author: Carleton Harris, Chief Justice.

text:
    Gilbert JACKSON v. STATE of Arkansas
    CR 73-13
    492 S.W. 2d 897
    Opinion delivered April 16, 1973

      Louis W. Rosteck, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Frank B. Newell, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Petitioner, Gilbert Jackson, was sentenced to six years confinement in the Arkansas Department of Correction for Assault with Intent to Kill on June 18, 1969, and on November 20, 1969, was sentenced to one year imprisonment after pleading guilty to Escape, such sentence to commence at the expiration of the six year sentence, meaning that it was a consecutive sentence. Jackson filed a petition under the provisions of Criminal Procedure Rule I, asserting that his sentence was illegal, it being contended that there was no longer any authority for a consecutive sentence, and on hearing, it was further contended that the sentence should be set aside, or ordered to run concurrently, with the six year sentence. The trial court declined to grant relief, and from the judgment entered denying the petition, petitioner brings this appeal.

Here, it is now admitted that the court has authority to enter a consecutive sentence. See Ark. Stat. Ann. § 43-2311 (Repl. 1964). However, petitioner points out that Act 50 of 1968, codified as Ark. Stat. Ann. § 43-2807 (Supp. 1971), does away with consecutive sentences for parole eligibility purposes and makes all sentences cumulative (for parole purposes), and mentions the wording of the last sentence of this section, which reads as follows:

“For parole eligibility purposes, consecutive sentences by one or more courts, or for one or more counts, shall be considered as a single commitment reflecting the cumulative minimum and maximum time to be served.”

It is then argued that the words “single commitment” should be interpreted as authorizing only a single sentence, i.e., the one year sentence, and it is asserted that the wording of the statute mentioning consecutive sentences is merely superfluous.

We do not agree with this last argument nor with the interpretation reached by petitioner. Paragraph 1 of sub-section (c) of § 43-2807 provides:

“Individuals sentenced to a term of years prior to March 1, 1968 and those sentenced to a term of years after the effective date (February 12, 1969) of this Act, shall be eligible for release on parole after having served one-third (1/3) of the time for which sentenced with credit for good time allowances or one-third (1/3) of the time to which such sentence is commuted by executive clemency, with credit for good time allowances.”

And, the last line of the section, heretofore quoted, simply means that the six years plus the one year shall be treated as a single commitment. In other words, Jackson became eligible for parole after serving two years and four months less any credit for good time allowances. Petitioner seems to be under the impression that his failure to be paroled is due to the additional one year sentence, counsel stating in his brief that the “effect of the one-year sentence has apparently caused him to flatten a year.” Apparently, as pointed out by the Attorney General, petitioner is failing to give proper consideration to the word “eligibility” for parole. Of course, being eligible for parole on the basis of the time served, and being paroled are two different matters. Undoubtedly, other factors are considered by the parole board in addition to the amount of time served, one, of course, being the prisoner’s conduct. At any rate, there is no evidence in this record to sustain any allegation that the Department of Correction is ignoring or misinterpreting Ark. Stat. Ann. § 43-2807.

To summarize, we hold that under § 43-2807 (c) (2), petitioner’s six year and one year sentences are to be considered cumulatively as a seven year sentence, eligibility for parole being governed by § 43-2807 (c) (1). “Cumulative minimum” means the minimum sentence possible to be served under the provisions of § 43-2807 and “cumulative maximum” means the total amount of time fixed for incarceration as shown by the face of the commitments, considered as a single cumulative commitment.

There being no evidence that the parole board is ignoring or misconstruing the statute under discussion, or that Jackson is being held contrary to law, the judgment of the Pulaski County Circuit Court (First Division) is affirmed.

It is so ordered.

      On the same date that Jackson was sentenced on the charge of Assault with Intent to Kill, he escaped from the custody of the bailiff of the court and on June 20, 1969, a felony information was filed by the Prosecuting Attorney charging Jackson with Escape.

      From the Brief:
      "The problem lies in the interpretation of what is meant by a single commitment reflecting the cumulative minimum and maximum time to be served. A single commitment in the instant case would have to be interpreted as a single sentence. In the instant case it would be a one-year sentence, and the wording of making it a consecutive sentence, is merely superfluous — it has'no effect whatsoever. And then this statute further states that this single commitment shall reflect the cumulative minimum and maximum time to be served.

      There is nothing in this one-year sentence that reflects the cumulative (or added on) minimum or maximum time to be served. Technically, it would appear that this would amount to a concurrent sentence if no minimum or maximum time is specified to be served. The Court has the authority to specify that no minimum time is required to be served, or it can specify that one-third of the sentence must be served before the defendant can be eligible for parole. However, when the cumulative sentence (in this case one year) is silent as to reflecting the minimum and/or maximum time to b'e served, it should void the whole sentence for non-compliance with the statute.”


source: Caselaw Access Project

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

license: Public Domain

text:
    Vedell DICKSON Jr. v. STATE of Arkansas
    CR 73-1
    492 S.W. 2d 895
    Opinion delivered April 16, 1973

      Irvin P. Andrews and George Howard Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was charged by information with having committed an assault upon Marie Robinson, Betty Davis, and Phyliss Haynes, “as employees of Simmons First National Bank,” with the felonious intent to rob those persons. Ark. Stat. Ann. § 41-609 (Repl. 1964). Dickson appeals from a verdict and judgment finding him guilty and sentencing him to imprisonment for one year.

The State proved that Dickson and a confederate, Felton Adams, planned to rob a branch bank at a shopping center in Pine Bluff. Dickson contends, however, that the plan was not actually carried far enough to constitute an assault with the intent to rob. (See Ark. Stat. Ann. § 41-1201.) That contention must be sustained.

Only two eyewitnesses to the attempted robbery testified. Felton Adams testified that on July 8, 1971, he and Dickson drove to the shopping center in Dickson’s car, with the intention of robbing the bank. Dickson was to wait in the car while Adams held up the bank employees.

The bank was not yet open when Adams reached it at about 8:00 a.m. Wearing a mask and gloves and armed with a pistol, Adams concealed himself behind a hedge to await the opening of the bank. When the three tellers arrived they ,saw Adams and made an outcry. At that point, Adams, in his own words: “Jumped up, shot, and ran.” The shot was aimed upward and struck the roof of the bank. Adams ran back to Dickson’s car, apparently firing two shots as he ran, and the two men drove away.

Marie Robinson, who alone among the three tellers was called as a witness, gave substantially the same version of the occurrence as Adams had given. Miss Robinson had waited in her car for the other two tellers to arrive. The three then walked toward the bank together. They paused to examine the hedge or shrubbery, which had turned yellow and seemed to be dying. One or both of the others saw Adams and yelled that it was a holdup. Adams jumped up, and for an instant he and Miss Robinson confronted each other. Adams shot the pistol up in the air. According to Miss Robinson: “I then ran, and as I was running I was looking behind me, and he then fired two more shots. They were wild. They weren’t necessarily aimed at me, but they were toward my direction.” Adams ran toward a parking lot in the shopping center.

The only conclusion to be drawn from the proof is that, although Dickson and Adams meant to rob the bank, Adams abandoned the plan and ran away when he was discovered in hiding before the bank had opened. There was no demand for money or any other conduct on Adams’ part amounting to an assault upon the three women with the intention of robbing them. The judgment must therefore be reversed and the cause remanded for further proceedings.

Two of the appellant’s other points for reversal must be mentioned, for they may arise upon a retrial. The State was allowed to introduce a glove, two pistols, and other articles found in the course of a search of Dickson’s home. The only objection in the court below — an objection not renewed on appeal — had to do with the validity of the officers’ search warrant. It is now argued for the first time that some of the articles were not shown to be connected with the offense. Of course upon a new trial the burden will be on the State to show that its proof is competent and relevant.

We find no merit in appellant’s insistence that a police officer should not have been permitted to quote statements made by the appellant before he was given a Miranda warning. Immediately after the occurrence the police received a description of the getaway car, which had a Colorado license plate. Officer Beatty discovered a car fitting the description and went to Dickson’s apartment to inquire about it. He testified that he asked Dickson if he owned the car. Dickson said he did. Beatty then asked if Dickson had been anywhere that morning in the car. Dickson said he had not. Beatty also asked if Dickson had lent the car to anyone. Dickson said that he had not. Officer Beatty testified that the hood of the car was still warm when he checked it.

Officer Beatty’s testimony was admissible. When the officer went to Dickson’s apartment his purpose was to investigate rather than to accuse. Dickson was not yet in custody. As we said in Stout v. State, 244 Ark. 676, 426 S.W. 2d 800 (1968): “The officers’ investigation had not reached an accusatory stage. Miranda warnings are required when the investigation reaches custodial interrogation of a suspect.” That point had not yet been reached in the case at bar.

Reversed.

Harris, C.J., and Fogleman, J., dissent.

John A. Fogleman, Justice,

dissenting. I respectfully dissent because I do not believe that the court can say that the only conclusion a reasonable mind might reach under the evidence is that Adams abandoned the plan to rob the tellers at the bank. I think that a reasonable inference could be drawn that Adams arose from his hiding place, confronted the teller and drew his pistol as an overt act in perpetrating the robbery. Thus, there would be a jury question whether an overt act had been committed. That being the case, I would affirm the judgment of the lower court. The confederate’s testimony that he was in shock was certainly not binding on the jury as to whether he had abandoned his intent or on the question whether he committed an overt act with the intent to effectuate the plan.

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


author: Lyle Brown, Justice.

text:
    James Edward CRAWFORD v. STATE of Arkansas
    CR 73-4
    492 S.W. 2d 900
    Opinion delivered April 16, 1973

      Herschel W. Cleveland, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gene O’Daniel, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant was convicted in a single trial of burglary and rape. The six points for reversal attack the admission of evidence, the propriety of a lineup, and the refusal to admit testimony concerning the chastity of the prosecuting witness.

It was the State’s theory that appellant went to the prosecuting witness’ home at approximately eleven p.m.; that he tried to enter the house through a window; that he then kicked open the back door; that he turned out a light and raped Mary Lee Payton; and that Mary Lee promptly went to the police station and reported the incident. Mary Lee identified appellant from four photographs shown her by the officers and appellant was arrested the next morning at his work. Appellant’s defense was that he had no knowledge of the incident and swore that he was at home at the hour in question. He was corroborated by several members of his family.

Point I. The trial court should have excluded the testimony of police officers who had arrested appellant without a warrant under circumstances where a warrant should have been obtained. When appellant was advised of the nature of the investigation he spontaneously replied that he was at his home at 11:00 o’clock on the night in question. Appellant contends that the officer’s testimony in that respect should have been excluded because the officer had no warrant for appellant’s arrest. Under Ark. Stat. Ann. § 43-403 (Repl. 1964) a peace officer is authorized to make an arrest without a warrant if there are reasonable grounds to believe that the person has committed a felony. In point is McGinnis v. State, 251 Ark. 160, 471 S.W. 2d 539 (1971). In the case before us, the officer went to the home of the prosecuting witness and saw where the back door had been damaged. The prosecuting witness identified appellant as the one who committed the crimes. Reasonable grounds to arrest clearly were established.

Point II. The court erred in admitting statements made by appellant which were uttered prior to police giving Miranda warnings. Again, appellant refers to his statement made at the time of his arrest that he was home at 11:00 o’clock and remained there the rest of the night. The officers testified that the statement was spontaneous. The allegation is without merit, as evidenced by such cases as Edington v. State, 243 Ark. 10, 418 S.W. 2d 637 (1967).

Point III. It was error to admit statements of the appellant and other evidence obtained during illegal detention. (Appellant was denied the safeguards of a preliminary hearing and was therefore illegally detained.) Appellant cites Ark. Stat. Ann. § 43-601 (Repl. 1964) which provides that when an arrest is made without a warrant the accused shall be forthwith carried before a magistrate. We have on divers occasions held that the statute is directory and not mandatory and that the failure to so act does not invalidate a confession. Hollman v. State, 235 Ark. 662, 361 S.W. 2d 633 (1962), certiorari denied, 373 U.S. 933.

Point IV. The trial court erred in admitting photographs into evidence without a proper foundation being laid. It is not contended that the photographs showing the interior and exterior of the house were not accurate representations of the scenes shown. One of the pictures corroborated the State’s theory that the rear door had been damaged when entrance was made. The relevancy and admission of photographs are left to the sound discretion of the trial court and are proper when there is no abuse of discretion shown. Higdon v. State, 213 Ark. 881, 213 S.W. 2d 621 (1948).

Point V. It was error to refuse to exclude testimony relating to pre-trial lineup which was held without defense counsel being present. Appellant first contends that the showing of pictures to the prosecuting witness prior to the lineup was impermissibily suggestive. The point is without merit because there is no contention that the photograph identification procedure gave rise to probable misidentification. The probability is further refuted by the fact that the prosecuting witness said she knew the appellant and that she recognized him at the time she was assaulted. On this point we held adversely to appellant’s contention in McClain v. State, 247 Ark. 33, 444 S.W. 2d 99 (1969). Secondly, under this point appellant contends his constitutional rights were violated because he did not have an attorney present at the lineup, citing U.S. v. Wade, 388 U.S. 218 (1967). The facts before us are different than in Wade. In the case before us appellant had been advised of his rights and there is no evidence that he requested a lawyer’s presence at the lineup or that his rights were prejudiced by the absence of a lawyer. Montgomery v. State, 251 Ark. 645, 473, S.W. 2d 885 (1971).

Point VI. It was error to exclude the testimony of Elois Crawford to establish the fact that he had been having sexual intercourse with the prosecuting witness. Elois Crawford is a brother of appellant. He testified in an in camera hearing that he had intercourse with the prosecuting witness, with her consent, on four or five different occasions. Appellant’s contention is answered in the negative by the landmark case of Pleasant v. State, 15 Ark. 624 (1855). There we held that in a trial for rape, evidence tending to prove particular instances of unchastity was inadmissible, although evidence may be introduced to establish the general reputation of the prosecutrix in that respect. To the same effect see Plunkett v. State, 72 Ark. 409, 82 S.W. 845, (1904).

Affirmed.

Fogleman, J., not participating.


author: John A. Fogleman, Justice.

text:
    James D. WHITE et ux v. John Junior WHITE ex ux
    5-6109
    493 S.W. 2d 133
    Opinion delivered April 16, 1973

      Hartje & Hartje, for appellants.

      No brief for appellees.

   John A. Fogleman, Justice.

Appellants assert that the chancery court erred in denying them any interest in certain real estate that had been used in the operation of a farming partnership known as White Brothers Enterprises, in which appellant James D. White and appellee John Junior White were the partners, in refusing to set aside a deed from James D. White to John Junior White executed in 1954, and in denying James D. White compensation for his services in conducting the business of the partnership when his brother refused to participate further. This litigation was commenced by the filing by James D. White and his wife Shirley of a petition to dissolve the partnership. (Since the members of the family and some other witnesses refer to James D. as Daniel and to John Junior as Junior, we will hereafter do so.) Daniel complained that Junior was not devoting his full time to the affairs of the partnership, as required by the partnership agreement and that it had become impossible for Daniel to continue the operation. Junior and his wife, M. June White, were named as defendants. Daniel also alleged that it was agreed that he would acquire a one-half interest in all real estate theretofore owned by Junior and his wife that was used in the partnership business at a price of $23,872.16 for one-half of the personal property and $40,800 for the real estate. Daniel also sought to recover $5,000 he alleged that he had loaned Junior. Appellants prayed that the partnership be dissolved, and that the property of the partnership be sold free and clear of the dower and homestead rights of the parties.

M. June White filed an answer denying that she was a party to any partnership agreement, or that she had ever waived any interest in the lands of her husband or agreed to execute a deed to Daniel White. She alleged that the lands involved were owned by her and her husband as an estate by the entirety. She pleaded the statute of frauds as a defense.

Junior White filed an answer and counterclaim. He admitted the existence of the partnership, saying that it was to own real estate and engage in a general farming business, to which both partners were to devote their full time. He admitted an oral agreement to sell Daniel a one-half interest in the lands described in the complaint (except for two tracts) and a one-half interest in all livestock, farm equipment and inventory for a total consideration of $64,672.16, but alleged that no part of the interest in the real estate was to be conveyed until the purchase price was paid in full while the partnership was still in operation and undissolved. He asserted that he and his wife were to pay all indebtedness secured by liens in favor of the Federal Land Bank of St. Louis and Farmers Home Administration, and that four tracts were bought and paid for with partnership funds and owned jointly by the parties. Junior alleged that the partnership operated the property during 1967, 1968 and 1969 and that, after crediting payments made by James, there remained a balance of $57,-972.78 due upon the purchase price for the land and personal property, on which no payments had been made since December 1968, and that Daniel was only entitled to credit in the partnership dissolution for the payments made. Junior blamed the failure of the partnership upon his brother Daniel and, joining in the prayer for dissolution of the partnership, asked that Daniel make an accounting for his operation of the partnership after Junior had ceased to participate and had obtained other employment. He also denied owing Daniel $5,000. Junior pleaded the statute of frauds. He admitted having received partnership funds amounting to $1,121.80 for oil and gas rentals and ASC payments. In his counterclaim, he sought $30,000 damages for James’ alleged refusal to cooperate in the management of the partnership.

Daniel amended his petition to allege that the two tracts (Tracts 5 and 8) which Junior alleged were not included in the oral agreement for sale, had been deeded to the two brothers by their father in 1951 and that they had agreed that tract 5 would be the property of Daniel and tract 8 would belong to Junior. Daniel admitted that he had executed a quitclaim deed to Junior for the tracts, but alleged that the deed was without consideration and void, and had been recognized as invalid by the brothers who had acquiesced in their agreed division in spite of this deed. Junior admitted the deed from the father, but alleged that the quitclaim deed was executed in 1954, and denied all other allegations of this amendment.

In response to the answer of June White, appellants pleaded estoppel, alleging that she had taken part in the partnership operations, attended all partnership meetings, had consented and agreed to the sale of the real estate and by her actions had led appellants into undertaking the venture and making payments toward the purchase of the real estate.

It was admitted that the two brothers and their wives had signed notes and mortgages to Central Arkansas Production Credit Association to secure indebtedness for the use and benefit of White Brothers Enterprises. The personal property was sold at auction during the course of the proceedings. It brought net proceeds of $51,025.08, out of which such an indebtedness of $20,-508.27 to First Security Bank at Searcy was retired.

The chancellor made comprehensive findings which included the following:

John Junior White was the owner of all of the lands and personal property to be used by the partnership. The lands and real estate were then subject to mortgages and liens to secure debts of John Junior White, and he has personally made the payments thereon for 1967 and each calendar year thereafter.
The partners agreed that James D. White might purchase a one-half interest in all of the property at agreed values as follows:
Lands (one-half interest) $40,800.00
Personal Property (one-half interest) 23,872.16
That no due dates were set for payment of said purchase price, but that it would bear interest at the rate of 6% per annum.
The partners operated the partnership during 1967 to 1969, when the profits of the partnership began to materially decrease, and in 1970 it operated at a loss.
The partners had disagreements as to operating policies, division of labor and management. In January of 1969, defendant, John Junior White, delivered the books of the partnership to plaintiff, James D. White, who kept the same thereafter.
The partners, during 1967, 1968, and 1969, paid equal amounts weekly to their wives, as household operating expenses, and in addition, from time to time, and each time by agreement, drew equal amounts of money from the business.
At various times during the years 1967, 1968, 1969 and January 1970, plaintiff, James D. White, made payments to defendant, John Junior White, in varying amounts to be applied upon the purchase price of the one-half interest in the partnership property, the total of such payments being $19,-975.00.
In the operation of the business substantially all of the original equipment, supplies and livestock and other personal property contributed by John Junior White were sold and converted into other equipment, supplies and different types of livestock.
The partnership purchased out of the partnership funds the following real estate: * * * (Tracts 14, 15, 16 and 17.)
In January 1970, the plaintiff, James D. White, refused to agree to further withdrawals by the partners and John Junior White thereupon withdrew from further operation of the partnership. Thereafter he contributed no further labor or effort to the operation.
* * *
During the year 1970, the plaintiff, James D. White withdrew and paid himself, as salary, from partnership funds $5,040.00, and during 1971, • $2,240.00. During such time he operated the properties. There was no agreement between the parties as to the withdrawals.
The plaintiff, James D. White, conveyed to the defendant, John J. White, in the year 1954, the lands designated as: * * * (Tracts 5 and 8) and the plaintiff no longer has any right, title or interest therein.
The defendant, John J. White is indebted to the plaintiff, James D. White, in the sum of $5,000.00 evidenced by the Note dated February 3, 1966, with interest at the rate of 10% per annum from the 3rd day of February 1966.
* # # ■
The defendants, John J. White and June White, are entitled to a return of all lands and real estate contributed by them at the beginning of the partnership, free and clear of all right, title, or interest of the plaintiffs, James D. White and Shirley White.
The plaintiff, James D. White should be credited upon the purchase of the one-half interest in the- personal property which was $23,872.16, with interest at 6%, the sum of $19,975.00 paid by him, leaving a balance due of $6,957.21, as of the date hereof due to John J. White.
The defendant, John Junior White, shall be entitled to withdraw from the funds, in the registry of the Court an amount equal to those withdrawn by plaintiff, James D. White, as salary, being $7,280.00.

The court directed the sale of Tracts 14, 15, 16 and 17 by its commissioner named in the decree, the payment into the registry of the court of any partnership funds collected by the partners individually, and the distribution of funds in the registry of the court to the payment of the court costs and then:

$7,280.00 shall be paid to John J. White, as provided in Paragraph 19, plus his one-half of the remaining funds in the registry of the Court.
Out of James D. White’s one-half share of the balance of funds the sum of $5,957.21, representing the balance owed by him as per Paragraph 18 above, shall be paid to John J. White, and the remainder paid to the said James D. White.

Daniel was given judgment for the $5,000 note and interest to be paid out of funds distributable to Junior.

Appellants first assert that the chancery court erred in refusing to set aside the 1954 deed and requiring a reconveyance to Daniel of tract No. 5. Tracts 5 and 8 had been deeded to the two sons as tenants in common by their father in 1951. Daniel asserted that there was an agreement between the two sons that tract 5 would be his property and tract 8 the property of Junior. Daniel conveyed all his interest in the two tracts to Junior on December 50, 1954, when Daniel was 19 or 20 years old. Daniel described this conveyance as a “loan” of the land to Junior, made for the sole purpose of enabling Junior to use it as collateral to obtain finacing for a cattle operation. Daniel testified that Junior was obligated to reconvey the tract whenever Daniel requested, and that Junior had paid rent on tract 5 ever since the quitclaim deed was executed. Daniel said that this tract was a part of his contribution to the partnership. For corroboration appellants rely, in part, upon the assertion that Junior recognized that Daniel was the owner of the tract 11 years after the date of the deed by sending him a check for $169 marked “rent on 44 acres” with a covering letter giving this explanation:

“$25.00 Earnest payed
44.00 Oil Lease
100.00 my rent
169.00”

Appellants also point out that Ernest Turner testified that when he went to Junior to rent this tract he was referred to and entered into the rental agreement with Daniel but paid the rent to Junior because Daniel had then gone to California.

This check was returned to Junior by Daniel in a letter in which Daniel said that he did not want anything for the use of the land, that the “oil lease money” could be used to pay taxes and that the rent paid by Turner could be applied toward getting house plans, after which Daniel would pay the balance'of their cost.

There are copies of applications for loans made in 1968 to Central Arkansas Production Credit Association and signed by Junior White, which indicate that livestock offered as a part of the security would be kept on lands owned by Junior and James D. White. In some of the applications the acreage is given as 734 and in others as 845. The inventory on which the sale and purchase agreement between the two brothers were based, said to have been prepared by Junior, listed the acreages as 665. According to the testimony, tract 5 contained either 44 or 45 acres and tract 8 about 26 acres. The only way We can account for the difference between the acreage shown on the loan application and that shown on this inventory is by assuming that Junior White was then representing that these two tracts constituted a part of the property owned by him and his brother. This would be possible only if Daniel were actually the true owner of tract 5 or an interest in the two tracts. Neither testified that these tracts were included in the purchase agreement. The president of the credit association testified that both brothers joined in a mortgage on the land to the association. Appellant Shirley White, wife of Daniel, testified that during the 13 years of her marriage, she had heard many discussions between the brothers relative to this tract and that both Junior and his wife June always referred to the land as belonging to Daniel.

Junior White explained his brother’s conveyance of the land to him as a payment of an indebtedness Daniel owed him. He said that his check was sent to Daniel in 1965 because the brothers had briefly operated as partners and that the land was rented to Turner as a part of that operation. He claimed that Turner did not pay the agreed rent and that he sent it all to James in order to avoid the necessity for an explanation. He was unable to give any explanation of what he meant by the $100 item designated as his own rent.

The only defense asserted by appellees to this portion of appellants’ complaint was a general denial. The statute of frauds is not applicable as to this phase of the case, because it was not pleaded or relied upon, either as a defense or a basis for affirmative relief. See Arnett v. Lillard, 245 Ark. 939, 436 S.W. 2d 106. Be that as it may, the evidence tending to show a constructive trust is clear, cogent and convincing. Any doubt about the quantum of proof is resolved by Junior’s letter transmitting rents and his inability to give a reason for paying rent to Daniel consistent with his denial of the trust. See Walker v. Biddle, 225 Ark. 654, 284 S.W. 2d 840. The statute of frauds has no application to such a trust. Ark. Stat. Ann. § 38-107 (Repl. 1962); Davidson v. Sanders, 235 Ark. 161, 357 S.W. 2d 510; Walker v. Biddle, supra. Equity regards one, who acquires the legal title to land by means of an intentionally false and fradulent verbal promise to reconvey it to the grantor but who retains, uses and claims the lands as his own, as the holder of the property charged with a constructive trust and will compel a conveyance according to the original promise. Pharr v. Fink, 151 Ark. 305, 237 S.W. 728; Moore v. Oates, 143 Ark. 328, 220 S.W. 657. Where the promise is made by one who stands in a confidential relation to the grantor, equity will impose the- trust without proof of actual fraud or any other evidence that the promisor had the intent to defraud at the time of the representation. Davidson v. Sanders, supra; Kingrey v. Wilson, 227 Ark. 690, 301 S.W. 2d 23; Robertson v. Robertson, 229 Ark. 649 317 S.W. 2d 272. The relationship of siblings, in the absence of estrangement or other unusual circumstances, is one of confidence, and they are usually not regarded as dealing with one another at arm’s length. Walker v. Biddle, supra; see also, Armstong v. Armstrong, 181 Ark. 597, 27 S.W. 2d 88.

There is nothing here to indicate estrangement or unusual circumstances that would prevent the operation of the equitable rule. The content of the letter written by Junior to Daniel transmitting the check for $169 in 1955 belies any possible contention that the usual confidential relationship did not exist.

While the statute of limitations was not pleaded as a defense to this part of the action, it would not bar Daniel’s claim because his cause of action did not arise until Junior repudiated the trust by a refusal to reconvey. Walker v. Biddle, supra. Laches was not pleaded as a defense either, but it would not apply because we cannot say that Junior’s repudiation of the constructive trust occurred before appellees filed an answer to the original complaint of appellants, after which appellants, being put on notice that Junior claimed to own this land, amended their complaint to seek a re-conveyance of this tract. See Pharr v. Fink, supra.

Not only do we disagree with the chancellor’s holding as to this tract of land, we do not agree that appellees were entitled to a return of the lands they agreed to sell Daniel or that the payments made by Daniel should be credited to the agreed purchase price for personal property. Although it is not clear to us from the decree that the chancery court’s result was reached by applying the statute of frauds, it is suggested by appellant that this is the case. Junior White testified that the title to the land in question was in him and his wife prior to the formation of the partnership. There is no evidence to the contrary. Neither Junior nor June White signed any agreement setting out the terms of the sale. There is no difference between Daniel and Junior as to the existence of an oral agreement except as to the conditions that Daniel claimed were placed on the sale by him, i.e., that the purchase price was to be paid in full and that the partnership be in full operation at the tíme of the transfer of title.

The statute of frauds does not bar the right of Daniel to have the contract performed. Payments were made by him on the purchase price of all the property. Part payment alone would not take the agreement out of the statute of frauds. But there was much more than that involved here. The lands are referred to in the decree as having been contributed to the partnership by appellees. Part payment of the purchase price, accompaned by an entry into possession under the contract does take the transaction out of the statute. McKim v. McLiney, 250 Ark. 423, 465 S.W. 2d 911. This rule is particularly applicable where both parties agree that a contract was made, but are not fully in agreement as to the terms. Marshall v. McCray, 241 Ark. 184, 406 S.W. 2d 863. There is no room to doubt that possession was delivered and taken under the contract. Junior admitted that he and his brother had dealt with each other as if Daniel already owned a half interest in the land. It was admitted that the partnership operated the property during 1967, 1968 and 1969 and that the payments on the purchase price were made during those years. No rents were paid to Junior White. At one point in his testimony Junior admitted that the sale took place on either January 23 or February 1, 1967 and that he had collected interest from January 23. C. M. Angel, a certified public accountant, drew up financial statements for the partnership from books of accounts kept by the partners jointly in 1967 and 1968. Angel had been employed by Junior White for the same purpose prior to the formation of the partnership. In these statements he included lands valued at $66,365.00 based on cost to the partnership which he said was a figure arrived at before the partnership purchased additional lands. These statements showed that the brothers were equal partners at all times. According to this accountant, the two brothers drew equal amounts from the partnership operation from time to time. The total equity of each of the partners at the commencement of the partnership was shown by him to amount to $63,742.47. When we couple this evidence with the loan applications signed by Junior showing that the two each owned a half interest in the land, there seems to be a clear preponderance of the evidence that there was a present sale of the lands to Daniel with the conveyance to be made when the purchase price was paid. The fact that neither of the appellees took any step to recover possession of this real estate until appellants filed suit for dissolution of the partnership is not without significance. Neither is the fact that Junior White testified that, in efforts to achieve a dissolution of the partnership by agreement, he asked Daniel to make a “buy or sell” offer on lands consisting of either 803 or 805 acres.

June White is not in position to avail herself of the statute of frauds either. Daniel testified that he and his wife lived in Junior’s home for four months when they first returned from California in January 1967 to commence the partnership operation pursuant to an agreement between the brothers; that the entire transaction and agreement were discussed in the presence of June White and Shirley White; and that June not only failed to register any objection, but actually agreed to the terms negotiated by the brothers in California but entered into in Arkansas. Daniel also testified that June White attended the partnership meetings, took an active interest in partnership affairs, and had as much to say at the meetings as anyone. According to Daniel, the inventory of the property which was the subject of the sale to him was actually made out in the home of Junior and June White in January of 1967. An aunt of the two brothers testified that in a conversation she had with Junior in the presence of June she upbraided Junior for not carrying out the land sale, that Junior said he could not because of “income tax purposes,” and that June did not deny any of the statements made in this conversation.

Shirley White corroborated her husband’s testimony about the family discussions of the agreement and the partnership meetings. June White joined in the execution of a real estate mortgage to secure loans for partnership purposes.

Junior White admitted that appellants lived in his home for about four months but said there was little discussion of the partnership. June White admitted being present at discussions when the land sale and the partnership were agreed upon, but said that she did not enter into the agreement and that if Daniel ever paid all that he owed appellees, she would then consider signing “my part over to him,” if “it would still go in partnership.” She admitted writing a letter to appellants while they were still in California referring to “our and your land,” although she was of the opinion that appellants did not own any land in White County. There is no evidence that she protested or advised anyone that she did not consider herself bound by her husband’s agreement or that she had reservations about joining in a conveyance of the land. The clear preponderance of the evidence shows that June White knew of the agreement between the brothers and even if her silence did not constitute an outright acquiescence in the contract, she is estopped to deny the agreement and to assert the statute of frauds. See Brownfield v. Bookout, 147 Ark. 555, 228 S.W. 51; Nicholas v. Ward, 205 Ark. 318, 168 S.W. 2d 1095; Kinney v. Patterson, 225 Ark. 393, 282 S.W. 2d 809.

We cannot say that the chancellor erred in denying compensation to Daniel for his services in conducting the business of the partnership, as appellants contend. No partner is entitled to remuneration for acting in the partnership business, except as provided in the partnership agreement or as the survivor of a partnership terminated by the death of a partner. Ark. Stat. Ann. § 65-118 (Repl. 1966). While there might be equitable grounds in some cases for awarding compensation to a living partner inordinately burdened with the work of winding up and liquidating a partnership, particularly when it is necessary to carry on a business in order to successfully liquidate it, apparently the chancellor found that the circumstances did not warrant the allowance claimed in this case. Daniel admits there was no agreement to pay him the $140 per week he drew as salary. The testimony as to the cause of the dissolution of the partnership is in sharp conflict. The brothers agree that it actually was terminated in February 1970 and that Daniel thereafter managed the business and controlled its assets. The accountant showed that a profit was realized in 1970 and 1971. Junior quit working and abandoned the partnership in February 1970, after having quit assisting with the partnership books in January 1969. Junior claims that Daniel violated the partnership agreement by assuming full control of the management and operation.

The partnership agreement fixed no definite term and, after its termination in February 1970, Daniel White had no authority to continue the partnership business except in winding up its affairs. Yet he appears to have done so and to have taken no actual steps toward winding up the partnership business until the complaint was filed in this action on October 8, 1970.

The decree of the chancery court is affirmed except as it relates to the lands deeded by Daniel to Junior in 1954 and to the return to appellees of lands contributed by them to the partnership and to the application of the payments made by Daniel to Junior White. The cause is remanded for further proceedings consistent with this opinion.

      The deed conveyed a total of 169 gcres, but all parties agree that Junior purchased 100 acres of this and that the father gave tracts 5 and 8 to the two brothers.

      The difference between the acreage on the first application (734) and that on the other two (845) may be accounted for by the fact that the partnership purchased additional land between the time the first application was made and the date of the second.


text:
    Lawrence Jo Jo SCOTT v. STATE of Arkansas
    CR 73-14
    492 S.W. 2d 902
    Opinion delivered April 16, 1973

      Louis W. Rosteck, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gene O’Daniel, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

This is the second appeal in this case. The first is reported at 251 Ark. 918, 475 S.W. 2d 699. There we held that the evidence then before the court was sufficient to sustain a conviction for rape. Upon retrial, the appellant was again convicted of rape without the testimony relating to an incriminating remark by appellant, which we found to have been improperly admitted in the first trial.

On this appeal, appellant again contends that there was insufficient evidence that he had sexual intercourse with the two-year-old child alleged to have been the victim of the crime. The evidence is not materially different, with the exception above noted, from that given at the first trial and outlined in the opinion on the first appeal. We then rejected the same arguments now advanced on behalf of appellant, i.e., that sexual intercourse as defined in the present rape statute [Ark. Stat. Ann. § 41-3402 (Repl. 1964)] means more than the slight penetration held sufficient to constitute the crime under previous statutes. Appellant argues that the testimony of Dr. Porter, who examined the little girl after the events leading up to the charge against appellant, clearly shows that there was no actual penetration, therefore there could have been no rape. In the previous trial, Dr. Porter’s statement was admitted into evidence by agreement. In this trial he testified in person. While the doctor stated, as emphasized by appellant, that there had been no actual penetration because the child’s vagina was too small to have admitted either a penis or a finger, he qualified this statement by saying that the penetration was sufficient to tear the hymen and that her vagina was torn almost into the rectum. Thus, there was no material variation in the physician’s testimony in the two cases.

Appellant’s remaining point for reversal is another contention made and rejected on the first appeal, i.e., prejudice by the state’s failure to produce tangible evidence. Appellant argues that we should reconsider this matter because there is a discrepancy between the testimony of former Deputy Sheriff Tom Womack (an investigator with the prosecuting attorney’s office at the time of the second trial) in this trial and his testimony at the first trial. In this connection, he points out that Womack, when asked on the first trial if there was anything unusual about the shorts removed from Scott shortly after he was taken into custody, responded only that they had blood stains in front, but, on the second trial added, when asked about the appearance of Scott’s body at the time, that there was a large amount of blood on the inside of the shorts and there appeared to be blood stains on Scott’s penis. He further points out that, on the second trial, Womack said that the blood stains on Scott’s clothing and person were bright red, some nine hours after the alleged incident. Appellant also contrasts Womack’s testimony with that of Deputy Sheriff Little at the first trial that there was no blood visible on Scott’s outer clothing at the time of his arrest, and that the dried blood on Scott’s undershorts was “clear, you know, not red blood like — maybe two or three hours old.” Little did not testify at the second trial. Appellant also contends that neither of the officers had previously testified about observing blood on the inside of Scott’s shorts when they were removed. Scott further argues that Womack was inconsistent in his testimony at the second trial in that, in response to one question, he said that the shorts were white in color and later described them as white with brown dots. In arguing the prejudicial effect of failure of the state to produce the shorts, appellant also points out that the officer described the shorts as “boxer-type” while appellant’s aunt said they were jockey shorts. All these matters were for consideration by the jury in evaluating the credibility of the witness and the weight to be given to his testimony. It was the function of the jury to resolve any inconsistencies and contradictions in the testimony presented at the second trial. Davis v. State, 246 Ark. 838, 440 S.W.2d 244, cert. denied, 403 U.S. 954, 91 S. Ct. 2273, 29 L. Ed. 2d 865 (1971). Doubtless they were emphasized by appellant’s attorney in closing arguments, at least as forcefully as they are stated here. We are not convinced that our holding was erroneous on the first appeal.

Actually, it would be difficult to find a case where the rule that the “law of the case” governs on the second appeal should be more readily applied. See Mode v. State, 234 Ark. 46, 350 S.W.2d 675.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    Richard Monroe SIMS v. STATE of Arkansas
    CR 73-6
    463 S.W. 2d 449
    Opinion delivered April 16, 1973

      Howard, Howard br Howard, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Frank B. Newell, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Richard Monroe Sims was convicted at a jury trial for armed robbery and was sentenced to 25 years in the penitentiary. On appeal to this court he contends that the trial court erred in permitting the witness, Mrs. Clinney Vick, to identify him through photographs furnished by the prosecuting attorney’s office.

Mrs. Maria Smith testified that on January 24, 1972, she was employed at Majestic Cleaners at Third and High Streets in Little Rock; that she had just returned to her job from lunch when two young Negro men came into the place and requested change for a dollar. She said when she opened the cash register to obtain the change, she was ordered at pistol point to the back of the building. She said a third man then entered the place and while one of the men tied her feet the other two took the money from the cash register. She was unable to identify the appellant as one of the participants.

Mrs. Clinney Vick, testifying for the state, said that on January 24 about 11:30 in the morning, she was standing in the backdoor of the Capitol Hill Apartments where she lives when three young men came through the lobby and asked her if she had a cleaning and pressihg establishment in the building. She said she hardly had time to answer in the negative when one of them said: “I see it, Oh I see it, I see it,” and that all three then went down to the Majestic Cleaners, which was located across a parking area about 50 feet from the apartment building. At this point in the trial the jury was recessed and the court, the attorneys, the appellant and his mother, retired to chambers where Wilbur C. Bentley, assistant prosecuting attorney, was questioned concerning the photographs that are in issue in this case.

Mr. Bentley said that in the course of his investigation he learned that Mrs. Vick may have seen three black males just immediately before the alleged robbery, so he requested her to come to his office for an interview. He said he had never seen Mrs. Vick before but that he identified himself and told her he understood she had seen some men in the vicinity of the robbery. He said he showed her six photographs and asked her whether she had seen any of the men in the photographs shortly before the robbery. He said that Mrs. Vick identified appellant Sims and one of his accomplices (tried separately) as two of the three men she saw on that occasion.

The photographs were accepted in evidence for the record at the in-chambers hearing, and Mrs. Vick testified that the three men she observed were within two or three feet of her and that she thinks she would recognize them if she saw them again. Mrs. Vick then identified the appellant in chambers as one of the persons she saw on that occasion. She said the appellant was the one who asked her about the cleaning and pressing shop. Mrs. Vick was then asked if she had been shown a picture of the appellant previously and she said that she had. Under questioning by the court she then testified that Mr. Bentley showed her about three or four pictures and that the appellant’s picture was among the ones shown her. She then testified under questioning by the court, as follows:

“THE COURT: Could you recognize this defendant independently of having seen the pictures?
A. I think he is the one I saw the picture of.
THE COURT: All right. I know he’s the one you saw the picture of, but is he the person that you saw on the 24 th?
A. Yes, at my place.
THE COURT: At your place?
A. That’s right.
THE COURT: And you could recognize him, whether you had seen the picture or not?
A. I think so.”

Mrs. Vick was further questioned by the prosecuting attorney as to circumstances surrounding her identification of the appellant and she was asked and answered questions as follows:

“Q. Mrs. Vick, is there any doubt in your mind that the man sitting here, Monroe Sims, any doubt at all whether he is the same man that spoke to you in your lobby on January 24th?
A. No, sir; there’s no doubt in my mind that he’s the one.
Q. What you are saying to us based entirely on what you saw that day and not on having seen any photographs in the Prosecutor’s office. Is that accurate?
A. That’s right.”

Mrs. Vick was then again shown the photographs and again identified the picture of the appellant. She testified that she did not remember the exact day or hour she saw the appellant at the apartment building but that about 15 minutes after she saw the appellant and the other two men, someone told her that the cleaning establishment had been robbed. The record then discloses the conclusion of the in-chambers hearing as to the identification of photographs as follows:

“MR. TUCKER: If it please the Court, the State will move, Your Honor, that while this witness is on the stand that she be permitted to make in Court identification of the defendant, Monroe Sims.
MR. HOWARD: If the Court please, we object to all this identification procedure as being suggestive and unfair, inappropriate. The fact of identification, they could have had this woman view the lineup with this man in it which was available to them at all times. The identification of photographs certainly is not admissible. The photographs themselves are not admissible before the jury. We would ask the Court to not permit this witness to testify to anything other than this man’s identity if she can identify him from the witness stand.
THE COURT: All right. The Court finds that the photographic lineup presented to Mrs. Vick was not suggestive, that in any event she is able to identify the defendant as the person who was in the apartment house on January 24th, and her identification is not tainted in any way by the fact that she has viewed the photographic lineup; therefore, she’ll be permitted to testify regarding this defendant being present on January 24th. But, she will not be permitted to refer to the photographs that were shown her on direct examination. If you are questioned by the defense attorney regarding the photographs, then you may respond.”

In continuing her testimony before the jury at the conclusion of the in-chambers hearing, Mrs. Vick said that she got a good look at the individuals who inquired about the location of the cleaning establishment and especially the one who made the inquiry. She then identified the appellant as the one who made the inquiry. She said the cleaning establishment was not connected to the apartment house where she lives but was just across a small parking lot from it and that the buildings were approximately 50 feet apart.

Sims made an incriminating statement to the police officers admitting his participation in the robbery. The statement was written out by one of the police officers and signed by Sims who wrote in his own handwriting at the end of the statement: “This statement is true and correct to the best of my knowledge.” An in-chambers hearing was had in connection with the statement and the trial court found that it was voluntarily made and admissible in evidence.

The appellant argues that it was grossly unfair, and in violation of his constitutional rights, for Mrs. Vick to identify the appellant from pictures shown her by the prosecuting attorney when the appellant or his attorney was not present, and the trial court erred in permitting Mrs. Vick to identify the appellant as the one she saw near the scene of the crime immediately prior to its commission. He argues that such identification without the appellant’s attorney being present, was in violation of the United States Supreme Court decisions in United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926, and Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951.

In the case at bar Mrs. Vick simply identified the appellant’s picture in the prosecuting attorney’s office, as among the six pictures shown to her. She then also identified him from the witness stand and the fact that she had first identified his picture was not mentioned in the presence of the jury. In Montgomery v. State, 251 Ark. 645, 473 S.W. 2d 885, the defendant was identified in a police lineup and later identified at the trial of the case, and in that case we found no merit in the appellant’s insistence that he was denied the assistance of counsel at the lineup where there was no proof that he asked for or was entitled to the aid of an attorney at those times and, on this point we distinguished United States v. Wade, supra, pointing out that in Wade the police knew that the accused already had engaged an attorney, yet they continued the lineup without notice to the attorney. In Montgomery we pointed out that we failed to read the Wade opinion as holding that every lineup identification in the absence of a lawyer is necessarily a denial of an accused’s right to be represented by counsel. In the case of James E. Crawford v. State of Arkansas, being handed down today, one of the points relied on was alleged error of the trial court in refusing to exclude testimony relating to pretrial lineup which was held without defense counsel being present. The appellant in that case, as in the case at bar, contended that showing of pictures to the prosecuting witness prior to the lineup was impermissibly suggestive. We held the point to be without merit because there is no contention that the photograph identification procedure gave rise to probable misidentification. In that case we cited McClain v. State, 247 Ark. 33, 444 S.W. 2d 99, in which the prosecuting witness identified the appellant from photographs submitted to her and later identified him at the trial. In McClain the photograph identification was brought out on cross-examination of the witness but in that case we found that the identification procedures were not impermissibly suggestive. In the case at bar the prosecuting witness simply identified the appellant’s picture as the man who made inquiry as to the location of the cleaning establishment immediately prior to the time it was robbed, and she still recognized, and positively identified, him in the courtroom at the trial.

In Gilbert v. Calif., supra, the attorney for the accused requested a hearing outside the presence of the jury to present evidence supporting his claim that the prosecuting witness’ in-court identification and other identifications to be elicited by the state from other eye witnesses would be “predicated at least in large part upon their identification or purported identification of Mr. Gilbert at the showup. . . ” The trial judge overruled the motion and in that case the court said: “The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error.” The accused in Gilbert also had counsel and the lineup was conducted without notice to his counsel. There were many other details in the Gilbert case that clearly distinguish it from the case at bar.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Keith ANDERSON and Mildred ANDERSON v. Robert S. WELBORN
    5-6220
    492 S.W. 2d 892
    Opinion delivered April 16, 1973

      John W. Cloer, for appellant.

      Van H. Albertson, for appellee.
   Conley Byrd, Justice.

Appellants Keith Anderson and his wife Mildred Anderson own lands adjoining appellee Robert S. Welborn in the NEM of Sec. 2, T 14 N, R 26 W in Madison County. Welborn and his predecessors in title obtained title by a metes and bounds description which among other things described the property containing 60 acres as “...beginning at the southwest corner of the NEM of Sec. 2, thence running east 21 chains to middle of slough at foot of hill south and east of War Eagle Creek, ...” Appellants’ deed conveyed the EJ4 of NEM and all of WA of NEM of Sec. 2 except the same metes and bounds description contained in Welborn’s deed.

Welborn obtained his title in 1966 and shortly thereafter placed two gates across the ingress and egress road extending east and west across the NEM. In the summer of 1969, after he had commenced the construction of a low water bridge across War Eagle River, appellants placed a locked gate across the road where it joins with State Highway No. 23. Appellee at that time obtained a temporary injunction to prevent appellants from obstructing his ingress and egress.

Thereafter Welborn brought another action to reform his deed to show that he owned to the middle of the slough at the foot of the only hill some 1647.5 feet from the southwest corner of the NEM.

Appellants denied all the allegations in both complaints and by way of cross complaint sought damages alleged to have occurred when Welborn caused some trees and brush to be bulldozed from a protective flood dyke surrounding the land belonging to appellants.

Upon a consolidated trial the chancellor, after viewing the premises, denied appellants’ cross complaint as being without equity, reformed the deed to go to the middle of the slough at the foot of the hill and found the ingress and egress road to be a public road but gave either or both parties the right to erect gates or cattle guards. For reversal appellants make the numerous contentions hereinafter discussed.

There is proof in the record that Welborn’s bulldozer operator pushed the overhanging trees back from the road over the lands belonging to appellants to allow for a road twenty-five feet in width. The witnesses testifying for appellants stated that the dozer made appellants’ lands subject to flooding by pushing the brush and trees from the protective dyke protecting their lands. Witnesses for Welborn denied that any trees or brush were pushed from a dyke constructed by appellants. Mr. Anderson himself admitted that a five inch rain in a forty-four hour period did not flood his lands. Consequently, we cannot say that the chancellor’s refusal to award the damages claimed, is contrary to a preponderance of the evidence.

The proof as to the reformation of the deed is more than ample to support the chancellor’s reformation. Monuments ordinarily control over courses and distances, Stallcup v. Stevens, 231 Ark. 317, 329 S.W. 2d 184 (1959). All of the proof here showed only one hill in the area with a slough at the foot thereof. Further, the same error in distance could have easily been demonstrated by running the description backwards.

Appellants also claim the lands by adverse possession and by adverse possession through the payment of taxes on wild and unimproved lands for more than seven years. We cannot say that the chancellor erred in denying either contention. The claim as to actual hostile possession arises out of the cutting of some walnut logs and the hauling of gravel. While there is some proof to the effect that appellants cut some walnut logs in 1951, there is other proof to the effect that he cut only two or three trees and desisted from that after he was contacted by Mrs. Hubbard, one of Welborn’s predecessors in title. The proof as to the gravel appears to place the gravel taken as being from die land of appellants.

Neither can we say from the record that the lands involved are all wild and unimproved. The witnesses in testifying, evidently in referring to a map or plat, would testify, “at this point here”, but from the cold record it is impossible for us to determine that the area contained in the E'/£ NEi4 is wild and unimproved. We gather that some of the area involved is cleared and has been farmed in the past. However, it is obviously impossible for us to say that the chancellor erred in ruling against appellants.

There is evidence in the record showing not only that the ingress and egress road was used in general by the public but that it was graded by the County from time to time. Thus the proof is more than sufficient to support the chancellor’s finding that it was a public road. However, it appears that so much of the decree as permitted the erection of “gates or cattle guards” as distinguished from “gates and cattle guards” is in error. See Hatchett v. Currier, 249 Ark. 829, 461 S.W. 2d 934 (1971), where we held it was error to authorize the erection of gates across a public road without also erecting cattle guards to permit the passage of automobiles or trucks without opening the gates.

As modified the judgment is affirmed.


author: Frank Holt, Justice.

text:
    Lafraye PARKEY v. Claria BAKER
    5-6234
    492 S.W. 2d 891
    Opinion delivered April 16, 1973

      Harkness, Friedman hr Kusin, for appellant.

      Larry R. Wright and Hubbard ir Patton, for appellee.
   Frank Holt, Justice.

The issue on this appeal is appellant’s and appellee’s respective interests in certain Arkansas lands. Both parties are divorcees of the same husband, Kenneth Perry. Appellant and Perry were married in 1962 and acquired the lands in question, 114 acres in Arkansas, as tenants by the entirety and mortgaged the property during their marriage. Thereafter or in 1968, appellant divorced Perry in Texarkana, Texas, and she was awarded the Arkansas property by the Texas court in ascertaining the rights of the parties to their jointly owned property in Texas and Arkansas. The decree did not require nor did Perry ever convey the Arkansas property to appellant.

Perry married appellee in 1970 and conveyed to her an undivided one-half interest in the Arkansas lands. Subsequently, that same year the appellee, to avoid foreclosure proceedings, paid appellant’s and Perry’s indebtedness on the Arkansas property as well as some in Texas. In 1971 appellee divorced Perry in Texas.

Approximately five months later appellee filed this action, a Bill of Equity for Contribution and Foreclosure, against the appellant alleging, inter alia, that she and appellant, as a result of the divorce between Perry and appellant, his first wife, and the deed from Perry to appellee, his second wife, became joint owners as tenants in common of the Arkansas property notwithstanding the original Texas divorce decree which awarded the Arkansas property to appellant. Appellant denied the allegation and responded as “cross-plaintiff” that she had “acquired title” to the property as a result of the Texas divorce decree and is, therefore, the sole owner on that theory only.

The chancellor found that appellant and Perry acquired the Arkansas property as tenants by the entirety and became tenants in common as a result of their Texas divorce and that appellee owned a one-half Q/z) interest in the Arkansas property as a result of Perry’s deed to her. A judgment was awarded against the appellant for her proportionate part of the mortgage payment made by appellee on the Arkansas property plus interests and costs. For reversal appellant contends that “the court erred in holding that Claria Baker [appellee] had a one-half (%) interest in the property in question and that the deed dated July 24, A.D., 1970, signed by Kenneth L. Perry was valid.”

The possibility of an estate by the entirety is neither raised nor discussed by either party. As we understand appellant’s pleadings and contention, the narrow issue presented is whether the Texas court could render a decree which vests title in her to the lands in Arkansas. It is well settled in our state that a divorce court in another jurisdiction does not have the authority or power to render a decree in rem which affects the legal title to real estate in our jurisdiction even though that court has in personam jurisdiction of the litigants. Tolley v. Tolley, 210 Ark. 144, 194 S.W.2d 687 (1946). There we said:

“And in Leflar on ‘Conflict of Laws,’ § 119, the rule is stated: ‘The only state which can, by operation of law and apart from the act of the parties, transfer title in land out of one person into another is the state where the land lies.’ ”

See, also, 24 Am. Jur. 2d Divorce and Separation, § 996. In other words the courts of another state can not vest title to real property in Arkansas.

Perry, as an intervenor who does not appeal, in disavowing the purpose of his deed to appellee, admitted that he signed the deed. On appeal appellant makes the argument that Perry’s deed to appellee was intended as a mortgage and, also, there was no consideration paid by appellee to Perry. These issues are first raised by appellant on appeal and, therefore, we cannot consider them. Even if properly pleaded and presented to the trial court by appellant, suffice it to say that the deed required no consideration “since a deed is a present grant rather than a mere promise to be performed in the future. . .” Ferguson v. Haynes, 224 Ark. 342, 273 S.W.2d 23 (1954). Furthermore, we could not say the finding of the chancellor that it was not shown that a mortgage was intended by the deed is against the preponderance of the evidence.

Affirmed.


text:
    HARTFORD ACCIDENT & INDEMNITY Company v. Arnold O. PATE and Velma Inez PATE
    5-6237
    493 S.W. 2d 118
    Opinion delivered April 23, 1973

      Smith, Williams, Friday, Eldredge ir Clark, by: William H. Sutton and Frederick S. Ursery, for appellant.

      Cockrill, Laser, McGehee, Sharp ir Boswell, for appellees.
   Carleton Harris, Chief Justice.

A standard automobile liability policy was issued by the Hartford Accident & Indemnity Company, appellant herein, to F. L. Williams, Jr. on a 1969 Buick owned by him. Williams lived in DeWitt, and his daughter, Debra K. Williams, at the time of the events hereafter stated, was living with her sister and brother-in-law in North Little Rock. The Buick was being operated by Debra in the latter city with the permission of her father. In April, 1969, it became necessary for the Buick to be placed in a shop in North Little Rock for repairs. While this automobile was being repaired, Debra borrowed her brother-in-law’s 1967 Chevrolet and while driving same, was involved in an accident with appellees, Arnold O. and Velma Inez Pate. Suit was instituted by the Pates against Debra in the White County Circuit Court. Appellant denied coverage and refused to provide a defense and appellees obtained judgment against her in the amount of $7,061.47. The judgment not being satisfied, the Pates, pursuant to the provisions of Ark. Stat. § 66-4001 (Repl. 1966), instituted suit directly against Hartford. The company contended that its coverage did not extend to Debra K. Williams since she was not a member of the named insured’s household and since she was not driving the vehicle described in her father’s policy. Hartford moved for a summary judgment stating:

“The Hartford Accident & Indemnity Company automobile liability policy, attached as Exhibit B to the Stipulation of Facts filed herein, provides in Section IV (a) (3) for a temporary substitute automobile only if used by the ‘named insured or his spouse if a resident of the same household.’ ”

A motion was also filed by appellees for summary judgment and this motion was granted by the court. Judgment was accordingly entered for Mrs. Pate in the amount of $6,433.85, plus 6% interest from April 2, 1970, 12% penalty and $1,500.00 as a reasonable attorney’s fee. Arnold O. Pate was given judgment in the amount of $627.62, plus 6% interest from April 2, 1970, 12% penalty and an attorney’s fee of $1,500.00. From the judgment so entered, Hartford brings this appeal. For reversal, appellant relies solely upon one point, viz., the court erred in interpreting the policy issued to Williams as providing coverage to the daughter although she was not a member of his household and was not driving the automobile described in the policy.

The principal issue in this litigation is whether Debra had the consent of her father or mother to drive the 1967 Chevrolet. That she had the permission of her father to drive the Buick is not disputed, nor is it disputed that the Buick had been placed in a garage for repairs. The pertinent provision relative to who constitutes the insured is found in Section III of the policy and reads as follows:

“With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured’ includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.”

But, says appellant, Debra did not obtain the permission of either parent before driving the Chevrolet and this fact, it is argued, precludes coverage. The case of Grundeen v. United States Fidelity & Guaranty Company, 238 F. 2d 750 (8th Cir. 1956) is cited, but we do not agree that that case is applicable. Grundeen was engaged in the business of selling musical and band instruments and maintained eight motor vehicles, all covered by liability insurance, for use in his business. A salesman named McFall had made an appointment to meet with a band director of a public school about one hundred and twenty-five miles from Grundeen’s store. McFall drove his own car to the store, picked up some instruments, drove to the Grundeen warehouse and transferred the instruments to one of the Grundeen trucks, but he could not get the truck started. McFall then transferred the band instruments from the truck back to his private car and started on his trip, having an accident. The court held that he did not come within the definition of insured because he did not have Grundeen’s permission, but it must be remembered that Grundeen had made available a fleet of company cars and under those circumstances, it could hardly be said that there was implied consent for McFall to use his personal car.

Appellant also cites the case of Davidson v. Fireman’s Fund Indemnity Company, 165 NYS 2d 598. There, substantially the same definition of insured was given in the policy except that the provision only referred to permission being given by the insured rather than the insured and his spouse, a member of the household. The court recited the facts as follows:

“On the evening of August 7, 1955 the plaintiff Dennis F. Davidson was using the car of his father, Dennis J. Davidson, the insured. During that evening the father’s car became inoperable because of a heavy rain and the son, without permission of his father (the insured) or the owner of the substituted car, ‘borrowed’ the car of a friend who had left the ignition key in the car. An accident thereafter ensued while he was driving the ‘borrowed’ car. Since there was consent of neither the policyholder nor the owner of the ‘borrowed’ car [our emphasis], it may not be considered as a substitute under the terms of the policy. To hold otherwise would be to extend defendant’s liability beyond a reasonable interpretation of the intent of the policy.”

Of course, it is noticeable at once that there is a distinct factual difference in the cited case and the case presently before us, in that young Davidson did not have the consent, express or implied, of either his father or the owner of the substitute car. Of course, the father did not consent for his son to simply take someone else’s automobile, and the owner, not even knowing that the car was taken, could not have consented. We think that the phrase which we have italicized also has quite a bit of significance, for it clearly implies that the court would have held differently had Davidson obtained the consent of the owner of the substitute vehicle.

Among other cases, appellee cites the case of Hemphill v. Home Insurance Company (Ga.), 174 S.E. 2d 251, in which the court held that where a substitute automobile was being used at the time of the collision for a purpose which would have been served by the originally insured automobile, except for its withdrawal from normal use because of repair,'the substitute was being used for a permitted purpose and hence with permission of the owner; accordingly, there was coverage.

In Nationwide Mutual Insurance Company, et al v. Fireman’s Fund Insurance Company, et al, 182 S.E. 2d 571, a 1965 Oldsmobile was purchased for a minor son, but because of his minority, the title was taken in the father’s name. The minor drove the automobile at his pleasure and as his own, and was not restricted in his use of it in any way. Some months after the purchase, the paint on the car cracked and peeled and without consulting his father, the minor took the car to the business firm from where it had been purchased (Tux Bowers) for repainting. The car was left at a paint shop and the seller furnished the minor another car, a 1961 Oldsmobile, to use while the purchased automobile was being repainted. The father was not a party to this arrangement and knew nothing about the conditions under which his son obtained the substitute automobile. Subsequently, the second car was wrecked in an accident. The Supreme Court of North Carolina, in holding that there was coverage, stated:

“The next question is whether Fireman’s policy covered the 1961 Oldsmobile as a ‘temporary substitute automobile’ for the 1965 Oldsmobile. Such an automobile is (1) one not owned by the insured of his spouse and (2) one which is being temporarily used for an insured automobile while it is ‘withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.’ It is undisputed that neither Carson nor his wife owned the 1961 Oldsmobile which Terry was driving at the time of the accident. Tux admits its ownership of that vehicle.
“It is equally clear that while the 1965 Oldsmobile remained in the Williams Paint and Body Shop for the removal and replacement of outside paint which had proved defective, the insured vehicle had been withdrawn from normal use 'because of its *** repair ***.’ A substitution provision in a policy of automobile liability insurance ‘is for the insured’s benefit and is to be construed liberally in favor of the insured if any construction is necessary.’ ”

The court held that, though the father did not give actual consent to his son’s obtaining the substitute automobile, there was implied consent.

“When Bowers delivered the 1961 Oldsmobile to Terry as a temporary substitute for the 1965 Oldsmobile he was merely furthering Carson’s previously permitted purpose.”

In line with these cases, there is nothing in the record to reflect that Debra’s use of the Buick automobile had been in any manner restricted; she was regularly using the car at the time it became necessary that it be repaired. Likewise, Debra was driving the borrowed car with the consent of the owner. The trial court found that she had been regularly operating the 1969 Buick with the knowledge and consent of her parents and to paraphrase the language of the North Carolina Supreme Court in Nationwide Mutual Insurance Company, et al v. Fireman’s Fund Insurance Company, et al, supra, when the brother-in-law loaned the 1967 Chevrolet as a temporary substitute for the 1969 Buick, he was merely furthering her father’s previously permitted purpose. We hold there was implied consent for the use of this vehicle.

It is also argued that while the described vehicle was in the shop for repairs, this does not mean that coverage would be extended to everyone who had permission to use the described vehicle; that if the trial court’s interpretation was correct, then the Hartford policy might provide coverage to many automobiles simultaneously. We see no merit in this argument. As has already been pointed out, Debra was operating the car at the time the car was placed in the garage and was the one who found it necessary to obtain substitute transportation.

It is also contended that under Section V of the policy entitled “Use of Other Automobiles”, liability coverage is only provided to the named insured and his spouse (a resident of the same household) while driving any other automobile. It would appear that this section refers to the coverage which is afforded to a man or his wife when they operate vehicles not belonging to them, but not because their own automobile is inoperable; i.e., the non-owned car is not being used as a temporary substitute awaiting the repair of their own vehicle.

We do not agree that this section has any bearing on the issue whatsoever, nor does appellant cite any authority. Also, in moving for a summary judgment, appellant somewhat relied on Section IV (a) (3), there contending that a temporary substitute automobile was only covered if used by the named insured or his spouse if a resident of the same household. We do not agree that the coverage is so limited; the words “if a resident of the same household” refer only to the word “spouse” and only mean that the wife is not covered unless she is living in the same house-with her husband. The section that clearly controls this litigation is Section III (a) quoted near the outset of this opinion, which clearly, with IV (3), gives coverage (on a substitute car) to one who has permission to drive the insured car which is withdrawn from use because of repairs. Since we have said that there was implied consent for the daughter to operate the substituted vehicle, it follows that Debra was the insured at the time of the accident. As a matter of fact, if either Section IV or V contained any language conflicting with Section III, an ambiguity would exist, and since ambiguities are construed most strongly against the one who prepared the contract, the company still could not prevail. See The Fidelity & Casualty Co. of New York v. Marion L. Crist & Associates, Inc., 248 Ark. 1010, 455 S.W. 2d 904.

It follows from what has been said that no error was committed in rendering the judgment against Hartford.

Appellees’ attorney is awarded an additional fee of $750.00 for services rendered on this appeal.

It is so ordered.

      The Pates had received payment from their own insurer, State Farm Mutual Automobile Insurance Company, in the amount of $4,874.62. In their response to a Motion to Dismiss, they stated, “However, plaintiffs state that since their judgment is in excess of this amount that they are parties of interest in this lawsuit and it would be improper for State Farm Mutual Automobile Insurance Company to appear herein as a party.”

      "IV. Automobile Defined, . . .
      (a) Automobile. Except with respect to division 2 of coverage B and except where stated to tlife contrary, the word ‘automobile’ means:
      (1).
      (2).
      (3) Temporary Substitute Automobile — under coverages A, division 1 of coverage B, and C, an automobile not owned by the named insured or his spouse if a resident of the same household, while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;”


author: George Rose Smith, Justice.

text:
    James JOHNSON v. STATE of Arkansas
    CR 73-23
    493 S.W. 2d 115
    Opinion delivered April 23, 1973

      Victor Hlavinka, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was found guilty of burglary and grand larceny and was sentenced to four years imprisonment upon each charge, the sentences to run consecutively. Three points for reversal are submitted by his court-appointed counsel.

First, the sufficiency of the evidence is questioned, but we find no merit in this contention. On the night of June 17, 1972, a burglar alarm went off at the Texarkana police station, indicating the presence of an intruder at the Oklahoma Tire & Supply Company store, which was closed for the night. In response to a call from the police the manager of the store met the officers there. A search of the premises showed that someone had entered the building by breaking a window that gave access to the attic from the roof. On the ground floor a glass gun-cabinet had been broken into. A .38 caliber revolver was missing, plus ammunition.

Upon searching the roof the officers found the appellant, who was trying to hide. Just before his apprehension the appellant threw down a revolver, which was positively identified by its serial number as the missing weapon. The manager testified that two days earlier the appellant had been in the store, inquiring about buying one of the firearms in the cabinet. The jury was certainly justified in finding from the testimony that the appellant broke into the store and stole the revolver.

Secondly, the appellant argues that the trial court improperly singled out one fact and improperly commented upon the evidence, by instructing the jury that possession of recently stolen property is a circumstance that the jury may consider along with all the other facts and circumstances in determining whether the person in possession of the property stole it. We find no error. Our cases have considered two methods of instructing the jury upon this point, one good and the other bad. The distinction is clear:

“On the one hand, it is permissible for the court to instruct the jury that a certain fact, such as the possession of recently stolen goods, goes to the jury for its consideration in connection with the other evidence as tending to show the guilt of the accused. . . . On the other hand, it is clearly improper for the court to tell the jury that a specific fact in evidence is sufficient to support an inference of guilt, negligence, or the like.” Thiel v. Dove, 229 Ark. 601, 317 S.W. 2d 121 (1958).

Here the trial court’s instruction was in the approved form.

Thirdly, the appellant complains about the State’s closing argument to the jury, in that the prosecuting attorney suggested that the defendant’s plea of not guilty, in view of the evidence, was such an insult to the jurors’ intelligence as to warrant their doubling the punishment. The trial judge, in our opinion, properly denied defense counsel’s motion for a mistrial. “An award of a mistrial is a step so drastic as to be the exception rather than the rule as a means of correcting an error. For such a step to be warranted it must be apparent that justice cannot be served by a continuation of the trial.” Back v. Duncan, 246 Ark. 494, 438 S.W. 2d 690 (1969). We cannot say that the prosecutor’s argument was so prejudicial as to be beyond correction. The court promptly admonished the jury that every person charged with an offense has the right to a trial. No further admonition was requested by counsel. Furthermore, the court had already told the jury, in the language of AMI 101 (Civil), that the attorneys’ arguments are not evidence and should be disregarded if they have no basis in the evidence. We conclude that no prejudicial error is shown.

Affirmed.


text:
    Charles Laron HACKNEY v. STATE of Arkansas
    CR 73-24
    493 S.W. 2d 142
    Opinion delivered April 23, 1973

      James M. Simpson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gene O'Daniel, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

In this Rule I procedure appellant sought to set aside a verdict guilty on that one of the jurors had a pre-conceived opinion of appellant’s guilt and failed to divulge it to the court on voir dire. From the testimony of two affiants for appellant and the testimony of the juror introduced by the State, the trial court denied relief and hence this appeal.

The first witness for appellant was William Russ-worm, a former schoolmate of appellant. The witness said he worked with Charles Ray Nobles, one of the jurors in appellant’s case; that witness heard the juror make the statement that he drought appellant was “guilty of shooting the man”; and that the statement was made before the trial. The witness admitted on cross-examination that he was a good friend of appellant and “I would like to help him if I could”.

Appellant’s other witness was Edward Via, who testified that he worked with Mr. Nobles at International Paper Company. The witness said he and juror Nobles discussed the homicide on several occasions up until the time of trial. The sum total of his testimony was that Nobles said he thought the appellant was guilty and that appellant had tried to establish an alibi. The witness also testified that he was a good friend of appellant and would like to help him.

Juror Nobles related that the two witnesses for Hackney had worked on the juror’s shift at the paper company and that he had known them for several years. He said he read about the Hackney homicide in the paper and heard about it over the radio. He was not certain that it had been, or not been, a subject of conversation during work recesses at the mill. On three occasions in his testimony he said he did not recall having made the statements attributed to him by appellant’s witnesses; on two other occasions he categorically denied having made a statement concerning appellant’s guilt. The juror stated that he entered the jury box with a free and open mind and based his judgment of guilty on the evidence produced at the trial.

We have before us the single issue of credibility. The trial court elected to believe the testimony of the juror when he said he made no pre-trial statements and we certainly cannot say the court’s judgment was misplaced.

Affirmed.