author: J. Seaborn Holt, Associate Justice. Ed. F. McFaddin, Associate Justice, Sam Robinson, Associate Justice,

text:
    Carter v. State.
    4930
    326 S. W. 2d 791
    Opinion delivered May 25, 1959.
    No brief filed for appellant.

      Bruce Bennett, Atty. General, by Bill J. Davis, Asst. Atty. General, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, Jim Carter, was indicted by a Grand Jury for the crime of receiving stolen property. A jury found him guilty and fixed his punishment at one year in the penitentiary. This appeal followed.

Appellant has filed no brief in this case. Briefly, the record reflects that in the latter part of March, 1958, Lloyd Harper discovered that some of his cattle had been killed and slaughtered in the area where they usually ranged. He “found the feet and ears of three head of cattle and a lot of blood”. The ears had his mark on them and each animal was worth about $80. Donald Stuckey, an employee of appellant, took the officers to the place where the animals had been slaughtered. Thereafter, Donald Stucky, Brown Rainey, one other person and appellant, Carter, were arrested. Stucky and Rainey told the officers that it was at Carter’s suggestion that they go out and get some cattle and he, Carter, would consider as paid a bill of Stuckey’s mother. It was testified that a pick-up truck belonging to appellant was used to transport the animals and a 22-cali-ber rifle hull was found near the spot where the animals were killed.

For reversal, appellant, in his motion for a new trial, assigned one error as follows: “Wherefore, defendant prays that, due to the fact that the Prosecuting Attorney asked for a continuance on all other involved cases and all other persons being tried because the sheriff could not be there and the trial judge gave that continuance, he be granted a new trial when the sheriff will be able to testify and so that Sheriff James Steed and Deputies Bill Dyer and James Bowers can testify before the jury and, if the trial judge refuses this motion, he is not giving justice to the defendant because he granted the Prosecuting Attorney’s motion for a continuance upon the same grounds, over the objection of defense attorney, C. Van Hayes.”

This alleged error was first raised by appellant in his motion for a new trial. It comes too late for this court to consider it. We have consistently adhered to the rule that before an alleged error, in felony cases of a lesser degree than capital, may be considered by this court on appeal, the complaining party must first make an objection, call for a ruling from the trial court, make and preserve an exception from an adverse ruling, and the matter complained of must be assigned as error in a motion for a new trial. We announced this rule in Ford v. State, 222 Ark. 16, 257 S. W. 2d 30, in this language : ‘ ‘ The complaining party must first make an objection in the trial court, and this calls for a ruling on his objection. An exception must then be taken to an adverse ruling on the objection, which ‘ directs attention to and fastens the objection for a review on appeal.’ The matters complained of, together with the objections and the exceptions to the ruling of the court, must be brought into the record by a bill of exceptions; and the motion for a new trial can serve no other purpose than to assign the ruling or action of the court as error”.

As indicated, since the alleged error complained of was first raised in the motion for a new trial, we do not consider it here.

Affirmed.

Robinson and Johnson, JJ., dissent.

McFaddin, J., concurs.

Ed. F. McFaddin, Associate Justice,

(concurring),

I concur in the affirmance of this case for the reasons herein stated.

After the jury brought in the verdict against appellant, Carter, his counsel filed a motion for new trial; and the entire motion, omitting only caption and signature, is as follows:

“MOTION FOR NEW TRIAL
“Comes the defendant, James E. Carter, and states and alleges:
I.
“That the Prosecuting Attorney asked for a continuance of the trial of Henry Glenn, Louis Coliron and Cornell Sanders, a colored man, because the Sheriff was an important member of the investigation of this entire case and that said defendant, James E. Carter, is firmly of the opinion that if said Sheriff testifies that some of the testimony of said Sheriff James Steed will be in his favor and if the jury could have heard his testimony their verdict would have been for acquittal; that said defendant, James E. Carter, requests a new trial because the trial jury should have the benefit of the testimony of the Sheriff of this County, James Steed, and if trial court had enough belief in the motion of Prosecuting Attorney that Sheriff James Steed’s testimony was important enough to continue the other cases involved, then said Judge should grant a new trial and hold the trial in abeyance until said Sheriff is able to come to the witness stand; that the defense attorney consistently insisted upon the Prosecuting Attorney placing the Deputy Sheriffs, Bill Dyer and James Bowers, on the witness stand and in his opening statement he challenged the Prosecuting Attorney to do this and was refused. The defense attorney is definitely of the opinion that if any jury could hear the testimony of Mr. Bill Dyer or Mr. James Bowers or the Sheriff James Steed on cross examination that they would find the defendant ‘not guilty’ and the Judge should, therefore, grant the defendant a new trial.
“Wherefore, defendant prays that, due to the fact that the Prosecuting Attorney asked for a continuance on all other involved cases and all other persons being tried because the Sheriff could not be there and the Trial Judge gave that continuance, he be granted a new trial when the Sheriff will be able to testify and so that Sheriff James Steed and Deputies Bill Dyer and James Bowers can testify before the jury and, if the Trial Judge refuses this motion, he is not giving justice to the defendant because he granted the Prosecuting Attorney’s motion for a continuance upon the same grounds, over the objection of defense attorney.” . ,

It is my view that when a pleading is in writing, as was this motion for new trial, any remarks, made in oral argument by Carter’s attorney in the presentation of the motion cannot be seized on as an additional assignment to the motion for new trial. So I take the position that there was no assignment in the motion for new trial about the absence of corroboration and that point cannot now be raised.

Furthermore, in Instruction No. 5, the Court told the jury that Carter could not be convicted on the uncorroborated evidence of an accomplice; and there is evidence in the record going to the matter of corroboration. The witness, Floyd Harper, testified to seeing where cattle had been slaughtered and the ears and feet left, and the mark on one of the ears showed it was Harper’s cattle. The witness, Joe Swain, testified that he could see where cattle had been killed on the side of the road, and that he saw a yellow packing company truck along the same road. The witness, Virgil McCutcheon, testified that on Sunday morning he went down the Peeler Bend Road to the slaughterhouse and there was a trail of blood in the middle of the Peeler Bend Road for a mile on out to the slaughterhouse. The slaughterhouse was operated by Jim Carter.

Without dwelling any more on the matter, I reach the conclusion that the judgment should be affirmed.

Sam Robinson, Associate Justice,

dissenting.

As I see it, there are two points for decision in this case: First, is there any evidence of appellant’s guilt other than the testimony of accomplices? Second, is there a proper record before this Court raising the question of whether the accomplices are corroborated? In my opinion, there is not a scintilla of such corroborating evidence. True, the State’s witness, Donald Stuckey, an acknowledged accomplice, implicates the appellant. And, although from Brown Rainey’s testimony it is established that he helped Stuckey steal and butcher some cattle, it is not clear that an inference can be drawn from Rainey’s testimony that Carter knew anything about the cattle stealing. But even if Rainey’s testimony is susceptible to such an inference, it is perfectly clear that he is an accomplice. Other than the testimony of the two accomplices, there is no evidence of guilt on the part of appellant. At the scene of the killing of some of the cattle, the hull from a 22 rifle shell was found. It was shown that Carter owned a 22 rifle, but there was no effort to show that the 22 shell was fired from Carter’s rifle, even though ample facilities are available to law enforcement officers to make such a determination, and, of course, untold thousands of people own 22 rifles. But even if it were shown that the cartridge came from the 22 rifle belonging to Carter, in this case that fact would carry no weight, since it is clear from the record that Stuckey, an accomplice, had full access to the rifle.

Carter owns a refrigerated truck with a red cab and yellow body, with his name painted on the side in bold letters. One Joe Swain testified that he saw a yellow truck on the road near the place where some cattle were killed on the day they were killed. But the record further shows that he did not know when the cattle were killed. He gives no explanation of how he knew the day the cattle were killed; in fact, the record shows that the first he knew about the matter was seeing it in a newspaper. The owner of the cattle had found evidence that cattle had been butchered, but he made no effort to say when they were butchered, other than that it was during the last of March or first of April. Stuckey says it was the first two weeks in April. Swain does not attempt to identify the truck he saw as belonging to Carter, nor does he say he saw Carter. The only evidence in the record that connects Carter with the crime is the testimony of Stuckey, and his testimony is not corroborated in any particular. The majority opinion states that a pick-up truck belonging- to appellant was used to transport the stolen animals. The only evidence to this effect is the testimony of the accomplices.

It is the law of this State that a defendant cannot be convicted on the uncorroborated testimony of an accomplice. Ark. Stat. § 43-2116 provides: “A conviction can not 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 . . . ” The rule that a defendant cannot be convicted on the uncorroborated testimony of an accomplice has been firmly established since the 1700’s. Professor Wigmore discusses the history of the rule in his great work on Evidence, 3rd Ed., Vol. 7, beginning at page 312, and quotes Lord Abinger in R. v. Farler, 8 C. & P. 106 (1837): “It is a practice which deserves all the reverence of law, that judges have uniformly told juries that they ought not to pay any respect to the testimony of an accomplice unless the accomplice is corroborated in some material particular . . . The danger is that when a man is fixed, and knows that his guilt is detected, he purchases immunity by falsely accusing others. ’ ’

The rule that a defendant cannot be convicted on the uncorroborated testimony of an accomplice has been proved to be a good rule, for centuries. We adopted it by statute in 1883. It should not be lightly cast aside.

The next point is whether the condition of the record is such that a reversal should be ordered because the accomplices’ testimony is not corroborated. The majority opinion mentions only the appellant’s motion for a new trial, in which there is assigned as error the action of the trial court in overruling a motion for a continuance. But this part of the motion for a new trial was only supplemental to a previous motion for a new trial on the ground that the verdict of the jury was based on the uncorroborated testimony of an accomplice. Subsequent to the time the verdict of the jury was returned, the attorney for appellant made a motion as follows: “Now, I move that the case be dismissed because the trial Court heard the case tried and there was not one person that got on the witness stand and testified that Jim Carter received any cattle or any meat whatsoever except Don Stuckey. And that the trial lawyer asked each one of them under oath, ‘Can you turn here and tell this jury that?’ and they said, ‘No, we can’t do that.’ And the Court knows that the law is under the testimony of Don Stuckey and the law, and the Court knows that this is the law, that you can’t convict. And I ask now for a mistrial because the Court knows there wasn’t any corroborating testimony.” In overruling the motion, the trial court said: ‘ ‘ Motion denied. The motion for a new trial is denied because the question raised therein was not raised at the proper time.” [our italics]

It will be noticed that the last sentence in the motion states: “And I ask now for a mistrial because the Court knows there wasn’t any corroborating testimony.” And it appears that the only reason the court overruled the motion was that in the opinion of the trial court the question had not been raised at the proper time. The only other time it could have been raised prior to the time the motion was made would have been a motion for a directed verdict of not guilty, and such a motion was made when the State rested its case. The words “new trial” would probably have been more appropriate than “mistrial”. It was, however, understood that appellant’s attorney was speaking of a new trial, because the trial had been completed — the verdict had been returned, and the trial court treated the motion as one for a new trial. The court said: “The motion for a new trial is denied.” True, the motion was oral, but there is no requirement that such a motion must be in writing. “A motion is an application made to a court or a judge for the purpose of obtaining a rule or order directing some act to be done in favor of the applicant. Motions are not regarded as pleadings in the ordinary or technical sense of the term, even where they are reduced to writing. A petition, in common phrase, is a request in writing, and in legal language describes an application to a court in writing, in contradistinction to a motion, which may be made viva voce.” 37 Am. Jur. 502. Whether the motion was prior or subsequent to another motion for new trial makes no difference, just so it was made within the time allowed. Here there is no indication that it was not made within apt time.

“Where a supplemental motion was filed within the time allowed by statute, although after the original motion was overruled and an appeal granted the error relied on therein is available on appeal.” 24 C.J.S. 378. In Burton v. Commonwealth, 248 Ky. 408, 58 S. W. 2d 650, the Kentucky court said: “At the outset we are met by the commonwealth’s contention that the alleged error was not included in the motion and grounds for a new trial. We find, however, that, after the motion for a new trial had been overruled, an appeal granted, and the amount of the appeal bond had been fixed, appellant, at the same term, filed supplemental motion for a new trial on the ground that the change of venue was improperly refused. In the case of Commonwealth v. Neal, 223 Ky. 665, 4 S. W. (2d) 685, w~e had occasion to consider the question, and it was held that, although a motion for a new trial has been overruled, an appeal granted, and appeal bond executed, the defendant may file at the same term of court additional motion for a new trial.”

I am at a loss to understand why the majority completely ignore appellant’s motion for a new trial based on the contention that there is no evidence of guilt except the uncorroborated testimony of an accomplice. If it is because the motion was not in writing, the answer is that no law provides that it must be in writing. If it is because the word “mistrial” is used instead of “new trial”, the answer is that the trial court understood it to be a motion for new trial and dealt with it as such, and, moreover, for this Court to make a final determination of the case on such an extreme technicality would be contrary to the modern trend of courts to decide cases on the merits and to avoid disposing of litigation on a technical rule of procedure. It is hard to believe that any court would hold that a person must go to the penitentiary, although there is no valid evidence of his guilt, because his lawyer in an oral motion used the word “mistrial” instead of “new trial”. If the majority ignore the motion because no brief was filed in appellant’s behalf, then the case should not have been considered at all. But the rule is to consider appeals in felony cases regardless of the lack of or inadequacy of briefs. In my opinion, the only evidence of appellant’s guilt is the uncorroborated testimony of an accomplice. There is an ample record, and the judgment should be reversed.

I am authorized to say that Mr. Justice Johnson joins in this dissent.


source: Caselaw Access Project

author: J. Seaborn Holt, Associate Justice. Jim Johnson, Associate Justice,

license: Public Domain

text:
    Chapman v. Finkbeiner.
    5-1875
    324 S. W. 2d 348
    Opinion delivered May 25, 1959.

      L. A. Hardin, for appellant.

      Wright, Harrison, Lindsey é Upton, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, Mrs. Dovie Chapman, widow of Charles Chapman, brought this appeal from a decision of the Workmen’s Compensation Commission, (affirmed on appeal to the Circuit Court), disallowing her claim for compensation for the alleged injury and death by cerebral hemorrhage of her husband, which she contended arose out of and in the scope of his employment. For reversal appellant relies on these points: “ (1) The finding of fact and conclusion of law by the full Commission is against substantial undisputed evidence in this case. (2) There is no competent, substantial evidence in the record supporting the full Commission’s finding of fact and conclusion of law. (8) The finding of fact and conclusion of law by the full Commission is based on an erroneous assumption of the law, that there had to have been an over work load on the deceased to have caused his injury, and in the absence of an over work load there could be no compensation.” After a careful review of the record, we have concluded that there was substantial evidence to support the findings of the Commission and the judgment of the Circuit Court, therefore we must affirm.

Our rule, to which we have consistently adhered, was again stated in 223 Ark. 182, 264 S. W. 2d 834, Duke v. Pekin Wood Products Company, as follows: “The findings of the Commission, which is the trier of the facts, will not be disturbed on appeal to the Circuit Court if supported by substantial testimony. -In a long line of decisions since the passage of the act here in question, the rule has been clearly established that the finding of the Commission shall have the same binding force and effect as the verdict of a jury, or of a circuit court on appeal to that court or on appeal to this court.-” “It is not our function to weigh the evidence in these compensation cases. That responsibility has been left to the Commission by the Legislature. - The burden of proof is on the claimant to show that injury or death of the employee was the result of an accidental injury that not only arose in the course of the employment, but in addition, that it grew out of, or resulted from, the employment,” Farmer v. L. H. Knight Company, 220 Ark. 333, 248 S. W. 2d 111.

There appears to be little, if any, dispute of material facts which may be summarized as follows: The deceased employee, Chapman, had been working for his employer for about six years as a truck driver and his duties included loading the truck, driving it, and making deliveries. Chapman had been suffering from hypertension, or high blood pressure, for about five years prior to his death. It appears that on the Friday preceeding his death the following Tuesday, he had worked as usual, turned in his money on Saturday which he had received from deliveries, and had spent Sunday in the usual way for him and nothing unusual or out of the ordinary was observed by his fellow employees or his family on those days. On Monday morning following, Chapman arose at about the usual time and remarked, “I just don’t feel good” and “said he just believed he would lay off that day — he didn’t feel very good but he wasn’t particularly sick.” His wife called his employer at about 7 A.M. and reported that her husband was sick and wouldn’t be at work. On Tuesday morning (the next day) Chapman arose as usual about 4 A.M., drank some coffee, told his wife that he felt pretty good, and drove his own automobile to work, clocking in at about 5 A.M. When he appeared for work, his appearance was “usual except maybe kind of a listless attitude or someone that just don’t feel well or something like that,” — he was asked to go get his truck from a parking lot, which request was unusual because he usually did it without being reminded. He took a longer period of time to get the truck than was usual and in backing the truck into the loading dock, he killed the motor several times, and let the truck roll down an incline causing it to bump the loading dock hard which was all unusual for this employee. Chapman performed his usual work but he was noticeably slower and less alert than usual, seemed unable to lift a 30-lb. case of Creamo, and appeared to have less pep or energy and seemed to be tired. His fellow employees noticed that his color seemed to be kind of ‘ ‘grayish”. Chapman told his employer that he didn’t feel so good bnt that he would make it all right. A few minutes later Chapman remarked that he didn’t feel any worse than when he had come to work but in response to a question from his immediate superior, Chapman remarked that he felt pretty bad and clocked out at 5:26 A.M. He drove his own automobile home and told his wife, “I just couldn’t make it today and just had to come home”. She saw that there was something apparently wrong with Chapman, he looked pale and white and couldn’t hold anything with his hands. She immediately called a doctor and Chapman was sent at once to a hospital with his condition continually growing worse, ending in his death at about 10:30 that morning which was due to “spontaneous subarachnoid hemorrhage”.

Three medical experts testified in this case on the question as to whether there was any causal connection between Chapman’s employment and his death. One of these doctors, on being asked, “Assume an individual 49 years old suffering from hypertension, who, on the morning of his death had engaged in the loading of meat packages on a truck, which involved bending over and picking up the packages and placing them in the truck. I will ask you if that activity might be or could have been a precipitating factor or could have contributed in any way to the rupture which brought about the hemorrhage in this case,” answered, “It is possible”. It is significant that in this doctor’s testimony he does not say that it was “probable”. On the other hand, two other medical experts, neurosurgeons, Doctor John Adametz and Doctor Frank Padberg, in answer to hypothetical questions, testified to the contrary. Dr. Adametz testified: “It is my opinion that Mr. Chapman’s work as described in the question was non-contributory to the cause of his death . . . With this note of explanation, I repeat it is my considered opinion that Mr. Chapman’s work on March 12, 1957, was in no way contributory toward his cause of death” and “For the reasons which I have previously stated, it is my opinion that the physical work which the patient participated in on March 12, 1957, had nothing to do with the spontaneous subarachnoid hemorrhage which was the cause of his death” and that Chapman’s work activity did not “trigger” the rupture. Dr. Frank Padberg, on being asked for his opinion whether the work described in the record and the work which Chapman was performing on the morning of his death was a causative factor in his death, expressed the opinion that death was due to subarachnoid hemorrhage and that the work which Chapman did that morning did not cause that rupture. He further gave as his opinion, upon being asked about the lifting of some packages by Chapman, “It is improbable that the exertion and that moving these packages, cases, caused this rupture”. We hold that the testimony of these two specialists, Adametz and Padberg, was substantial and sufficient to support the findings of the Commission and the judgment of the Pulaski Circuit Court.

On appellant’s third contention, in effect, that appellees defended on the ground that there was no “over work load”, but little need be said. As we read the record, appellees’ defense was that there was no causal connection between the employee’s work and employment on the one hand, and his death on the other. The Commission did not base its findings on any showing of an increased work load, but on the contrary, found: ‘ ‘ After carefully considering all of the evidence in this case, we are, therefore, of the opinion that claimant has failed to sustain the burden of proof that is upon her to establish a causal connection between the deceased’s death and his employment, and her claim for dependency benefits must, therefore, be denied and dismissed.”

The answer to appellant’s objection to the hypothetical questions prepounded to Doctor Padberg and Doctor Adametz, we hold is that the objections he now makes here on appeal were not made until the appeal reached this court and therefore, come too late. Appellant refers to “the hypothetical question prepounded to Dr. Padberg as having omitted undisputed essential facts in this case — did not give in sequence certain evidence of the morning when Chapman left his work to return to his home,” and to the hypothetical question to both Doctors Adametz and Padberg as “omitting employee’s work record and leaving out of consideration the undisputed fact that Chapman left and did not work as usual the morning of-”. It is undisputed, as indicated, that prior to appellant’s appeal to this court, no where does he appear to have objected to the form or content of these hypothetical questions, nor does he complain that they were not complete and fair. In Southwestern Gas and Electric Company v. Halter, 200 Ark. 244, 138 S. W. 2d 793, (Headnote 4), we held: “The objection that hypothetical questions put to witnesses who testified as experts did not include all undisputed material facts as they should have done, and included certain other facts which there was no testimony to establish, could not be raised for the first time on appeal. ” No error appearing, we affirm.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

dissenting.

In respectfully dissenting to the majority opinion, I am convinced the finding of fact and conclusion of law by the full Commission is based on an erroneous assumption of the law and that assumption is: There had to have been an over work load on the deceased to have caused his injury and in the absence of an over work load there could be no compensation. The hypothetical questions propounded to the doctors who testified in this case did not take into consideration the work load the deceased had been carrying prior to his death. Mr. Chapman worked 5 days a week and most of the time from 10 to 15 hours per day for approximately 5 years prior to the date of his death. The record reflects that during the week ending February 13, 1957, Mr. Chapman worked a total of 54% hours; the week ending February 20, 1957, he worked a total of 58% hours; the week ending February 27, 1957, he worked 61% hours; the week ending March 6,1957, he worked 57% hours; the following week on Friday, March 8, 1957, Mr. Chapman worked a total of 15 hours for that day and this was the last day he worked until March 12, 1957, the date of his injury and death. It is admitted that Mr. Chapman visited a doctor one time in 1953 and received treatment for high blood pressure. The record reflects that he did not go back for additional treatment but continued taking the medicine prescribed at that time. It is my contention that the work load carried by Mr. Chapman during his employment contributed to his injury and death.

In my opinion the hypothetical questions propounded to the doctors did not take the prior work load into consideration. The majority opinion relative to this matter is as follows:

“It is undisputed, as indicated, that prior to appellant’s appeal to this Court, nowhere does he appear to have objected to the form or content of these hypothetical questions, nor does he complain that they were not complete and fair.
“In Southwestern Gas & Electric Company v. Halter, 200 Ark. 244, 138 S. W. 2d 793, (Headnote 4) we held:
“ ‘The objection that hypothetical questions put to witnesses who testified as experts did not include all undisputed material facts as they should have done, and included certain other facts which there was no testimony to establish, could not be raised for the first time on appeal.’ ”

The case cited by the majority was not a workmen’s compensation case. The "Workmen’s Compensation Law (Sec. 81-1327 Ark. Stats.) is as follows:

“. . . The Commission shall not be bound by technical or statutory rules of evidence or by any technical or formal rules of procedure, except as provided by this Act . . .”

The Act does not provide in any other section for the formality of objections. Therefore, as I see it, there was no necessity for a formal objection to the erroneous hypothetical questions propounded by the appellees. However, as a matter of law, we said in Ford v. Ford, 100 Ark. 518, 140 S. W. 993: “A hypothetical question to a medical expert must embrace all of the essential undisputed facts, and must not include any fact which the testimony does not tend to establish.”

The questions so propounded dealt merely with the work Mr. Chapman did the morning of his death and not the work load over a long period of time prior to his death. It is admitted that the work that the deceased did on the morning of his death was not unusual or different from that previously performed by him.

This Court, speaking through Mr. Justice Minor W. Millwee, said in a very fine opinion delivered December 17, 1956, Bryant Stave and Heading Company v. White, 227 Ark. 147, 296 S. W. 2d 436, that it was not necessary to show an increased work load to prove an accidental injury under the Arkansas Workmen’s Compensation Act; that if the claimant had a pre-existing condition and there is an injury or breakdown which, though basically brought about by the pre-existing condition, but nevertheless casually connected with the work he was doing, then it is an accidental injury within the meaning of the Act.

All of the doctors admitted that physical exertion is harmful to a person suffering with hypertension or high blood pressure. From the description of the deceased’s work in the record, there can be no doubt but that it required physical exertion. Therefore, for the reasons set out above, I would reverse the finding of the Commission as a matter of law.


author: Ed. F. McFaddin, Associate Justice.

text:
    K. C. S. Railway Co. v. Ark. Commerce Commission.
    5-1814 and 1815
    326 S. W. 2d 805
    Opinion delivered May 25, 1959.
    [Rehearing denied September 7, 1959]
    No briefs filed for appellant.
    No briefs filed for appellee.
   Ed. F. McFaddin, Associate Justice.

These two cases involve the valuation assessments against the appellant as made by the State tax assessment authorities under the provisions of § 84-601 et seq. Ark. Stats, and amendments. Appellees claim that the appeals were not filed within the time allowed, so appellant is met with a motion to dismiss the appeal in each case. We have reached the conclusion that the motions to dismiss must be sustained. Here are the crucial dates in each case:

Case No. 1814 involves the tax assessment against appellant for the year 1955. On August 29,1955 the Tax Division of the Arkansas Public Service Commission notified appellant that the equalized assessed value of its property in Arkansas for 1955 had been fixed by the Commission at $3,913,000.00. Appellant protested the assessment, and the Public Service Commission, by its order of December 9, 1955, adjusted the assessed valuation of appellant’s properties to be $3,881,900.00. Appellant, being still dissatisfied with the valuation as fixed, appealed to the Pulaski Circuit Court on January 4, 1956. By its judgment made and entered on May 14, 1958, the Pulaski Circuit Court affirmed the order of the Public Service Commission and the Circuit Court judgment also recited: ‘ ‘ That two newly created agencies, the Arkansas Commerce Commission and the Arkansas Assessment Coordination Department, have entered their appearances, adopting and supporting the position of the Arkansas Public Service Commission.”

On June 10,1958 appellant filed in the Circuit Court its notice of appeal to the Arkansas Supreme Court, and the appeal was perfected in this Court by the filing of the transcript on December 11, 1958. Thus a total of six months and twenty-seven days elapsed from the entry of the Circuit Court judgment on May 14, 1958 until the filing of the appeal in this Court. Appellant seeks to justify this delay by stating that the notice of appeal was given in the Circuit Court on June 10, 1958, and that on September 3, 1958 the Circuit Court entered an order extending to December 15, 1958 the time for filing the appeal in the Circuit Court. All this will be discussed later under the topic, “Motion To Dismiss”.

Case No. 1815 involves the tax assessment valuation against the appellant for the year 1956. On June 29, 1956 the Tax Division of the Arkansas Public Service Commission notified appellant that the equalized assessed value of appellant’s property in Arkansas for 1956 had been fixed by tbe Commission at $4,396,000.00. Appellant protested tbe assessment, and tbe Public Service Commission, by tbe order of January 15, 1957, affirmed tbe valuation at tbe figure of $4,396,000.00. Appellant appealed to tbe Pulaski Circuit Court on January 24,1957: and that Court, by its judgment made and entered on June 3, 1958, affirmed tbe order of tbe Public Service Commission; and that judgment also recites: “Tbe Arkansas Commerce Commission and tbe Arkansas Assessment Coordination Department bave entered tbeir appearances, adopting and supporting tbe position of tbe Arkansas Public Service Commission.

On July 1, 1958 appellant filed in tbe Pulaski Circuit Court tbe notice of appeal to tbe Arkansas Supreme Court; and tbe appeal was perfected in tbis Court by tbe filing of tbe transcript on December 11, 1958. Thus, a period of six months and eight days elapsed from the entry of tbe Circuit Court judgment on June 3, 1958 until tbe filing of tbe transcript in tbis Court. Appellant seeks to justify tbis delay by tbe fact that on September 18, 1958, tbe Pulaski Circuit Court entered an order extending tbe time for filing and docketing tbe appeal in tbis Court to January 15, 1958. Tbis will be discussed in the topic beading, “Motion To Dismiss”, now to be considered.

MOTION TO DISMISS

Tbe question, presented by tbe motions to dismiss, is whether tbe procedure for appeal in cases like these two is regulated and controlled by § 73-133 et seq. Ark. Stats., as claimed by appellees, or by Act No. 555 of 1953, as claimed by appellant. We conclude that tbe appellees are correct. Tbe rule has been recognized in many cases that when tbe Legislature fixes a short time for appeal in a particular type of case, and such time so fixed is reasonable, then tbe short time so fixed must govern rather than tbe long time allowed by tbe general appeal statute. Crandell v. City of Harrison, 105 Ark. 110, 150 S. W. 560; McIlroy v. Baird, 157 Ark. 288, 248 S. W. 1; Covington v. Shackleford, 222 Ark. 374, 259 S. W. 2d 676.

In the two cases here before us, the applicable statute governing appeals from the Circuit Court to the Supreme Court, in cases like these two, is § 73-134 Ark. Stats. This statute was originally Pope’s Digest § 2020, and reads in part: ‘ ‘ The record shall be lodged in the office of the Clerk of the Supreme Court within sixty days from the rendition of the order in the Circuit Court . . .” In Graysonia, Nashville & Ashdown R. Co. v. Arkansas Corporation Commission, 202 Ark. 589, 151 S. W. 2d 665, the question here involved was definitely decided. There, the Commission had fixed the railroad’s assessment and the appeal had been made to the Circuit Court. The Circuit Court judgment was October 22,1940 ; and the appeal was not filed in this Court until March 24, 1951. Citing Pope’s Digest § 2020, we held: “Since the appeal was not perfected in a timely manner, the motion to dismiss must be sustained.”

In the present cases, the appellant, thinking that its appeals were regulated by Act. No. 555 of 1953, obtained orders in the Circuit Court purporting to extend the time for lodging the record in the Supreme Court. But when the statute fixes a time for appeal, and the time is reasonable, such statute is mandatory (Miller v. White, 108 Ark. 253, 157 S. W. 934); and the Circuit Court could not enlarge tke time fixed in the statute.

Therefore, the appellee’s motions to dismiss the appeals are granted.

       During the pendency of this litigation the Legislature, by Act No. 234 of 1957, created the Assessment Coordination Department; and by Act No. 132 of 1957 created the Arkansas Commerce Commission. Both the Commerce Commission and the Arkansas Assessment Coordination Department became parties to the record in the Circuit Court. By Act No. 245 of 1959, the Legislature abolished the Assessment Coordination Department and created the “Department of Assessment Coordination of the Arkansas Public Service Commission”. This latter Act is mentioned for convenient reference. It recites that it is not effective until July 1, 1959.

       See footnote (1) supra.

       C. R. Stevenson was our long time Clerk of this Court; and in his book, “Supreme Court Procedures”, revised in 1956, he lists on page 7 thereof the appeal time fixed for certain types of cases. Among those so listed, Mr. Stevenson recites: “Public Service Commission: record shall be lodged in the Supreme Court within sixty days of the rendition of the order in the Circuit Court. Ark. Stats. § 73-134, § 73-236.” Acme Brick Co. v. Ark. Public Service Comm,., 227 Ark. 436, 299 S.W. 2d 208, involved an appeal in a rate hearing. That type of appeal is governed by § 73-236, which also allows only sixty days to appeal from the Circuit Court to the Supreme Court.

       Section 84-120 Ark. Stats, involves appeals from the Public Service Commission “.. . respecting the assessment or equalization of property ...”, but concerns only the appeal from the Commission to the Circuit Court; so the quoted language from § 73-134 Ark. Stats, is the applicable section here on appeals from the Circuit Court to the Supreme Court.


author: Ed. F. MoFaddin, Associate Justice. Sam Robinson, Associate Justice,

text:
    Ratton v. Busby.
    5-1847
    326 S. W. 2d 889
    Opinion delivered May 25, 1959.
    [Rehearing denied September 21, 1959]

      Barrett, Wheatley, Smith $ Deacon and Kirsh, Cathey & Brown, for appellant.

      Howard & McDaniel and Marcus Piets, for appellee.
   Ed. F. MoFaddin, Associate Justice.

This litigation results from a collision of two airplanes which occurred over the Jonesboro airport on Sunday afternoon, January 19,1958. The two airplanes were in final approach to landing. Appellant, Dr. R. W. Ratton, was flying alone in a single motor Beechcraft plane; Charles H. Busby and Billy Wayne Robinson were in a single-motor Cessna plane; and as a result of the collision Busby and Robinson were killed. Busby’s administratrix filed this action against Ratton for damages; and from a judgment against him, Ratton brings this appeal.

There was no control tower at the Jonesboro airport : that is, no one was directing traffic and each pilot had to be his own judge as to when to take off and land. The Jonesboro airport has a “left-hand rectangular flight pattern”: which means that planes about to land fly parallel with the landing strip on what is called the “downwind leg”, then make a left-hand 90 degree turn to what is called the “base leg”, and then when in line with the landing strip make another 90 degree turn into what is called the “final approach”; and the plane gradually glides to a landing. Usually, the elevation of the plane is about 800 feet on the downwind leg, and about 300 feet on the base leg, and then the plane goes to ground level in the final approach. Dr. Ratton professed knowledge of all the rules of the Jonesboro Airport, as well as the rules of the Civil Aeronautics Board, one of the latter of which (Rule 60.14 (e)) reads as follows:

“Landing. Aircraft, while on final approach to land, or while landing, have the right-of-way over other aircraft in flight or operating on the surface. When two or more aircraft are approaching an airport for the purpose of landing, the aircraft at the lower altitude has the right-of-way, but it shall not take advantage of this rule to cut in in front of another which is on final approach to land, or to overtake that aircraft.”

On the day in question, which was a clear day, Dr. Ratton was flying his Beechcraft plane and had been practicing take-offs and landings. Deceased, Mr. Busby, was giving flight instruction to Billy Wayne Robinson in the Cessna plane; and they were also practicing takeoffs and landings. Dr. Ratton admitted that he knew that Busby and Robinson were so engaged. The wings on the Beechcraft plane are located below the cockpit, so that visibility downward is only 45 degrees. The wings on the Cessna plane are located above the cockpit so that visibility above is only 45 degrees. Witnesses testified that both the Cessna and the Beechcraft came into the downwind leg at about the same time, with the Beech-craft plane above the Cessna plane; that both planes turned into the base leg in the same relative positions; that both planes turned into the final approach in the same relative positions; and that the Beechcraft plane in going down to the ground struck the Cessna plane below it, causing the Cessna plane to fall to the ground. Dr. Ratton was able to make a belly-landing with his Beech-craft plane. Thus, it is clear that under the landing rule quoted above, the Cessna plane, being of lower altitude, had the right-of-way, and that Dr. Ratton in the Beech-craft plane knew of this rule and, therefore, the failure to observe this rule was evidence of negligence.

Counsel for both sides have shown knowledge, skill, and diligence in developing the facts and the applicable rules of aviation law, so the questions presented on appeal relate to trial matters, rather than differences concerning the law of aviation. Appellant urges nine assignments of error which we group and discuss in suitable topic headings.

I. Instructions. Three assignments relate to instructions.

(a) In Instruction No. 7 the Court read various portions of the General Flight Rules of the Civil Aeronautics Board; one portion so read being: ‘ ‘ Aircraft shall be operated at all times in compliance with the following general flight rules, and also in compliance with the visual rules which may be applicable”. Appellant’s objection was: “And we object to the giving of the instruction in its entirety and particularly to the language, ‘. . . and also in compliance with the visual rules which may be applicable’ ”. The appellant never made the objection any more specific than quoted. We see no merit in appellant’s assignment. The jury was told that compliance with the visual flight rules related only to those “. . . rules which may be applicable”. If the jury found that none was applicable, then the appellant was not hurt. Wilson v. Southwest Casualty Co., 228 Ark. 59, 305 S. W. 2d 677, affords appellant no solace when considered in the light of appellant’s sole objection, as above quoted. If appellant thought the words, “visual flight rules”, should have been defined, he should have offered a definition. Lemm v. Sparks, 230 Ark. 105, 321 S. W. 2d 388.

(b) In the Instruction No. 7 the Court also read to the jury that portion of Paragraph 60.11 of the General Flight Rules, as follows: “Before beginning a flight, the pilot in command of an aircraft shall familiarize himself -with all available information appropriate to the intended operation”. Appellant’s objection to this portion of the instruction was that it was abstract. We see no merit to appellant’s objection. The General Plight Rule as copied in the instruction, made it the duty of a pilot to familiarize himself with all available information appropriate to his intended operation. Part of this information was who had the priority of landing, which was Regulation 60.14 (e), as previously copied. It was for the jury to decide whether Dr. Ratton was familiar with that regulation and violated it.

(c) Dr. Ratton pleaded the contributory negligence of Mr. Busby as a bar to the plaintiff’s recovery. The Court read to the jury Sections 1 and 2 of Act No. 296 of 1957 on contributory negligence, and then gave the jury two further paragraphs, the first of which was:

“Therefore, if you find from a preponderance of the evidence in this case that the defendant, Dr. Robert W. Ratton, was guilty of negligence in the operation of his plane which proximately caused or contributed to cause the damages complained of, then your verdict will be for the plaintiff, Mrs. Busby, in accordance with the measure of damages instruction hereinafter given you, unless you find that the deceased, Charles H. Busby, was guilty of contributory negligence in a degree equal to or greater than the negligence of the defendant, Dr. Robert W. Ratton, if any. ’ ’

The appellant does not argue that this paragraph was incorrect; but insists that at the end of the paragraph the defendant was entitled to have submitted the negative or converse. The appellant asked that the following be added at the end of the quoted paragraph:

“If, however, you find from a preponderance of the evidence that the deceased, Charles H. Busby, was guilty of contributory negligence in a degree equal to or greater than the negligence of the defendant, Robert W. Rat-ton, if any, and that such contributory negligence contributed to cause the accident, your verdict should be for the defendant, Robert W. Ratton.”

The appellant says that he was entitled to have his theory of the case submitted on the matter of contributory negligence, and cites, inter alia, Prescott & N. W. R. Co. v. Weldy, 80 Ark. 454, 97 S. W. 452; Western Coal Co. v. Moore, 96 Ark. 206, 131 S. W. 960; and Western Coal Co. v. Harrison, 122 Ark. 125, 182 S. W. 525. It is true that the appellant was entitled to have his theory of the case presented as to contributory negligence; but the theory was presented in the instructions as given, and there was no need for the Court to give the negative of the proposition at the conclusion of the quoted paragraph. Where the law has been clearly and adequately stated in a positive manner, ordinarily the Court need not instruct in a negative form. 88 C. J. S. 820 “Trial” § 303.

II. Ruling Regarding Jury View Of The Damaged Wing Of The Cessna Plane. One wing of the Cessna plane was preserved; and appellee wanted the jury to see that damaged wing, which was too large to bring into the court room. Early in the course of the trial counsel for appellee asked the Court if the jury could go to view the damaged wing; and the Court said: “You may take that up in chambers”. The trial lasted five days; and on the fifth day the appellee again asked the Court if it would permit the jury to go to see the damaged wing of the Cessna plane. At first the Court said that the jury might view the wing if there was a showing that it was in the same condition as of the day of the collision; but later the Court told the jury:

“There has previously been an offer by counsel for the plaintiff to view certain portions of the aircraft, the Cessna aircraft involved in this collision. The jury is instructed that the statutes provide that the jury may, in the discretion of the court, view real property in litigation or the place where a particular thing happened, but in view of the fact that the testimony does not disclose that the aircraft is now in the same condition that it was at the time of the collision — that is, assembled and so on — that the offer of view is refused, and the jury is instructed to pay no attention whatsoever to the offer of the view. They should not consider the offer to view in their deliberations in any manner whatsoever.”

Notwithstanding this ruling, appellant insists that the appellee caused irreparable damage to the appellant by making in open Court the request that the jury view the damaged wing. It is appellant’s contention, that any request that a party may make to the Court for the jury to view anything, must always be made in chambers and never in open Court, because — says appellant — when the opposing counsel objects to the view, the jury concludes that the opposing counsel is trying to conceal something. In support of his position, appellant cites, inter alia: Woodrum Truck Lines v. Bailey (Tex. Com. App.), 57 S. W. 2d 92; and also National Box Co. v. Bradley, 171 Miss. 15, 157 So. 91, 95 A. L. R. 1500, together with subsequent Mississippi cases. The Texas case is based on a Texas statute that prohibits views. We need not consider the Texas case, since our statute provides that the Court may allow view in certain instances. The question, then, is whether a request for the view must always be made in the absence of the jury. The Mississippi cases are strong in that regard, when the appellant duly preserves his record. But it has never been the rule in Arkansas that a request for view must in all instances be made in the absence of the jury. The Arkansas statute (§ 27-1731) vests the Trial Court with discretion in the matter of refusing or allowing the view. The statute does not say that the request for view must be made in the absence of the jury; and we would be reading into the statute something that is not there if we should so hold. The question is whether there was prejudicial error committed; and in the ruling of the Court here challenged, it is clear that there was no prejudicial error. The Court instructed the jury that there was no sufficient showing that the damaged wing of the Cessna plane was like it was the day of the collision; and in thus giving a reason for refusing the view, the Court certainly made clear to the jury the fact that it was the Court refusing the view, rather than the appellant trying to “hide something”. We see no prejudice resulting to the appellant in the Court’s ruling.

III. Rulings Ns To Evidence. Three separate rulings are questioned.

(a) The plaintiff called the witness, George Disinger, who had been operating the Jonesboro Airport since 1943 and had worked in airplane mechanics since 1937. Disinger was a pilot with over 3,000 hours to his credit, and had a commercial license with instructor’s rating from the Federal Government. He was familiar with the planes involved in the collision, and testified as to these planes. It was shown that the Beechcraft plane had a tricycle retractable mechanism for landing. The witness had examined the Beechcraft plane immediately after the collision, and some time later had taken a moving picture of the plane and the landing gear. Disinger was asked: “When the nose wheel is down in locked position, such as indicated here on the model, defendant’s Exhibit 1, is it possible to break that bell crank you have referred to with a lick against the front wheel or nose wheel?” The witness was allowed to answer the question over objection. Then Disinger was asked: “What is your opinion whether or not the nose wheel was or was not being retracted at the time it broke the bell crank?” That question was also allowed to be answered over the objection of the appellant. Appellant says the Court erred in allowing Disinger to give an opinion as an expert witness on these matters. We see no error committed by the Trial Court in allowing the witness to answer the questions. The appellant concedes the witness’ qualifications to testify as a mechanic; but insists that he is not qualified to testify as to “stresses, strains, and strength of materials”. We have previously stated some of Disinger’s experience and qualifications; and we think it was proper to allow him to answer the questions. The question of the competency of the witness to express an opinion is largely within the discretion of the Trial Court. Fireman’s Ins. Co. v. Little, 189 Ark. 640, 74 S. W. 2d 777; and Ark. P. & L. v. Morris, 221 Ark. 576, 254 S. W. 2d 684. The jury alone determines the value of, and the weight to be given, expert testimony. Home Ins. Co. v. Jelks, 187 Ark. 370, 59 S. W. 2d 1028; and Western Union Tel. Co. v. Turner, 190 Ark. 97, 77 S. W. 2d 633.

(b) The witness, Disinger, had also taken a picture of the Beechcraft plane after the accident; and he was allowed to set up a moving picture projector and exhibit the moving picture to the jury. Appellant insists most vigorously that Disinger was allowed to make oral comments about the pictures as he was showing them; and appellant claims that this was fatally defective. We have carefully read the testimony, and it was shown that the picture could be stopped at any time and any questions could be asked by counsel for either side as to what the picture showed and the record made as in case of a still picture. The showing of the picture consumes between four and five minutes. With the transcript and the picture before us, we are thoroughly able to understand Disinger’s testimony. Every time he stated what the picture showed, he was cautioned: “No comments”; and the showing of this picture was no more than the showing of any still picture. We see no error.

(c) Finally, on the matter of evidence, appellant complains that he was not allowed to introduce into evidence the report which he made to the Civil Aeronautics Authority several hours after the collision. Certainly the report was not a part of the res gestae, because the making of the report was too far removed from the time of the collision to constitute res gestae. Fordyce v. McCants, 51 Ark. 509, 11 S. W. 694; and St. L. I. M. & S. Ry. v. Enlow, 115 Ark. 584, 171 S. W. 912. Neither was the report offered to impeach the testimony of any witness called by the appellee. All the report could have done would have been to constitute a self-serving declaration of the appellant; and was, therefore, inadmissible. Donaghey v. Williams, 123 Ark. 411, 185 S. W. 778; and Webster v. Goolsby, 130 Ark. 141, 197 S. W. 296.

IV. Excessiveness Of The Verdict. The jury returned a verdict for the appellee for the sum of $62,-887.50 and the appellant claims that this amount is grossly excessive. It is a large sum of money; but the appellee and her children suffered a great loss. Mr. Busby was 32 years of age at the time of his death. He was survived by a wife and two children, who were aged 9 and 5 respectively. Mr. Busby had been flying 12 or 13 years; he was a flight instructor; his earnings were $300.00 a month plus commissions on sale of planes; he used all of his income for the support of his family. There is no evidence of any conscious pain or suffering; but a man of Mr. Busby’s age had an expectancy of 38 years. His salary of $3,600.00 a year, not taking into consideration the commissions from the sale of planes, would make a sum appreciably greater than the verdict, even calculated to its present cash value. What the two children have lost in the death of their father can hardly be placed in dollars and cents. While the verdict is large, we cannot say that it is so grossly excessive as to shock the conscience.

V. The Conduct Of The Trial. Finally, we come to the assignment which has given ns the most serious concern. The appellant insists that he was deprived of the fair and impartial trial which the law guarantees to every litigant; and the appellant says this result came about because of three factors: (a) the Trial Judge asked the witnesses a total of 160 questions in the course of the trial; (b) the Court invited the jurors to ask questions of the witnesses while they were testifying; and (c) during a recess of the Court the jurors went to the Judge and asked if a witness could be recalled for further questioning. Because of these matters, appellant claims he is entitled to a new trial; and because of the seriousness of these charges we have examined the transcript page by page.

We have concluded that the trial was fairly conducted and no new trial should be ordered. The trial con-stoned, five days, and involved a collision of two airplanes. The witnesses who knew and flew airplanes used a vocabulary that, while clear to pilots and flyers, is almost an unknown language to persons who are not ‘ ‘ air-minded”; and in order to understand the testimony, the Court and the jury asked many questions. For instance, questions were asked about such matters as the down-wind leg, the base leg, the final approach, left-hand rectangular flight pattern, altitudes, banking, visibility, bell crank, range of vision in banking, and many other such matters, which certainly needed explanation to a jury of laymen. Again, when small hand-size model planes were offered to depict the two planes involved in the collision, the Court very wisely inquired and learned the pertinent fact that neither model plane was constructed to scale; and one juror asked and was informed that the windows in one of the model planes were different from those of the plane it was supposed to depict. On the very vital matter of the correct way to land a plane, both the Court and the jury asked as to permissible variances in elevation and course in the down-wind leg and the base leg of the descent.

When the witness, Disinger, was telling the point of impact on the Cessna plane, he said: “About four feet on the root of the wing on the rear spar at a slight angle to the spar”. It was certainly proper for the Court to ask the witness: “What do you mean by root?”; and “What is the spar in a wing?” If this had been a case involving the collision of two automobiles, probably most of the members of the jury would have understood the expressions used by the witnesses: but in a case involving the collision of two airplanes, it was certainly essential that the jury understand the terminology used by the witnesses. Nearly all of the questions asked were propounded to experienced aviators, like the witness, Disinger, and the witness, Fulkerson; and we conclude that the jury showed a becomingly keen desire to understand the testimony. On the second day of the trial, and before any objection or motion for new trial was made by appellant, the Court on its own motion told the jury:

‘ ‘ The Court is asking these questions simply for the purpose of determining the law to "be given to the jury, and . . ., as I have told you in the general instructions at the time the general charge was given to the jury panel, no question asked by the court is ever intended or meant as a comment upon the testimony or credibility of any particular witness. The court is asking these questions simply for the purpose of determining the law, the various statutes to be determined in instructing the jury, and for no other purpose.”

On the morning of the third day of the trial, appellant’s counsel in chambers made the first objection to interrogation by the Court or the jury. This was in the form of a motion for mistrial; and the proceedings in chambers consume eight pages of the transcript. It would unduly prolong this opinion to copy all of these pages; but the gist of such proceedings is that the appellant insisted that the questioning by the Court and the jury had ££. . . unintentionally prejudiced our rights of defense in this case”. The Court explained to the counsel:

“The entire inquiry by the jurors was with reference to whether or not they could ask questions and whether or not they could have a particular witness back . . . At a time when the Court had told the jury they might have a recess under the usual admonition of the Court, and as the Court stepped down from the bench, one of the jurors motioned to the court and in the presence of the entire jury panel in open court made this statement: ‘Judge, is it proper for a juror to ask questions’, to which the court replied: ‘Yes, ma’am’, this in the presence of the entire jury panel, ‘but if you ask an incompetent question, the court will have to so instruct you’ . . . Let the record show that as soon as the juror made this statement, counsel was immediately informed at that time. No objection was made by counsel on either side as to whether it is proper for a juror to ask questions . . . The court is not trying to try your lawsuit. The court has some obligation to see justice is done and jurors can intelligently pass on the facts . . . I am afraid you gentlemen are overlooking one thing: trial of a lawsuit is not a battle of wits. Trial of a lawsuit in a court of justice is to arrive at justice, and that is what the court is trying to do.”

After overruling the motion for mistrial in chambers, the Judge immediately in open court told the jury:

“Ladies and gentlemen of the jury, the court in the general instructions at the time the entire jury panel was present in court instructed the jury that from time to time the court might ask questions, either for the purpose of determining the law applicable to the case, the instructions to be given, or for the purpose of clarifying something in the court’s mind. The court in this case has asked a number of questions. The jury is instructed and told at this time, as they were in the general instructions, that no question asked by the court is intended or meant as any comment upon the weight of the evidence or the credibility of the witness. The jury is the sole and exclusive judge of the evidence, of the weight thereof, and of the credibility of the witnesses, and no question asked by the court should be taken by the jury as any inference or comment by the court in any manner on the testimony of any witness or the credibility of any witness or the weight you should give them.”

The questions asked by the Court and the jury certainly served to clarify the testimony so that we, as an appellant Court, are better able to understand the factual situation than we would have been if such questions had not been asked. No question asked by the Court was objectionable as violating rules of evidence; and no questions, separately or altogether, show any view of the Court or the exertion of a conscious or unconscious influence on the jury’s verdict.

In Sharp v. State, 51 Ark. 147, 10 S. W. 228, and in Arkansas Central Rd. Co. v. Craig, 76 Ark. 258, 88 S. W. 878, we had occasion to discuss the conduct of the Trial Judge in asking questions; and what we said in those cases is our rule in Arkansas today. We quote excerpts from these two cases and reaffirm them as the governing principles:

“The judge has the right, in a criminal prosecution, to interrogate the witnesses, but he has no right to usurp the place of the State’s attorney, ‘and prescribe the order of introduction of the witnesses and become active in their examination’; nor has he the right to assume the duties resting on the prisoner’s counsel in the general conduct of the defense. He may ask questions which the attorneys had the right to propound and failed to ask, when the answers to the same may tend to prove the guilt or innocence of the accused. It would be a reproach to the laws of the State if he was required to sit and see the guilty escape or the innocent suffer through a failure of parties, or their attorneys, to ask a witness a necessary question ... In all trials the judge should preside with impartiality. In jury trials especially, he ought to be cautious and circumspect in his language and conduct before the jury. He should not express or intimate an opinion as to the credibility of a witness or as to controverted facts. For the jury are the sole judges of fact and the credibility of witnesses; and the constitution expressly prohibits the judge from charging them as to the facts . . . Any expression or intimation of an opinion by the judge as to questions of fact or the credibility of witnesses necessary for them to decide in order for them to render a verdict would tend to deprive one or more of the parties of the benefits guaranteed by the constitution, and would be a palpable violation of the organic law of the State.”
“Counsel for appellant contends with much force that the judgment should be reversed because the presiding judge during the trial propounded questions to the witnesses for plaintiff and defendant. The contention is not that these questions were improper, had they been propounded by counsel for plaintiff; but the contention is made that, by propounding a number of questions, the judge thereby assumed the role of attorney, and in that way indicated to the jury his opinion of the evidence, and prejudiced the rights of the defendant. It is true that a judge, under our law, should neither directly nor indirectly indicate to the jury his opinion of the facts in the case, when the same are in dispute, and when the jury are to determine what the facts are ... It seems to be the general rule, well supported by the decided cases, that the trial judge has the right to propound such questions to witnesses as may be necessary in order to elicit pertinent facts, in order that the truth may be established. Of course, this must be done in a reasonable and impartial way, so as not to indicate his opinion of the facts, and thereby prejudice the rights of the parties ... It is not usually necessary that the judge should propound many questions to witnesses, and for the judge to take the case out of the hands of counsel, and take the lead in the examination of witnesses might at times be improper and prejudicial. But it would be a reproach to the law, if he were required to sit still in either a civil or criminal trial, and see justice defeated through a failure of counsel to ask a witness a pertinent question.”

Regarding the right of jurors to ask questions, the general trend of the holdings is summarized in 58 Am. Jur. 311 in this language:

“The fact that the trial judge gave the jury permission to interrogate a witness without any special request from them for the privilege has been held not to constitute error so long as the questions asked are germane to the issue. Conceding the propriety of permitting a juror to examine a witness, the examination may be carried out in such a manner or under such circumstances as to warrant the trial court in declaring a mistrial or granting a new trial, or it if fails or refuses to do so, to warrant a reversal by the reviewing court; this largely depends upon the facts of the individual case. But it may be said that, generally speaking, the courts have been reluctant to require a reversal or new trial because of the manner in which a juror examined a witness. It has been held not to be error to permit questions by the juror concerning matters that might properly have been elicited on the direct examination of the witnesses, if they are such as tend to clarify material points in the testimony.”

We have gone into this matter in considerable detail to show that the trial was fairly conducted and that the appellant’s motion for mistrial was properly denied. After considering all of the appellant’s assignments, we conclude that the judgment should be affirmed.

Harris, C. J., and Ward and Robinson, JJ., dissent.

Sam Robinson, Associate Justice,

dissenting.

This case grew out of a collision between two airplanes. There does not appear to be anything particularly complicated about the facts. It is just a question of who, if anyone, was negligent.

One of the issues on appeal is the action of the trial court in propounding to the witnesses approximately 165 questions in the course of the trial. The magnitude of this number of questions will be understood when the fact is taken into consideration that a total of only about 3,000 questions was asked all the witnesses. Appellee was the plaintiff, and of course had the burden of proving negligence on the part of the defendant, appellant. The plaintiff was represented by able counsel fully capable of presenting properly their client’s case and, in fact, looking-after their client’s interest in any court. Two of the allegations in the complaint, of negligence on the part of the defendant, are as follows: “In failing to keep a lookout for the plane in which the deceased was flying”; and further, “in failing to pull his plane directly up instead of giving it the throttle and more power when he discovered or should have discovered the plane in which the deceased was flying”.

Plaintiff introduced as a witness one Bill Farrell, an experienced airplane pilot. During the cross-examination of this witness, defendant introduced a small model representing the Beechcraft Bonanza low wing plane operated by the defendant at the time of the collision. One of the principal issues was whether the defendant from his position in the Bonanza should have seen the other plane. Immediately upon the introduction of the small model, the court took over the examination of the witness and at this point three pages of the record are required to record the examination of the witness by the court on how the plane was constructed, the dimensions, etc. Finally counsel for the defendant objected to questions propounded by the court. Apparently the effect of this testimony brought out by the court in the eyes of the jury could have been that the defendant was situated so that he could have seen the other plane.

In his answer defendant had alleged that the Cessna plane occupied by the deceased had dual controls and that the deceased was negligent in permitting the student pilot, Billy Wayne Robinson, “a totally inexperienced pilot, to. assume control or joint control of the plane with the decedent Busby”. In the cross-examination of the witness Farrell, a small model of the Cessna plane occupied by the deceased was introduced in evidence. At this point the court took over the examination of the witness and developed the fact that the plane did not have dual controls. This evidence refuted the allegation in defendant’s answer to the effect that the deceased was negligent in allowing the student, Billy Wayne Robinson, to assume joint control of the plane through the use of the alleged dual controls. Of course, this was a point very much in favor of the plaintiff, and the effect on the jury was much greater than if the point had been developed by questions propounded by counsel for plaintiff. Moreover, to preserve the record properly, counsel for defendant was compelled to object, in the presence of the jury, to questions asked by the court. This may have put defendant’s counsel in an unfavorable light before the jury.

Counsel for appellant in this case are lawyers of many years’ experience at the bar; they are known by the members of the legal profession of this State as lawyers of ability and lawyers who have the utmost respect for the courts. The last thing such lawyers would want to do would be to take exceptions to some action on the part of the trial court that was initiated by the court, and yet that is what has happened in the case at bar. Through their sense of duty to their client counsel for defendant felt that they were compelled to move for a mistrial after the second day of the trial, because of questions propounded to the witnesses by the court.

Usually cases that are tried before juries by able lawyers can be decided either way. Most jurors are inexperienced, and in many instances even after the arguments have been completed and the case has been submitted to the jury, many jurors are undecided which way they should vote. They are uncertain which way their verdict should be. If the trial court has given any indication of the court’s opinion about the matter, many jurors feel that it would be safe to follow along that line.

Witnesses are put on the stand to prove relevant and material facts. Of course, the evidence is not admissible unless it is relevant and material. When a fact is developed by questions asked by the court, such fact carries far greater weight than if it had been proved by testimony developed by counsel for the side helped by such facts. Moreover, when the court asks a large number of questions, there is extreme danger of one or more jurors getting ah impression from the questions asked and the facts thereby developed, that the court has an opinion on the merits of the case, when in fact the court has no such opinion. And this is the very thing that may have happened in the case at bar, from the extremely large number of questions asked by the court.

This is not to say, however, that the court must sit quietly by and see a miscarriage of justice take effect because a lawyer on one side is completely outclassed by his adversary, nor does it mean that the trial court should not aid a young and inexperienced lawyer who needs help. From time immemorial it has been the custom and practice of courts to take care of situations of that kind. But where both sides are represented by counsel of the caliber appearing in the case at bar, they should be allowed to try their case and develop it according to their own judgment, complying, of course, with the rules of evidence.

In my opinion appellant’s motion for a mistrial should have been granted and for that reason the judgment should be reversed.

I am authorized to say that the Chief Justice and Mr. Justice Ward join in this dissent.

       In its Instruction No. 6 the Court told the jury: “In determining whether either Dr. Robert W. Ratton or Charles H. Busby was guilty of negligence, you may consider the following rules of persons flying airplanes, which have been developed by custom and recognized by law as duties required of pilots and planes. A failure to exercise ordinary care in their observation constitutes (evidence of) negligence.
      “ (a) All pilots of planes are required to exercise ordinary care for their own safety and the safety of others who may be flying.
      “ (b) It is the duty of all pilots to keep a constant look-out for and to anticipate the presence of other planes in the air, and to so fly their planes that they can avoid injury to themselves or others when danger may -be expected or is apparent.”

       It was conceded that the Trial Court, and this Court on appeal, should take judicial notice of the Air Traffic Rules issued by the Civil Aeronautics Board, duly published in the Federal Register (see U. S. Code Title 44 § 307) ; and these were furnished in pamphlet form. Furthermore, the rules of the Jonesboro Airport were shown by consent; and we will refer to some of these in the course of this opinion.

       For some eases from other jurisdictions with situations similar to the Mississippi holdings, see: Seininski v. Wilmington Leather Co., 26 Del. 288, 83 Atl. 20; C. R. I. & P. Co. v. Turner, 206 Okla. 340, 243 Pac. 2d 673; Gooding v. Koonee (Idaho), 306 Pac. 2d 657; and Fitzpatrick v. Sooner Oil Co. (10th Cir.), 212 F. 2d 548.

         We have not counted the number of questions asked by the Trial Judge and the jurors; but counsel for the appellee make this statement in their brief, which is not controverted by the appellant in the reply brief:
      “We have endeavored to make an accurate count and this count shows that 2,964 questions were asked in the course of the trial. The plaintiff asked 1687 questions, the defendant asked 1098 questions, the court asked 134 questions, and members of the jury asked 45 questions.”

       In 84 A.L.R. 1172 there is an extensive annotation entitled: “Propriety of conduct of trial judge in propounding questions to witnesses in criminal case.” In L.R.A. Vol. 1916A at Page 1191, there is an annotation entitled: “Power of Court to call and examine witnesses”; and in 159 A.L.R. 347 there is an annotation entitled: “Propriety and effect of examination of witnesses by jurors”.


author: G-eorge Bose Smith, J.

text:
    Bettis v. Manhattan Credit Co.
    5-1797
    324 S. W. 2d 352
    Opinion delivered May 25, 1959.

      M. V. Moody and Joseph Brooks, for appellant.

      Talley A) Owen and Jomes R. Howard, for appellee.
   G-eorge Bose Smith, J.

This dispute about the ownership of a Chevrolet car involves ostensibly conflicting certificates of title to the vehicle, issued by the Commissioner of Bevenues. Ark. Stats. 1947, § 75-139. The trial court, sitting without a jury, adjudged the plaintiffappellee’s title to be superior, and the other claimant, Bettis, has appealed.

The facts are simple. On July 13,1957, E. B. Wiggs (a defendant who has not appealed) bought the car in question and executed a title-retaining note to the appellee for the unpaid balance of the purchase price. The vehicle was duly registered with the Commissioner of Revenues, who issued a certificate of title which correctly described the ear as bearing motor number B56A092128 and which further recited the existence of the lien held by the appellee. That certificate of title is still in the possession of the appellee and is relied upon by it in this suit to replevy the car for nonpayment of the purchase price.

Within a few months after Wiggs’ purchase the car in some way came into the possession of Kathryn Rugh, who took it to Mississippi and incorrectly registered it there as having motor number B56A-093128. Kathryn Rugh then returned to Arkansas and applied for a certificate of title, falsely representing that she had bought the vehicle new in Mississippi. The Commissioner of Revenues, relying on the Mississippi registration, issued a certificate of title carrying the incorrect motor number and reciting that the vehicle was free from liens. Kathryn Rugh then sold the car to Bettis and apparently disappeared with the fruits of her fraudulent scheme. Bettis had the car registered in his own name, under the erroneous motor number, and now asks that he be protected as a bona fide purchaser.

The trial court’s decision was plainly correct. We have held that the automobile title registration law makes motor vehicle titles and encumbrances a matter of public record, similar to the recording of deeds and mortgages. Blaylock v. Herrington, 219 Ark. 939, 245 S. W. 2d 576. Here the appellee did all it could to protect itself, by making its lien a matter of record and thereby giving constructive notice to subsequent purchasers of the car. Ark. Stats., § 75-161; West v. General Contract Purchase Corp., 221 Ark. 33, 252 S. W. 2d 405. Bettis is not a purchaser without notice, for he relied upon a certificate of title bearing an incorrect motor number and thus in effect describing a different vehicle. He stands in no better position than one who examines an abstract of title to forty acres of land and then buys a different forty and contends that he is a purchaser without notice.

Our conclusion is unquestionably just, for it was Bettis rather than the appellee or the Commissioner who was at fault. The Commissioner is blameless, as the evidence shows that he does not physically inspect vehicles that are registered under the title law; he accepts the applicant’s description of the car, including its motor number. Hence the Commissioner had no way of knowing that Kathryn Hugh was registering the vehicle that had belonged to Wiggs, as Kathryn Hugh misstated its motor number. The Commissioner, however, does keep an index of all registered vehicles according to their identifying numbers, as the statute requires him to do. Ark. Stats., § 75-138. If Bettis had taken the trouble to examine the motor number of the car he bought he would have found that it differed from the number recited in Kathryn Hugh’s certificate of title, and an inquiry at the office of the Commissioner on the basis of the correct motor number would then have disclosed Wiggs’ title and the appellee’s lien. It is plain enough that the appellant’s predicament is due to his own carelessness rather than to any negligence on the part of the Commissioner or of the appellee.

Affirmed.


author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Clubb v. State.
    4920
    326 S. W. 2d 816
    Opinion delivered May 25, 1959.

      Gene E. Bradley and Claude F. Cooper, for appellant.

      Bruce Bennett, Atty. General, by Thorp Thomas, Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

Appellant, William Mansker Clubb, was convicted of burglary and grand larceny and sentenced to 15 years in the penitentiary on each conviction.

Sometime during the evening of August 3, 1957, the Eosebud Store and post office (in the same building) were broken into. The next morning it was discovered that about $600 was missing from the store safe and that from the post office there was missing $155.29, 44 blank money order forms, a cancellation stamp, a validating stamp, and 1,500 two-cent stamps. About 5 days later appellant was apprehended at Bull Shoals Lake by a State Trooper who found a variety of burglary tools in a truck which was in the possession of appellant and his wife. Some days later the officers searched his trailer and found the missing money orders, the cancellation stamp, the validating stamp, 1,000 two-cent stamps and about $570 in bills. Numerous guns were also found in the trailer.

Appellant designates 70 assignments of error in his Motion for a New Trial and sets out 11 points in his brief upon which he relies for a reversal. Many of these alleged errors are cumulative and it would only lead to confusion to attempt to discuss each point separately.

1. No specific contention is made as to the sufficiency of the evidence to sustain a conviction, but it is insisted that certain incompetent testimony was admitted. We think it made no material difference that appellant did not actually own the truck in which the burglary tools were found, since it was shown that the truck was in his possession and under his control at the time. It was not denied that appellant’s wife had the keys and turned them over to the officer.

2. Appellant complains of certain questions directed to the jury on voir dire by the prosecuting attorney, and complains of the trial court’s refusal to dismiss two jurors for cause. We have carefully examined the record relative to the challenged questions and find in each instance that they were either not prejudicial, not properly objected to, or that the objection was sustained. In no instance do we find reversible error.

3. We do not agree with appellant that the cause should be reversed because appellee was arrested without a warrant. Ark. Stats. Sec. 43-403 authorizes a peace officer to make an arrest without a warrant “ where he has reasonable grounds for believing that the person arrested has committed a felony.” In this case the arresting officer testified that he had such belief. Also, there was testimony to the effect that there was an outstanding warrant for appellant’s arrest issued previously by the United States Marshal at East St. Louis.

Nor do we agree with the contention that the failure to arraign appellant in accordance with Ark. Stats. Sec. 43-601 constitutes reversible error. When he was placed on trial on a plea of not guilty without objection, arraignment was waived. See: Ransom v. State, 49 Ark. 176, 4 S. W. 658; Moore v. State, 51 Ark. 130, 10 S. W. 22, and: Hayden v. State, 55 Ark. 342, 18 S. W. 239.

4. Appellant sets out several instances where it is contended the trial court improperly commented on the weight of the evidence, but we find no reversible error is disclosed. Once the court, in trying to decide how to rule on a certain objection, asked the witness this question: “Did you say one print of one thumb is smudged to some extent but the other thumb print was clear?” The witness answered: ‘ ‘ That is correct. ” Not only does the question appear proper but necessary under the circumstances. Moreover, a trial court has some discretion in such instances in the interest of justice where no prejudice appears. See: New v. State, 99 Ark. 142, 137 S. W. 564.

5. It was developed on examination of the prospective jurors that two men held honorary deputy sheriff badges, and the court refused to excuse them for cause. In doing so we think the court committed no reversible error. Both men stated they merely considered the cards as a token of courtesy and a means of identification, that they did not consider themselves deputy sheriffs, that they would not be influenced one way or the other, and that they could give both sides a fair and impartial trial and would base their verdict on the law and the evidence. In the absence of any showing of prejudice, we think both jurors were qualified under the former decisions of this court. See: Tong v. State, 169 Ark. 708, 276 S. W. 1004.

6. One witness who had remained in the courtroom in violation of the exclusion rule was allowed to testify over the objection and exception of the appellant, and this is assigned as reversible error. We do not think it is error under the facts disclosed by the record. It was not shown that the witness had heard the previous testimony. He did say that he had been out of the courtroom some and that he did not know he was to be a witness when the exclusion rule was announced. Moreover, the trial court had some latitude of discretion in such matters, and we think he did not abuse it in this instance. See: Harris v. State, 171 Ark. 658, 285 S. W. 367.

7. The question which gave us much concern relates to the charge of violating the Habitual Criminal Act, Ark. Stats. Sec. 42-2328, et seq. The information charged appellant not only with burglary and grand larceny' but with a violation of the above sections of the statutes. At the beginning of the trial appellant asked the trial court to strike the questioned portion of the information. The refusal of the court to strike is assigned as reversible error.

It is appellant’s contentions that: (a) the record of a former conviction in the Federal Court did not disclose an offense recognizable in this state, (b) that the record was not properly authenticated, and (c) the evidence relevant thereto was prejudicial. It is our view, however, that no reversible error is shown.

Without going into the merits of contentions (a) and (b) above, we think the trial court properly refused to strike at that time since it had a right and a duty to give the State an opportunity to prove a former conviction. In the case of Rowe v. State, 224 Ark. 671 (at page 674), 275 S. W. 2d 887, where a similar question was involved, the court said: “The information charged that Rowe was an habitual criminal.” “Although the defendant was not convicted under the habitual criminal count, the accusation permitted introduction of evidence responsive to the charge, hence no error can be predicated upon its consideration.” In the case before us the jury did not convict appellant for violating the Habitual Criminal Act, hence no error.

8. We have purposely reserved until the last one of the grounds upon which appellant relies for a reversal. As before stated, when the officers searched appellant’s trailer, numerous articles such as stamps, money orders and guns were found therein. It is insisted that the disclosure thus obtained was not admissible in evidence for the reason that no search warrant was first obtained. The absence of a search warrant would be immaterial if we should choose to follow former decisions of this court. See: Venable v. State, 156 Ark. 564, 246 S. W. 860, and Woolem v. State, 179 Ark. 1119, 20 S. W. 2d 185. However, for reasons hereafter stated, we prefer not to rely on the rule announced in the cited cases since it is not necessary in order to reach the same result in this case. The record reflects that a search warrant was obtained before the trailer was searched, and it is not shown that such warrant was unlawfully procured. Therefore, appellant’s objection to the competency of the said evidence on the ground relied on cannot be sustained.

The right to be secure against unreasonable searches is guaranteed by Art. 2, Sec. 15 of our Constitution and also, in essentially the same language, by the 4th Amendment to the United States Constitution, yet our Court has followed a rule at variance with the Federal rule regarding the admissibility of evidence obtained by search without a warrant. After careful consideration we have concluded that we will re-examine our former decisions in this connection with a view to changing our announced rule when the question is properly presented to us again.

We think it would unduly extend this opinion without useful purpose to discuss all the assignments heretofore mentioned. We have carefully examined all of the assignments and find them untenable because no proper exceptions were saved or because tbe alleged errors were cured by the court’s cautionary admonitions.

Affirmed.

McFaddin, J., concurs.

Ed. F. McFaddin, Associate Justice

(Concurring).

I concur in the result reached in this case, but desire to make some comments about one sentence in the opinion. In next to the last paragraph of the majority opinion, there is this sentence: “After careful consideration we have concluded that we will re-examine our former decisions in this connection with a view to changing our announced rule when the question is properly presented to us again.”

I think it is entirely proper that the Court should give a caveat to the Bench and Bar whenever we are about to re-examine our holdings on any point. But a hasty reading of the quoted sentence in the majority opinion might cause someone to think that we had definitely decided to change our former holdings. Such is not my understanding. I, for one, agree to re-examine the holdings; but I want it understood that I am not yet certain what my views will be on such re-examination. I may decide to stay with our own Arkansas cases rather than to follow the Supreme Court of the United States. For this reason, I concur.


author: Sam Robinson, Associate Justice.

text:
    Everight v. City of Little Rock.
    4939
    326 S. W. 2d 796
    Opinion delivered May 25, 1959.
    [Rehearing denied September 7, 1959]

      Kenneth Goffelt, for appellant.

      Joseph C. Kemp, Gardner Beane, Jr., John L. Sullivan, William M. Stocks, for appellee.
   Sam Robinson, Associate Justice.

The appellant, Mrs. R. E. Everight, was convicted in the Little Rock Municipal Court of the offense of speeding. She appealed to the circuit court and was again convicted. On appeal to this Court there is only one issue, and that is the admissibility of evidence of speed as indicated by radar equipment used by the Little Rock Police Department in checking the speed of the car driven by Mrs. Everight. The only evidence of excessive speed is that shown by the radar speed meter. If this evidence is admissible in court, the verdict is sustained by such evidence; if it is not admissible, the City failed to make a ease.

Ray Grillis qualified as an expert in the use of radar equipment and the particular model used by the Little Rock police in checking appellant’s speed at the time in question. He testified as to the accuracy of the radar speed meter used in this ease; that it will not vary over two miles per hour up to 100 miles per hour. He also testified that the speed meter is simple to operate; that it is virtually impossible to connect it improperly; that' the Little Rock police officers using it at the time in question are thoroughly capable of correctly testing the equipment and using it; that the same kind of equipment is used by police departments in 47 states. Officers Nesbitt and Jeff coat of the Little Rock Police Department testified that they had received instructions in the operation of the equipment; that they had tested it on the morning in question and that it was working properly; that they used it in checking the speed of appellant’s car and that it registered 40 miles per hour. It is not contended that 40 miles per hour at the place appellant was driving is not a violation of the law.

In reference to evidence of facts as shown by instruments, the Supreme Court of Ohio, in the case of City of East Cleveland v. Ferrell, 168 Ohio St. 298, 154 N. E. 2d 630, quoted as follows from Professor Wig-more, in The Science of Judicial Proof, at page 450: “ . . since the additions made possible to our unaided senses are due to the use of instruments constructed on knowledge of scientific laws, it is plain that the correctness of the data thus obtainable must depend upon the correctness of the instrument in construction and the ability of the technical witness to use it. Hence, the following three fundamental propositions apply to testimony based on the use of all such instruments:

“ ‘A. The type of apparatus purporting to be constructed on scientific principles must be accepted as dependable for the proposed purpose by the profession concerned in that branch of science or its related art. This can be evidenced by qualified expert testimony; or, if notorious, it will be judicially noticed by the judge without evidence.
“ ‘B. The particular apparatus used by the witness must be one constructed according to an accepted type and must be in good condition for accurate work. This may be evidenced by a qualified expert.
‘ ‘ ‘ C. The witness using the apparatus as the source of his testimony must be one qualified for its use by training and experience.’ ”

In the ease of Dooley v. Commonwealth, 198 Va. 32, 92 S. E. 2d 349, 350, the court said: “For many years the public has become generally aware of the widespread use of the radiomicro waves or other electrical devices in detecting the speed of motor vehicles or other moving objects; and while the intricacies of such devices may not be fully understood their general accuracy and effectiveness are not seriously questioned.” Radar is now in the same category as photographs, X-rays, electroencephalographs, speedometer readings, and the like.

In the case at bar all the rules of evidence were met in introducing in evidence the speed of the automobile as indicated by the radar speed meter, and the evidence was properly admitted by the trial court. It is substantial to the effect that the Everight car was traveling 40 miles per hour.

We are of the opinion that the usefulness of radar equipment for testing speed of vehicles has now become so well established that the testimony of an expert to prove the reliability of radar in this respect is not necessary. The courts will take judicial knowledge of such fact. Of course, it will always be necessary to prove the accuracy of the particular equipment used in testing the speed involved in the case being tried. In the case at bar, there is substantial evidence to the effect that the equipment was accurate.

Affirmed.


text:
    Kennedy v. Garner.
    5-1846
    326 S. W. 2d 810
    Opinion delivered May 25, 1959.
    [Rehearing denied September 7, 1959]

      Charles L. Carpenter, for appellant.

      James L. Sloan, for appellee.
   Sam Robinson, Associate Justice.

This is a usurpation case. Appellee, Garner, filed this suit, contending that he is the duly elected or appointed marshal of the city of Jacksonville and that appellant, Kennedy, has usurped the office. The trial court held that Garner is entitled to the office and Kennedy has appealed.

First, appellant contends that the trial court made no finding that he is claiming to be marshal. There is substantial evidence to the contrary, and moreover, if appellant is making no claim to the office, he has nothing to lose by the finding that Garner is entitled to the office. It is established that Garner was elected in 1952 and properly appointed in 1955 and 1957. He was serving as marshal in February, 1958, when the mayor attempted to discharge him. In any view of the case, he was at least serving as a holdover at that time. Of course, he would be entitled to continue to serve as marshal until he was properly removed or someone else properly selected. True, on February 15th the mayor attempted to discharge him, but the city council would not approve the mayor’s action in that respect, and without the approval of the city council the mayor does not have the authority to discharge the marshal. Act No. 172 of 1953 of the General Assembly of Arkansas (Ark. Stats. § 19-1103.2) gives the mayor the authority to appoint the marshal with the approval of the city council. But the Act does not give the mayor the power to remove the marshal, nor does he have that inherent power, since he is in no way responsible for the performance of the marshal’s duties. Carrier v. Beck, 225 Ark. 753, 285 S. W. 2d 326.

Appellant contends that Garner abandoned the office of marshal. The mayor attempted to discharge Garner on February 15th and replace him with appellant. On March 4th Garner filed this suit. In these circumstances it cannot be said he abandoned the office.

Affirmed.