author: Webb Hubbell, Chief Justice. P.A.Hollingsworth, Justice,

text:
    In the Matter of The Estate of Buel EPPERSON, Deceased
    84-133
    679 S.W.2d 792
    Supreme Court of Arkansas
    Opinion delivered November 13, 1984
    [Rehearing denied December 17, 1984.]

      Jacoway if Sherman, by: Merl O. Barnes; and George N. Plastiras, for appellant.

      Richard L. Smith, P.A., by: Daniel R. Carter and Mary J. Pruniski, for appellee.
   Webb Hubbell, Chief Justice.

Buel Epperson executed a will on August 29, 1980, bequeathing his personal property to his wife Wanda, if she survived him, and the rest, residue, and remainder of his estate to the Buel Epperson Family Trust. Buel and Wanda were divorced on March 29, 1982, and Buel married appellee, Carolyn Epperson on August 30,1982. Buel Epperson died less than a year later on June 20, 1983, without having made a new will.

The August 29, 1980 will was admitted to probate, and appellee filed a petition to elect her dower rights against the will. The appellants, the estate of Buel Epperson, objected, citing Ark. Stat. Ann. § 60-501 (Supp. 1983), which precludes a spouse from asserting a dower or curtesy right by taking against a will unless the surviving spouse had been married to the decedent continuously for a period in excess of one year. The probate court ruled that § 60-501: 1) conflicted with the Arkansas dower statutes; 2) was not intended to be applied when the will predates the marriage; and 3) was unconstitutional. We reverse and remand.

The probate court found that Ark. Stat. Ann. § 60-501 (Supp. 1983) conflicts with Arkansas dower laws. We have a. duty, if possible, to reconcile our state’s statutes to make them consistent, harmonious, and sensible. Shinn v. Heath, 259 Ark. 577, 535 S.W.2d 57 (1976). § 60-501 requires a surviving spouse to be married for more than one year before the spouse can take against the will. No similar requirement is placed on the surviving spouse if the decedent dies intestate. Ark. Stat. Ann. § 61-201 et seq. (Supp. 1983).

The legislature has the power to give or withhold dower, and it has the power to declare the manner in which the dower right might be barred. Skelly Oil v. Murphy, 180 Ark. 1023, 24 S.W.2d 846 (1930). Thus, it is within the province of the legislature to withhold dower where there is a will. However, the legislature merely limited, rather than withheld, dower rights where there is a will. Only those persons who have been married for more than a year may elect to take dower rights where there is a will § 60-501 limits dower rights, but does not conflict with § 61-201 et seq., which define dower rights.

The probate court found § 60-501 unconstitutional as a violation of the 14th Amendment to the United States Constitution. When considering an equal protection challenge to a state legislative classification scheme which does not involve either a “suspect” classification or a “fundamental” right, the proper test is whether the classification bears some rational relationship to a premissible state objective. Dandridge v. Williams, 397 U.S. 471 (1970). In order to evaluate whether there is a rational relationship, we examine (1) the character of the classification, (2) the individual interests asserted in support of the classification, and (3) the governmental interests asserted in support of the classification. Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W.2d 184 (1974).

The statute classes differently those people who have been married less than one year from those who have been married more than one year. The equal protection clause prohibits invidious discrimination but does not require identity of treatment. A classification is not invidious if some rational basis can be found to support it. Pridgeon v. State, 226 Ark. 151, 587 S.W.2d 225 (1979); Yarbrough v. Ark. State Highway Commission, 260 Ark. 161, 539 S.W.2d 419 (1961).

§ 60-501 precludes a new spouse from immediately receiving full dower or curtesy rights when there is a will. Individual and governmental interests in this limitation include discouragement of deathbed marriages, and the classification bears a rational relationship to that objective.

Appellee asserts that § 60-501 can be compared to a Pennsylvania mortmain statute, held unconstitutional as violative of Equal Protection by the Pennsylvania Supreme Court. Estate of Cavill, 459 Pa. 411, 329 A.2d 503 (1974). That mortmain statute makes invalid bequests for religious purposes included in a will executed within thirty days of death, unless those who would benefit by its invalidity agree that it shall be valid. The Pennsylvania Court, quoting Eisenstadt v. Baird, 405 U.S. 438 (1972) found that the states do not have the power to legislate that different treatment be accorded to persons placed by statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. However, § 60-501 is based on criteria related to its objective. It protects assets of a decedent in cases in which the assertion of a dower interest would often be contrary to the decedent’s intent. Ark. Stat. Ann. § 60-501 (Supp. 1983) is constitutional and does not violate the 14th Amendment.

Since we uphold the constitutionality of § 60-501, appellee’s failure to serve the Attorney General with a copy of the proceedings pursuant to Ark. Stat. Ann. § 34-2510 (Repl. 1962) is not prejudicial. However, we would have reversed and remanded on that issue had we not found the statute constitutional. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1983).

The probate court also found that § 60-501 was not intended to be applied when the will predates the marriage because of Ark. Stat. Ann. § 60-407 (Repl. 1970). § 60-501 applies when a married person “dies testate as to all or any part of his or her estate” (Emphasis supplied). § 60-501 does not make any distinction between those wills predating a marriage and those wills made after a marriage. Ark. Stat. Ann. § 60-407 provides:

If after making a will, the testator is divorced all provisions in the will in favor of the testator’s spouse are thereby revoked. . . .

In McGuire v. McGuire, 275 Ark. 452, 631. S.W.2d 12 (1982), we said the clear meaning of this statute is that any bequest to the former spouse is void, but the remainder of the will remains in effect. Unless the will is completely revoked because all of its substantive provisions favor the decedent’s former spouse, the decedent will have died testate, and § 60-501 will apply. § 60-407 does not require a holding that § 60-501 was not intended to be applied when the will predates a marriage.

Since we are reversing the probate court, we remand for further proceeding consistent with this opinion. Neither appellant nor appellee discusses, and the trial court did not make a finding whether decedent’s will should have been completely revoked because of § 60-407. The residue of the estate under the will goes to a trust that appears to be for the benefit of decedent’s former spouse and children, but this issue was not addressed or developed below, so we do not reach that issue on appeal.

Reversed and remanded.

Purtle and Hollingsworth, JJ., dissent.

P.A.Hollingsworth, Justice,

dissenting. The Court correctly states that § 60-501 requires a surviving spouse to be married for more than one year before the spouse can take against the will. The Court then recognizes the fact that no similar requirement is placed on the surviving spouse if the decedent dies intestate. There is a recognition of the different treatment the statute gives to those people who have been married less than one year from those who havé been married more than one year.

It is clear that under § 60-407 the former wife, Wanda Epperson, takes nothing under the will. The remaining issue is whether the children take everything or whether the present wife, Carolyn Epperson, has a right to elect to take against the will since she had not been married to the decedent one year.

The Court holds today that § 60-501 is a valid governmental interest discouraging death bed marriages. However, in Eisenstadt v. Baird, 405 U.S. 458 (1972), the United States Supreme Court stated:

The Equal Protection Clause of [the fourteenth amendment] does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a state into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Citations omitted.

One statute, § 60-501, precludes a surviving spouse from participating in the deceased spouse’s estate because of a marriage lasting less than one year. Another section of statutes, § 61-201 et seq., allows a surviving spouse to be endowed in fee simple to various percentages to the decedent spouse’s estate regardless of the length of marriage. Clearly, the statutory classification bears only the most tenuous relation to the legislative purpose. Such a combination of results can only be characterized as arbitrary. Therefore, the Equal Protection Clause forbids us to give it any effect.

I would affirm.

Purtle, J., joins in this dissent.


source: Caselaw Access Project

author: Webb Hubbell, Chief Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Ray ROSE; Agnes PIERCE; Mary Ann FOSTER; and Fern Pierce ABSHERE v. Delma D. DUNN and Ann N. DUNN
    84-143
    679 S.W.2d 180
    Supreme Court of Arkansas
    Opinion delivered November 13, 1984

      Taylor, Vandergriff ir Morris, by: David' Vandergriff, for appellant.

      F. H. Martin, for appellee.
   Webb Hubbell, Chief Justice.

Appellants, heirs at law of Mills O. Pierce, deceased, appeal from a consolidated proceeding where the court below declared valid a will, a deed, and two trusts, all executed by Mills O. Pierce. Appellants argue that: (1) the trial court erred in finding that Mills O. Pierce was competent at the execution of his will and in finding that the execution of the will was a free and voluntary act done without undue influence; (2) the court erred in refusing to shift the burden of proof; (3) the court erred in finding the deed was supported by consideration. We affirm.

Mills O. Pierce, aged 89, and his brother Vernon Pierce, aged 82, had lived all their lives on their family farm until Vernon’s death on April 9, 1979. After Vernon’s death, Delma Dunn, a neighbor, moved in and stayed with Mills Pierce for seven to ten days. Shortly thereafter Mr. Dunn took Mills Pierce to Walter Niblock, an attorney in Fayetteville who had represen ted Mr. Dunn in the past. The purpose of the first visit to Walter Niblock was to discuss Vernon’s estate. Mills Pierce made several subsequent visits to Mr. Niblock where the disposition of Mr. Pierce’s property was discussed. These discussions led to Mr. Pierce’s execution of a will, a deed, and two trusts. The deed conveyed to Delma D. Dunn and Ann Dunn, appellees, the 160 acre farm owned by Mills Pierce for $ 1.00 and appellees’ promise to provide a home for Mr. Pierce until medical determination of his need for nursing home care. The will devised Mr. Pierce’s cash, bank account balances, and certificates of deposit to two trusts and the residuary of the estate to appellees. The two trusts provided scholarships for graduates of Prairie Grove High School. The trustees are Delma Dunn, Robert Shulstad, and Walter Niblock.

Ordinarily the party challenging the validity of a will is required to prove by a preponderance of the evidence that the testator lacked mental capacity or was unduly influenced at the time the will was executed. Thompson v. Orr Estate, 252 Ark. 377, 479 S.W.2d 229 (1972); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963).

Undue influence which avoids a will is not the influence which springs from natural affection or kind offices, but is such as results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property, and it must be specially directed toward the object of procuring a will in favor of particular parties. Green, Guardian v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963); McCulloch v. Campbell, 49 Ark. 367, 55S.W. 590 (1887). The mere fact that a beneficiary is present while a will is made does not give rise to a presumption of undue influence. Abel v. Dickinson, 250 Ark. 648, 467 S.W.2d 154 (1971).

Appellants first argue error in the trial court’s finding that Mills O. Pierce was mentally competent and executed his will by free and voluntary act without undue influence The question of undue influence and mental capacity are so closely interwoven that they are considered together. Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981); Phillips v. Jones, 179 Ark. 877, 18 S.W.2d 352 (1929).

When Mr. Pierce could not definitely make up his mind about the beneficiaries of his will, the attorney asked him to go home, figure out what he wanted to do, and then come back. At the next meeting, the attorney testified that, although Dunn was present during the initial discussion, he asked Dunn to leave in order to satisfy himself that Mr. Pierce knew what he wanted to do. The attorney stated that he broached the subject of leaving the property to family members but that “I was put in my place in a hurry.” He further stated that Mr. Pierce was “firm in his convictions as to what he wanted to do.” Mr. Pierce’s physician testified that he examined him for arthritis a few days after the execution of the will. The doctor stated he found evidence of a small stroke, but went on to state: “You suspect some of these things, and particularly in a man of his age, but as far as affecting his competency, I did not feel that it did in any way, shape, or form.” Mr. Pierce’s banker testified that Mr. Pierce had always handled his own affairs, had a mind of his own, and made his own decisions. He further stated that during the same month Mr. Pierce was visiting the attorney, Mr. Pierce continued to do his own banking and, in his opinion, was competent. We cannot say the trial court was clearly erroneous in finding that Mr. Pierce had both the testamentary capacity and freedom of will to execute a valid will.

The law regarding mental capacity in the execution of a will is also applicable to the execution of a deed and the creation of a trust. If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without promptings, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument, Garis v. Massey, 270 Ark. 646, 606 S.W.2d 109 (Ark. App. 1980); Pledger v. Birkhead, 156 Ark. 443, 246 S.W. 510 (1923). The mental capacity the maker of a trust or deed is presumed, and the burden rests on the contestants to prove incapacity by a preponderance of the evidence. Union National Bank of Little Rock v. Smith, 240 Ark. 354, 400 S.W.2d 652 (1966); Gibson v. Gibson, 156 Ark. 528, 246 S.W. 845 (1923). Thus a finding of requisite mental capacity to execute a will must equally apply to a deed created on the same date as the will and a trust recited in the will.

Probate and chancery cases are tried de novo on appeal, but we will not reverse the findings of the probate judge or the chancellor unless clearly erroneous. ARCP 52. After giving due deference to the superior position of the chancellor to determine the credibility of the witnessess and the weight to be given their testimony, we cannot say his finding that appellants failed to prove undue influence by a preponderance of the evidence was clearly erroneous.

Appellants further contend the trial court erred in refusing to shift the burden of proof. In the case of a beneficiary who procures the making of a will, a rebuttable presumption of undue influence arises which places on the beneficiary the burden of proving beyond a reasonable doubt that the testator enjoyed both required mental capacity and freedom of will. Park v. George, Pers. Rep., 282 Ark. 155, 667 S.W.2d 644 (1984); Greenwood, Guardian v. Wilson, Adm’x., 267 Ark. 68, 588 S.W.2d 701 (1979). A threshhold question, then, is whether appellees, who were residuary beneficiaries of the will, procured the making of Mills O. Pierce’s will. In the case of Park v. George, Pers. Rep., 282 Ark. 155, 667 S.W.2d 644 (1984), an attorney who named himself as a beneficiary in the amount of $10,000.00 drew a will for an 88 year old woman who had been hospitalized and sedated and who appeared confused and upset. In the case at bar, Delma Dunn merely drove Mr. Pierce to the attorney’s office and participated in the initial discussions concerning making a will. The court found that Mr. Pierce was possessed of both testamentary capacity and freedom of will. Where a competent individual freely and voluntarily executes his own will, it cannot be said that another procured the making of that will.

Even had the trial court found that Delma Dunn had procured the making of Mr. Pierce’s will, the trial court would have been correct in ruling that the presumption of undue influence in the case of a beneficiary who procures the making of a will does not shift the ultimate burden of proof. In Hiler v. Cude, 248 Ark. 1065, 455 S.W.2d 891 (1970), we were asked to hold that where a proposed will is drawn by a beneficiary, the burden of proof will shift. In Hiler we said, “We hold this burden, in the sense of the ultimate risk of non-persuasion, never shifts from the contestant. This does not, however, conflict with the rule concerning the burden of going forward with the evidence or the burden of evidence.” The result of the presumption of undue influence in the case of a beneficiary who procures the making of a will is merely to shift the burden of proving lack of capacity or undue influence by a preponderance of the evidence remains on the party challenging the will.

Appellants last argue that the chancellor erred in holding the deed was supported by consideration. For $1.00 and the promise of the Dunns to provide a home and care for him for the rest of his life, Mills quitclaimed his 160 acre farm to appellees reserving a life estate for himself. Support deeds are unquestionably valid in Arkansas. Welch v. Brewer, 267 Ark. 763, 590 S.W.2d 325 (1979); Wood v. Swift, 244 Ark. 929, 428 S.W.2d 77 (1968). The owner of property who is mentally competent may dispose of it as he sees fit. O’ Conner v. Patton, 171 Ark. 626, 286 S.W. 822 (1926). When a conveyance is voluntary and absolute on its face, then the question of consideration is immaterial. See Whatley & Wright v. Corbin, 252 Ark. 561, 480 S.W.2d 142 (1972); Szklaruk v. Szklaruk, 251 Ark. 599, 473 S.W.2d 853 (1971). Inadequacy of consideration does not afford grounds for setting aside a voluntary conveyance. Leake v. Garrett, 167 Ark. 415, 268 S.W. 608 (1925). Moreover, the appellees actually provided for over two years the support and care promised in consideration for the property conveyed. The trial court did not err in holding the deed was supported by adequate consideration.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The trial court erred in not shifting the burden to the proponents of the will as we required in Park v. George, Pers. Rep., 282 Ark. 155, 667 S.W.2d 644 (1984). It is a firmly established rule that a proponent of a will who is a beneficiary and drafted or caused the will to be drafted has the burden to prove beyond a reasonable doubt that it was not the result of undue influence and that the testator had the mental capacity to make the will. Park v. George, supra; Smith v. Welch, 268 Ark. 510, 597 S.W.2d 593 (1980); Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979); Short v. Stephenson, 238Ark. 1048, 386 S.W.2d 501 (1965). Park, which I consider to be as close to the facts of this case as can be found in Arkansas law, is binding on this court.

In the present case the Pierce brothers were extremely close to each other and had lived together all their lives. Mills Pierce was 89 years of age and his younger brother Vernon was 82 when the younger brother died. Vernon was the dominant one. After the younger brother died Delma Dunn, a neighbor, moved into the house with Mills Pierce to take care of him. Immediately thereafter Dunn took decedent to see Dunn’s lawyer, who had never met the decedent. Within a short time the decedent had deeded his farm to Mr. Dunn and given the rest of his property to trusts for purposes the decedent had never before mentioned. The trustees of the trusts were Mr. Dunn, his lawyer, and a third person who was not acquainted with the 89 year old decedent.

The majority and the trial court have simply reversed the burden of proof and sidestepped the issue of presumption as it applies to the facts in this case. The standard of proof applied here is that which should be applied to a will where neither party procured its execution. The majority would be right were it not for the fact that appellee procured the execution of the will and obviously benefitted from the whole transaction. A 160 acre farm for $1.00 and a few weeks caring for an invalid is a pretty good bargain. I submit that a reversal of the burden of proof caused the wrong result.


author:
George Rose Smith, Justice.
      Webb Hubbell, Chief Justice,

text:
    Curtis W. ROGERS v. Odell A. KELLY
    84-164
    679 S.W.2d 184
    Supreme Court of Arkansas
    Opinion delivered November 13, 1984
    [Rehearing denied December 17, 1984.]

      Compton, Prewett, Thomas ir Hickey, P.A., by: Floyd M. Thomas, Jr., for appellant.

      Boswell, Smith ir Clardy, by: Ted Boswell, for appellee.
   George Rose Smith, Justice.

The appellant, Curtis W. Rogers, brought this suit to recover for personal injuries suffered in downtown El Dorado while he was attempting to cross Main Street on foot in the middle of the block. Rogers was struck on the side of his face by the lefthand side-mirror on the defendant’s pickup truck, which had approached from the plaintiff’s right. The jury returned a general verdict for the defendant.

For reversal it is argued that the court should not have given an instruction on assumption of risk and should have given an instruction defining the defendant’s duty if he should have seen danger ahead. We agree with the appellant on the first point and remand the case for a new trial.

Just before the accident the plaintiff’s wife was driving him to the post office on Main Street, to mail a letter. They stopped as about the fourth car in a line of traffic waiting for a red light ahead of them at Main and Jackson. Since they were opposite the post office, Rogers got out of the car, walked around in front of it, and started to cross the other lane to the post office. He testified that at about the center line he stopped, looked to his right and saw the red light, and looked to his left, seeing nobody coming. As he was “beginning to look back to the right” he saw the mirror about to hit him. He put his hands on the truck to push himself back, but the mirror struck his face. A photograph taken from the rear of the truck shows that the mirror extended apparently less than a foot from the body of the truck.

The defendant Kelly testified that he had been waiting on Jackson Street for the light to change to green for him. When it did he started forward and turned to his right, toward the post office. He said he was looking straight ahead but did not see Rogers until Rogers’ hands were in contact with the hood of the truck. When Kelly brought his truck to a stop it was eight to ten feet past where Rogers had fallen to the pavement. There is no indication that Kelly was not driving quite slowly when the accident took place.

The case was submitted to the jury on the basic comparative negligence instruction. AMCI Civil 2d, 2102 (1974). The court did not give AMI 2115, on comparative fault. It did, however, give the revised AMI instruction on assumption of risk, AMI 612, as set out in the 1982 pocket part. That instruction told the jury that the defendant had the burden of proving the “defense” of assumption of risk, elements of which were that the plaintiff knew that a dangerous situation existed and voluntarily exposed himself to it.

The instruction should not have been given. It is argued by the appellee that the instruction was proper, because Rogers admitted he knew it was dangerous to cross Main Street in the middle of the block. Such a knowledge of general danger is not sufficient; one assumes the risk only of known specific perils. Prosser & Keaton on Torts gives a comparable situation as an illustration:

It is not true that in any case where the plaintiff voluntarily encounters a known danger he necessarily consents to any future negligence of the defendant. A pedestrian who walks across the street in the middle of a block, through a stream of traffic traveling at excessive speed, cannot by any stretch of the imagination be found to consent that the drivers shall not use due care to watch for him and avoid running him down. On the contrary, he is insisting that they shall.

Prosser & Keaton, Torts, p. 485 (5th ed., 1984). Our own law is to the same effect. McDonald v. Hickman, 252 Ark. 300, 478 S. W.2d 753 (1972). There the plaintiff admitted knowing that it is dangerous to enter a house while it is under construction, but he was not aware of an open stair well into which he fell. We upheld the trial court’s refusal to instruct on assumed risk, because the plaintiff did not know of the danger presented by the stair well.

We caution the bench and bar that AMI 612 should be used only in exceptional circumstances, if indeed it is ever proper now that assumption of risk is not a complete defense. The instruction refers to assumption of risk as “that defense” without explaining that it is not in fact a defense. We fear that in most situations AMI 612 would suggest to the jury, as does an unavoidable accident instruction, that assumption of risk is an issue to be considered separately, in addition to the plaintiff’s negligence. See Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872 (1965). Prosser & Keaton, supra, examines the matter at length in Section 68, noting at page 498 that most courts considering the matter have held that when a comparative fault statute is controlling, an instruction on assumption of risk should not be given. See, for example, Meese v. Brigham Young Univ., 639 P.2d 720 (Utah 1981); Polsky v. Levine, 73 Wis.2d 547, 243 N.W.2d 503 (1976).

The appellant’s second argument is that the court, in giving AMI 901, should have included the bracketed matter in subparagraph (B), telling the jury that if danger ahead would have been reasonably apparent to Kelly if he had been keeping a proper lookout, it was his duty to have his vehicle under such control as to be able to check its speed or stop if necessary to avoid injury to others. The court did give subsections (a) and (d) of Ark. Stat. Ann. § 75-628 (Repl. 1979), in the format of AMI 903, telling the jury that it is the duty of a pedestrian crossing at a point other than a crosswalk to yield the right-of-way to vehicles but that it is nevertheless a driver’s duty to exercise reasonable care to avoid colliding with a pedestrian.

There was no error. Both parties were doubtless guilty of some negligence, in that neither saw the other until about the moment of impact. According to the testimony most favorable to Rogers, if Kelly had been keeping a lookout he would have seen a pedestrian standing stock-still inside a line of cars and looking in both directions before deciding to continue across Main Street. The court had told the jury by AMI 901 (A) that it was Kelly’s duty to keep a lookout for persons on the street and by the statute that it was also his duty to exercise due care with respect to pedestrians. We do not think the court was required to go still farther by imposing an affirmative duty on Kelly to be in a position to stop merely because he saw a pedestrian standing in a position of apparent safety near the center of the street.

Reversed and remanded.

Hubbell, C.J., and Hickman and Purtle, JJ., dissent.

Webb Hubbell, Chief Justice,

dissenting. The majority finds that there was no substantial evidence to support the trial court’s giving of the assumption of the risk instruction, AMI 612. I respectfully disagree. Rogers testified that he knew that crossing in the middle of the street was dangerous and unsafe. The majority asserts that knowledge of a general danger is not sufficient, that one assumes the risk only of known specific perils. What could be more specific? If you jaywalk across a dangerous and busy street, you are likely to get run over or clipped. We warn our children of this specific risk. The danger was open and obvious, and the trial court did not abuse its discretion in giving the instruction. Baxter v. Grobmyer Brothers Construction Co., 275 Ark. 400, 651 S.W.2d 265 (1982).

What is really troubling the majority is the use of the word “defense” in AMI 612, in conjunction with the basic comparative negligence instruction — AMI 2102. However, appellant did not make a specific objection to the word “defense” in AMI 612; nor did he object to the use of AMI 2102, as opposed to AMI 2115. Ark. R. Civ. P. 51.

I would affirm.

Hickman and Purtle, JJ., join in this dissent.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    James F. MILLER v. PULASKI COUNTY CIRCUIT COURT, Circuit Judges Floyd LOFTON, Perry WHITMORE, Tom DIGBY, John LANGSTON, Lowber HENDRICKS, and David BOGARD
    84-123
    679 S.W.2d 187
    Supreme Court of Arkansas
    Opinion delivered November 13, 1984
    [Rehearing denied December 17, 1984.]

      Davidson, Horne, Hollingsworth, Arnold & Grobmyer, a Professional Association, by: Allen W. Horne, for appellant.

      Steve Clark, Att’y Gen., by: Tim Humphries, Asst. Att’y Gen., for appellees.
   Darrell Hickman, Justice.

On November 1, 1982, the judges of the Pulaski County Circuit Court issued an order which promulgated rules relating to the acceptance of bonds in their court. James F. Miller, a licensed bail bondsman, sought a writ of prohibition against enforcement of the order with this court. We denied the writ deciding that the appropriate remedy was not prohibition. Miller v. Lofton, 279 Ark. 461, 652 S.W.2d 627 (1983). Miller then filed an action in Pulaski County Circuit Court seeking a declaratory judgment asking that the order be declared void. A special circuit judge held that the circuit judges did have the authority to issue and enforce the order.

Miller argues on appeal that Act 268 of 1959, which gives the courts authority to regulate the business of bondsmen, was impliedly repealed by Act 400 of 1971. Act 400 essentially sets forth the licensing requirements for bail bondsmen by the Arkansas Department of Insurance. Miller concedes that repeals by implication are not favored. Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980). He maintains, however, that the acts are in such conflict that Act 268 cannot stand. Miller argues that the acts are in conflict in that Act 268 gives courts the power to regulate the business of bondsmen and Act 400 invests the Department of Insurance with that power. Act 400 merely states that the Department of Insurance has the authority to administer the act and issue rules and regulations to that end. Ark. Stat. Ann. § 43-735 (Repl. 1977). That authority does not conflict with the authority given the courts by Act 268. The Insurance Department must have the authority to effect the purpose of Act 400 and the courts must have the authority to regulate their own business. The two acts recognize that and are reconcilable in that regard.

In one instance the acts are not reconcilable. The acts conflict where Act 268 allows judges to fix the maximum amount of fees and Act 400 fixes the maximum amount. We find that Act 400 controls and amends Act 268 by implication in that respect. See Pruitt v. Sebastian County Coal & Mining Co., 215 Ark. 673, 222 S.W.2d 50 (1949). Otherwise, the two acts are not in conflict and, therefore, there is no repeal by implication. Selig v. Powell, 253 Ark. 555, 489 S.W.2d 484 (1973).

Miller also argues that Act 400 of 1971 covers the entire subject matter of Act 268 and we should find a repeal by implication for that reason. We do not agree since, as we noted before, Act 268 recognizes the power of the judges to regulate the business of bail bondsmen acting in their courts, while Act 400 merely sets forth licensing requirements.

In order to address Miller’s other arguments, we will summarize parts of the order. It requires all bondsmen to apply for approval to make bail and to furnish a periodic financial statement or line of credit from a bank. The bondsman would be permitted to write bonds not exceeding his net worth or the amount of his line of credit. If by surety, the insurance company must be licensed to do business in Arkansas, and the bondsmen must notify the court of their contract and the limit of the bondsmen’s authority to write bonds. The order further provides that the bondsmen must notify the court when the maximum liability authorized has been reached and stop writing bonds at that point and that the surety and agent would be jointly and severally liable on all bonds.

We find the portion of the order which absolutely prohibits the bondsman to write a bond which exceeds his net worth or the amount of his line of credit to be invalid. Judges must use discretion in determining whether a bondsman can honor his obligations. This provision is too arbitrary, because it robs the judge beforehand of his necessary discretion. Just as a judge cannot be forced to accept a bond, a judge cannot arbitrarily deny one.

Another argument involves a meeting called by the circuit judges to explain the order to the bondsmen. At that meeting, Judge Floyd Lofton said that when a felon is bound over to circuit court from municipal court, his bond would not necessarily be approved in circuit court unless the bondsman had met the requirements of the order. Miller argues that that statement contravenes A.R.Cr.P. Rule 9.2 (e) which provides:

An appearance bond and any security deposit required as a condition of release pursuant to subsection (b) of this rule shall serve to guarantee all subsequent appearances of a defendant on the same charge or on other charges arising out of the same conduct before any court, including appearances relating to appeals and upon remand. If the defendant is required to appear before a court other than the one ordering release, the order of release together with the appearance bond and any security or deposit shall be transmitted to the court before which the defendant is required to appear. This subsection shall not be construed to prevent a judicial officer from:
(i) decreasing the amount of bond, security or deposit required by another judicial officer; or
(ii) upon making written findings that factors exist increasing the risk of wilful nonappearance, increasing the amount of bond, security, or deposit required by another judicial officer.
Upon an increase in the amount of bond or security, a surety may surrender a defendant.

Miller argues that Rule 9 guarantees that a bond approved in municial court will be sufficient for circuit court. We agree with Miller’s argument only to the extent that we find that a judge cannot refuse the bond simply because it was made in municipal court. As the rule provides, the judge can decrease or increase the bond, but if he increases it, he must have reasons to do so.

The other provisions of the order are within the judges inherent power to promulgate rules or order for the conduct of their courts. See Widmer v. Kennedy, 243 Ark. 527, 421 S.W.2d 609 (1968). Those provisions appear to simply be a declaration of policy that is not violative of any statute or law. See Letaw v. Smith, 223 Ark. 638, 268 S.W.2d 3 (1954).

We find therefore that the order of November 1, 1983, is valid and enforceable to the extent herein explained and that Act 268 of 1959 is in part amended by implication by Act 400 of 1971.

Affirmed in part and reversed in part.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur but wish to point out that it was the intent of A.R.Cr.P. Rule 9.2(e) to allow the same bond to remain in effect from the beginning of a criminal prosecution to the end of the appellate process. Therefore, the courts are bound to set out the reasons in writing when a bond is increased in the circuit courts. An appellant should not have to suffer on account of a disagreement between the trial court and the bondsman.


author: John I. Purtle, Justice. Steele Hays, Justice,

text:
    Joe E. EDWARDS and Janice Sue EDWARDS v. Honorable Paul JAMESON, Circuit Judge
    84-125
    679 S.W.2d 195
    Supreme Court of Arkansas
    Opinion delivered November 13, 1984

      Everett if Whitlock, by: John C. Everette, for appellant.

      Steve Clark, Att’y Gen., by: Leslie M. Powell, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The petitioners were found to be in contempt of court and were sentenced to fines of $50.00 and jail terms of 10 days. The case is before this court on a petition for writ of certiorari. Petitioners argue that the conduct for which they were found guilty was not contemptuous and that they were entitled to a jury trial. For reasons stated below we agree that the conduct under the particular circumstances of this case was not contemptuous.

On March 6, 1984, the petitioners were in the Circuit Court of Washington County as the result of a civil action pending against them. When the court had finished for the day the petitioners proceeded into the hallway outside the courtroom. Shortly thereafter the opposing counsel approached them in what he stated was a friendly manner. However, petitioners did not feel the same and called him “the lowest son of a bitch on the face of the earth.” The attorney reentered the courtroom or a room immediately adjacent thereto. After two or three minutes inside the other room, the attorney proceeded downstairs. When he reached the second flight of stairs the petitioners were standing there and again each called him “a son of a bitch.” A deputy sheriff intervened and told the petitioners to quit annoying the attorney and to leave the courthouse. The deputy escorted the attorney downstairs at which time at least one of the petitioners approached the attorney and called him “the sorriest son of a.bitch in Washington County, Arkansas.” Thereupon the deputy took petitioners into custody and took them back to the third floor of the courthouse and into the j udge’s chambers and informed the court of the petitioner’s actions. Until that time the court had no knowledge of the events which had just occurred between petitioners and the attorney. The circuit judge advised petitioners that they were being charged with contempt of court for cursing the attorney. A hearing was scheduled for April 30, 1984. The court issued a written order informing the petitioners of the reasons for the hearing on the matter of contempt which had been initiated by the court. After the hearing on April 30, 1984, the court found both Mr. & Mrs. Edwards (petitioners) guilty of contempt of court and fined each one $50.00 and sentenced them to 10 days in jail. Mr. Edwards’ jail term was suspended.

Although appellants argue four points for reversal we discuss only the point challenging the sufficency of the evidence. Inherent power to punish for contempt resides in all courts. This necessarily includes the right to inflict reasonable and appropriate puishment upon an offender against the authority and dignity of the court. Such power cannot be removed by the enactment of laws to the contrary. Pace v. State, 177 Ark. 512, 7 S.W.2d 29 (1928). However, when the legislature speaks on the subject it should not be ignored by the courts. Therefore we take into consideration Ark. Stat. Ann. § 34-901 (Repl. 1962) along with the other circumstances of this case. The cited statute purports to define criminal contempt in the state of Arkansas. All of the listed grounds for contempt of court indicate that the contemptuous acts relate to behavior committed during the trial or in the presence of the court and that such acts impair the respect and dignity of the court. Contempt as defined in this statute includes breach of the peace in matters occurring outside the courtroom which tend to interrupt its proceedings. Of course, willful disobedience of any lawful order of the court is considered contumacious conduct.

In the present case the petitioners’ conduct occurred outside the courtroom and out of the presence or hearing of the court. The court had recessed for the day. There was no disturbance or impairment of any proceeding by the court. The court learned of the conduct after it was over. There was no evidence that petitioners attempted in any manner to interfere with the operation of the court. Actions which are designed to prevent appearance of a litigant or witness by intimidation or threats are obstructions of the judicial procedure which tend to bring the administration of justice into disrepute. Turk and Wallen v. State, 123 Ark. 341, 185 S.W. 472 (1916). In Pace v. State, supra, the husband of a witness inflicted a severe beating upon one of the attorneys during the noon recess. The attorney testified that he was on his way back to the courtroom to finish the lawsuit when he was attacked by Pace. This court found that under the circumstances in Pace the trial court was justified in finding that the assault and battery upon the attorney was in contemplation of an argument made during the pending trial and was calculated to obstruct the administration of justice and degrade the authority of the court.

The matter of contempt of court was treated rather extensively in the case of Freeman v. State, 188 Ark. 1058, 69 S.W.2d 267 (1934). The court in Freeman reviewed prior cases and derived the following rules: (1) the power of punishment for contempt is independent of statute and inherent in and an immemorial incident of judicial power, which conclusions are to be reached by the court without a jury; (2) this inherent power is entrusted to the conscience of the court alone but should never be exercised except where the necessity is plain and unavoidable if the authority of the court is to continue; and (3) the court’s contempt proceedings are to preserve the power and dignity of the court and to punish for disobedience of orders and to preserve and enforce the rights of the parties. Freeman was summoned before the court because of an editorial he published in his paper. The editorial had, in the opinion of the prosecuting attorney, made many derogatory statements which were considered disrespectful to the court. The editorial was critical of the enforcement of an ordinance and statute against keeping marble machines after the city and state sold licenses to the owners of the machines. Speaking of the judges who had initiated the criminal action against the owners of the machines, the editorial stated, “he must see how unfair it is to force these operators to pay a State and city license, then confiscate their money as well as machines. . . ” The prosecuting attorney read the editorial and believed it was a reflection upon the court. He immediately filed a petition requesting the publisher and editor be cited for contempt of court. The editor and publisher appeared on the date for the hearing and disclaimed any intent to reflect upon or influence the court or its officers. The trial court found them guilty of contempt because the editorial was of a character “having a tendency to influence the action of the tribunal before which the case is pending.’’ This court ruled that in view of petitioners’ disclaimers of intent to reflect upon the court or its officers, the judgment of the trial court was quashed. In Dennison v. Mobley, Chancellor, 257 Ark. 216, 515 S.W.2d 215 (1974) we stated: “on the other hand, the primary reason for punishment for criminal contempt is the necessity for maintaining the dignity, integrity and au- ■ thority of, and respect toward, courts and the deterrent effect on others is just as important as the punishment of an offender.” We do not find that we have ever held that mere spoken words to a lawyer out of the presence of the court, which make no threat or attempt to interfere in any proceedings, amount to criminal contempt. Although the words in the present case may have rendered petitioners responsible for some other charge or suit they did not amount to criminal contempt. We do not find any substantial evidence that petitioners had any intent to or did commit contumacious acts. We quash the contempt citations because the undisputed facts reveal that only words were spoken to the attorney at a time and place where they did not in any manner reflect upon the integrity of the court or interfere to any degree with its proceedings. Petitioners did not even by innuendo attempt to influence the outcome of the proceedings or intimidate any witness or officer of the court. By quashing this judgment we do not wish to in any manner imply that judges do not have the inherent power and duty to preside over their respective courts and issue any orders or citations to protect the administration of justice and uphold the dignity and respect of the court.

Writ granted and judgment quashed.

Hickman, Dudley and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. The majority opinion recognizes the inherent power of courts to punish for contempt, but limits that power to the courtroom. With that I disagree. I don’t suggest it extends to any great extent in time or distance from the courtroom, and this case does not require that we fix the outer boundaries. But this conduct occurred immediately after a hearing, immediately adjacent to the courtroom, and was prompted by what had just occurred in the courtroom and because of that it was a challenge to the legal process itself, not merely to the dignity of the court. Nor was there anything about this lawyer’s demeanor that warranted petitioners’ behavior, other than his representation of his client.

I take no particular offense to the language used, though it was deliberately provocative, as both lawyers and judges ought to acquire skins thick enough to withstand verbal abuse, but when the conduct has implications of physical violence, as I believe this did, the court’s authority to protect litigants, jurors, witnesses, even lawyers, from intimidation, immediate and direct, ought to at least include the near proximity of the courtroom.

Hickman, J., and Dudley, J., join in this dissent.


author:
Steele Hays, Justice. Darrell Hickman, Justice,
      Robert H. Dudley, Justice,

text:
    Philip BOREN v. Bill QUALLS
    84-113
    680 S.W.2d 82
    Supreme Court of Arkansas
    Opinion delivered November 13, 1984
    [Rehearing denied December 17, 1984.]

      Joseph Wm. Segers, Jr., for appellant.

      William A. Storey, for appellant.
   Steele Hays, Justice.

Bill Qualls brought this action below against Philip Boren for assault and battery allegedly occurring outside a Fayetteville tavern in January, 1982. Each blamed the other for provoking the fight. The jury settled that issue by awarding Qualls $6,458.02 in compensatory damages and $5,000 in punitive damages. Boren has appealed. We affirm the judgment.

For reversal, Boren insists the trial court improperly denied him the right to impeach Qualls by showing he had stated under oath he had never been arrested or convicted of a felony, or a misdemeanor, when in fact he had been arrested twice for rape and once for theft of property and had been convicted of careless driving. Specifically, Boren contends that in interrogatories he asked Qualls if he had ever been “arrested and/or convicted” of a felony and the answer was “no.” The answers were signed by Qualls’ attorney, but were verified by Qualls as being true. Additionally, Boren points to Qualls’ affidavit, attached to a motion in limine, stating he had never been “convicted of any crime, either felony, misdemeanor or an act involving dishonesty or false statement.”

The admissibility in general of felony arrests and misdemeanor convictions for impeachment purposes need not be examined, as Boren concedes that under Unif. R. Evid. Rule 609 the trial court’s exclusion of these matters would ordinarily be correct. However, he submits they became admissible for impeachment when Qualls denied their existence under oath. Boren offers no authority to support his argument on this point, he simply asserts that he should have been permitted to show that Qualls swore he had never been arrested, when in fact he had three felony arrests and a misdemeanor conviction.

We can eliminate part of the problem by observing that the affidavit gives no support to Boren’s position. It does not mention arrests, it merely states that Qualls has never been convicted of a felony, which Boren does not dispute, or of “a misdemeanor or an act involving dishonesty or false statement.” Boren argues that Qualls has a misdemeanor conviction for careless driving and hence, his affidavit is false. But that alleged offense was never proffered and we have said a number of times a proffer is essential. Jones v. State, 283 Ark. 308, 675 S.W.2d 825 (1984); Farrell v. State, 269 Ark. 361, 601 S.W.2d 835 (1980); Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979); Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978).

With the affidavit aside, all that remains is the single interrogatory, “[p]lease state whether you have ever been arrested and/or convicted of any crimes.” The answer was “no.” As we have said, the answers were signed by Qualls’ attorney, but their truth was verified by Qualls on a separate form.

It is obvious this problem has arisen because the interrogatory employed an imprecise term, “and/or,” when precision was called for. The phrase has been so soundly criticized as to have been driven almost entirely from current usage. At best it has been labelled “equivocal,” “obscure” and “meaningless,” at worst “slovenly,” “improper” and “a linguistic abomination.” (See cases cited in Words and Phrases, Perm. Ed., pages 640 to 647). It has no place in modern practice, least of all in discovery interrogatories. A list of condemnors includes a number of our own cases. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 953 (1976); Guerin v. State, 209 Ark. 1082, 193 S.W. 2d 997 (1946).

The short of the matter is the phrase may be interpreted as either conjunctive or disjunctive, and it is plain Qualls, no doubt advised to do so, chose the conjunctive use so as to interpret the interrogatory as, “have you ever been arrested and convicted of any crime,” to which he could truthfully say, “no.” The record confirms our view: when asked in-chambers if he recalled answering the interrogatory, he said, “And/or, yes sir.”

We do not suggest discovery should be treated as a game of cat and mouse, or that one litigant should be rewarded by the artful avoidance of truthful answers to proper questions. But that is not the issue before us. Our task is to determine whether (as best we can with no abstract of relevant in-chambers proceedings) the evidence of false swearing was so clear the trial court abused its discretion by excluding it for impeachment purposes. We think not under all the circumstances.

Unif. R. Evid. 608(b) speaks to the issue to this extent: it empowers the trial judge in his discretion to permit specific instances of conduct to be inquired into on cross-examination for purposes of attacking credibility, provided those matters are probative of truthfulness or untruthfulness. Whether the ruling in this instance was based on a belief Qualls answered the interrogatory truthfully, albeit technically, or that the alleged arrests had no bearing on truthfulness, or that prejudice outweighed probative value, or even that the proof of the alleged arrests was questionable, cannot be determined without going to the record. In the end we cannot say the trial judge erred in refusing it for impeachment purposes.

Next, appellant contends he should have been permitted under Unif. R. Evid Rule 404 to show the rapes as evidence of violent character. But Rule 404 deals with character evidence, proved not by specific instances of conduct, as here proposed, but by reputation or opinion, as provided in Rule 405. Moreover, the Rule states that character evidence is not generally admissible to prove that one acted in conformity with such character on a particular occasion. In Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984), we said Rule 404 did not permit the introduction of evidence that Pursley had a tendency for violence when drinking, but the proof became admissible because Pursley opened the door by first offering proof he was not of a violent nature. See also Adams v. State, 93 Ark. 260, 124 S.W. 766 (1910).

Another point is the trial court erred in allowing Dr. Robert Dow, a Fayetteville neurologist, to testify that dental, hospital and x-ray services were reasonable and necessarily incurred by Qualls as a result of the fight. After establishing Dr. Dow’s medical experience, counsel for appellee submitted his qualifications as an expert, and he testified concerning Qualls’ complaints from the trauma. He said he was generally familiar with the cost of x-ray’s and dental work in the Fayetteville area and we are unable to say the trial court abused its discretion in permitting him to express an opinion on these matters. See Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984).

Appellant also maintains the trial court should have granted a motion for mistrial on the ground that a defense witness was intimidated by Qualls’ attorney. The witness was with Boren when he and Qualls fought and supported Boren’s version of the incident. He testified at an in-chambers hearing on the motion that he was an employee of Qualls’ attorney, William Storey, who was surprised to see him at the trial. The witness said at first he thought he was being intimidated and his job might be in danger. He later said Storey had not tried to prevent him from testifying and had said he would not hold it against him. In the end, the witness said he was not intimidated and would testify only to the truth. There is no suggestion he did otherwise. We find no basis to overturn the trial judge’s denial of a mistrial. Back v. Duncan, 246 Ark. 494, 438 S.W.2d 690 (1969).

The final point is that there is no evidence to support submitting the issue of punitive damages to the jury. No objection to the punitive damage instruction appears in the abstract, but aside from that, it can hardly be questioned that punitive damages are recoverable by one who suffers injury as a result of blows intentionally inflicted. See Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972).

In response to the dissenting view, we do not go to the record to reverse. First National Bank of Brinkley, Ark. v. Frey, 282 Ark. 339, 668 S.W.2d 533 (1984); Routen v. Van Dyse, 240 Ark. 825, 402 S.W.2d 411 (1966); Tenbrook v. Daisy Mfg. Co., 238 Ark. 532, 383 S.W.2d 101 (1964).

The judgment is affirmed.

Hickman, J., concurs.

Hubbell, C.J., and Dudley, J., dissent.

Darrell Hickman, Justice,

concurring. The debate between my colleagues is interesting but both opinions overlook that the appellant did not even abstract the basis of the discussion: the affidavit. I would affirm under Rule 9. Ark. Sup. Ct. R. 9.

Robert H. Dudley, Justice,

dissenting. Credibility was the key issue in this trial as each party testified the other started the fight. It was crucial that each party be allowed as full an impeachment of the other’s credibility as the rules of evidence allow. Since the trial court erroneously excluded evidence to impeach the credibility of the appellee, I would reverse and remand for a new trial.

Prior to the trial, in response to an interrogatory, the appellee answered under oath that he had “never been arrested and/or convicted of any crimes.” At trial, in order to impeach the credibility of appellee, appellant sought to cross-examine the appellee about the falseness of his sworn statement. The trial court erroneously sustained appellee’s objection. Appellant proffered evidence to prove false swearing by showing that appellee had been arrested for rape in 1980, for theft by receiving in 1981 and for rape in 1982. False swearing is probative of character for untruthfulness and, unless that probative value is substantially outweighed by danger of unfair prejudice, may be inquired into on cross-examination. Rule 608(b), Unif. Rules of Evid., Ark. Stat. Ann. § 28-1001 (Repl. 1979 and Supp. 1983); Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979); Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). The trial judge did not rule that the probative value of the false swearing was outweighed by the danger of prejudice. See Ruel 403, Unif. Rules of Evid. Instead, he simply erroneously sustained objections to the questions.

The majority opinion does not directly address the issue of false swearing, even though it is the first point of appeal. Instead, it recites that the phrase “and/or could have been interpreted as conjunctive or disjunctive” and “it is plain Qualls [appellee], no doubt advised to do so, chose the conjunctive ...” and therefore, according to the majority the evidence of false swearing was not before the trial court.

Before anything else, each person who reads the majority opinion and this dissenting opinion should be aware that the appellee has never argued, or even mentioned, at trial or on appeal, nor did the trial court mention, the distinction between conjunctive and disjunctive phrasing; that rationalization for the erroneous ruling is given for the first time in the majority opinion. To demonstrate the point, and to emphasize that there was no misunderstanding at trial, and this is nothing other than an erroneous evidentiary ruling, the following is quoted directly from appellee’s brief:

The appellant sought to elicit testimony concerning prior acts of misconduct by appellee to impeach his credibility. The Court excluded the testimony on the basis on Rule 609, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979). This rule states that “for the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one year . . . and the court determines that the probative value of admitting this outweighs its prejudicial effect to a party or witness, or (2) involved dishonesty or false statement, regardless of punishment.”
This rule applies to convictions of crimes. The theft and rape incidents referred to by the appellant were not convictions. So the trial court properly excluded cross-examination testimony on specific acts which did not result in conviction.

Perhaps nothing demonstrates as clearly as the actual trial record that there was no misunderstanding, but only an erroneous ruling:

Mr. Segers: [appellant’s attorney] Your Honor, the following evidence is proffered for the purpose of impeachment purposes only.
The Court: Alright, let the record show that the jury has been excused for the lunch period, and this testimony is without the hearing of the jury. Proceed.
Q. Mr. Segers: Mr. Qualls, do you recall signing an interrogatory, — answers to interrogatories, on the 22nd day of September, 1983, where I asked you specifically, “Please state if you have ever been arrested and/or convicted of any crimes?” and, you answered: “No.”?
A. And/or yes, sir.
Q. Mr. Segers: O.K., specifically, had you not been arrested for theft by receiving in August of 1981?
Mr. Storey: [appellee’s attorney] I object, Your Honor
The Court: What was the question?
Mr. Segers: The question was: Is it not true that you were arrested in August of 1981 for theft by receiving?
The Court: I will sustain the objection.
Mr. Segers: For the purpose of the record, we would like to proffer that if he had answered the question, the answer would be, yes.
Q. Mr. Segers: Were you not arrested in North Little Rock on May the 23rd on 1980 on a charge of rape?
Mr. Storey: Objection, Your Honor:
The Court: Sustained.
Mr. Segers: For the purpose of the record, had he answered correctly and honestly, the answer would be: Yes.
Q. Mr. Segers: Were you not arrested on July the 16th, 1982 for the charge of rape?
Mr. Storey: Objection, Your Honor.
Mr. Segers: Your Honor, let the record show that if the witness had answered fairly and honestly, the answer would be in the affirmative.

Again, to clearly demonstrate that there was no misunderstanding, and to clearly show the issue of false swearing, after the proffer, appellant’s counsel stated:

Mr. Segers: It is the purpose of introducing this evidence not for introducing as to Rule 609 of the Arkansas Rules of Civil Procedure, but only to introduce the evidence to show the truth and veracity of Mr. Qualls and concerning the fact that he has sworn under oath before this court in writing and verbally that he has never been convicted of any crimes, either felony or misdemeanor, and he, in fact, has. I think that his testimony is admissible testimony that goes to impeaching his credibility. If he had signed an affidavit saying he had never been convicted of a felony, or an act involving dishonesty or a false statement, then, that would be cover, (sic) That would be proof, and there is nothing that this court could do or I could do to introduce the testimony; in that he has, in fact perjured himself in writing and verbally, — I, — I think it’s admissible.
# # #
Mr. Segers: Now, Your Honor, I am not arguing with the court. Please believe me, I just want to make my record.
The Court: Sure, sure.
Mr. Segers: And, that is that we are not trying to introduce that he committed a crime. It is our opinion that it would be different had the evidence to it said he had paid the bills, and I could come in here and show that he did not pay the bills, which would go to his honesty. He has said, I have never done something, and I think it’s admissible, — not as to the crime. I agree wholeheartedly with the court that the crime in and of itself could not be admissible. The fact that he was on the stand and made a statement under oath that I can show is not true, that would go to his truth and veracity, and would impeach him. Thank you.

There was no misunderstanding over the disjunctive or conjunctive use of the phrase “and/or” and the issue of false swearing was clearly presented. The trial record demonstrates that each person involved understood that the appellee had sworn that he had never been arrested for any crimes and that the affidavit so stating constituted false swearing. The trial judge erred in excluding evidence of false swearing. It was prejudicial to appellant since he was not allowed to fully impeach the credibility of appellee. Since credibility was the key to the trial, the erroneous ruling deprived appellant of a fair trial. I would reverse and remand for a new trial.

Hubbell, C.J., joins in this opinion.

      Cases holding that mere arrests, as opposed to convictions, of crime may not be used for impeachment are: Moore v. State, 256 Ark. 385, 507 S.W.2d 711 (1974); Polk v. State, 252 Ark. 320, 478 S.W.2d 738 (1972); Thacker v. Hicks, 213 Ark. 822, 212 S.W.2d 713 (1948).

      Record, P. 104.


author: Steele Hays, Justice. Darrell Hickman, Justice,

text:
    Jessie C. JOHNSON and Evie Lou JOHNSON v. William C. WYLIE
    84-119
    679 S.W.2d 198
    Supreme Court of Arkansas
    Opinion delivered November 15, 1984

      Shackelford, Shackleford ér Phillips, P.A., for appellant.

      Steve Clark, Att’y Gen., by: Kay J. Jackson Demailly, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

By this appeal we are asked to determine whether the trial court abused its discretion in declaring Road No. 244 in Calhoun County to be a county road pursuant to Act 166 of 1983, and whether that act is unconstitutional.

Road 244 is a gravel road running west from Highway 167 in Calhoun County. It is located for the most part on lands belonging to Calion Lumber Company and ends in a cul-de-sac at Champagnolle Creek, a feeder of the Ouachita River. The road serves some ten or twelve families, including John and Pauline Bean and the appellants, Jessie and Evie Lou Johnson. The Johnsons own lands at the turnaround, with the Beans having an easement. Disputes between the Beans and the Johnsons over the use of the road have resulted in two previous suits, the more recent terminating in this court on April 25, 1983. See Bean v. Johnson, 279 Ark. 111, 649 S.W.2d 171 (1983).

In 1983 the Arkansas General Assembly enacted Act 166, amendingActs461and666of 1923 [Ark. Stat. Ann. § 76-104 et seq. (Repl. 1981)], giving county judges the discretion to designate roads used as school bus routes as county roads and obligating the county to maintain and repair roads having been so designated.

In July of 1983, the county judge declared the road to be a county road and the Johnsons filed suit against him to set the order aside. The Chancellor held for the county judge upon a finding the road had been used as a school bus route for ten years or longer and had been maintained by the county for an equal period. He upheld the constitutionality of the statute. We affirm the decree.

On appeal the Johnsons urge the order of the county judge was an abuse of the discretion given him under the act. We disagree with that contention. The argument is grounded on the fact that a number of individuals testified they did not want the road declared a county road, the exception being John Bean, whose objective was said to be the sale of his property. Appellants submit the taking was to further the interests of the Beans.

Appellee admitted giving consideration to Bean’s request, but that cannot be said to be the only reason for his action. He said there had been problems over the use of the road for several years; that people had asked him why they couldn’t use the road if it was a route for the school bus. They complained of being stopped on the road and verbally abused. Appellee had discussed the problem with a mail carrier, the sheriff and a Hampton city councilman prior to his actions. He said he already regarded the road as being a county road, the only one he knew of serving as a school bus route which had not been designated as a county road. These factors, and more importantly, the prolonged use as a school bus route and the maintenance for many years by the county provide an ample basis for the appellee to have acted under the statute. The Chancellor’s finding that the appellee did not exercise his discretion improperly is not clearly against the preponderance of the evidence. ARCP Rule 52.

The argument that Act 166 is unconstitutional is also without merit. Certainly under Article 2, Section 22 of our Constitution, private property may not be appropriated for public use without just compensation. But there was no taking here in the sense contemplated by the Constitution and the several cases cited by appellants. Where an owner permits what might otherwise have been a private road to be used as a school bus route for upwards of ten years and permits the county to repair and maintain the road for a comparable period, he cannot be heard to complain that his property has been taken without compensation. In effect, the declaration of public usage simply recognizes what his actions have already created by sufferance. Mr. Johnson conceded the school bus had used the road regularly and the county had applied gravel and used a grader on the road once or twice a year. Given the strong presumption in favor of the constitutionality of legislative enactments the Chancellor’s holding that Act 166 is not unconstitutional was not error as applied to the facts of this case. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983); Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980).

Appellee submits that in our recent decision in Neyland v. Hunter, 282 Ark. 323, 668 S.W.2d 530 (1984), we upheld the constitutionality of Ark. Stat. Ann. § 75-104 and 105 (Repl. 1981), which Act 166 amended. But constitutionality was not argued in Neyland. We held those sections were not intended to be literally construed to shorten the duration of seven years required for a prescribed easement to take effect, the adverse time lapse in Neyland being just over two years.

We need not determine whether that same interpretation applies to Act 166, as the time element is undisputedly in excess of ten years, and the Act is dependent upon a circumstance not prescribed in § 75-104 and 105, i.e. the exercise of discretion by the county judge in declaring the road to be a county road. No doubt the duration of usage as a school bus route and the extent of maintenance by the county will have its influence on the exercise of such discretion in other cases. Clearly the county judge in this case was influenced by these factors.

Appellant’s final argument that they are entitled to an injunction prohibiting entry to the road pursuant to the order is answered under the other points.

The decree is affirmed.

Hickman, J., and Hollingsworth, J., dissent.

Purtle, J., not participating.

Darrell Hickman, Justice,

dissenting. The county judge, acting pursuant to Act 166 of 1983, declared a private road to be a “county” road. As a result, the appellants were deprived of their private property without compensation. They appealed and the chancery court found the act in question constitutional.

The act is so obviously unconstitutional it should be summarily stricken. However, this is not the first time the power of the state to take private property has been approved by us without serious scrutiny. See Young v. Energy Transportation Systems, Inc., of Ark., 278 Ark. 146, 644 S.W.2d 266 (1983). The act provides: “The county judge may, in his discretion, designate as county roads, roads used as school bus routes.” Ark. Stat. Ann.§ 76T06(Supp. 1983). The act is unconstitutional because, among other things,it deprives landowners of their property without just compensation.

It is undisputed that the road in question was a private road. A county judge does not have jurisdiction to decide whether a condemnation is for a private or public purpose; that is, whether this private road was needed to become a “county” road ot a public road. Jurisdiction for that decision is in chancery court. Gilbert v. Shaver, 91 Ark. 231, 120 S.W. 833 (1909). So, the “hearing” the county judge held among the people who were using the road was illegal. The state’s power of eminent domain is not an unbridled power. It is a power which this court has limited. The ownership of property is such an important right of the people of this state that it must be protected. We have done so by strictly construing the statutes that exercise the right of eminent domain in favor of the landowner against the condemnor. City of Little Rock v. Raines, 241 Ark. 1071, 411 S. W.2d 486 (1967); City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W.2d 30 (1958).

This statute is merely a device by which a county judge can avoid the constitution and Ark. Stat. Ann. §§ 76-901 et seq. which provides the legal way to declare a road a county road and which expressly provides for compensation if a private road is so declared. Ark. Stat. Ann. § 76-923. Although county judges encounter problems in dealing with private roads that are being used by others and as school bus routes, that is hardly justification for violating the Arkansas and United States constitutions. There are no limitations in the statute at all.

The majority makes light of the issue of “taking.” “Taking” has been defined as “any substantial interference with the free use and enjoyment of property.” Vol. 1, Nichols, Eminent Domain, § 6.01 (1) p. 6-10 (3rd Ed. 1984). Here, the property was taken by the county and the appellants have been denied their use and enjoyment of the property. Appellee argues that there was not a taking since the county has helped maintain the road for ten years. Obviously, the county did not have to maintain the road and this act cannot justify avoidance of the constitution. Furthermore, maintenance is not a claim of right, and the county must compensate the owner for the land when it is subsequently taken. City of Stamps v. Beasley, 224 Ark. 132, 271 S.W.2d 936 (1954).

Was there a taking in this case? Taking has been defined as “an entering upon private property for more than a momentary period, and, under the warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof.” 26 Am. Jur. 2d, Eminent Domain, § 157 (1966), This court found a taking by the highway department, even though it had a right to take, but did so without j ust compensation to the landowner or when it was taken for a use other than one for the public. Cathey v. Arkansas Power & Light Co., 193 Ark. 92, 97 S.W.2d 624 (1936).

Before the declaration was made by the county judge that this was a public road, this road was a private road from which the public could be excluded. Without due process of law, a county judge, pursuant to a statute, has altered permanently property interests in this road and based it solely on the fact that a school bus has used it.

The United States Supreme Court treats the question of taking more seriously than the majority. In Penn Central Transportation Company v. City of New York, 438 U.S. 104 (1978), the court held that an interference with private property by the government is a taking if the taking can be considered to be a physical invasion by the government. In the instant case, the county did physically invade the appellants’ property by declaring the appellants’ road to be a public road.

Besides the fact that all statutes granting the power of eminent domain must be strictly construed in favor of the landowner, which the majority is not doing, there is the requirement in the United States Constitution that a person cannot be deprived of his property without due process of law. See Neyland v. Hunter, 282 Ark. 323, 668 S.W.2d 530 (1984) (Hollingsworth, J., concurring). In such cases there are five considerations. The property must be private, taken, for a public use, for just compensation and with an opportunity to be heard.

It is undisputed that this is private property and by declaring the road a county road, it was taken. The county received at least a limited interest in the land. At a minimum the county will receive an easement with the original owner retaining the fee. Freeze v. Jones and Harvel, 260 Ark. 193, 539 S.W.2d 425 (1976); Taylor v. Armstrong, 24 Ark. 102 (1863).

It is undisputed that the taking was without any compensation. That is the purpose of the statute, to avoid proper legal procedure and compensation. The due process clause requires that a landowner be given an opportunity to be heard. A “hearing” in the county judge’s office is hardly what the law has in mind. Even though Article 7 § 28 of the Arkansas Constitution grants the county court jurisdiction over all matters concerning county roads, that section does not apply to condemnation proceedings. Road Improvement District No. 6 v. Hall, 140 Ark. 241, 215 S.W. 262(1919). The statute gives the right to the county judge to act, which presumably means in his capacity as administrator, not when actingas the county court. There was no “hearing” as required by the Constitution of the United States. There is no semblance of constitutionality in this statute by any standard of law, whether it is our cases, our constitution or the United States Constitution. To suggest that a county judge “in his discretion” can take private property without just compensation is ludicrous.

I dissent.

Hollingsworth, J., joins in this dissent.


author: Steele Hays, Justice.

text:
    AAA T.V. & STEREO RENTALS, INC. d/b/a COLORTYME RENTALS v. Corine CRAWLEY
    84-128
    679 S.W.2d 190
    Supreme Court of Arkansas
    Opinion delivered November 13, 1984

      Joseph M. Erwin, and Wilson ir Wilson, by: Ralph E. Wilson, Sr. for appellant.

      Banks ir Ritchey, by: Daniel G. Ritchey, for appellee.
   Steele Hays, Justice.

Appellee, Corine Crawley, originated this action against appellant, AAA T.V. & Stereo Rentals, Inc., for invasion of privacy. Mrs. Crawley had rented a television set from AAA in March, 1982 for $15.00 per week. In September, while she was one week behind in her payments, her home was broken into and the set removed. AAA does not dispute the proof that two of its employees forced open the door of her residence while she was at work. A number of other repossessions had been effected in the same manner.

The jury awarded Mrs. Crawley $4,590 in compensatory damages and $15,000 in punitive damages. AAA has appealed, alleging four errors by the trial court. We affirm the judgment.

AAA argues it was error to allow a judgment of more than $90 for appellee’s compensatory damages. Mrs. Crawley testified she spent $90 having her front door repaired. Since this was the only actual expense she incurred, appellant submits there was no evidence to support the jury verdict of $4,590 awarded her. The answer to the argument lies in the fact the court also instructed the jury it could consider any outrage, shame, humiliation, ridicule and mental anguish suffered by Mrs. Crawley. Appellant made no objection to the instruction and offered no proposed instruction of its own. See ARCP Rule 51.

Appellant urges mental suffering would not support more than nominal damages, but we disagree. Mrs. Crawley testified she was frightened for her children when she was called off the assembly line to be told her home had been broken into. She called the police and hurried home to find the front door and facing badly damaged. She said she was upset and embarrassed that everyone at hev job knew about the incident! The court’s instruction permitted the jury to weigh the feelings which might be expected to follow when one’s home is invaded by outsiders who have no lawful right to be there. Under our cases the verdict will ordinarily not be disturbed on appeal unless clearly the result of passion or prejudice, or so great as to shock the conscience of the court. Hambry v. Haskins, 275 Ark. 585, 630 S.W.2d 37 (1982); Sterling Stores Co. v. Martin, 283 Ark. 1041, 386 S.W.2d 711 (1965); Missouri Pacific Railroad Co. v. Simon, 199 Ark. 289, 135 S.W.2d 336 (1940). This jury may well have felt a degree of indignation over the flagrant intrusion suffered by Mrs. Crawley at the hands of AAA’s employees, but the amount is not so great as to indicate an impassioned verdict. Accordingly the verdict will stand. See Price v. Watkins, 283 Ark. 502, 6785.W.2d 762 (1984).

Next, AAA insists the trial judge gave an incorrect instruction on punitive damages. It contends the jury should have been instructed in accordance with AMI 2217, the prescribed instruction on punitive damages, whereas the court gave its own punitive damage instruction. The argument overlooks our holding in Ford Motor Co., v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979), where we said AMI 2217 was drafted for use in negligence cases and should not be given where an intentional tort is involved. See Tandy Corporation, et al v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). AAA points out the trial judge did not comply with our Per Curiam order of April 19, 1965, by failing to state his reason for modifying an AMI instruction. But we will not reverse for that omission when the reason is obvious and the modification is in accordance with our decisions. AAA has not challenged the substance of the instruction as given and we have not dealt with that question.

The two remaining points deal with the instruction on invasion of privacy and may be answered together. AAA contends the instruction was wrong because (1) it told the jurors an invasion of privacy entitled the plaintiff to substantial damages, and (2) it failed to define the invasion as an unreasonable and substantial intrusion upon the seclusion of another, in accordance with CBM of Central Arkansas v. Bemel, 274 Ark. 223, 623 S.W.2d 518 (1981) and Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979).

These arguments must fail because the only objection to the instruction was the broad assertion that there was “no legal authority” for such instruction. ARCP 51 provides:

A mere general objection shall not be sufficient to obtain appellate review of the trial court’s action relating to instructions to the jury except as to an instruction directing a verdict or the court’s action in declining to do so.

An objection which merely complains that a jury instruction “is an incorrect declaration of the law,” is a general objection, preserving no point for review. CBM of Central Arkansas, Inc. v. Bemel, supra; Chandler v. Kirkpatrick, 270 Ark. 74, 603 S.W.2d 406 (1980); Capital Sheet Co. v. Foster ir Creighton Co., 264 Ark. 683, 574 S.W.2d 256(1978).

Affirmed.


text:
    James BENNETT v. STATE of Arkansas
    CR 84-119
    679 S.W.2d 202
    Supreme Court of Arkansas
    Opinion delivered November 13, 1984

      Griffin, Rainwater ir Draper, by: Paul S. Rainwater, for appellant.

      Steve Clark, Att’y Gen., by: Marci L. Talbot, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant was charged with the aggravated robbery of a grocery store in Crossett, Arkansas. At a jury trial, testimony was heard from the admitted accomplice in the robbery and several other witnesses. The appellant, allegedly the gunman, wore a ski mask during the commission of the offense and only the accomplice was able to identify him as the gunman. Appellant was found guilty and sentenced to thirty-five years.

Appellant first argues that a directed verdict should have been granted because of insufficient corroboration of the accomplice’s testimony. A conviction cannot be had on the testimony of an accomplice alone. Ark. Stat. Ann. § 43-2116 provides:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.

We have said in applying this statute: “The test of the sufficiency of corroboration of the testimony of an accomplice is whether there is other evidence tending to connect the defendant with the commission of the offense which goes beyond a showing that the crime was committed and the circumstances thereof. The corroborating evidence need not be sufficient in and of itself to sustain a conviction, but it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime.” Sargent v. State, 272 Ark. 366, 614 S.W.2d 507 (1981); Anderson v. State, 256 Ark. 912, 511 S.W.2d 151 (1974).

Viewing the evidence in the light most favorable to the appellee, we find the corroborating evidence sufficient to sustain a verdict of guilt. The appellant was located six hours after the robbery in a motel about forty miles from Crossett. He had approximately $248 at the time and the store owner had testified that approximately $350 had been taken during the robbery. Two witnesses in the store testified that the gunman was wearing a blue tank top and black pants. When the appellant was arrested shortly after the robbery he had on a blue tank top and a pair of black jeans which were introduced by the state. There was evidence that the gunman and appellant were of a similar build. Witnesses testified the gunman had wrapped bandanas around his left arm and hand. The appellant had two tattoos on his left arm and one on his left wrist, and while there was no testimony as to why the bandanas were worn, it is within the jury’s province to draw any reasonable inferences from all circumstantial as well as direct evidence presented. Harshaw v. State, 275 Ark. 481, 631 S.W.2d 300 (1982).

There was additional corroboration of the accomplice’s testimony for the jury to consider. The accomplice stated that just prior to the robbery he and appellant hid in the alley by the store for a few minutes and discussed their plans. A witness who was passing by the store testified his suspicions were aroused when he saw two men lingering in the alley next to the store. He stopped to watch and saw the two carry out the robbery. The accomplice indicated in his testimony that he and appellant wanted to rob the store when the owner was not there and planned the robbery around his absence. Both the owner and the manager who was present during the robbery suggested the owner’s known presence in the store was a deterrent to potential incidents that might occur in the store. The accomplice also testified he had carried a knife with him which he hadn’t used. Although in the store during the robbery he was not initially implicated and asked to go to the bathroom where he disposed of the knife in a trash can. The manager testified the accomplice had gone to the bathroom right after the robbery and the police recovered a large butcher knife in the bathroom trash can. This corroboration, though not on substantive issues, did enhance the credibility of the accomplice’s testimony. If an accomplice is corroborated as to some particular fact or facts, the jury is authorized to infer that he speaks the truth as to all. Dyas v. State, 260 Ark. 303, 539 S.W.2d 251 (1976); Payne v. State, 246 Ark. 430, 438 S.W.2d 462 (1969). There were inconsistencies mother parts of the accomplice’s testimony but he testified he was intoxicated during the commission of the robbery, which the jury may have considered to account for any conflicts, and we have said in any case the credibility of a witness is a matter within the province of the jury; they may accept or reject any or all of a witness’s testimony. Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977).

We think the evidence here meets the requirements of our statute. It tends to connect the appellant with the crime and goes beyond a mere showing the crime was committed and the circumstances thereof.

As his second point, appellant argues that the court erred in refusing to grant a mistrial on the basis of testimony elicited by the prosecution concerning the appellant’s prior record. The prosecutor asked one of the officers, in laying a foundation for questions about the appellant’s tattoos, “You’ve had occasions to book, fill out an arrest on James Bennett, hadn’t you?” A: “Yes, sir, I have.” An objection was raised and a request for a mistrial was made. The request was denied and the judge immediately admonished the jury. The only other reference the appellant objects to is the next answer and question concerning the tattoos, which made reference again to appellant’s record: A: “I haven’t seen any [tattoos].” Q: “Your records indicated where the tattoos are?” A: “Yes, sir.” No objection however was made to this second reference.

The trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial and the decision of the trial court will not be reversed except for an abuse of that discretion or manifest prejudice to the complaing party. A cautionary instruction to the jury can make harmless any prejudice that may occur, and the mistrial will be granted only where any possible prejudice cannot be removed by an admonition to the jury. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982). In both Hill, supra and Sanders v. State, 277 Ark. 159, 639 S.W.2d 733 (1982), limited exchanges occurred very similar to the one at issue. In both cases we found that the admonishment to the jury was sufficient to remove any prejudice.

Affirmed.

Hickman, Purtle, and Hollingsworth, JJ., dissent.

Darrell Hickman, Justice,

dissenting. The majority emphasizes the word "tend” in a case involving corroboration of the testimony of an accomplice which to me is notice that the decision merits a close examination. In my judgment the evidence falls short in this case.

Bennett was not identified by anyone at the scene of the crime, nor was there any evidence that he was even in town at the time. By the state’s admission, he was arrested at least six hours after the robbery in another town forty miles away. He did have on him about $248 and he had on a blue tank top and black jeans which is what the victim testified that the robber wore.- That is the only evidence that the state has to justify the finding that the evidence tended to connect this appellant to the crime. This is simply too tenuous a connection. This nondescript clothing, while it might be considered unusual clothing to some, is certainly not sufficient evidence to send a man to the penitentiary for thirty-five years. Furthermore, no witness testified that the clothing the appellant wore was the same that the robber wore.

In my judgment the test set forth in Ark. Stat. Ann. § 43-2116 (Repl. 1977), which requires evidence “tending to connect the defendant” with the crime, has become a subjective rather than objective test. The evidence must be substantial and prove the connection, not merely corroborate the accomplice’s testimony. It must be of a material nature and legitimately tend to connect the accused with the crime. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). The statement of an accomplice is suspect because it is made by an individual who admits the crime in question and has invariably made a deal with the state to shift the major blame, if not all of the blame, on another. The Arkansas legislature has recognized this sort of evidence for what it is in Ark. Stat. Ann. § 43-2116. In times past we have been careful in scrutinizing the corroborating evidence. For instance, in Washington v. State, 251 Ark. 487, 473 S.W.2d 157 (1971), the appellant was found in an apartment where merchandise from a robbery was found the night of the robbery. A co-defendant had confessed that he and others, including the appellant, had been drinking and later “they” robbed the store. There the evidence “tended” to connect the appellant with the crime and was much stronger than the evidence presented here. Yet, we reversed the conviction. See also Pollard v. State, 264 Ark. 753, 574 S.W.2d 656 (1978).

The evidence in this case which might tend to connect this defendant concerns some tattoos on Bennett’s left arm. One of the witnesses had said that the robber had bandanas on his left arm and hand. The inference to be drawn from this evidence is that since Bennett had tattoos, he had covered them up with bandanas. This evidence is tarnished by the fact that the state attempted to show, through a police officer’s testimony, that Bennett had an arrest record which noted that he had tattoos on his left arm. The police officer testified as follows: State’s attorney: “You’ve had occasions to book, fill out an arrest on James Bennett, hadn’t you?” Police officer: “Yes, sir, I have.” The appellant asked for a mistrial, it was denied, and the court admonished the jury to “disregard any statements of any prior bookings that this officer has made of the defendant.” (Italics supplied.) The officer was asked if he had seen any tattoos on Bennett and he said no, but offered on his own that police records indicated that the appellant did have tattoos. A further objection was made and this objection was sustained by the court. The récords were not permitted to be introduced. So, we have a situation where it was clearly before the jury that Bennett had been arrested before.

The admonition of the court certainly could not remove the prejudice caused by the officer’s statement. It is particularly prejudicial since the existence of the tattoos was critical to the state’s, case. This inadmissible evidence revealed to the jury that Bennett had a criminal record and had tattoos before the crime was committed. In view of the scarcity of the state’s evidence, I do not find the admission of this evidence to be harmless. If the state had found any bandanas on Bennett when he was arrested, that would have satisfied the requirement of corroboration; but he was found with no bandanas. He only had on a blue tank top, black jeans and money in his pocket. To me, the majority’s decision means that a man forty miles away with those clothes on and with money can easily be found guilty of a crime committed by someone in another city wearing similar apparel. In my judgment the evidence is simply lacking.

I respectfully dissent.

Purtle and Hollingsworth, JJ„ join in this dissent.