text:
    Charles Edward MARSHALL v. STATE of Arkansas
    CR 78-199
    578 S.W. 2d 32
    Opinion delivered March 12, 1979
    (Division I)

      James E. Davis, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant entered a guilty plea to aggravated robbery in the Miller Circuit Court upon the understanding his attorney and the state had plea bargained for a 5-year sentence. The court, as it had the authority to do, rejected the agreed sentence of 5 years and sentenced appellant to a term of 20 years. Subsequently, appellant petitioned, pursuant to Rules of Crim. Proc., Rule 37, to vacate or modify the sentence. We granted the relief in Marshall v. State, 262 Ark. 726, 561 S.W. 2d 76 (1978), because the record was absolutely silent with reference to the admitted plea agreement. The state was given the option of reducing the sentence to 5 years or conducting a new trial. The state elected to try the case again.

Appellant again entered a guilty plea but without an agreement by the state as to the term to be recommended. On April 25, 1978, the court sentenced appellant to a term of 35 years. Again, pursuant to Rule 37, appellant moved for a reduction of sentence which was denied by the trial court on August 23, 1978. This appeal is from the order denying the motion for reduction of sentence following the second sentence for a term of 35 years.

Appellant contends he was denied due process of law, as guaranteed by the Fourteenth Amendment to the Constitution of the United States, by imposition of the 35-year sentence.

The question before us is whether a second plea or verdict may result in a greater sentence than that decreed by the first conviction after it has been set aside as a result of a successful appeal by the defendant. Appellant vigorously contends it would be a violation of the due process clause secured by the Fourteenth Amendment to the Constitution of the United States, at least as it is applied to the case before us. The state argues with equal vigor that there has been no such violation here. Both cite precedent in support of their respective contentions. We have examined the cases cited and find they are accurately quoted, at least to the extent relied upon by the parties. We might say both parties well presented their arguments.

We are to decide to what extent, if any, the Fourteenth Amendment limits imposition of second sentences after the first is set aside. The United States Supreme Court has held that the Fifth Amendment guarantee against double jeopardy may be enforced through the Fourteenth Amendment. The Fifth Amendment was held in Benton v. Maryland, 395 U.S. 784 (1969), to guarantee three separate classes of protection: (1) Protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. These three prohibitions are protected by both the Fifth and Fourteenth Amendments to the Constitution of the United States. The third prohibition above-listed is the basis of the problem here presented. It would clearly be a violation of basic constitutional guarantees to fail to allow full credit for any time served pursuant to a prior sentence upon pronouncement of a second sentence for the same offense.

We do not think the Fifth Amendment, as applicable to the states through the Fourteenth Amendment, absolutely prohibits a greater sentence on a second trial after the first sentence has been set aside because the slate of the accused has been wiped clean and he stands as through he had never been tried. United States v. Tateo, 377 U.S. 463 (1964). It makes no difference whether the attack setting aside the conviction is direct or collateral. Robinson v. United States, 324 U.S. 282 (1945). Of course, his slate has not been wiped clean as to any part of the sentence served, and the only way to wipe it nearly clean is to guarantee credit for any time served on the prior sentence (s).

However, the “more severe” sentence is not so easily disposed of. Naturally, if the sentence is the same or “less severe” the accused has no complaint. It is only when a greater sentence is imposed that this question arises. Appellant received a more severe sentence, by 15 years, for the same crime. Whether a constitutional guarantee has been violated depends upon a combination of variables peculiar to the individual case. Every case must be examined upon its own particular circumstances. There is no absolute constitutional guarantee that the same or lesser sentence must be imposed upon a subsequent trial. Gases cited by appellee reveal circumstances which allow a more severe sentence to be imposed uoon a subsequent sentence.

When, then, may a more severe sentence not be imposed? We state unequivocally that a more severe sentence may not be imposed because of any vindictiveness of the court arising from the convicted party successfully appealing the first sentence. This would clearly be violative of the due process clause of the Fourteenth Amendment. We believe the rule has been reduced to the lowest common denominator in North Carolina v. Pearce, 395 U.S. 711 (1969), wherein it is stated:

... we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding, and the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed upon appeal.

The record before us simply does not fulfill the above requirements. There is no evidence at all of appellant’s conduct subsequent to the original sentencing proceeding. The only additional information relative to the crime is the statement by the court that the victim was still taking medicine. There is no indication that the appellant is less credible or the crime more severe. Neither is there any evidence to indicate that the trial judge was punishing appellant for having successfully appealed his first sentence, nor in any manner showing vindictiveness.

We note that in Pearce the dissent would prohibit a greater sentence upon a second guilty plea or conviction as a violation of the double jeopardy clause of the Fifth Amendment. We do not go that far but do hold that, in view of the particular circumstances of this case, the sentence imposed must be reduced to 20 years, based upon the record before us. Therefore, the case is remanded to the Miller County Circuit Court for reduction of the sentence, as stated herein, with full time served on both sentences to be credited.

Affirmed as modified.

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


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Charles Edward BATEMAN v. STATE of Arkansas
    CR 78-222
    578 S.W. 2d 216
    Opinion delivered March 19, 1979
    (Division I)

      Tom Emerson Smith and Anthony Wayne Emmons, Memphis, Tenn., for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Bateman, after having first been convicted in a federal court for transporting certain stolen firearms from Mississippi County, Arkansas, to Memphis, Tennessee, was charged in the state court with theft by receiving the same firearms in Mississippi County. His plea of double jeopardy was overruled, and he was convicted by a jury. He now contends that the plea should have been sustained.

The State in its brief does not dispute the appellant’s statement of the essential facts: “It is uncontroverted that both prosecutions arose out of one series of events where the Appellant received stolen firearms in Mississippi County, Arkansas, and transported them to Memphis, Tennessee, and there disposed of them.” It is also conceded by the State that the federal case resulted in a conviction under 18 USC § 922 (i), which makes it unlawful “for any person to transport or ship in interstate or foreign commerce, any stolen firearm or stolen ammunition, knowing or having reasonable cause to believe that the firearm or ammunition was stolen.” By comparison, under the state statute a person commits the offense of theft by receiving “if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen, or having good reason to believe it was stolen.” Ark. Stat. Ann. § 41-2206 (Repl. 1977).

At one time the same conduct could give rise to identical federal and state offenses, because the offenses were deemed to have been committed against different sovereigns, but that view no longer prevails. Our General Assembly, in enacting the Criminal Code of 1976, provided that when the same conduct constitutes an offense within concurrent federal and state jurisdiction, a federal conviction or acquittal is an affirmative defense to a state prosecution unless:

(a) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of the offenses is intended to prevent a substantially different harm or evil. Ark. Stat. Ann. § 41-108.

Neither of the exceptions defined in subparagraph (a) of the statute exists her-". First, both the federal and state statutes are aimed at the same evil, the traffic in stolen property. It cannot be said that the intent of the two statutes is substantially different as far as the evil to be prevented is concerned.

Second, it certainly can be argued that the federal statute requires proor of a fact not required by the state law; that is, that the stolen property be a firearm transported in interstate commerce. But the converse is not true. The state law applies to the act of receiving, retaining, or disposing of any stolen property, which necessarily includes a firearm but does not add any new fact to the federal definition. Traffic in stolen firearms is an offense under both statutes. The State argues, however, that the state statute does require proof of a new fact, in that under the Criminal Code as originally adopted, which applies to this case, theft by receiving was a Class G felony only if the value of the stolen property was less than $10,000 but more than $100. Act 280 of 1975, § 2206. Value, however, goes only to the punishment, not to the definition of the offense. Identical offenses under state and federal law would not be different merely because the punishments were different.

Our decisions in the two Journey appeals are distinguishable, because there the federal prosecution had resulted in an acquittal. Journey v. State, 257 Ark. 1007, 521 S.W. 2d 210 (1975); Journey v. State, 261 Ark. 259, 547 S.W. 2d 433 (1977). In the first opinion we pointed out that Journey’s double jeopardy argument would have been more logical if he had been convicted rather than acquitted under the federal indictment. In the second appeal we did not find that the Criminal Code of 1976 changed an earlier statute sufficiently to require us to reach a different result in the two appeals. Here, however, there was a conviction in the federal court; so the reasoning in the Journey case does not control.

Reversed.

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


author: John A. Fogleman, Justice.

text:
    Guy MOON, Jr. v. Virginia MOON
    78-307
    578 S.W. 2d 203
    Opinion delivered March 19, 1979
    (Division II)

      Arnold, Hamilton & Streetman, for appellant.

      Bart Mullís, for appellee.
   John A. Fogleman, Justice.

Appellant contends that an order of the chancery court awarding his wife, appellee here, temporary alimony and attorney’s fees should be reversed because of lack of jurisdiction of the parties and the subject matter. The question of jurisdiction was raised by appellant’s motion, on special appearance, to dismiss appellee’s suit for divorce filed in the Chancery Court of Jefferson County. After an evidentiary hearing on the motion, the chancellor denied it and granted appellee temporary alimony and attorney’s fees. Since we are unable to say that the chancellor’s holding was clearly against the preponderance of the evidence, we affirm.

In his motion, appellant alleged that the parties had lived continuously in Chicot County for a period of ten years, that they had never resided in Jefferson County and that appellee was not, at the time of filing her complaint, a bona fide resident of Jefferson County.

At the outset, we point out that one questioning the jurisdiction of the court by motion to dismiss bears the burden of proving the pertinent facts whenever the disposition of the motion depends upon the introduction of testimony. Running v. Southwest Freight Lines, Inc., 227 Ark. 839, 303 S.W. 2d 578; Arkansas Land & Cattle Co. v. Anderson-Tully Co., 248 Ark. 495, 452 S.W. 2d 632; Nix v. Dunavent, 249 Ark. 641, 460 S.W. 2d 762; Williams v. Edmondson, 257 Ark. 837, 520 S.W. 2d 260; Hawes Firearms Co. v. Roberts, 263 Ark. 510, 565 S.W. 2d 620.

Virginia Moon testified that she resided at Sherill with her niece Debbie Chaddick. Other relevant testimony by her may be summarized as follows:

I came to Pine Bluff about July 21 or 22 because I had a family here and needed a place to live. I was quite upset and I just came to stay with my niece for a few days. I intend to stay in Pine Bluff. I want to reside here. I want to send my two younger children to school here. I have checked on obtaining an apartment but did not have the necessary money to make a deposit. I have checked on employment and financial aid to go to school, because I have been out of school for 20 years and I have never worked. It was my intention when I came to Jefferson County to reside here and continue to do so, no matter what’s done in regard to the divorce. I could have filed for divorce in Chicot County, but where would I have found employment, a school to attend or a place to live? Before coming here, I had never lived in Jefferson County. My mother lives in Chicot County and I have a sister who is living in Chicot County, but is moving to Ashley County. After I separated from my husband in June, I went to stay with my mother in Chicot County. After she, my aunt and I went to California for a few days, we returned about July 19th and I spent a Friday, Saturday, Sunday and Monday with Mr. Moon and the children. We all went to church together on July 23. I left on July 26, or approximately that date. I had only been in Pine Bluff two days when I filed for this divorce. In the last two years, I have filed three other divorce actions against Mr. Moon in Chicot County. Each one of them was dismissed and I went back to my husband. When I returned from California, my husband took the keys for my 1977 Cadillac away from me and jacked the car up and drained the oil out of it, so I could not use it. Either the day after my husband put black and blue marks on me, or the following day, I grabbed up the keys to a pickup truck and got out of there. I did not bring any clothes, furniture or other personal belongings with me, because if he had seen me packing, there would have been another fight. It is my intention to get my belongings and bring them to Jefferson County.

This suit was filed on July 28, 1978. It was verified before a notary public in Lincoln County. It is clear that these parties had resided in Chicot County during all the ten years of their marriage. Appellant testified that he did not physically abuse his wife on the day she said that he did and that he was only trying to protect himself from appellee’s assault. He said that her relatives in Jefferson County hadn’t lived there very long. He stated that he couldn’t read appellee’s mind and didn’t know what she was going to do when she left.

We have held that the venue requirement in Ark. Stat. Ann. § 34-1204 (Repl. 1962) means that a divorce proceeding must be in the county of the plaintiff’s domicile. Smith v. Smith, 219 Ark. 876, 245 S.W. 2d 207. No particular length of time is required for the establishment of a domicile, but there must be residence attended by such circumstances surrounding its acquirement as to manifest a bona fide intention of making it a fixed and permanent place of abode. Smith v. Smith, supra; McLaughlin v. McLaughlin, 193 Ark. 207, 99 S.W. 2d 571.

We have long recognized, in divorce cases, that one has the absolute and unqualified right to change his place of abode when he pleases, for any reason which prompts him to do so; and that he does change his place of abode when he removes himself from one place, with the intention of abandoning it as his place of abode, to another, where he expects to abide, without having the intention of returning to the place from which he removed and that his intent is controlling. Hillman v. Hillman, 200 Ark. 340, 138 S.W. 2d 1051. A move which is not made with the intention, in good faith, to become a resident of the new place of abode is not sufficient to establish a domicile. Hillman v. Hillman, supra. In both McLaughlin and Hillman, we said the evidence was not sufficient to show an intention on the part of the plaintiff to permanently reside in the county chosen as a forum. Smith v. Smith, supra.

The question in this case resolves itself into an inquiry into the existence of a bona fide intention on the part of appellee. See Feldman v. Feldman, 205 Ark. 544, 169 S.W. 2d 866. The fact that Mrs. Moon had never before resided in Jefferson County is significant only because a previous residence there would have tended to support her declared intention. The brevity of her residence, of course, was relevant to her intention, but not controlling, in view of the fact that no particular length of time is required for the establishment of a domicile.

Appellant places his principal reliance upon McLaughlin v. McLaughlin, supra. There is quite a distinction between this case and that. In McLaughlin, the plaintiff wife testified that she left the county of marital domicile (Garland) and went to Little Rock for the purpose of bringing suit for divorce. This was the factor upon which this court’s decision that she had not established a domicile in Pulaski County turned. Feldman v. Feldman, supra. See also, Allen v. Allen, 211 Ark. 335, 200 S.W. 2d 324, where we said that the plaintiff’s testimony that he came to the county where the suit was filed largely destroyed other evidence indicating that he had established a domicile. Mrs. McLaughlin’s declared intention was supported by the fact that she left her clothing and personal effects in a hotel room she had occupied separately from her husband in Garland County, with a special door lock, the key to which she retained. She did not remove these effects from the hotel room until nearly two weeks after her divorce suit was filed. Unlike this case, no particular reason was given for leaving these personal effects in her previous residence.

Appellee gave a reason for not having brought her personal effects to Jefferson County and for not having obtained an apartment or separate dwelling place. She gave reasons for going to Jefferson County rather than remaining in Chicot County. Her testimony was the only testimony on most of the critical facts. The question of her good faith is largely one of her credibility. Insofar as credibility is concerned, we must defer to the superior position of the chancellor who saw and heard her testify. In a case such as this, the chancellor’s finding is persuasive. Smith v. Smith, supra. We cannot say that it was against the preponderance of the evidence.

The chancery court’s order is affirmed.

We agree. Holt, Hickman and Purtle, JJ.


text:
    Sidney PARKER v. STATE of Arkansas
    CR 78-158
    578 S.W. 2d 206
    Opinion delivered March 19, 1979
    (Division II)

      Thomas G. Montgomery, Public Defender, for appellant.

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

Appellant argues seven points for reversal of his conviction of selling or delivering a controlled substance on April 14, 1977. They are:

THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT’S OBJECTION TO THE FORM OF THE PROSECUTOR’S VOIR DIRE REGARDING UNDERCOVER AGENTS.
II
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO PROCEED ON THE THEORY OF AN ACCOMPLICE, WHILE THE INFORMATION CHARGED THE APPELLANT AS PRINCIPAL.
III
THE TRIAL COURT ERRED IN PERMITTING THE POLICE OFFICER TO TESTIFY ABOUT HIS EFFORTS TO SET UP A “BIG BUY” UNRELATED TO THE CHARGE AGAINST THE DEFENDANT.
IV
AT THE CLOSING OF THE STATE’S CASE IN CHIEF, THE TRIAL COURT ERRED IN REFUSING THE DEFENDANT’S REQUEST FOR AN INSTRUCTION OF THE UNEXPLAINED FAILURE OF A PARTY TO PRODUCE A WITNESS, WHEN THE STATE HAD REFUSED TO CALL ITS UNDERCOVER AGENT TO TESTIFY.
V
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO LEAD THE DEFENDANT’S WITNESS IN MATTERS BEYOND DIRECT EXAMINATION.
VI
THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR DIRECTED VERDICT AFTER FOIL PACKAGE WAS FOUND TO CONTAIN NO EVIDENCE OF HEROIN.
VII
THE DEFENDANT WAS PREJUDICED BY THE PROSECUTOR’S CLOSING ARGUMENT.

I

Appellant objected to the prosecuting attorney’s statement during voir dire with reference to the state’s use of undercover agents in controlled substance cases and his definition of an undercover agent on the ground that this was not a voir dire question but was testimony as to what an undercover agent does. The prosecuting attorney explained that he was laying a predicate and the objection was overruled. The inquiry then propounded to the prospective jurors pertained to the possibility of bias or prejudice against officers in that role, who might become witnesses in the case.

The extent and scope of voir dire examination of prospective jurors are matters lying within the sound judicial discretion of the trial court, the latitude of which is rather wide. Rule 32.2, Arkansas Rules of Criminal Procedure. Finch v. State, 262 Ark. 313, 556 S.W. 2d 434. Lauderdale v. State, 233 Ark. 96, 343 S.W. 2d 422. We will not reverse a ruling of the trial judge in permitting inquiries intended to elicit any possible bias or prejudice that might influence a venireman’s verdict in the absence of a manifest abuse of that discretion. Cooper v. Kelley, 131 Ark. 6, 198 S.W. 94.

Appellant contends that the statement was “testimony” by the prosecuting attorney as to the character and credibility of the state’s witnesses before they testified. The trial judge, who saw and heard the voir dire examination, was in the best possible position to judge whether it was conducted in good faith or was designed to create a bias or prejudice favorable to the state. Lauderdale v. State, supra. In passing on the good faith of the interrogator, the trial court necessarily must exercise a large amount of discretion. Bethel v. State, 162 Ark. 76, 257 S.W. 740. We cannot say that there was a manifest abuse of discretion in this instance.

II

The position of appellant on this point is somewhat confusing. He was charged as a principal. At some point during the examination of Robert York, a state policeman who worked primarily in an undercover capacity, as he was testifying about an alleged transaction with appellant, appellant’s attorney (who is not representing him on this appeal) interposed an objection to allowing the state to amend its information or to try appellant as an accomplice. The attorney said that he had relied upon the language in the information and the opening statement of the deputy prosecuting attorney to the effect that appellant had delivered heroin.

York had testified that, when he expressed an interest in purchasing some heroin, Parker had said that he could get it for York if York would take him to the Ramada Inn, and that, after he had taken Parker there, Parker got out of the vehicle in which they had been travelling, went between some hallways and into the interior area of the motel and then returned and delivered to York a substance (later analyzed as heroin) and accepted $15 from York. The objection was based upon the fact that appellant was not charged with having stood by, aided, abetted or assisted another in the delivery of heroin and, there had been nothing to indicate that Parker was to be tried as an accessory. The attorney also pleaded surprise and moved for a continuance if the state was to be allowed to amend its information to charge that his client was an accomplice or accessory. The prosecuting attorney insisted that he was not asking that the information be amended, but he noted that, in a telephone conversation prior to the trial, Parker’s attorney had said that, in a technical sense, his client had not made a delivery, in that value was not received and his client was simply an errand boy between the police officers and the real heroin dealer. The prosecuting attorney simply took the position that the jury should be instructed as to accomplice or accessory liability and asserted that, when Parker’s attorney pursued the accomplice theory in voir dire examination, he had informed the trial judge that the state would request a charge to the jury on accomplice liability.

At the conclusion of all the evidence, the trial judge gave a correct instruction stating that a person is criminally liable for the conduct of another, when he is an accomplice to the other in the commission of a crime and defining an accomplice in the language of Ark. Stat. Ann. § 41-303 (Repl. 1977). This definition includes one who solicits another to commit an offense, or who aids or attempts to aid another in planning or committing it. This instruction was given over the objection of appellant on the grounds heretofore stated and on the ground that the instruction did not require that it be shown that the defendant must have received something of value before he could be found guilty as an accomplice.

Appellant argues here that he first became aware that a conviction was sought on the basis that he was an accomplice, rather than a principal, during York’s testimony, and that the offense charged was not stated with that degree of certainty required for pronouncement of a judgment of conviction or to enable him to plead the judgment in bar of further prosecution for the same crime.

In the first place, appellant relies upon such cases as Slay v. State, 161 Ark. 90, 255 S.W. 292 and State v. Masner, 150 Ark. 469, 234 S.W. 474, which were decided before the adoption of Initiated Act No. 3 of 1936, which materially changed the requirements as to allegations which must be included in an indictment or information. It is not necessary that the indictment state the act or acts constituting the offense, unless the offense cannot be charged without doing so. It is only necessary that the state file a bill of particulars setting out the act or acts on which it relies, when requested to do so by the defendant. Ark. Stat. Ann. § 43-1006 (Repl. 1977). See Bosnick v. State, 248 Ark. 846, 454 S.W. 2d 311; Bryant v. State, 208 Ark. 192, 185 S.W. 2d 280. If the allegations of the information were not sufficient to enable appellant to properly prepare his defense, he should have requested a bill of particulars. Craig v. State, 195 Ark. 925, 114 S.W. 2d 1073. There is nothing in the abstract of the record to indicate that such a request was made and appellant is in no position to object here to the state’s failure to file one. Smith v. State, 231 Ark. 235, 330 S.W. 2d 58; Budd v. State, 198 Ark. 869, 131 S.W. 2d 933. Even if there had been such a request, it was only necessary that the bill of particulars state the act relied upon with sufficient certainty to apprise the defendant of the specific crime with which he is charged. The information charged Parker with the crime of violation of the Arkansas Controlled Substances Act and stated that it was committed as follows:

The said defendant on the 14th day of April, 1977, in Crittenden County, Arkansas, did unlawfully and feloniously sell or deliver a controlled substance, to-wit: heroin, in violation of the Arkansas Controlled Substances Act, against the peace and dignity of the State of Arkansas.

If the information contained all that was required by statute prior to the adoption of Act 3, appellant would not have been entitled to a bill of particulars, because the information itself was a bill of particulars. Bryant v. State, supra. The information here was sufficient even under the cases relied upon by appellant. The acts constituting the offense are stated as fully as were those in Masner. And in Slay, an essential element of the offense of perjury was omitted. Here the information was sufficient because all the essential elements of the crime were covered in the statement of the acts constituting the offense. Ragsdale v. State, 222 Ark. 499, 262 S.W. 2d 91; Silas v. State, 232 Ark. 248, 337 S.W. 2d 644, cert. den. 365 U.S. 821, 81 S. Ct. 705, 5 L. Ed. 2d 698.

Even under the statutes governing prior to Initiated Act No. 3, the rigidity of the requirements of particularity in detailing the acts constituting the offense charged were relaxed, so that the particular circumstances of the offense were not required to be charged unless they were necessary to constitute a complete offense, and where the offense was charged with sufficient certainty to enable the court to pronounce a judgment of conviction, the indictment was sufficient. Bramlett v. State, 184 Ark. 808, 43 S.W. 2d 364. Since the abolition of the distinction between principals and accessories before the fact, an allegation in the information that an accessory committed the crime is sufficient, even though he was only present, aiding, abetting and assisting. Sloan v. State, 210 Ark. 739, 197 S.W. 2d 757; Hunter v. State, 104 Ark. 245, 149 S.W. 99. See also, Leflar, The Criminal Procedure Reforms of 1936 — Twenty Years After, 11 Ark. Law Rev. 117. The allegations in the information were certainly sufficient basis for a judgment of conviction, even if it could be said that appellant was an accessory only. Lewis v. State, 220 Ark. 914, 251 S.W. 2d 490; Fleeman v. State, 204 Ark. 772, 165 S.W. 2d 62; Burns v. State, 197 Ark. 918, 125 S.W. 2d 463.

It is difficult to see how appellant could claim surprise. There is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Ark. Stat. Ann. §§ 41-301 —41-303 (Repl. 1977). As far as we can tell from this record, the state has always contended, and still contends, that Parker was a principal. Under the Arkansas Criminal Code, the word accomplice does not imply (as “accessory” once did) that another person is the principal in a criminal transaction. When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Each participant is criminally liable, ultimately, for his own conduct, but he cannot disclaim responsibility because he did not personally take part in every act that went to make up the crime as a whole.

The state’s evidence tended to show that Parker approached the vehicle in which York and two confidential informants had been cruising the streets and asked if the occupants were looking for “something for the head” and, when York said that he was “looking to cop a $50 paper of heroin,” made the proposal that York take him to the Ramada Inn. The offense with which Parker was charged does require actual, constructive or attempted transfer of a controlled substance in exchange for money or something of value, but the fact that the person making the transfer acts as the agent of either the seller or the purchaser does not remove the transfer from the coverage of Ark. Stat. Ann. § 82-2601 (f). Curry v. State, 258 Ark. 528, 527 S.W. 2d 902; Fant v. State, 258 Ark. 1015, 530 S.W. 2d 364. See also, Foxworth v. State, 263 Ark. 549, 566 S.W. 2d 151. We do not see anything which would prevent appellant from pleading this conviction in bar of a later prosecution for his participating in the delivery of heroin in this case.

Ill

In arguing this point, appellant overlooks (and even failed to abstract) the cross-examination of York by appellant’s attorney, just prior to the redirect examination by the prosecuting attorney, during which the questions to which he now objects were asked. Appellant’s attorney had asserted in his opening statement that Parker’s only participation in the transaction was to serve as a delivery boy between the police and a man in the Ramada Inn who was the “true seller, ” and that the state had done nothing to catch the person who had the substance that Parker delivered to the officer. In pursuing this theory, Parker’s attorney asked York what attempt he had made to ascertain who was in the Ramada Inn providing the heroin for “these people” to deliver. York responded that he and those assisting him attempted to make “a larger quantity of buy” and were going to attempt to set up “a quantity buy” with a large sum of money in order to “flush them out if someone was there.” Upon further questioning, he admitted that this purpose was never accomplished. Parker’s attorney then inquired whether the name Vince Tyler meant anything to the officer, whether York had made any attempt to ascertain whether Vince Tyler was involved in the sale of the heroin to him, whether Parker was the only person from whom York had “made a buy” and what other persons had been charged. Objection was made to this question:

Q. Officer York, you were attempting to explain why you didn’t accomplish a big buy, something about a big buy, you were trying to set up a big buy, what was that all about?

After appellant’s objection was overruled, York gave the following answer:

A. We were attempting, like I said, to set up a quantity buy to see if we could flush out anybody that, if there was somebody else involved, at the Ramada Inn, from information that we were trying to gather, without pressuring these subjects that we were buying from and scaring them off from selling to us. We had learned that there may have been something going on. We didn’t know for sure. We were trying to set up a possible three or four hundred dollar buy of heroin, through one of these — we didn’t have anybody in mind in particular — just someone we were buying from going to the Ramada Inn. This was not accomplished because they couldn’t get it set up because they wanted us to front the money, wanted us to give the money and then they would go in and buy the stuff and bring it to us, and we didn’t want that because that wouldn’t give us a case against the person, if there was anybody selling any quantity.

No objection was made to later questions and answers which appellant now says were improper, so we do not consider them.

Reply to new matter brought out on cross-examination is the purpose of redirect examination and examination for that purpose is a matter of right, though its extent is subject to control in the trial court’s discretion. McCormick on Evidence (2d Ed.), p. 64, § 32. One cannot complain of evidence developed by his adversary on redirect examination about matter injected into the case on cross-examination. Stovall v. State, 233 Ark. 597, 346 S.W. 2d 212. The scope and extent of redirect examination lie within the sound judicial discretion of the trial judge. A witness should be allowed full opportunity to explain matters brought out on cross-examination or to rebut any discrediting effect they may have had or to correct any wrong impression that may have been created on cross-examination, even though the evidence brought out on redirect examination would not have been admissible on direct examination. Allen v. State, 260 Ark. 466, 541 S.W. 2d 675. The redirect examination in Haight v. State, 259 Ark. 478, 533 S.W. 2d 510, relied upon by appellant, was an attempt to bolster the credibility of the witness and not an explanation of matter brought out on cross-examination, so it was beyond the scope of cross-examination. We find no abuse of discretion here.

IV

Appellant requested the following instruction:

You are instructed that the unexplained failure of a party to produce a witness with special knowledge of a transaction, within the power of the party to do so, raised the presumption that the absent witness should testify against the party.

After the conclusion of the testimony of York and another witness who assisted York as an undercover agent, the prosecuting attorney stated that he elected not to call Bobby Walden, an undercover agent, because his testimony would be cumulative to that of York and Jones. The state rested without calling Jones. Parker’s attorney had stated that the instruction set out above should be given, even before the state rested, and the judge then advised appellant’s attorney that he would be permitted to call Walden as an adverse witness and to examine him as such. See Ark. Stat. Ann. § 28-1001, Rule 611 (c) (Supp. 1977). Appellant did call Walden as a witness.

There was no error. There was not an unexplained failure by the state to produce this witness. The witness was produced and his identity made known to defense counsel, who subpoenaed him. Where, as here, there is no indication that the testimony of the witness would be anything other than cumulative arid the knowledge of the witness is not special, there is no basis for a presumption, or even an inference, that he would testify adversely to the party who did not call him or with whom he is identified. U.S. v. Antonelli Fireworks Co., 155 F. 2d 631 (2 Cir., 1946). Cf. Saliba v. Saliba, 178 Ark. 250, 11 S.W. 2d 774. Any other rule would require a party to call all eyewitnesses to avoid the impact of the presumption. De Gregorio v. U.S., 7 F. 2d 295 (2 Cir., 1925). Once the state has produced sufficient evidence to support a finding of guilty, it has no obligation to present further cumulative evidence. U.S. v. Higginbotham, 451 F. 2d 1283 (8 Cir., 1971). See also, Corning Bank & Trust Co. v. Foster, 189 Ark. 655, 74 S.W. 2d 797. Furthermore, there is no basis for an unfavorable presumption or inference where the witness is equally available to both parties, particularly when, as here, he is present and has been subpoenaed by the party seeking the benefit of the inference. Industrial Mutual Indemnity Co. v. Perkins, 81 Ark. 87, 98 S.W. 709; U.S. v. Antonelli, supra; U.S. v. Higginbotham, supra. See also, Corning Bank & Trust Co. v. Foster, supra. We also note that Parker’s attorney had, before trial, taken the position that Walden was an indispensable witness for his defense.

Great caution should be exercised in giving an instruction such as that requested by appellant. Wilson v. U.S., 352 F. 2d 889 (8 Cir., 1965). The jury instruction requested would have been improper in this case. U.S. v. Antonelli, supra; De Gregorio v. U.S., supra. Cf. Henry v. Landreth, 254 Ark. 483, 494 S.W. 2d 114. The failure to give the instruction would not necessarily preclude general argument by counsel as to why some witness was not called to the stand. Wilson v. US., supra.

V

Appellant called Walden to the witness stand. His attorney examined this witness and established that he had been sitting with York, that the prosecuting attorney had known he was present since his arrival at the courthouse, that the prosecuting attorney had talked to him about the case, that he and York had discussed the facts and circumstances relating to the case against Parker, that he was paid by Crittenden County, that he was present when Parker delivered heroin to York, and that he didn’t indicate to the prosecuting attorney that he did not want to be called as a witness, or give any reason why he should not be called.

Appellant’s attorney objected that the prosecuting attorney was going beyond the scope of the direct examination when the prosecuting attorney began to question Walden about the nature of his contract with the authorities. The trial judge then cautioned the prosecuting attorney to try to avoid leading the witness but stated that inquiry about the details of the particular transaction would be permitted, with a minimum of leading. No objection to leading questions was made by appellant, so we will not consider the matter on appeal. In any event, there does not appear to have been any abuse of the trial court’s discretion.

Appellant’s objection about the scope of the cross-examination is not well taken. Generally, the scope of cross-examination has been held to be a matter resting largely within the discretion of the trial judge, whose exercise of that discretion will not be disturbed on appeal in the absence of abuse thereof. Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225; Bartley v. State, 210 Ark. 1061, 199 S.W. 2d 965. Under Ark. Stat. Ann. § 28-1001, Rule 611 (b) (Supp. 1977), a trial court may, in the exercise of its discretion, permit inquiry into matters outside the scope of direct examination. We find no abuse of discretion in this situation.

VI

During the examination of Gene Bangs, a chemist employed in the Drug Section, State Crime Laboratory, Department of Public Safety, a foil packet was introduced into evidence. Bangs testified that it contained the remains of a substance which had been originally packaged in the foil when he received it for chemical testing. He stated that he had taken a portion of this substance from the foil packet and, after making tests, determined that it was heroin. He said that there was less than one-tenth of a gram of the substance in the packet when he received it.

Appellant does not question the chain of custody between him and the chemist and the evidence established it rather clearly. Appellant’s attorney was granted permission to display the contents of the packet to the jury, but when he opened it in the presence of the trial judge and the prosecuting attorney, it was empty. Appellant then moved for a directed verdict, because the absence of the remains of the substance had not been explained. The basis for the motion was that the state had failed to establish the corpus delecti.

There was no error in the denial of this motion. It was not essential to the establishment of the corpus delecti that the substance be introduced in evidence at all. In some situations it might be impossible to do so. For instance, the entire substance might be consumed in making tests. As appellant concedes, we have held that a witness in a criminal case may testify about tangible objects which are the subject of an alleged offense without the object ever being produced. Washington v. State, 254 Ark. 121, 491 S.W. 2d 594; Meyer v. State, 218 Ark. 440, 236 S.W. 2d 996.

It certainly was not essential to the meeting of the state’s burden of proving the corpus delecti on the charge of delivery of a controlled substance that the substance itself be produced in court, if a person qualified to do so had analyzed it and found it to be that on which the charge was based, or if one suffiently experienced with the substance could give testimony indicating that it was, indeed, that substance. People v. Fernandez, 131 Cal. App. 2d 565, 280 P. 2d 808 (1955); People v. Partin, 254 Cal. App. 2d 89, 62 Cal. Rptr. 59 (1967); Slettvet v. State, 258 Ind. 312, 280 N.E. 2d 806 (1972). Cr. Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913.

The disclosure that the packet was empty had a bearing on the credibility of the witnesses and the weight to be given to their testimony, so it would seem that this development would have been advantageous to the appellant and no doubt was the subject of argument to the jury. The disclosure did not operate to obliterate the evidence pertaining to the identity of the substance delivered to York, so there was no error in the denial of the directed verdict.

During the opening argument to the jury by the deputy prosecuting attorney, appellant objected to the statement that the drug heroin was abundant on the streets of West Memphis, and contends that this was a matter outside the record and unsupported by the evidence. We do not agree. Of course, the prosecution is limited in its argument to the evidence in the record, logical inferences and deductions therefrom and matters of which judicial notice can be taken. Williams v. State, 259 Ark. 667, 535 S.W. 2d 842; Long v. State, 260 Ark. 417, 542 S.W. 2d 742; Dillaha v. State, 257 Ark. 476, 517 S.W. 2d 513. We cannot say that this statement by the state’s attorney was totally unsupported by evidence. One of the witnesses who had served as a confidential informer testified that he had found drugs to be easily obtainable in West Memphis. There was testimony by York, some of which was brought out during appellant’s cross-examination, that numerous purchases had been made of other persons by him while he was working in West Memphis.

Appellant also objected to the deputy prosecuting attorney’s statement that appellant’s attorney was going to argue that he was trying to inflame the jurors and added, “Maybe I am because I am inflamed. If you are not inflamed, then something bad is wrong with our system.” When admonished by the court that he was bordering on trouble and could rephrase the statement, the deputy prosecuting attorney said:

Maybe I am over zealous in my argument to you to- ' day. Maybe the better word is “concerned.” I am concerned, and Í know some of you have families and children, and you have heard the testimony in this case about the abundance of drugs >n West Memphis, and how easy they are to get. Now, Í im concerned about it and I hope as each one of you js Jtting there that you are concerned about it enough to go back and punish this man severely enough to not only keep him off the streets, to prevent him from getting out here and trafficing in heroin and seeing that people get it so they can take it and shoot up or snort or whatever you do with it, but I am also concerned in setting an example of deterrents to others. ***... [W]hen we get an opportunity and we are able to go out and make a case on a man and bring it up here to you in an iron clad open and shut case like we have got today, when he himself admits it, when we are able to make a case like that and bring it up here for you ladies and gentlemen of this jury, citizens of this community, and you all don’t do something about it, then I submit to you that we are going to be in bad shape.

The trial judge has a very broad latitude of discretion in supervising and controlling the arguments of counsel and his action is not subject to reversal unless there is manifest gross abuse of that discretion or the matter complained of is a statement of the attorney’s opinion made only to arouse passion and prejudice of the jury, and which necessarily has that effect. Parrott v. State, 246 Ark. 672, 439 S.W. 2d 924; Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72; Perry v. State, 255 Ark. 378, 500 S.W. 2d 387; Willis v. State, 220 Ark. 965, 251 S.W. 2d 816. Since the offensive language was immediately withdrawn at the court’s suggestion and counsel thereafter fully explained his real meaning and no further objection was made, there was no abuse of the trial court’s discretion. Kindle v. State, 165 Ark. 284, 264 S.W. 856; Nix v. State, 124 Ark. 599, 187 S.W. 308; Setzer v. State, 110 Ark. 226, 161 S.W. 190; Satterwhite v. State, 82 Ark. 64, 100 S.W. 70; Henshaw v. State, 67 Ark. 365, 55 S.W. 157. It is also significant that the trial judge had instructed the jury that closing arguments of attorneys are not evidence and that arguments having no basis in the evidence should be disregarded. See Stanley v. State, supra. We do not find the remarks withdrawn and explained to have necessarily aroused the jurors’ passion and prejudice.

There was no abuse of the trial court’s discretion in the overruling of appellant’s objection to the prosecuting attorney’s statement that, unlike appellant’s attorney, he didn’t think he was possessed of the ability to use rhetorical speech making, or in ignoring an objection to the prosecuting attorney’s remarks that the defense of the charge was clever, brilliant and smart and that appellant’s attorney was a very skilled and very articulate lawyer. In view of the fact that appellant’s entire defense was based upon his contention that Tyler was the “true seller” and real culprit in the transactions, there was no abuse of the trial court’s discretion in overruling an objection to the prosecuting attorney’s statement: “Tyler is not on trial here today. His trial will be some other day.” We note that during appellant’s cross-examination of York about Tyler, the witness responded that Tyler had been arrested. The prosecuting attorney’s statement was a reasonable inference to be drawn from the testimony.

The judgment is affirmed.

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


text:
    Hubert Lee PATRICK, Jr. v. STATE of Arkansas
    CR 78-213
    576 S.W. 2d 191
    Opinion delivered March 19, 1979
    (In Banc)

      Guy Jones, Jr., for petitioner.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for respondent.
   John A. Fogleman, Justice.

Petitioner Hubert Lee Patrick, Jr. was charged with the offense of murder in the second degree under Ark. Stat. Ann. § 41-2206 (Repl. 1964) by information filed by the prosecuting attorney on September 15, 1978. He was charged with having beaten the head of Charles W. Fitzgerald against a concrete wall on the 5th day of July, 1973. It was also alleged in the information that Fitzgerald died on January 20, 1974 as a result of this beating. Patrick’s motion to dismiss on the ground that prosecution was barred by the statute of limitations was denied by the trial court. Thereafter, Patrick filed this petition upon the same ground. We find that the circuit court lacks jurisdiction because of the bar of the statute of limitations and that the writ should be granted.

Of course, the alleged offense must be prosecuted under § 41-2206 because both the beating and the death were alleged to have occurred before the effective date of the Arkansas Criminal Code. Prior to the adoption of the code, the statute of limitations on the prosecution of murder in any degree was governed by Ark. Stat. Ann. § 43-1602 (Repl. 1977) since it was a felony not “punishable with death.” See Ark. Stat. Ann. § 41-2228 (Repl. 1964). The sole question on this appeal is the effect of the provisions of the Arkansas Criminal Code on this statute of limitations. If the statute of limitations applicable under this code applies, this prosecution is not barred. See Ark. Stat. Ann. § 41-104 (Repl. 1977). If it does apply, then § 43-1602 governs and the trial court is without jurisdiction of the alleged offense. Savage v. Hawkins, 239 Ark. 658, 391 S.W. 2d 18.

Ark. Stat. Ann. § 41-102 (3) (Repl. 1977) provides that the provisions of the Arkansas Criminal Code do not apply to the prosecution for any offense committed prior to the effective date of the code, i.e., January 1, 1976. Ark. Stat. Ann. § 41-101 (Repl. 1977). Sec. 41-102 (3) further states that such an offense shall be construed and punished in accordance with the law existing at the time of the commission of the offense. Although there is a provision that a defendant in a prosecution for an offense committed prior to the effective date of the code may elect to have the construction and application of any defense to the prosecution governed by code provisions, the state has no election. Ark. Stat. Ann. § 41-102 (4) (Repl. 1977). Patrick has not made this election. Furthermore, the statute of limitations is not a defense under the code. See Ark. Stat. Ann. § 41-110(3), -104 (Repl. 1977). Thus the statute of limitations in the code clearly is jurisdictional, as were its predecessors, but it has no other role.

When we view the plain language of the Criminal Code sections above cited, it seems quite clear the new statute of limitations had no application to this prosecution. This view is consistent with the fact that there has been no specific repeal of § 43-1602. Hundreds of other sections were repealed by Act 928 of 1975, the principal purpose of which was to “Clarify the Effect of the Arkansas Criminal Code upon certain Statutes.” That act was expressly made effective on the effective date of the code. If the General Assembly had intended that the preexisting statute of limitations on the prosecution of felonies be superseded by the code provision, it would have been a very simple matter to have included § 43-1602 in the list of statutes repealed. The general repealer in Act 280 of 1975 does not eliminate § 43-1602 because there is no irreconcilable conflict when that section is applied only to offenses committed before the effective date of the Arkansas Criminal Code. If it were applicable to offenses committed after the effective date of the code, there would be an irreconcilable conflict, but this is not the case.

Both parties find support for their views in the commentary to § 41-104. It appears to us to be strictly neutral on the question presented here. In any event, we have previously said that, even though we find the commentary a highly persuasive aid to construction of the code, it cannot be controlling over the clear language of the statute. Britt v. State, 261 Ark. 488, 549 S.W. 2d 84. The language here is so clear that resort to statutory construction “crutches” is inappropriate.

The temporary writ of prohibition heretofore granted is made permanent.


author: Conley Byrd, Justice.

text:
    Spencer KELLY v. STATE of Arkansas and Warren E. WOOD, Circuit Judge of the Sixth Judicial Circuit of the State of Arkansas, 2nd Division
    78-303
    578 S.W. 2d 566
    Opinion delivered March 19, 1979
    [Rehearing denied April 23, 1979.)

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney and Alice Ann Bums, Asst. Attys. Gen., for petitioner.

      Haskins, Eubanks & Wilson, by: Gary L. Eubanks, for respondent.
   Conley Byrd, Justice.

In seeking this Writ of Prohibition, Petitioner Spencer Kelly, a state trooper, contends that a state trooper, as an officer of the State of Arkansas, cannot be sued for damages that result from an automobile collision with a state trooper car. Specifically, petitioner relies upon Ark. Const. Art. 5, § 20 which provides:

“The State of Arkansas shall never be made defendant in any of her courts.”

The facts giving rise to this controversy show that petitioner, while on his regular work shift, was driving his state patrol car along Pratt Road in Pulaski County with the intention of going to 4813 Baseline Road to have dinner with a friend. At the intersection of Pratt Road and Arch Street, petitioner failed to observe a stop sign and as a result thereof collided with an automobile being driven along Arch Street and occupied by Mr. and Mrs. Kenneth Mitchell.

In construing Art. 5 § 20, supra, with respect to what actions against an officer constitute an action against the State, Hickenbottom v. McCain, Comm'r of Labor, 207 Ark. 485, 181 S.W. 2d 226 (1944), we have stated:

“. . . [W]here a suit is brought against an officer or agency with relation to some matter in which defendant represents the State in action and liability, and the State while not a party to the record, is the real party against which relief is sought so that a judgment for plaintiff, although nominally against the named defendant as an individual or entity distinct from the State, will operate to control the action of the State or subject it to liability, the suit is in effect one against the State and cannot be maintained. . . .”

It was also there pointed out that where the suit is against an officer to prevent him from doing an unlawful act to the injury of the complaining party, the officer cannot shield himself behind the fact that he is an officer of the State.

When considered in connection with what constitutes an action against the State, we have concluded that a negligence action for personal injuries brought against a state trooper for a violation of duty imposed upon him by law in common with all other people using the highways does not amount to an action against the State within the prohibition of Ark. Const. Art. 5, § 20.

Other jurisdictions have reached like results. See Montanick v. McMillin, 225 Iowa 442, 280 N.W. 608 (1938), where the court in quoting from Delaney v. Rochereau, 34 La. Ann., 1123, 44 Am. Rep. 456, stated:

“Everyone, whether he is principal or agent, is responsible directly to persons injured by his own negligence in fulfilling obligations resting upon him in his individual character and which the law imposes upon him, independent of contract. No man increases or diminishes his obligations to strangers by becoming an agent. If, in the course of his agency, he comes in contact with the person or property of a stranger, he is liable for any injury he may do to either, by his negligence, in respect to duties imposed by law upon him in common with all other men.”

Writ denied.

Harris, C.J., and Fogleman, J., concur in result only.

Hickman, J., dissents.


author: George Rose Smiti\ Justice.

text:
    UNION NATIONAL BANK OF LITTLE ROCK v. METROPOLITAN NATIONAL BANK
    78-253
    578 S.W. 2d 220
    Opinion delivered March 26, 1979
    (In Banc)

      Griffin Smith and W. R. Nixon, Jr., for appellant.

      Friday, Eldred1 & Clark ,nd Paul B. Benham, III, for appellee.
   George Rose Smiti\ Justice.

This is a controversy between two Little Rock banks over which one is to bear a $5,868.15 loss that resulted from Union National Bank’s having cashed 15 bad checks drawn on an account in Metropolitan National Bank. The trial judge held that Union must bear the loss, because Metropolitan promptly returned the bad checks. Union contends that the return was not timely, so that Metropolitan should suffer the loss.

The facts are not in dispute. On Friday, July 30, 1976, one Jeff R. Johnson cashed 15 identical checks, each for $391.21, at various Union branch offices in Little Rock. On Monday, August 2, Union deposited 11 of the checks, for collection, with the Little Rock Branch of the Federal Reserve System (FED). (The other 4 checks were handled one business day later, but that difference is immaterial.) Metropolitan picked up the 11 checks at FED on Monday afternoon, determined on Tuesday that they should be dishonored, and mailed them back to FED at 5:00 p.m. that afternoon. Union contends that Metropolitan’s deadline for returning the checks was 2:00 p.m. on Tuesday. Metropolitan contends, and the trial court found, that its deadline was midnight on Tuesday. Which contention is correct depends upon whether the transaction was governed, on the one hand, by the Uniform Commercial Code and Federal Reserve regulations, both of which fix the midnight deadline, or, on the other hand, by an agreement creating the Central Arkansas Clearing House Association, which fixes the 2:00 p.m. deadline. Metropolitan is not a member of the clearing house association.

It is essential to understand at the outset that “clearing” is a method adopted by banks and bankers for making an exchange of checks, etc., held by each against the others and for settling the resulting differences in their accounts. Webster’s New International Dictionary (2d ed., 1934). A clearing house is an institution established for carrying on the business of clearing. Ibid. We infer from the record that the Centra! Arkansas Clearing House Association does not have a physical existence in the sense of having employees or a place of business. It is simply an agreement among four Little Rock and two North Little Rock banks about the methods and deadlines by which they will clear one another’s checks.

The clearing house agreement provides that the members ’ checks will be cleared by the use of a room provided and maintained by FED at its Little Rock office. In that room there is a row of nine bins, one for each of the nine “city banks” that use the facility. There is a bin for each of the six members of the clearing house association, plus three bins for the non-member banks, one of which is Metropolitan.

We turn now to the path that was traveled by the 11 bad checks that were deposited with .FED on Monday. On or before that morning Union bundled together all the checks that it then had against Metropolitan. Attached to the bundle was a Deposit Advice form, which was a printed form apparently specified by FED. That form lists the nine city banks, with a space after each bank’s name for the total amount of checks being deposited for collection from that bank. In this instance, for example, Union filled in the total amount of its Metropolitan checks. At the bottom of the form is a detachable receipt by which FED acknowledges the “receipt of checks purporting, to amount to $_,” for which credit is to be given on FED’s books.

On Monday morning Union placed its bundle of Metropolitan checks, including the 11 in question, in Metropolitan’s bin in the room at FED. FED credited Union’s reserve account with the amount of the checks and debited Metropolitan’s reserve account in the same amount. Metropolitan did not actually have its own account with FED, using instead a reserve account of First National Bank, another Little Rock bank, as Metropolitan’s correspondent bank.

On Monday afternoon Metropolitan picked up the bundle of checks and delivered them to First National for off-premises computer processing. We infer that First National used its own computer system for handling Metropolitan’s bookkeeping. First National’s computer failed to clear the 11 checks, for insufficient funds. On Tuesday morning the bundle of checks went to Metropolitan, where its bookkeepers verified the worthlessness of the 11 checks. That afternoon, at about 5:00 p.m., Metropolitan mailed the checks back.to FED. They were accompanied by a Return Advice Form, which listed each check, the number of the depositing bank, the reason for return, and the amount. The printed form is addressed to FED, P. O. Box 1261, Little Rock. The checks were received by FED on Wednesday morning. FED then reversed its entries, by crediting Metropolitan with the amount of the 11 checks and debiting Union by that amount. The checks were then placed in Union’s bin and were picked up by it. A Union officer decided that the checks had been returned too late, and eventually this action was brought to recover the amount of the checks. The key issue, as we have said, is the controlling deadline for Metropolitan’s return of the checks.

The parties agree that under the UCC the credit initially entered on Monday by FED to Union’s account was merely provisional. Ark. Stat. Ann. § 85-4-201 (Add. 1961). Under the Code, Metropolitan had until midnight of the banking day following its receipt of the checks to return them to FED. § 85-4-301. If it failed to act by midnight, then the provisional credit to Union became final. § 85-4-213.

The Code provides, however, that its provisions may be varied by Federal Reserve regulations, clearing house rules, and the like. § 85-4-103. We are not concerned here with a variation by Federal Reserve regulation, because the Federal Reserve’s Regulation J provides the same midnight deadline as that contained in the statute. Amendment to Federal Reserve Regulation J, 12 C.F.R. § 210.12 (effective Sept. 21, 1972). That regulation, however, contains this exception to the midnight deadline:

Provided, that the foregoing provisions shall not extend . . . the time for return of unpaid items fixed by the rules and practices of any clearing house through which the item was presented . . .

Union argues that the checks in question were presented “through” the local clearing house, so that its two o’clock deadline superseded the midnight deadline fixed by the UCC and by the federal regulation.

We are not sure there is any substantial evidence to support a finding that the bad checks were presented to Metropolitan through the local clearing house, but in any event we find ample substantial evidence to support the trial court’s finding that the checks were not so presented. Federal Regulation J has been described, we think accurately, as providing “rules governing the clearing house operations provided by the Federal Reserve system for the collection of cash and non-cash items.” Kane v. American Nat. Bank & Tr. Co., 21 Ill. App. 3d 1046, 316 N.E. 2d 177 (1974). Thus the exchange of checks that occurred in the room maintained by FED in Little Rock was a “clearing” operation, but it was not controlled by the local clearing house association. To the contrary, it was completely owned and controlled by FED. FED’s forms were used in the deposit of checks in the bins and in the return of dishonored checks to the bins. The debits and credits, which are really the ultimate purpose of such a clearing facility, were made solely on FED’s books. It is, we think, fair to say that the course of the clearing operations at FED would have been precisely the same if the local clearing house had not existed. Thus the overwhelming proof shows that the checks were not presented through the local clearing house, of which Metropolitan was not a member.

Union argues, however, that three facts show that Metropolitan impliedly agreed to be bound by the clearing house rules, including the two o’clock deadline. Those three facts are: (1) Metropolitan designated First National (a clearing house member) as its correspondent bank for making settlement for items drawn on Metropolitan; (2) Metropolitan forwards its checks to First National to be presented at FED to other clearing house members; and (3) Metropolitan receives its items in its bin at FED just as the clearing house members do. Without discussing these three facts in detail, we think it sufficient to say that they demonstrate only that Metropolitan was using a correspondent bank instead of having its own account with FED, not that it was agreeing to clearing house rules of which, according to its witness, it actually had no knowledge. First National took no substantial part in the process, merely running the checks through its computer and making its reserve account available to Metropolitan as the latter’s correspondent bank.

Alternatively, Union argues that even if the midnight deadline Fixed by the statute is controlling, Metropolitan was not entitled to return its dishonored checks by a mail delivery that did not reach FED by midnight on Tuesday. The statute, however, provides that an item is returned when it is “sent” to the bank’s transferor. § 85-4-301 (4). “Send,” under the statute, means among other things to deposit in the mail. § 85-1-201 (38). In a similar case it has been held that the deposit of the returned checks in the mail by midnight complies with the requirement that the checks be “sent” to the FED. Blake v. Woodford Bank & Tr. Co., 555 S.W. 2d 589 (Ky. App., 1977). Thus the statute itself authorizes the procedure which Metropolitan, according to its witness, has been using since it began business in 1970.

Finally, Union argues under its alternative contention that the return of the checks by mail to FED was not sufficient, because, it is insisted, FED was not Metropolitan’s “transferor” under the statute. We disagree. True, FED did not indorse the checks individually, but the statute does not require that formality in a transfer between banks. Any agreed method which identifies the transferor bank is sufficient for a further transfer to another bank. § 85-4-206. Here FED transferred the checks to Metropolitan in bundles, by means of the deposit advice form that accompanied the checks. In addition to providing a place for the physical transfer of the checks, FED took a substantive part in the chain of transfers by entering the proper debits and credits on its books, adjusting the parties’ accounts accordingly. Upon that proof the trial court was warranted in finding that FED, not Union, was Metropolitan’s transferor. Consequently Metropolitan’s timely return of the checks to FED satisfied the requirement that the checks be returned to Metropolitan’s transferor.

Affirmed.


author:
George Rose Smith, Justice.
      John I. Purtle, Justice,

text:
    Tommy GHENT v. STATE of Arkansas
    CR 78-212
    578 S.W. 2d 218
    Opinion delivered March 26, 1979
    (In Banc)

      Mike Millar of Boyett & Morgan and Blount & Wilson, by: Jerry B. Wilson, for appellant.

      Sieve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is an appeal from the trial court’s denial of Ghent’s second petition for postconviction relief under Rule 37.2. According to this second petition, in 1976 Ghent and another man, wearing stocking masks, entered the home of Gale Stuart and robbed Stuart and his son Brett of $430 in cash and of firearms, watches, and liquor. Upon a plea of guilty to two charges of aggravated robbery, one charge of burglary, and one charge of theft of property, Ghent was sentenced to 40 years’ confinement upon each charge of aggravated robbery, 5 years upon the charge of burglary, and 5 years upon the charge of theft, all the sentences to run concurrently.

Ghent’s first petition for postconviction relief alleged that the court accepted his pleas of guilty without adequately explaining his rights and that he received ineffective assistance of counsel in that his attorney coerced his pleas of guilty. The trial judge denied the first petition, without a hearing, on the basis of the record. We agree with that conclusion, but in any event the merits of the first petition for postconviction relief are not now before us, because there was no appeal from the court’s denial of the petition. Rule 37.2 (b) provides that any grounds for relief finally adjudicated in the original proceedings or in any other postconviction proceedings may not be the basis for a subsequent petition. The trial court’s order denying the first petition became a final adjudication when no appeal was taken. Ghent is therefore precluded from arguing the merits of the first petition in connection with his appeal from the trial court’s denial of his second petition.

The second petition alleges that the original charges were unwarranted in that the State alleged two offenses of aggravated robbery arising out of a single transaction or course of conduct. Ghent’s brief, however, recognizes that essentially the same contention was rejected by our decision in Britt v. State, 261 Ark. 488, 549 S.W. 2d 84 (1977). The statute has not been changed since that decision, and we see no reason to reach the opposite conclusion in the case at bar.

Affirmed.

Byrd, J., dissents in part.

Purtle, J., dissents.

Hickman, J., not participating.

John I. Purtle, Justice,

dissenting. I would first disagree with the majority view on appellant’s first petition pursuant to Rule 37.3 (a) because I feel it was not properly ruled upon by the trial court. Until the court takes time to comply with the specific requirements by the court in ruling on this type petition, I would not penalize the appellant. Therefore, I do not think he had anything to appeal from the first time.

Since his motion was or should have still been pending, I would allow his second petition pursuant to Rule 37.3 (a) to be consolidated with the first and all points considered at the same time.

In his first petition appellant alleged he was unable to employ counsel and requested one be appointed for him. The court did not appoint counsel to assist appellant. If counsel had been appointed, no doubt the petition would have been amended to include the matters set out in the second Rule 37 petition. Rule 37.3 (b) reads as follows:

(b) If the original motion, or a motion to take an appeal from the court’s findings under subsection (a) hereof, should allege that the prisoner is unable to pay the cost of the proceedings, or to employ counsel, and if the court is satisfied that this allegation is true, the circuit court shall appoint counsel for the prisoner for hearing in the circuit court and for an appeal to the Supreme Court.

Thus, it is the plain wording of the statute that appellant should have been appointed counsel from the beginning to represent him in the circuit court and the supreme court.

The most critical period of time in many cases is from the time the defendant enters his plea and the time judgment is entered and his being transferred to the Department of Correction or the jail. After entry of judgment and pronouncement of sentence, the record is usually silent as to what takes place between a defendant and his counsel. This is the time a defendant first realizes what has really happened. It is also the time when he makes it known things did not go as planned or promised. Unless he is given an opportunity to present his argument to the court, which he seldom does, or has an attorney who is caf able of doing it for him, then Rule 37 becomes largely some writing on paper and nothing more.

Recognizing full well that most of these petitions are without merit, I would nevertheless give an appellant at least the opportunity to present to the court the facts upon which he bases his motion. It is not inconceivable that sometimes a petitioner may well have proof by witness, or otherwise, that indeed he was promised something in return for his guilty plea. As the system is working in most cases, a prisoner is not being given a meaningful consideration of his petition pursuant to Rule 37.

My chief disagreement with the majority opinion is that it does not deal with the real problem but instead evades it through legal technicalities. Appellant’s chief complaint, for which he will never receive a hearing on its merits, is that he was illegally sentenced pursuant to Ark. Stat. Ann. § 41-105 (1) (e) which states:

“(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if;
(e) the conduct constitutes an offense defined as continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.”

The whole purpose of enacting this type legislation is to get away from the old theory employed by some people in stacking as many charges as possible in order to increase the chances of a plea and to avoid double jeopardy. After all, you can kill a person only once. The facts in this case show appellant and his brother robbed a man and his son. It was all one continuing uninterrupted course of conduct such as is described in the above statute. As a result of his guilty plea, appellant was sentenced to.(l) 40 years for robbing the man, (2) 40 years for robbing the son, (3) 5 years for burglary, and, (4) 5 years for conspiracy, which was later changed to 5 years for theft of property. It is a wonder the charge of trespassing was not added because he was not invited onto the premises.

Appellant simply robbed his victims and in doing so the other conduct was necessary to accomplish this despicable crime. He could not have robbed his victims except that he first enter the residence of the victims; neither would the robbery have been completed unless he took something of value. Therefore, burglary and theft of property are necessary ingredients of the real crime, aggravated robbery. The very purpose of the legislation has been defeated. The results are that in this one act appellant now has four prior convictions and will, if charged again, be placed in jeopardy for four separate convictions and thereby eligible for treatment under the habitual criminal act.

We have already decided in Britt v. State, 261 Ark. 488, 549 S.W. 2d 84 (1977) that the robbery of two persons is grounds for two convictions. Therefore, I can only state I do not agree with the Britt case but recognize it as binding in this case.

I would dismiss the burglary and theft of property convictions because I think they are an integral part of one continuous course of conduct resulting in aggravated robbery.


text:
    O. K. PROCESSING, INC. and MILLS MUTUAL INSURANCE COMPANY v. Mary L. SERVOLD
    78-315
    578 S.W. 2d 224
    Opinion delivered March 26, 1979
    (Division II)

      E. C. Gilbreath, of Jones, Gilbreath & Jones, for appellants.

      Jim D. Spears, for appellee.
   John A. Fogleman, Justice.

This appeal is the culmination of a complex series of proceedings which resulted from the appellee’s claim to the Arkansas Workmen’s Compensation Commission for benefits for two compensable injuries suffered on February 6, 1970 and July 3, 1970, while in the employ of the appellant, O. K. Processing. Among the previous proceedings were the opinions of three administrative law judges; three opinions of the full commission, affirming the opinions of the administrative law judges; two orders of the Circuit Court of Sebastian County, remanding the case to the Workmen’s Compensation Commission and, finally, a judgment of the Circuit Court of Crawford County, affirming the final opinion of the full commission.

In the commission’s last opinion, filed on March 7,1978, the claimant was awarded weekly benefits of $49.00 from September 19, 1971, until such time as she is shown to no longer be totally disabled. In addition, the appellants were ordered to pay the appellee’s attorney’s fees in accordance with applicable state law and all medical expenses incurred by the appellee, excluding treatment by any Colorado physician, with the exception of Dr. Glen Koch. The appellants appeal from the finding of the Crawford County Circuit Court that there was sufficient competent evidence to support the award of the commission.

The appellee claimed that as a result of the accidents she suffered blurred vision and pain in her leg and in her lower back. She was examined by several Arkansas physicians, among them, neurosurgeons, opthamalogists, orthopedists and diagnosticians, but none of them were able to determine what precisely was causing the appellee’s pain. As a portion of its second opinion, the full commission conditioned the receipt of any further benefits upon the appellee submitting to a psychological examination and evaluation, as had been suggested by Dr. William B. Stanton, an orthopedic surgeon, who was prepared to operate on the appellee in an attempt to alleviate the pain in her leg. Eventually, Dr. Koch examined the claimant in Denver, Colorado, where she and her family had moved, and his deposition was introduced into evidence at a hearing held on March 5, 1976, presided over by the third administrative law judge. It was Dr. Koch’s opinion that the appellee suffered from “chronic brain syndrome,’’ an organic impairment of the brain function resulting from injury or trauma to the brain. From his questioning of the appellee concerning her previous medical history and possible prior injuries, Dr. Koch concluded that this injury was occasioned by the appellee striking her head when she was thrown to the ground by the force of an explosion which occurred at her place of employment on July 3, 1970. It was Dr. Koch’s opinion that this injury made Mrs. Servold unemployable, and therefore totally disabled, because she was able to follow instructions for only a very limited period of time and would require continual reinstruction to perform even simple tasks.

The appellants raise two points for reversal. The first of these relates to a statement in the final opinion of the Workmen’s Compensation Commission to the effect that, when all doubts are resolved in favor of the claimant, it must be concluded that the administrative law judge’s finding that the claimant is totally disabled is correct. The appellants contend that in resolving all doubts in the claimant’s favor the commission failed to weigh the evidence according to the accepted standard requiring the claimant to prove the compensability of his or her claim by a preponderance of the evidence. It is true, as appellants contend, that there is no presumption that a claim for workers’ compensation comes within the purview of the law, i.e., that it arose out of, and in the course of, the claimant’s employment. Ark. Stat. Ann. § 81-1302 (d) (Repl. 1976); Robbins v. Jackson, 232 Ark. 658, 339 S.W. 2d 417; Duke v. Pekin Wood Products Co., 223 Ark. 182, 264 S.W. 2d 834; Farmer v. L. H. Knight Co., 220 Ark. 333, 248 S.W. 2d 111; Pearson v. Faulkner Radio Service Co., 220 Ark. 368, 247 S.W. 2d 964; American Casualty Co. v. Jones, 224 Ark. 731, 276 S.W. 2d 41; American Red Cross v. Wilson, 257 Ark. 647, 519 S.W. 2d 60; Wilson v. United Auto Workers International Union, 246 Ark. 1158, 441 S.W. 2d 475. But, in a long line of cases, this court has held that, in light of the beneficent and humane purposes of the Workers’ Compensation Law [Ark. Stat. Ann. §§ 81-1301 through 81-1349 (Repl. 1976)], all doubtful cases should be resolved in favor of the claimant. Potlatch Forests v. Funk, 239 Ark. 330, 389 S.W. 2d 237; Reynolds Metals Co. v. Robbins, 231 Ark. 158, 328 S.W. 2d 489; Peerless Coal Co. v. Jones, 219 Ark. 181, 240 S.W. 2d 647; Cummings v. United Motor Exchange, 236 Ark. 735, 368 S.W. 2d 82; Eddington v. City Electric Co., 237 Ark. 804, 376 S.W. 2d 550; McGehee Hatchery v. Gunter, 237 Ark. 448, 373 S.W. 2d 401. This does not mean that a claimant does not have to meet the burden imposed upon him by a preponderance of the evidence. See, Potlatch Forests, Inc. v. Smith, 237 Ark. 468, 374 S.W. 2d 166; Hughes v. Hooker Bros., 237 Ark. 544, 374 S.W. 2d 355; McFall v. Farmers Tractor & Truck Co., 227 Ark. 985, 302 S.W. 2d 801. It does mean that, in determining where the preponderance of the evidence lies, the Workmen’s Compensation Commission must draw all legitimate inferences and resolve doubts in favor of the claimant, viewing and construing the evidence in favor of the claimant and the purpose of the statutes to compensate those, who, by reasonable construction, are within the terms of the Workers’ Compensation Law. American Red Cross v. Wilson, supra; Brower Manufacturing Co. v. Willis, 252 Ark. 755, 480 S.W. 2d 950; Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487; Burrow Construction Co. v. Langley, 238 Ark. 992, 386 S.W. 2d 484; Holland v. Malvern Sand & Gravel Co., 237 Ark. 635, 374 S.W. 2d 822. The commission obviously did not err in resolving all doubts favorably to appellee.

When the commission has determined the question of preponderance, after resolving all doubts favorably to the claimant, it is not for this court to say that the commission decided that question wrongly, if there is any substantial evidence to support the commission’s finding, since the courts are not privileged to consider the matter de novo, or to weigh the evidence. Comer v. Pierce, 227 Ark. 926, 302 S.W. 2d 547; Burks, Inc. v. Blanchard, 259 Ark. 76, 531 S.W. 2d 465; Wilson v. United Auto Workers International Union, supra; Herman Wilson Lumber Co. v. Hughes, supra; Plastics Research & Development Co. v. Goodpaster, 251 Ark. 1029, 476 S.W. 2d 242; Oak Lawn Farms v. Payne, 251 Ark. 674, 474 S.W. 2d 408; Lane Poultry Farms v. Wagoner, 248 Ark. 661, 453 S.W. 2d 43. In our consideration of the evidence, however, we must give, it its strongest probative force in favor of the actions of the commission, because they carry the same weight as a jury verdict. Holland v. Malvern Sand & Gravel Co., supra; Asphalt Materials Co. v. Coleman, 243 Ark. 646, 420 S.W. 2d 921; Herman Wilson Lumber Co. v. Hughes, supra.

Our disposition of the appellants’ first point for reversal leaves us only with the question of whether there was substantial evidence to support the commission’s order, which is the substance of the appellants’ final point for reversal. The appellants contend that the commission’s finding that the appellee has been, and continues to be, totally disabled from September 19, 1971 is not supported by any substantial evidence. Appellants’ argument, however, departs from its statement of this point. The argument is devoted almost entirely to its concept of the “overwhelming weight of the evidence,” the “considerable weight” which should be given to the opinions and reports of doctors selected by the commission, and the query, “How can the Workers’ Compensation Commission disregard the testimony of 12 Arkansas doctors, one of whom was selected by the Workers’ Compensation Commission itself, and find in favor of the appellee on the basis of the testimony of one out-of-state psychiatrist?”

Upon review of a decision of the Workmen’s Compensation Commission, we must accept that view of the facts most favorable to the findings of the commission, weigh and interpret it along with all reasonable inferences deducible therefrom in that light, and affirm where any substantial evidence exists to support its action. Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W. 2d 868; Purdy v. Livingston, 262 Ark. 575, 559 S.W. 2d 24; Westark Specialties, Inc. v. Lindsey, 259 Ark. 351, 532 S.W. 2d 757; Wilson v. United Auto Workers International Union, supra; Sneed v. Colson Corp., 254 Ark. 1048, 497 S.W. 2d 673; Burrow Construction Co. v. Langley, supra; Herman Wilson Lumber Co. v. Hughes, supra. We consider only that evidence most favorable to the commission’s view. Barksdale Lumber Co. v. McAnally, supra; Clark v. Shiloh Tank & Erection Co., 259 Ark. 521, 534 S.W. 2d 240. We have previously found the evidence to be substantial if a fair-minded person could reach the conclusion the commission did, on the evidence submitted. Julian Martin, Inc. v. Indiana Refrig. Lines, 262 Ark. 671, 560 S.W. 2d 228. In order to reverse the commission’s decision, we would have to say that fair-minded men could not reach the conclusion arrived at by the commission. Herman Wilson Lumber Co. v. Hughes, supra; Plastics Research & Development Co. v. Goodpaster, supra; Brower Mfg. Co. v. Willis, supra; Purdy v. Livingston, supra.

In their brief, the appellants list numerous Arkansas physicians who “found very little wrong with the appellee,” and discuss the testimony of some of these doctors at length. However, as the commission pointed out in its final opinion, these physicians were only attempting to establish an anatomical reason for the ailments complained of and the appellants fail to mention that some of these doctors mentioned the possibility of a psychological problem and one of them, Dr. William B. Stanton, suggested that the appellee undergo a psychiatric examination before having corrective surgery he proposed, stating:

*** As a matter of fact, if she were showing some emotional or psychiatric aberrant behavior then indeed this might be the explanation for the patient’s continued subjective complaints of back pain which could not be substantiated through this office.

The fact that the surgery suggested by Dr. Stanton may have been for a physical defect unrelated to appellee’s injury does not diminish the impact of this testimony.

Dr. Koch was the only witness who conducted a psychiatric evaluation of the claimant and the commission found that the conclusions reached by Dr. Koch were not conflicting with the opinions of the other physicians. Dr. Koch’s deposition presented a reasonable explanation for the claimant’s complaints of physical discomfort which could not be verified by physical examination. There was no conflicting evidence concerning Mrs. Servold’s chronic brain syndrome. The opinion of an expert will be considered to be substantial evidence unless it clearly appears that the expert’s opinion is opposed to physical facts or to common knowledge or to the dictates of common sense, or is pure speculation. Easton v. H. Broker & Co., 226 Ark. 687, 292 S.W. 2d 257. Such is not the case here. Resolution of conflicts in medical testimony is a question of fact for the commission, and when the commission chooses to accept the testimony of one physician, where a conflict exists, the courts are powerless to reverse the commission’s ruling in this regard, unless it can be said that his testimony is not substantial evidence. Barksdale v. McAnally, supra. We cannot say that the finding of the Workmen’s Compensation Commission is not supported by substantial evidence.

We have not overlooked appellants’ argument that the commission should have found that appellee’s healing period had ended. The commission’s holding was based upon Dr. Koch’s testimony that there was a possibility of improvement, even though it was poor. Dr. Koch said that he had suggested that Mrs. Servold have psychiatric treatment along with medical treatment, and said that if that were undergone, it would relieve her disability and pain to some extent. The commission ordered appellants to pay for necessary future medical expenses, including treatment by Dr. Koch. We find that there was substantial evidentiary support for the commission’s holding, but feel that the question as to the end of the healing period will now be ripe for determination.

The judgment is affirmed.

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

       The statement made in Comer v. Pierce, supra, that, in determining the sufficiency of the evidence, it should be liberally construed in favor of the claimant has never been followed where the commission has found against the claimant. It was correct in that particular case, because the commission had held in favor of the claimant.