansas, on December 20, 1976, the date of the divorce in Texas, and was in Arkansas on February 2, 1977, when the appellees filed the Petition for Appointment of Guardian for Sarannah Elizabeth Rains, who is at this time less than three years of age, and was physically present in Franklin County on the trial date.

The most important matter to be considered by any court in matters of this nature is the best interest of the infant child. Consideration of both parents is of great importance but must, nevertheless, be subordinated to the best interest of the child. We have always attached special weight to the findings of the trial judge who has had the opportunity of observing the witnesses as they testified under oath before the court. The chancellor in this case heard the testimony of Calvin Rains, the natural father of Sarannah Elizabeth Rains, who testified that the child was, from the beginning, very sickly and was treated by numerous doctors in Dallas, Texas. His mother came to stay with the parents for a week when Saran-nah was born. He testified of the very difficult task of finding a babysitter who would sit with the child after appellant returned to work. Many times the child was taken out at night to the home of a babysitter and in many instances thereafter suffered from colds. Before the child was three months old, appellant called the appellees (her parents) and had them come to Texas and get the child and return her to Arkansas. Appellant, who is without sight, and her husband were having serious marital problems and she had recently suffered epileptic seizures which rendered her unconscious for periods up to 30 minutes and caused her to sleep for many hours thereafter. Appellant had suffered one seizure at work and was taken to the hospital from her job. She had suffered other seizures at home. Appellant’s husband testified that appellant had a hot temper and on one occasion slashed at him with a butcher knife while he was holding the baby in his arms. About two weeks after appellant sent her child to the appellees, she returned the child to her home for a period of two or three weeks after which she again asked her parents to bring the child back to Arkansas to live. Since that time, with the exception of a very short period, the child has remained in the care and custody of the grandparents in Franklin County, Arkansas.

Joann Alston, appellant’s mother and grandmother of Sarannah Rains, stated she and her husband, appellant’s father, went to Dallas and brought appellant and Sarannah back to Arkansas when the child was about two weeks old. Although appellant had planned to stay several weeks, she got mad and left in two or three days and took the child back to Texas. A short time later, appellant called her mother and asked her to come get the baby and bring her back to Arkansas. On this occasion the child stayed with her grandparents three weeks. The child had been sickly and the doctor advised appellant to allow Mrs. Alston to bring her to Arkansas where she could care for her. During this three-week stay, the child’s health improved greatly. Three days after appellant returned the child to Dallas the second time she again called her mother and asked her to come get the baby for the third time because she simply could not cope with things or take proper care of the baby. The Alstons have paid the expenses for appellant to come visit her child on a monthly basis. At the time of the hearing, the child was healthy and well adjusted and was walking and talking. Mrs. Alston stated, in her opinion, appellant loved her child but simply could not take care of the child. The Alstons own their own home and are financially able to care for the child.

The Alstons obviously love their daughter Linda (appellant) and sincerely desire to help her and her child. No doubt, appellant loves her child as much as most mothers love their children. The grandparents are willing for the natural parents to have unlimited visitation rights with the child. They would do all they could to encourage the child to have love and affection for appellant; also, when the child is a little older and able to help care for herself, they would be willing for Sarannah to live with appellant. However, on the last two visits appellant had appeared like a wild person.

John Alston, appellant’s father, testified essentially the same as Mrs. Alston. He emphasized the child is helpless at this age and simply must have someone to care for her. He stated he had about $200,000 owed to him for land he had sold. There was no question his resources would allow them to adequately care for the child. Mr. Alston also would welcome the natural parents of the child to visit the child in his home and to spend weekends there visiting. He did condition his offer upon decent behavior by his daughter.

From the testimony of appellant’s husband and parents, it is obvious appellant has a rather violent temper sometimes. Neither is there any doubt that she loves her child very dearly or that she is a good worker. These matters are not the question to be decided by this Court. It becomes necessary to look at the testimony of appellant to determine her attitude and ability at the present to care for her child.

Upon being questioned by the court, she stated she could not possibly visit peacefully in her parents’ home. She expressed hatred for her father. She stated she had many relatives in Franklin County but she didn’t know them and didn’t care to know them; she stated if the court gave her parents custody of her child it was total, as far as she was concerned, because there was no way she would visit her child in her parents’ home. She denied her parents love her (appellant). She said if she were awarded custody of the child she would have help in caring for the child from a friend and the friend’s 15-year old son, who is also without sight. The boy would take care of Sarannah while appellant and her friend were at work.

The testimony of Mrs. O. G. Davis, who lives next door to appellant in Dallas, Texas, is of significance to the Court. They had been neighbors for about three years. Mrs. Davis stated appellant had refused to be friendly with her neighbors and even ordered them out of her house. Nevertheless, after the birth of appellant’s child, she became a close friend of appellant and loves her very much. When the Alstons visited appellant, they requested Mrs. Davis to help their daughter and the child and they would pay for her trouble. She visited in appellant’s home at least three days a week; she prepared food and took it to appellant and the child on Monday, Wednesday and Friday and sometimes on Saturday and Sunday. This testimony relates to the times the child was staying with appellant. Mrs. Davis testified the child was sick a lot and appellant refused to follow the doctors’ orders because she didn’t think the doctors knew what they were doing. She observed appellant trying to feed the baby some beef which still had blood coming from it and the baby threw it up on the table. She saw food on the table literally covered with roaches. Mrs. Davis said while she fed the baby she had to fight roaches off the food. Appellant did make some progress in reducing the number of roaches but they were still plentiful. Mrs. Davis saw the child pick things up off the floor and put them in her mouth after roaches had crawled over it. There was usually a lot of “gook” on the floor, except for the two days a cleaning lady was there. The bed linens were dirty. Sometimes the child was covered with jelly, and things of that nature. One day while Mrs. Davis was writing bills for appellant, she o' served the child trying to open appellant’s pills which were kept in a purse within reach of the child. This happened more than once. On one occasion a bottle of pills was open. There was an open heater in the bedroom where appellant slept with the child. Several times, Mrs. Davis found clothing, toys and pillows so close to the open flame stove they were scorched. One time the fire department was called because something caught fire. On another occasion, the child got out into the street, which is a very busy one, while appellant was on the telephone. Several children have been struck by vehicles in the street near the homes of Mrs. Davis and appellant. In : ct, one child was fatally injured in front of appellant's house. Appellant told her she was sure her parents had spoiled the child but it would not take her long to “beat it out of her.” Sometimes the child was locked in the bedroom where the open flame stove was installed. Appellant sometimes did not know where the child slept at night because she wouldn’t sleep with her. The child often hid from appe lant somewhere in the house. Mrs. Davis had seen appellant out of the house on days when the housekeeper was not there and the child would not be with her. When appellant gave the child liquid medicine, she allowed her to drink it from the bottle because she spilled it if she tried to give it to the child in a spoon. Some of the medicine was tasteful and the child would drink several swallows before appellant took it away from her. Sometimes appellant failed to turn the lights on at night. Appellant sometimes, when she isn’t working, sleeps for many hours while the child is awake. The child has been observed playing with the hot water controls on the tank and crawls behind the refrigerator where electric wires are located. Mrs. Davis even observed the baby turning the pilot light off the gas stove and then turning the gas on without it being lit. The child has been out with appellant when she was suffering from diarrhea and her legs would be covered with excretion and her shoes full too. On several occasions the appellant and her child became lost in the snow in 25 degree weather; the child was bareheaded and without a coat in the sub-freezing weather.

We do not ignore the testimony which favored appellant. Although she is without sight which renders some things more difficult for her to perform than for sighted persons, this handicap is not the controlling issue at all. Appellant is to be highly commended for her determination and desire to work and provide for her child.

Appellant’s neighbor, Mona Hubbard, considered her to be extremely stable. Further, she had allowed appellant to move into her home with her and would, if necessary, give financial assistance. She had never seen appellant abuse the child nor display a violent temper. Mrs. Hubbard states she definitely felt appellant could properly care for her child and that all the neighbors would be willing to help. It was Mrs. Hubbard’s 15-year old son who would help with the child if she and appellant were both away from the residence. Althought the witness had never seen the child until the day of the trial, she expressed a desire to assist appellant and the child in any manner in which she could.

Mr. A. H. Lewis came from Dallas, Texas to testify on behalf of appellant. He had been her supervisor when she first came to the Lighthouse for the Blind and had been in touch with her ever since. Mr. Lewis stated appellant was an excellent worker and willing to do more than her part; he felt she was honest and able to handle finances well. He testified that appellant’s mobility was good enough to allow her to go anywhere she wanted to whenever she desired even though he would not consider her among the most mobile unsighted persons he knew. He did not consider her a violent person. Appellant always was among the top workers on any job she held.

We conclude that, for the time being, it is in the best interest of the child to affirm the decision of the trial court which has had this case under consideration for many months. The court heard all the testimony and observed the witnesses as they testified and was in a better position to evaluate their testimony then we are. Perhaps appellant should evaluate her own attitude and position, and when her child is a little older the matter will, no doubt, again be considered by the court, as well as the grandparents and the father of the child. They have all indicated when conditions have changed their attitude on the matter will be different.

Affirmed.

Harris, C.J., concurs.,

George Rose Smith and Holt and Hickman, JJ., dissent.

Carleton Harris, Chief Justice,

concurring. This case was tried by a chancellor whom I consider to be very conscientious and for whom I have a great deal of respect. Judge Bernice Kizer seems to have given unusual attention to this case, the record reflecting that several hearings were conducted. For instance, on April 6, 1977, a hearing was held and on May 6, 1977, the trial court entered an order appointing appellees (grandparents) as permanent guardians of the person of Sarannah Elizabeth Rains and awarded permanent care, custody and control of this child to the grandparents, after finding that appellant, due to permanent physical handicaps, was not capable of properly caring for the child. On November 2, 1977, another hearing was held upon motion of the trial court itself, and an order was entered on January 3, 1978, directing that temporary custody of the said minor should be placed with the mother, though not dissolving the permanent guardianship which had previously been ordered. Again, on January 26, 1978, the trial court, on its own motion, set another hearing to consider the custody of the child, but because of bad weather this hearing was continued until February 20th, at which time the hearing was had and the trial court found that the mother, who had had the care and custody of Sarannah Elizabeth for approximately 3 1/2 months was not able to reasonably and properly care for the minor, and would not be able to render proper care in the foreseeable future. I mention these matters only to emphasize that Judge Kizer apparently gave the case a great deal of consideration.

I was somewhat concerned when this opinion was originally handed down that it might leave the impression that this Court did not feel that appellant should have custody of the child simply because of her blindness. Certainly, this was not my view, nor that of the majority, and I felt that the opinion should go into enough detail of events that occurred when Mrs. Rains had custody of the child to demonstrate that the decision was not based on the physical handicap.

I am well aware throughout eight years on the chancery bench and 22 years on this one that there are many persons handicapped by blindness who are thoroughly competent in their work and who are thoroughly competent to rear their children. It must be remembered that the polestar of a custody case is the welfare of the child, and the testimony of Mrs. O. G. Davis, who lived next door to Mrs. Rains in Dallas (and whose testimony has been set out in the majority opinion), persuaded me that Sarannah’s welfare at that time required that custody be placed elsewhere. I do not understand how anyone could feel otherwise when they read the testimony of this lady. It is noticeable to me that Mrs. Rains does not testify that Mrs. Davis was angry with her; that they had had trouble getting along; nor is there any reason cited why this next door neighbor would deliberately prevaricate about conditions that existed. Mainly, appellant testified that the matters mentioned had been corrected.

While I have a great admiration for Mrs. Rains’ willingness and ability to work and support herself and her daughter, I cannot feel that her present temperament is conducive to the best welfare of the child. Of course, the court would have preferred not to detail matters which are set out in the majority opinion, but since various organizations interested in the blind, and many other individuals, have felt that the court decision was rendered simply on the basis of Mrs. Rains’ handicap, and that this court was saying that a person, solely because of blindness, was not capable of caring for his or her child, it becomes incumbent that the court make clear the basis for its decision.

As pointed out in the majority opinion, the order relating to custody is always subject to modification when circumstances have changed sufficiently to justify reconsideration.

George Rose Smith, Justice,

dissenting. The chancellor did not find that the appellant, the mother of the child, is an unfit person to have the custody. Instead, the chancellor found that the mother, because of her physical handicaps (primarily blindness), is not able to reasonably and properly care for the child and will not be so able in the foreseeable future. Upon further consideration of the case I am convinced that the chancellor’s decision to award custody to the grandparents instead of to the mother is against the preponderance of the testimony. For that reason I would grant the petition for rehearing and reverse the judgment.

Frank Holt, Justice,

dissenting. Because of the unique facts, disputed and undisputed, and the passage of time since the hearing from which comes this appeal, I am of the view it would be to the best interest of the child for the cause to be remanded for another hearing.

For these reasons I respectfully dissent.

Darrell Hickman, Justice,

dissenting. These several opinions on rehearing are all an effort to correct an error on our part, or what some may feel was an error: that Linda Rains is unfit to have custody of her child because she is blind.

Originally the case was tried as a guardianship proceeding between Linda and her parents, John and Joann Alston. We have treated it as a custody case that arises in divorce proceedings.

Linda and her husband, Calvin, were involved in a divorce proceeding in Texas, where they both live. The child, Sarannah, was about 19 months old then, and during the domestic squabble, Linda asked her parents to keep the child at their home in Ozark, Franklin County, Arkansas. The parents instituted this action to keep the child.

There were two hearings. After the first hearing, Linda was allowed to keep the child for several months with her in Texas. But at the last hearing the child was awarded to Linda’s parents.

The chancellor found the one reason for denying Linda custody was “. . . because of permanent physical handicaps, to reasonably and properly care for the child, and her handicaps are such that she will not be able to reasonably and properly care for the child in the foreseeable future.”

We affirmed the chancellor in an unpublished opinion (one which we feel has no precedential value) stating in part, “We must conclude, on the record, that Linda, largely owing to her blindness, is as the trial judge found, unable to look after a child as young as her daughter now is.”

I feel I can safety state that this Court, without exception, feels those statements are not correct legally, or at least, are no basis alone on which to base a custody decision. Such handicaps alone are not good reasons to deprive any parent custody of a child.

Having corrected this error on the part of the chancellor, and on our part, we must then deal with our other responsibility in this case, one more important than our confession of error; and that is the future of the child, Sarannah.

The majority, on rehearing, has recited most of the unfavorable testimony about Linda, justifying the majority decision on the basis of such evidence. Since we did not recite any evidence favorable to Linda in our first opinion, and our decision now is justified by the adverse evidence, Í feel I must recite the other evidence in the case.

First, it is not disputed that Linda, a college graduate, is a good worker. She works at a photo laboratory in Dallas with a bi-weekly take home pay of $266.00. She held down two jobs at one time (a fact held against her) and is careful with her money. This is her only marriage and her only child.

Her husband, Calvin, admits to one prior marriage, several common law wives — he didn’t know how many — and several children besides Sarannah, none of whom he supports. He admitted that Linda paid $3,000.00 down on their house and helped him buy a taxi. (He is a taxicab driver.) He testified against Linda at both hearings. He does not want the child.

He testified Linda threatened him with a butcher knife, while he heid the child in his arms; she denied it, saying that in fact it happened when she was holding the child and her husband tried to take the child from her.

Linda’s parents sought custody of the child, and testified against her. In effect, they said she was not fit. Linda’s main objection to the child being raised by her parents was that their marriage was unstable and violent at times. Linda said her father physically abused her at times, and regularly beat her mother after each payday. He is now retired.

Her father admitted that he had probably been violent in his relationship with Linda; he admitted striking her and spanking his wife. He confirmed that his wife once struck Linda with a rag doll when Linda tried to get her child. He said his wife had twice filed for divorce against him.

Linda’s mother was critical, as mothers sometimes are, of how Linda cared for the child. She admitted that she and her husband had marital problems at times.

The majority opinion on rehearing refers to Linda as a “wild person” on two visits. This reference is to her conduct during court authorized visits with her child at her parents’ home. Linda said that on one occasion her mother kicked her in the stomach and her father dragged her by the hair of the head, down the hall, beating her head on the floor.

There were several disinterested witnesses who testified. One was Mrs. O. G. Davis, a neighbor of Linda’s in Dallas. The Chief Justice, in his opinion, has referred to her testimony and puts great stock in it, concluding that the chancellor’s decision cannot be found to be clearly against the preponderance of the evidence. The testimony of Mrs. Davis, on its face, is indeed damaging to Linda’s cause and was essentially unchallenged by her at the hearing.

Mona Hubbard, a friend of Linda’s from Dallas, who has a handicapped child, has known Linda for over four years. She helped her during the domestic dispute and offered support to Linda as a friend and a witness. She said that Linda was an extremely stable person, not violent, and, absent the domestic turmoil, would have no problems.

Mrs. A. H. Lewis, an employee of the Lighthouse for the Blind in Dallas, said that Linda was very dependable in her work habits, a woman of her word, and very good at handling her personal finances. (At the first hearing she had $500.00 in savings; at the second hearing it had grown to $1,100.00.) She thought Linda was doing well and adjusting to her handicap. She said she had never known Linda to be a violent person.

Mrs. Katherine Robertson permitted her home to be used by Linda for visitation with her child during the court battle. Mrs. Robertson’s description of the condition of the child contrasts with that described by the majority. The majority says that after staying with the Alstons the child was “ . . . healthy and well adjusted. . . . ”. Mrs. Robertson observed at that time the child had poor eating habits and appeared insecure. She said that Linda cared for the child as well as any mother would.

Janet Webb, a social worker, assigned to supervise the visitation the court allowed Linda, gave testimony favorable to Linda, and not so favorable to the Alstons. She said Mr. Alston harassed her on the phone, and once she had to hang up on him. She said Mr. Alston became angry with her and made “smart remarks” to her. She said she had never witnesseed any mistreatment or neglect of the child by Linda.

When all the testimony is evaluated, there is only one disinterested witness, Mrs. Davis, who testified against Linda.

Calvin Rains, the husband of several women, legal and otherwise, the father of several children, legal and otherwise, does not want the child; nor does he want his former wife to have the child — a common attitude.

Linda’s parents, rather than supporting her in her time of need, turned on her and sought custody of her only child. She came to them for help and lost her child. It is not disputed their home is not without problems. The evidence of violence therein is too strong to ignore. It is not uncommon for grandparents to want a child, perhaps even need a child. In that context their testimony and attitude is understandable.

Linda’s conduct must be considered in the light of one enduring a divorce, trying to make a living, trying to care for a small child alone — all with a handicap we do not have. Her perhaps violent reaction to her parents’ taking the child can at least be understood. Even so, there is enough evidence of neglect of the child by Linda to cause concern for the child’s welfare. The decision, based on the evidence, is indeed a hard one.

The chancellor found Linda unfit largely because of her handicap. We affirmed the decision on the same basis. After removing that improper premise, there remains the question of grandparents seeking custody as against a parent. The law says, as it should, a fit parent shall prevail. Baker v. Durham, 95 Ark. 355, 129 S.W. 789 (1910); Thompson v. Thompson, 209 Ark. 734, 192 S.W. 2d 223 (1946).

The majority, conceding our error, still finds Linda otherwise unfit. That is certainly an alternative. However, except for Mrs. Davis’ testimony, there is very little else presented by appellees that one can accept with confidence. The home she is placed in, the home Linda was raised in, also has problems.

Considering all the favorable testimony for Linda, considering what she has done so far with her life, giving leeway for human error, we should not rush to judgment.

We make mistakes and occasionally concede them. We did so in this case. If we have regrets or second thoughts in this case, then we should give this mother the benefit of those doubts.

We have held before that a case may be remanded when a decision is based on an erroneous theory. Lewis v. Lewis, 255 Ark. 583, 502 S.W. 2d 505 (1973). The chancellor improperly applied such a principle; and, initially, so did we.

Therefore, I would remand the case for a rehearing.


author: Georoe Rose Smith, Justice.

text:
    RKO BOTTLERS OF FORREST CITY, INC. v. R. A. HALLEY
    78-273
    577 S.W. 2d 409
    Opinion delivered February 26, 1979
    (Division I)

      Rieves, Rieves & Shelton, by: Connie Lewis May ton, for appellant.

      Ray & Donovan, for appellee.
   Georoe Rose Smith, Justice.

The appellee, R. A. Halley, is a merchant owning a retail store in the community of Brickeys, in Lee County. On April 28, 1976, what we may refer to as a PepsiCola Bottling Company truck was being used to deliver bottled soft drinks to Halley’s store. A deliveryman on the truck, whose name is not shown, got into an altercation with Halley and attacked him, inflicting severe personal injuries. This appeal is from a $10,000 personal injury judgment against the appellant, RKO Bottlers of Forrest City. RKO contends, first, that the deliveryman was not its employee and, second, that the court erred in giving an instruction requested by the plaintiff. We find merit in the second contention.

The owner and driver of the PepsiCola truck was Delmar Frames, whom the jury found to be an employee of RKO. RKO now contends that it was entitled to a directed verdict, on the ground that Frames was an independent contractor rather than an employee, which in turn would make Halley’s assailant an employee of Frames. RKO relies upon a written contract between it and Frames, which contained standard language purporting to make Frames an independent contractor. It was also shown that Frames owned the truck, that he employed his own helpers, that RKO did not carry workers’ compensation insurance upon Frames, and that it did not withhold social security taxes or other deductions from Frames’s pay.

Other facts, however, raised a question for the jury. Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S.W. 6 (1920). We enumerate some of them. RKO is identified at its place of business and in the telephone book as PepsiCola Bottling Company. Frames and his helpers wore PepsiCola uniforms. Frames was required to paint his truck with PepsiCola’s colors. The truck was lettered with a PepsiCola sign. Frames was assigned a territory, to which he was restricted. He could handle only RKO’s beverages. He “purchased” his daily supply of soft drinks, in bottles that belonged to RKO, but he did not pay for the merchandise in the morning. Instead he made deliveries during the day, collecting cash or accepting charge tickets from customers approved by RKO. Those charge customers paid their accounts directly to RKO. When Frames returned to RKO in the evening he paid for what he had sold, in cash and by using the charge tickets. RKO fixed the price at which Frames bought and the price at which he sold. In selling to Halley, Frames used a sales slip provided by RKO, which had RKO’s name at the top and identified Frames as a salesman. We need not detail the proof any further. It was amply sufficient to warrant the jury in finding that Frames was not an independent contractor but an employee working on a commission basis, subject to RKO’s control.

The court erred, however, in giving this instruction for the plaintiff:

The unexplained failure of a party to produce a witness with special knowledge of the transaction, if within the power of the party to do so, raises a presumption that he would testify against the party and that the testimony would have been unfavorable.

There are two reasons why the instruction should not have been given. First, the actual facts about Frames’s relationship with RKO are not in dispute. The jury could only have speculated about what Frames might have testified with respect to a material fact in the case. See Ark. State Highway Commn. v. Phillips, 252 Ark. 206, 478 S.W. 2d 27, 71 A.L.R. 3d 1105 (1972). In other words, the unfavorable inference to be drawn by the witness’s absence does not go indefinitely to the whole case. Wigmore, Evidence, § 290 (3d ed., 1940). Here the possible area of conflict is not pinpointed.

Second, RKO argues quite properly that there is no showing that it was in a superior position to produce Frames as a witness, Frames having left its employ before the trial. The appellee makes no effort to answer RKO’s argument, but insists instead that the instruction referred to a former RKO employe named Miller. The appellee points out that RKO obtained two continuances on the ground that Miller was an indispensable witness who was temporarily not available. The trouble is, Miller did not appear at the trial and there is no indication in the record that the members of the jury ever heard of Miller, it was patently impossible for the jury to assume that the instruction referred to someone whose identity and whose possible testimony were totally unknown to the jury.

Reversed.

We agree. Harris, C.J., and Byrd and Purtle, JJ.


author: George Rose Smith, Justice.

text:
    Albert LEWIS and Larry HIGGINBOTHAM v. STATE of Arkansas
    CR 78-41
    577 S.W. 2d 415
    Opinion delivered February 26, 1979
    (In Banc)

      John R. Henry, for petitioners.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for respondent.
   George Rose Smith, Justice.

This is a petition in this court for a writ of error coram nobis to permit the trial court to investigate the existence of a fact that would assertedly have prevented the rendition of the judgment if the fact had been known. Cf. Troglin v. State, 257 Ark. 644, 519 S.W. 2d 740 (1975). We treat the petition as an application for permission to seek postconviction relief in the trial court under Criminal Procedure Rule 37.2 (a) and grant permission.

The appellants were charged with first degree murder. Their first trial resulted in a mistrial because the jury was unable to reach a verdict, but a second trial ended in a conviction and a 30-year sentence. That judgment was affirmed in Lewis and Higginbotham v. State, an unpublished opinion delivered on September 5, 1978. At that trial the State proved that the murder weapon was a pistol that had been recovered by the police from a grease pit at a service station that was formerly owned by the petitioner Lewis and was formerly the place of employment of petitioner Higginbotham.

The present petition alleges that within a few days after the trial ended in a mistrial “the retained attorney, who represented both petitioners in both trials and/or an employee hired by said attorney and working for said attorney as an investigator” communicated confidential and privileged information to various members of the local bar and to others. The information reached the prosecuting attorney’s office and resulted in the discovery by the police of the murder weapon. The petition asserts that the attorney’s or investigator’s unauthorized release of confidential information violated the petitioners’ constitutional right to counsel and other rights that we need not enumerate.

Until the facts have been completely developed in the trial court, it would be idle for us to speculate about what rights of the petitioners may have been violated or about what relief might eventually prove to be appropriate if a violation is shown. It is enough to say that the right to counsel includes the contemporaneous necessity for making a full disclosure of all pertinent information to counsel and that such disclosures, as they relate to a past offense as distinguished from a crime that is planned for the future, are privileged. Rule 502, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Supp. 1977); see also Chamberlain, “Legal Ethics: Confidentiality and the Case of Robert Garrow’s Lawyers,” 25 Buffalo L. Rev. 211 (1975-76).

The petition is treated as one for postconviction relief under Rule 37.2 (a), and the petitioners are granted permission to seek relief in the trial court on the ground that the facts asserted in the petition allege a ground for relief based upon ineffective assistance of counsel.

Byrd, J., dissents.


text:
    Willie Lee PARKER v. STATE of Arkansas
    CR 78-175
    577 S.W. 2d 414
    Opinion delivered February 26, 1979
    (In Banc)

      Robert C. Compton, of Brown, Compton & Prewett, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Willie Lee Parker, aged 59, was charged with second degree murder in the fatal shooting of Bubba McRae. The jury found Parker guilty of manslaughter, but were unable to agree upon the punishment. The trial judge, after considering a probation officer’s report, fixed the punishment at ten years, with five years suspended. Defense counsel now argues that the court erred in directing the probation officer to interview members of the jury, that the sentence is excessive, and that we should suspend the entire sentence. A new trial is not sought.

The circuit judge, in imposing sentence, stated candidly that he had requested his probation officer to interview members of the jury about what they thought to be a proper sentence. The officer reported, in brief, that most of the jury favored a maximum of ten years, but at least two held out for a lighter sentence. The judge explained that he had considered the jurors’ views in fixing the sentence.

We are unanimously of the opinion that the jurors should not have been questioned about their views, especially after they had separated, had returned to their homes, and had been subjected to the possibility of being influenced by out-of-court occurrences. A chief objection to the procedure is that the secrecy and freedom of the jury’s deliberations would be jeopardized if the jurors knew in advance that they might be questioned about their reasons for their decision. There would also be the possibility, if the practice were approved, that counsel on both sides might think it proper and advisable for them to see the individual jurors in an effort to win a favorable recommendation. Whatever slight advantage the practice may have is greatly outweighed by its disadvantages. We should add that we did not intend to approve such a practice by our opinion in Murrah v. State, 253 Ark. 432, 486 S.W. 2d 897 (1972). There the jurors themselves had raised the question whether the two sentences should be consecutive or concurrent, and there was no objection when the judge announced that he had questioned some of the jurors about their intent, if the Murrah case raises any doubt about our position, we make it plain now that jurors should not be questioned about their reasons for their verdict.

The appellant argues that this court should suspend the entire sentence, because he suffers from diabetes, heart trouble, an ocular tic, and tension, and has lost a leg below the knee. It is also argued that all the applicable considerations for a suspension, as enumerated in Ark. Stat. Ann. § 41-1201 (Repl. 1977), are favorable to this appellant. The propriety of suspending the execution of a sentence rests in the sound discretion of the trial court, not in this court. Commentary to § 41-1201, supra; Smith v. State, 241 Ark. 958, 411 S.W. 2d 510 (1967). The cause will therefore be remanded to the trial court for the imposition of an appropriate sentence without regard to the opinions of the jurors.

The appellant’s opening statement in his brief makes it appropriate for us again to call the bar’s attention to our Rule 9 (b), which requires that the opening statement be concise, ordinarily not exceeding two pages in length, and be free from argument. Here the opening statement is seven pages long, contains matters that should have been included only in the abstract of the record, and is in effect an argument for a suspended sentence. Even though no penalty is imposed for a violation of the rule, compliance is expected.

Reversed.


author: George Rose Smith, Justice. John A. Fogleman, Justice, Darrell Hickman, Justice,

text:
    C. Carlton SMITH v. STATE of Arkansas
    CR 78-235
    577 S.W. 2d 411
    Opinion delivered February 26, 1979
    (In Banc)
    Appellant, pro se.

      Bill Clinton, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is a bond forfeiture proceeding. The appellant Smith, charged with a violation of the Arkansas Securities Act, entered a plea of not guilty and was released on a $5,000 cash bond put up by his father. Smith’s attorney withdrew from the case. The prosecuting attorney, desiring to know whether an attorney should be appointed for Smith as an indigent, apparently brought about the sending of a notice by the court clerk for Smith to appear on November 22, 1977, “for arraignment[s] only.” Smith, having already been arraigned, did not appear, and the court forfeited the bond. This appeal is from an order refusing to set aside the forfeiture.

We consider this case to be essentially controlled by our holding in Central Cas. Co. v. State, 233 Ark. 602, 346 S.W. 2d 193 (1961). There we said: “It is well settled that the giving of bail bonds is to be encouraged, not only because the accused is ordinarily entitled to his freedom before the trial but also because the state is relieved of the expense of maintaining the prisoner until the case can be heard.” There we found that the defendant’s failure to appear was partially excusable. We reduced a $7,500 forfeiture to $750, which was described as an amount sufficient to reimburse the county for various costs such as jury expenses and witness fees (some 25 or 30 witnesses having been summoned).

In the case at bar it is important to note that the case was not set for trial on November 22, the day when Smith failed to appear. The prosecutor merely wanted to know whether an attorney should be appointed. The State could not have been put to any substantial expense by Smith’s absence. The notice that was sent to Smith was inaccurate, in that he had already been arraigned. He made some effort to protect himself, by telephoning from Washington, D.C., to two Arkansas attorneys, neither of whom was in a position to appear for him. Smith then made a two-day business trip to London, so that he failed to appear in court as directed.

We do not imply that Smith was blameless in the matter. The trial judge evidently believed that Smith may have been attempting to avoid the possibility of being served with process in a federal case pending in another state. The judge may have believed that Smith had previously delayed this case without cause. The judge may also have believed that Smith made inconsistent statements in connection with his attempt to have the forfeiture set aside. Even so, the case was not set for trial on the date of Smith’s default, the state has not been put to any substantial expense as in the case cited, and Smith did actually submit himself to the court’s jurisdiction with promptness. In the circumstances a forfeiture of $1 ,- 000 is sufficient and proper.

As so modified the judgment is affirmed.

Fogleman, Byrd, and Hickman, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I would set aside the bond forfeiture. Appellant had been arraigned on April 12, 1977. Thereafter, his attorney, Richard E. Gardner, withdrew from the case. The court gave no notice to appellant to appear on November 22, 1977. The notice to appear was sent by the prosecuting attorney. The bail was to guarantee all subsequent appearances of the defendant on the charge. Rule 9.2, Arkansas Rules of Criminal Procedure. We need not consider the very dubious practice of a notice to appear by the prosecuting attorney, the charging official, who, for the purposes of trial, was appellant’s adversary, because appellant never got or knew about that notice, which was addressed for delivery by certified mail to the addressee only. The only notice we have for consideration is a written notice by the clerk to an attorney who had withdrawn from the case. That notice was actually received by appellant on November 18. That notice was for arraignment only. The petition for forfeiture was filed on November 21, 1977, the day before appellant’s scheduled appearance. The forfeiture was declared on the day the court had scheduled for appellant’s appearance.

Appellant was justified in taking the notice at face value, and in believing that it was sent in error, or, as he put it, “administrative error,” and recipient would have been justified in feeling that there was confusion for which he was not to blame. The petition for. forfeiture was predicated only upon the fact that the prosecuting attorney’s notice had been returned with the notation, “Return to Sender — Addressee Unknown.” Before the forfeiture was declared, Gardner stated to the court (and it is not denied) that appellant had been previously arraigned and that he had always appeared in the past when he had notice. Appellant’s father, who posted the $5,000 cash bail (according to Gardner), had not been notified that appellant was to appear on November 22. There is no showing that he had. Appellant testified that Gardner only told him that he should employ an attorney and that Gardner agreed that he had already been arraigned, but did not tell him that he should appear. There is no intimation that a trial was set or anticipated on November 22. At the time the court heard appellant’s motion to remit the forfeiture (July 18, 1978), there had been no trial and the trial judge gave notice that the case would be tried no later than the following September.

It is quite possible that the court was justified in considering appellant to be of dubious credibility and in giving his testimony little weight. I am confident, although the record does not reflect it, that the trial judge correctly found that appellant was doing whatever he could to avoid being tried on the charge. I simply think that a forfeiture should not be declared on this record.

Darrell Hickman, Justice,

dissenting. I would affirm the judgment of the trial court ordering a forfeiture of the bond.

The appellant had actual notice that he was supposed to be in court. He called two lawyers who had represented him before and asked them to appear for him; both of them refused. The trial judge, after a hearing, decided that Smith made a deliberate choice after being advised by counsel of the possible consequences of his failure to appear. The trial court’s characterization of the appellant’s testimony and demeanor is the reason I would affirm the judgment:

... I have never heard such conflicting testimony in my life, Mr. Smith, and I’m not sure which time you were lying. Whether it was in the letter you wrote on November 18, or by way of the testimony you first offered to the Court or the testimony you later offered to the Court. I just can’t believe that your memory is that bad. I think that it was a deliberate effort on your part to come into this Court and try to tell me a bald-faced lie so I would return your bond money. You were concerned about that bond money last November 18th .... You knew good and well that it would be called if you didn’t appear. I think one of the reasons you elected not to appear is because you didn’t want to go to trial. The record indicates that you have successfully stalled this case since March 3rd of last year and I’m not going to take any more stalls on this. I’m informing your counsel to get prepared. It won’t do you any good to fire this man like you fired the others at the last minute and come in here at the last minute and say that you are not ready to go to trial. You are presumed to be innocent of the charges and the jury will perhaps find you to be innocent. Nevertheless, there is going to be a trial.....

One reason for the crowded docket problem is that cases are postponed and valuable court time is wasted. One way of preventing such dilatory tactics is imposition of bonds and forfeiture of the bond. The trial court was in a position to judge the matter, which he did; I would not substitute my judgment for his in this case.

I am authorized to state that Justice Byrd joins in this dissent.