author: Ernie E. Wright, Chief Judge. David Newbern, Judge,

text:
    James M. ELLIS, Jr. v. STATE of Arkansas
    CA CR 79-66
    590 S.W. 2d 309
    Opinion delivered November 7, 1979
    Rehearing denied December 12, 1979
    Released for publication December 12, 1979

      Michael Dabney, Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Chief Judge.

This appeal to the Arkansas Supreme Court has been assigned to the Court of Appeals pursuant to Rule 29(3).

Appellant was convicted by a jury in the Washington County Circuit Court of aggravated robbery, a class A felony, in violation of Ark. Stat. Ann. § 41-2102, and from the judgment brings this appeal urging three points for reversal, hereinafter separately discussed.

I.

Appellant contends the court erred in refusing to instruct the jury that, ‘ ‘ Self-induced intoxication is an affirmative defense to a prosecution if it negates the evidence of a purposeful mental state.”

There was evidence showing appellant had been drinking prior to the alleged robbery and that he was drunk at the time of the alleged robbery.

The appellant took the stand and gave detailed testimony as to his actions and places he drove and people he encountered for several hours spanning the period before and after the alleged burglary. However, his testimony as to how he came into possession of money, over a case of oil, several cartons of cigarettes and other items was rather vague. He testified the station attendant just turned the money and various items over to him, and the next morning he realized what had happened and was planning to return the property after work, and was arrested early that morning.

Appellant offered the following instruction and objected to the court’s refusal:

Self-induced intoxication is an affirmative defense to a prosecution if it negates the existence of a purposeful mental state.

The appellant has not set out in his brief the instructions the court gave. Supreme Court Rule 11(f) requires the appellant in all felony cases to abstract such parts of the record as are material to the points to be argued in his brief. The prior rule requiring the Attorney General to supply an abstract in felony cases no longer obtains. Rule 11(f) provides that when the sentence is death or life imprisonment, the court reviews all errors prejudicial to the appellant, but the objections are to be abstracted. Since appellant has not set out or abstracted in his brief the instructions that were given by the court, the court does not consider the asserted error. A proper consideration of the asserted error requires that the court have before it in the brief the instructions given by the court. Here, the appellant has failed to include in his brief all of Instruction No. 9 and has set out only the one sentence to which he objects. He has set out none of the other instructions given. Under these circumstances the established rule is that on appeal the court assumes the jury was properly instructed.

Since Rule 11(f) now requires the appellant in felony cases in which the punishment is not death or life imprisonment to abstract the material parts of the record, the same rule now applies to such cases as the court has applied in misdemeanor cases in considering assignments of error in the giving or refusing of an instruction. The court does not consider the assigned error absent an abstract of the instructions given, and will assume the jury was properly instructed. Chapman v. State, 201 Ark. 91, 143 S.W. 2d 575 (1940), State v. Baker, 209 Ark. 896, 192 S.W. 2d 977 (1946), Branton v. State, 214 Ark. 861, 218 S.W. 2d 690 (1949).

Ark. Stat. Ann. § 43-2725 (Act 333 of 1971) provides the court on.appeal need only review those matters briefed and argued by the appellant except in cases in which the punishment is life sentence or death.

The law on the necessity for setting out in the brief the instructions given in order to obtain review of an asserted error in the giving or refusing of an instruction has long been settled in misdemeanor and civil cases.

In Greenville Stone & Gravel Co. v. Chaney, 129 Ark. 96, (1917), the court said:

It appears that the court gave thirteen instructions to the jury. Error is assigned by counsel for the defendant to the action of the court in giving three of these instructions. None of the instructions given by the court are set out in his abstract except those to which objections are made. The instructions should always be set forth in full, and a failure to do so invokes the presumption that correct instructions were given curing those complained of, if they are curable. (Other cases cited.)

This rule has been followed for many years. Strickland v. Quality Bldg. & Security Co., 220 Ark. 708, 249 S.W. 2d 557 (1952).

In Bank of Ozark v. Isaacs et al, 263 Ark. 113, 563 S.W. 2d 707 (1978), the court explained in detail the necessity for the rule requiring that the brief contain an abstract of all matters from the record necessary for considering an asserted error.

The Arkansas rule has been followed in misdemeanor and civil cases of requiring the instructions to be briefed when error is assigned for the giving or refusing of an instruction, which rule should now be followed in felony criminal cases in view of Ark. Stat. Ann. § 43-2725, is in accord with the rule of the Illinois Supreme Court as announced in People v. Tabet, et al, 402 Ill. 93, 83 N.E. 2d 329 (1949). In the opinion upholding a felony conviction the court said:

The abstract does, not recite that the instructions as therein enumerated are all of the instructions which were given or tendered on behalf of plaintiffs in error or the People. The supreme court is not called upon to consider an assignment of error based upon the giving or refusing of instructions where the abstract does not show the above information.

The appellant sbught review in the United States Supreme Court and certiorari was denied. 336 U.S. 970, 69 S. Ct. 933 (1949).

What we have said is dispositive of the issue raised under Point I; however, we point out the instruction is substantially the language of Ark. Stat. Ann. § 41-207(1) as it existed prior to Act No. 101 of 1977 which eliminated self-induced intoxication as a statutory defense. While self-induced intoxication appears to remain a common law defense to a crime in which an essential element is that the act be done knowingly or purposefully, the defendant has the burden of establishing the defense by a preponderance of the evidence. The instruction offered contained no provision as to the burden of proof. Johnson & Keeling v. State, 259 Ark. 773, 536 S.W. 2d 704 (1976). The instruction was also abstract and was. not directed specifically to whether the defendant was so intoxicated at the time of the act that he was incapable of acting purposefully.

II.

It is contended the court erred in not granting appellant’s motion for directed verdict.

The prosecuting witness testified appellant came to the service station the witness was operating, held something in his hand pointing at him and told him he had a gun, told him he had killed a “guy” in Winslow, and told him to put more than a case of oil and ten cartons of cigarettes in his car and other items and to give him all the money he had, $270.00. The witness testified he was scared, could not tell if appellant had anything in his hand and complied with the demand. The police recovered some of the property and money. The appellant took the stand and gave a detailed account of his actions, places he drove and people he encountered for several hours before and after the alleged robbery. He admitted being at the station allegedly robbed and obtaining possession of the money and other items, but claimed the witness gave the money and property to him. He testified he started drinking about noon before the incident which occurred about 8:00 to 9:00 o’clock that night. There was other evidence that he had been drinking before the incident, and testimony of one witness that sometime after the incident he was “totally drunk”. He testified the next morning upon realizing what had happened he planned to take the property and money back after he got off work that day. He was arrested at a cafe early the next morning.

We conclude there was evidence that appellant took the property and money from the prosecuting witness by threats and representing by word and conduct that he had a gun. There was substantial evidence to support the verdict. Balentine v. State, 259 Ark. 590, 535 S.W. 2d 221 (1976).

III.

Appellant contends the court erred in refusing to instruct the jury as to the lesser assault instruction offered by the defendant.

The abstract does not set out any instruction appellant here asserts was offered and refused. We, therefore, do not consider the asserted error.

Affirmed.

Hays, Penix and Newbern, JJ., dissent.

David Newbern, Judge,

dissenting. I cannot agree with point one in the prevailing (there is no majority) opinion. I believe the trial judge should have instructed the jury on the defense of intoxication. When viewed as a whole, the instructions given actually misled the jury because they mentioned that intoxication is not generally a defense to prosecution for a crime, but failed to say it might be a defense to a crime requiring a specific intent.

The prevailing opinion does not deal so much with the merits of this problem as with the fact that the appellant abstracted only the refused instruction and one of the instructions given by the court. The prevailing opinion takes the position the appellant may not object to the failure to give requested instructions unless all of the instructions given by the court have been abstracted. The basis of this holding seems to be that by amending Rule 11 (f) in . 1975 (see 258 Ark. 770-H) to place the responsibility in felony cases on appellants, rather than on the Attorney General, to abstract the record, the Supreme Court intended to invoke all the prior decisions on abstracting the record in civil and misdemeanor cases. The Supreme Court has never held anything like that. Nor has it made any such statement.' For us to do so in this case exalts form over substance to an intolerable degree. Given the authorities cited in the prevailing opinion, if is also completely unnecessary.

Before dealing with the Arkansas authorities cited in the prevailing opinion, it would be well to consider the Illinois case cited, The People v. Tabet, 402 Ill. 93, 83 N.E. 2d 329 (1949), and the implication left by the prevailing opinion that denial of certiorari by the U.S. Supreme Court in that case somehow amounts to approval of its holding. In that case, the statement is made that the court could not tell from the abstract whether the instructions enumerated were all of the ones tendered to or given by the court. The problem perceived by the Illinois Supreme Court was not the lack of abstracted instructions, but the failure to say that they were all of the ones given or tendered.

The prevailing opinion here does not suggest that there is any rule in Arkansas which requires a person appealing a conviction to make such a declaration. Perhaps it would be well to institute a rule requiring an appellant, such as the one in this case, to say the instructions abstracted are all of the ones relevant to the point in issue which were tendered to or given by the court. We have not done so.

At any rate, the real problem in the Tabet case was not the failure to abstract instructions. Rather, it was the court could not determine by looking to the abstract or the record or both how or by whom certain instructions had been modified, and it could not tell by whom certain instructions were tendered. Thus, the statement quoted in the prevailing opinion is only dictum and not very persuasive at that.

Of course, denial of certiorari by the U.S. Supreme Court is meaningless in view of the completely discretionary nature of the writ in these circumstances. See, Wright, Miller and Cooper, Federal Practice and Procedure, § 3504 (1975). A better indication of the U.S. Supreme Court’s attitude on this matter is its own Appellate Rule 30 (a), which deals with appendices to briefs filed there which are comparable to our own abstracts. That section of the rule concludes as follows: “The fact that parts, of the recordare not included in the appendix shall not prevent the parties from relying on such parts.” F.R. App. P. 30(a).

Moving on to the prevailing opinion’s citation of Arkansas authorities, the only criminal cases cited on this point in the prevailing opinion are Chapman v. State, 201 Ark. 91, 143 S.W. 2d 575 (1940); State v. Baker, 209 Ark. 896, 192 S.W. 2d 977 (1946); and Branton v. State, 214 Ark. 861, 218 S.W. 2d 690 (1949). In the Baker and Branton cases, there was no issue with respect to instructions. Baker dealt with a failure to abstract testimony and Branton with failure to argue points for reversal. In the Chapman case, the appellant objected to instructions given by the court but abstracted none of them. These were all misdemeanor convictions appealed long before the 1975 amendment to the rule. They are hardly authority for the assertion that, even in misdemeanor cases, where the appellant argues failure to give an instruction he must abstract all of the instructions given by the court.

On the civil side, the prevailing opinion cites Strickland v. Quality Bldg. & Security Co., 220 Ark. 708, 249 S.W. 2d 557 (1972), a case where the appellant argued error in instructions given but abstracted none of the instructions given or refused. It also cites Bank of Ozark v. Isaacs, et al., 263 Ark. 113, 563 S.W. 2d 707 (1978), which dealt with failure to abstract pleadings or judgment. Greenville Stone & Gravel Co. v. Cheney, 129 Ark. 95, 195 S.W. 13 (1917), however, is a case cited which requires an abstract of instructions which were given as a predicate for arguing on appeal that requested instructions were improperly refused. In that case, no supreme court rule was cited. Even if Rule 9 (f) imposes the requirement (and it does not say so) in civil cases, that does not settle the matter for criminal cases.

There is just too much at stake in criminal cases for the system to impose such a rigid requirement. We clearly are not called on to impose it by the literal language of the rule, and yet we seem to be imposing it because of a questionable analogy to civil cases which the prevailing judges have been stimulated to make because of a revision of the applicable rule. Before 1975, an appellant who was convicted of a felony had no responsibility for abstracting the record; The state was required to do it all. Hughes & Bridges v. State, 249 Ark. 805, 461 S.W. 2d 940 (1971); Mosley v. State, 255 Ark. 536, 501 S.W. 2d 225 (1973). It simply does not follow that because the rule has been amended to require an abstract by such an appellant, the requirement is the same as in civil cases. The language of the new Rule 11 (f) is similar to that of Rule 9 (f), but the history of Rule 11 (f) is obviously very different, and even if the abstracting requirement is apposite for civil cases under Rule 9 (f), that does not necessitate that Rule 11 (f) be construed the same way.

It is enough if the appellant furnishes an abstract of the record which is sufficient to permit us to make an informed decision. It would be foolhardy to require an appellant to abstract instructions which are in no way relevant to the area of law as to which he requested an instruction and was refused, especially when the appellee has an opportunity to abstract in its brief any instruction which it feels cured the problem raised by the appellant.

In the case before us, however, there is another reason for not holding the appellant to such a rigid abstracting standard. The appellee included in its brief all of the instructions given at the trial which related to the point in issue. Thus, even if we were to impose the strict rule drafted by the prevailing judges out of whole cloth (or at least out of civil cases cloth), this would be a very poor case in which to do it.

The only item of any substance in the prevailing opinion’s treatment of the merits of the instruction which was requested and refused is that it was incomplete because it did not mention the “burden of proof.” For that point, the case of Johnson & Keeling v. State, 259 Ark. 773, 536 S.W. 2d 704 (1976), is cited. That case was one where an accused requested an instruction which contained an assumption that a certain person was an accomplice, and the evidence had raised a question of fact whether he was or was not. The holding was that the instruction requested was erroneous. The case says nothing, and certainly does not reach such a holding, to the effect that a requested instruction dealing with an affirmative defense to a crime must specify that the defendant has the burden of proof. Had the court decided to give the instruction requested by the appellant here, such an instruction on the burden of proof would have been appropriate, but to say the instruction requested was incomplete without it puts the shoe on the wrong foot. No doubt such an instruction on the burden of proof of an affirmative defense raised by the defendant could have been requested by the state. It might have been appropriate for the court to have worked it in to its other instructions on the general burden of proof in a criminal case. This reference to tailoring instructions brings us to the merits of the requested instruction and the trial court’s refusal to give it.

As pointed out in the prevailing opinion, there was plenty of evidence the appellant took the property while “representing by word or conduct” that he was armed. Under those conditions, robbery becomes aggravated robbery. Ark. Stat. Ann. § 41-2102 (1) (a) (Supp. 1979). A part of that offense is, of course, the commission of robbery. Accordingto Ark. Stat. Ann. § 41-2103 (1) (Repl. 1977), “[a] person commits robbery if with the purpose of committing theft. . . he . . . threatens to immediately employ physical force upon another.” (Emphasis added.) Substantial, competent evidence showed the defendant threatened a service station attendant with immediate bodily harm if he would not turn over money and merchandise to the appellant. The station attendant said the appellant made him believe he had a weapon, and the appellant spoke of being a two time loser and how “another murder” would not matter. Although the strong evidence that the appellant committed these acts was important to the jury, it is not important here, where we can see equally strong evidence he was intoxicated before, during and after the commission of the offense, and the question on appeal is whether he was entitled to the requested instruction.

There is no doubt that aggravated robbery is a “specific intent” crime, and the appellee does not argue it is not. The Arkansas Supreme Court made it clear in Varnedare v. State, 264 Ark. 596, 573 S.W. 2d 57 (1978), that the burglary statute, Ark. Stat. Ann. § 41-2002 (1) (Repl. 1977), which contains the same “with the purpose” phrase, is one involving specific intent which is subject to negation by evidence of intoxication. Thus, in this case where there was strong evidence of intoxication, it was clearly and appropriately raised as a defense. It certainly was raised sufficiently to warrant an instruction.

Counsel for the appellant asked the following instruction be given:

Self-induced intoxication is an affirmative defense to a prosecution if it negates the existence of a purposeful mental state.

The court refused to give the instruction over the objection of the appellant’s counsel. The record does not show the reason it was refused.

The following instructions dealing with intent were given:

Intoxication that is self-induced is no defense to prosecution of a crime:
Intoxication means a disturbance of mental or physical capacities resulting from the introduction of alcohol, drugs or other substances into the body.
Self-induced intoxication means intoxication caused by a substance which the actor knowingly introduces into the body, the tendency of which to cause intoxication he knows or ought to know.
Requirements of culpability: (1) A person does not commit an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act which he is physically capable of performing. (2) A person does not commit an offense unless he acts with a culpable mental state with respect to each element of the offense that requires a culpable mental state. In other words, the State must prove the defendant intended to do what he did and that he actually did each of those, either theory that you might take.

Each of the statements made by the court in the instructions quoted above is correct in the abstract, but a juror looking at them together would reasonably have concluded he or she should allow the strong evidence of intoxication to play no part in the determination of the guilt or innocence of the accused. The abstracts and briefs are ample to show this misstatement of the law.

Some temporary confusion might have resulted from the repeal, in 1977, of Ark. Stat. Ann. § 41-207 (1), which provided:

Self-induced intoxication is an affirmative defense to a prosecution if it negates the existence of a purposeful or knowing mental state.

However, the Arkansas Supreme Court averted the confusion by quickly pointing out in the Varnedare case, supra, that the repeal of the statute had the effect of reinstating the common law. At common law, in Arkansas, voluntary intoxication has been a defense to crimes requiring a specific intent. The chain of cases making it so began with Wood v. State, 34 Ark. 341 (1879). The last of the common law chain of cases citing Woods v. State, supra, was Olles and Anderson v. State, 260 Ark. 571, 542 S.W. 2d 755 (1976), where it was held the question of intoxication sufficient to negate the intent to steal should have gone to the jury.

The argument presented by the appellee here in support of its contention the instruction requested by the appellant should not have been given is that it was defective because it referred to the defense as an ‘ ‘affirmative’ ’ one. How the use of that term could have been prejudicial to the state is difficult to see. Whether the defense is affirmative or not is hardly crucial where the evidence supports it. Even if we felt obliged to give serious consideration to this criticism of the instruction, however, we find the criticism to be incorrect. In the Varnedare case, supra, (264 Ark. at p. 599) the Arkansas Supreme Court specifically mentioned that the common law intoxication defense in the Olles case, supra, “was raised as an affirmative defense.”

Although we are not required to look for errors in the rejected instruction which are not argued by the appellee, I have done so, and I find none. Obviously, the instruction is abstract, but certainly no more abstract than the first of the above-quoted instructions given by the court which the appellee argues was a correct statement of the law. The appellant’s counsel apparently was trying to word the instruction as carefully as possible to assure it would be given by the court. He was laboring under some handicap due to the revision in the law mentioned above and the resultant lack of an Arkansas model instruction which could have been submitted. See, AMCI, p. 285, Comment to § 4005.

Although it might be said that the court would have confused the jury had it instructed that voluntary intoxication is not a defense to prosecution and then said voluntary intoxication is a defense to a crime which requires a mental purpose or specific intent, such an assertion requires one to close one’s eyes to the practice and the practical need for the court to explain seeming inconsistencies to the jury. The appellant was entitled to have his theory of the case presented to the jury. He requested an instruction which was not an incorrect statement of the law in any way and and which was supported by substantial evidence. Lighter v. State, 157 Ark. 261, 247 S.W. 1065 (1923). This rather simple statement does not require further buttressing, but because of the factual similarity and the language used in the opinion, Johnson v. People, 145 Colo. 314, 358 P. 2d 873 (1961), is cited. There the Colorado Supreme Court reversed a conviction for aggravated robbery because the lower court failed to give an instruction on a defense asserted by the defendant. Evidence was produced tending to show the defendant had withdrawn from a conspiracy to commit the offense sometime before it was committed. The defendant offered an instruction which his counsel asserted covered their theory of the case.

It was refused by the trial court and no instruction was given which directed the attention of the jury to any particular theory of defense relied on by defendant. . . . While the instruction tendered on behalf of the defendant did not specifically deal with this theory of defense, it was nevertheless involved in the tendered instruction. It is apparent from the record that defendant relied on the evidence. . . that he abandoned the plot to commit a burglary. . . .
It is axiomatic that the accused in a criminal case is entitled to an instruction based on his theory of the case. [358 P. 2d at 876]

The burden of this dissent is not to say that a trial court has a duty to instruct on a theory of defense as to which no instruction is requested. Rather, it is to say that he or she has a clear obligation to give correct, requested instructions in a way which will assist the jury in applying the law to the evidence. The court could easily have done so hereby explaining that although intoxication does not excuse criminal conduct, generally, when prosecuted for certain crimes, such as aggravated robbery, an accused may not be convicted unless found to have had a specific intent (here the intent to steal), and that if the accused is found to have been so intoxicated as to have been unable to have formed that intent, he is not guilty of the offense charged. The instruction requested by the appellant was not the only or best way to instruct the jury. However, it was not an incorrect instruction, and it could have been and should have been tailored so that when combined with other correct statements of the law the jury would have been able to do its job and the appellant would not have been deprived of his right to have the jury evaluate his defense.

For the foregoing reasons, I respectfully dissent, and I am authorized to say Judges Hays and Penix join in this dissenting opinion.

       For good discussions of the jury instruction duty of a trial court, see, Note, 1963 Wash. U. L. Q. 353 (1963), and Robinson, A Proposal for Limiting the Duty of the Trial Judge to Instruct the Jury Sua Sponte, 11 San Diego L. Rev. 325(1974). In the latter article, the author presents a thorough, nationwide study of the requirement that a trial judge instruct the jury even absent instructions requested by the parties. The position he takes is that a court should not be required to instruct sua sponte, with certain exceptions. One of the exceptions is that the judge should be required at least to instruct which party has the burden of proof on any issue raised by the evidence in the case and what that burden requires. 11 San Diego L.R. at p. 349.


source: Caselaw Access Project

author: M. Steele Hays, Judge.

license: Public Domain

text:
    HOME INSURANCE COMPANY v. Bobby Jack SPEARS and Shirley Jean SPEARS et al
    CA 79-136
    590 S.W. 2d 71
    Opinion delivered November 14, 1979
    Released for publication December 5, 1979

      Davis, Bassett, Cox & Wright, for appellant.

      Everett & Whitlock, for appellees.
   M. Steele Hays, Judge.

This is an action in tort arising as the result of personal injuries suffered by the appellees — Bobby Jack Spears, Rex England and Donald Jackson. The injuries occurred when the three, who were area farmers, fell from a bridge belonging to Washington County. Appellees and a number of other farmers had gathered to observe pollution tests which were being conducted on the creek below. In order to observe the tests, the three men were either sitting upon or leaning against the iron railings located on each side of the bridge. The railings collapsed, and the appellees fell into the creek bed below, causing the personal injuries complained of.

The jury returned a verdict for the appellees, but found that they were guilty of contributory negligence to the extent of 25%, and the damages were reduced accordingly. The amount of the judgment for each of the appellees after reduction was as follows:

Bobby Jack Spears — $30,000
Shirley Jeanne Spears (his wife) — $750
Donald Jackson — $30,000
Shirley Jean Jackson (his wife) — $1875
Rex England — $6375

From this judgment, the defendant, Home Insurance Company, appeals, asserting five points for reversal.

The first point raised by the appellants is that the trial court erred in refusing to grant appellant’s motion for a directed verdict. Specifically, the appellants allege that the three appellees were mere licensees while on the bridge and therefore, were owed no duty by the county except to avoid harming them by wilful and wanton misconduct. The testimony indicated that the appellees went to the bridge primarily for the purpose of watching the pollution tests being conducted. Hence, the appellant argues that the appellees did not use the bridge for its intended purpose: as a means of transit. The appellant also argues that since the county received no benefit from the appellees being on the bridge, then their status, while there, was inevitably that of licensee.

We cannot agree. All of the cases cited in the appellant’s brief, with one exception, are cases which come under the Federal Tort Claims Act. 28 U.S.C.A. § 2674 states that the United States shall be liable, “respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.” Hence, in many instances, the Federal courts are applying the economic benefit test, that is, whether the owner of the premises receives some pecuniary gain, either real or potential, by the plaintiffs presence on his land, to determine the status of the plaintiff as either licensee or invitee.

However, an alternative theory in determining the status of the plaintiffs is the “invitation test.” In the latter case, a person becomes an invitee when the premises are made open to the public, and he enters pursuant to the purposes for which they are thrown open. There must be some basis for the person believing that the premises have been made safe to receive him. However, when the premises are made open to the public, the assurance will be implied. This second theory is now accepted by a clear majority of the courts. Bunnell v. Waterbury, 103 Conn. 520, 131 A. 501 (1925); Dowd v. Portsmouth Hospital, 193 A.2d 788 (N.H. 1963); Smyke v. State, 117 N.Y.S. 2d 163, 203 Misc. 186; Guilford v. Yale University, 128 Conn. 449, 23 A. 2d 917 (1942). [See also 65 C.J.S. Negligence § 63 (41) and Prosser on Torts 4th Ed., pp. 388-390.] Some jurisdictions have gone so.far as to reject the distinction between licensee and invitee and apply a simple negligence standard, regardless of the status of the plaintiff. Rowland v. Christian, 70 Cal. Rptr. 97, 443 P. 2d 561 (1968); Mile High Fence Company v. Radovich, 175 Colo. 537, 489 P. 2d 308 (1971); Pridgen v. Boston Housing Authority, 308 N.E. 2d 467 (1968); Peterson v. Balach, 294 Minn. 161, 199 N.W. 2d 639 (1972).

In the instant case, the property upon which the appellees were injured was a public bridge. Guard rails were placed on either side of the bridge, and the evidence presented at trial indicated that they were improperly installed. Although the appellant argues that the rails were not used for their intended purpose since the appellees were either sitting or leaning upon them, we believe that this question properly addressed itself to the jury. It was for the jury to decide whether, under all the circumstances, there was negligence. We believe that the trial judge properly denied appellant’s motion for a directed verdict and submitted the issue to the jury upon a correct instruction of the law.

Appellant’s second point for reversal is that the trial court erred in permitting testimony concerning an offer to pay medical expenses and an offer to settle the claims. Evidence was introduced by the appellees, over appellant’s objection, of Mr. England’s testimony concerning a conversation between the Washington County Judge and Mr. England, in which the county judge told liim to bring all of his medical bills and “the insurance company would pay it.” Rule 409 of the Uniform Rules of Evidence states:

Evidence of furnishing, offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

If there were doubt as to the purpose for which this evidence was offered, the record clearly indicates that appellee’s purpose was to introduce evidence on the question of liability. The appellee admits that the testimony was “simply to show the issue of liability.” (Tr. 583).

Recently, the Arkansas Supreme Court has had the opportunity to interpret this rule in Ferguson v. Graddy, 263 Ark. 413, 565 S.W. 2d 600 (1978). In that case, Justice Fogleman, speaking for the majority, stated that the intent of the rule is that it is in the best interest of the society “that humanitarian and benevolent instincts need not be hobbled by the hazard that assistance to an injured person be taken as admission of liability in a personal injury action.”

Under the rule as stated, this evidence should not have been received over appellant’s objection and its prejudicial impact on the issue of liability must be assumed.

The appellants also allege that the trial court erred in refusing to give the jury a modified version of AMI 612, dealing with the assumption of the risk. We do not agree. Upon instructing the jury as to the defense of assumption of the risk, there must be some evidence upon which the jury can find that the plaintiffs had knowledge and appreciation of danger which they allegedly assume. Mercury Mining Company v. Chambers, 193 Ark. 771, 102 S.W. 2d 543 (1937). In this case, there was no such evidence. There was no evidence to show that plaintiffs knew the guard rails were defective and might break if leaned upon. We hold that the jury was given proper instructions on contributory negligence and that there was no evidence upon which an assumption of the risk instruction would be justified.

Finally, appellant would have us reverse on two further arguments: that the court erred in permitting an economist to testify as the amounts a farm worker might have been expected to earn projected over the work expectancy of the plaintiffs, and that it was error to instruct the jury as to that part of AMI 2206 which relates to the recovery of past and future earnings or profits. We deem it unnecessary to discuss the second point for the reason that the case must be retried and the propriety of AMI 2206 will depend upon the evidence presented at the second trial rather than in the record before us. As to the other part of the argument, no error by the trial judge occurred in refusing to strike the testimony of Dr. Phillip Taylor. Dr. Taylor simply testified as to the approximate gross earnings farm laborers of the ages of the respective plaintiffs could expect to earn at current wage levels over the remainder of their productive years. The evidence had a reasonable relevancy to the issue of damages and cannot be said to be immaterial even though the plaintiffs operated their own farm units and therefore their earnings would be affected by market considerations, weather conditions, their own efficiency, et cetera. The plaintiffs also contributed their own labor in the farming operation, and the jury was entitled to hear evidence dealing with the value of farm labor. At least as early as 1895, Arkansas has recognized the loss of earning capacity as a proper matter of inquiry in personal injury cases. Railway Company v. Dobbins, 60 Ark. 481 (1895). See also Arkansas Power & Light v. Tolliver, 181 Ark. 790 (1930).

Corpis Juris Secundum, Damages, Sec. 87(b), p. 958, states:

The measure of damages for the diminution of one’s capacity to earn money, or for loss of future earnings, involves numerous considerations as a broad general rule. All evidence tending to show the character of plaintiffs ordinary pursuits and the extent to which the injury was prevented, or will prevent him from following such pursuits is admissible.

Evidence which may be of help to a jury in weighing the issue of damages should be admitted even though it fails to provide a mathematical valuation of the impairment. Leave v. Boston Elevated Railway Company, 28 N.E. 2d 483 (Mass. 1940). Further, the admissibility of this evidence was within the sound discretion of the trial judge, and that discretion was not misused. Little Rock Gas & Fuel Company v. Coppedge, 116 Ark. 334 (1914); Arkansas Power & Light Company v. Johnson, 260 Ark. 237, 538 S.W. 2nd 541 (1976).

The judgment is reversed and remanded.


author: James H. Pilkinton, Judge.

text:
    Lou Ella THOMPSON, widow of William THOMPSON, deceased v. SELLERS & SONS CONSTRUCTION COMPANY
    CA 79-66
    589 S.W. 2d 596
    Opinion delivered November 7, 1979
    Released for publication November 28, 1979

      Huey & Vittitow, for appellant.

      Shackleford, Shackleford & Phillips, P.A., for appellees.
   James H. Pilkinton, Judge.

This is an appeal by Lou Ella Thompson from a decision of the Arkansas Workers’ Compensation Commission denying her claim for benefits as the widow of William Thompson, a deceased employee.

The question before us on appeal is not whether there is substantial evidence in the record to sustain Mrs. Thompson’s claim; the issue is whether there is substantial evidence to sustain the Commission’s findings in favor of the employer. Tigue v. Caddo Minerals Co., 253 Ark. 1140, 491 S.W. 2d 574 (1973). Arkansas Foundry Co. v. Cody, 251 Ark. 57, 470 S.W. 2d 812 (1971). In arriving at an answer to this question we must give the evidence its strongest probative force in favor of the Commission’s findings. Tigue v. Caddo Minerals Co., supra. Bentley v. Henderson, 251 Ark. 203, 471 S.W. 2d 548 (1971).

William Thompson, age 58, was employed by Sellers & Sons Construction Company as a carpenter. He was working on a project at the Georgia-Pacific plant in Fordyce, Arkansas. The week preceding his death he had worked forty-eight hours, three eight hour days and two twelve hour days. The day of his death was a Wednesday, November 30, 1977. He had not worked the preceding four days. On the day he died Mr. Thompson commenced work at 7:00 a.m., setting forms in a drainage ditch, arid was engaged at that task until about 10:00 a.m., when the superintendent directed Mr. Thompson to go inside to do other work.

While inside a building the decedent worked cutting holes in the ceiling. Mr. Thompson went to the plant lunchroom at noon and, at that time, the superintendent decided to halt the work for the rest of the day because of rain. The decedent then went with the superintendent to a tool shed. He got into the cab of a truck belonging to Georgia-Pacific, with other workers, to drive to where their automobiles were parked. After driving a short distance, Mr. Thompson commenced to gasp and fell across the passengers, apparently dead. He was pronounced dead on arrival at a local hospital by Dr. Jack Dobson.

A claim was filed before the Arkansas Workers’ Compensation Commission by appellant, as widow of the decedent. Appellee denied that Mr. Thompson sustained an accidental injury arising out of and in the course of his employment which caused his death. A hearing was held before an Administrative Law Judge, at which time the deposition of Dr. Jack Dobson was introduced into evidence, and the medical reports of Dr. Wayne Elliott, the pathologist who performed the post-mortem examination, were also introduced into evidence.

The Administrative Law Judge entered an order finding that the decedent did not sustain a compensable heart attack. The claim was denied and dismissed. On appeal to the full Commission, the Workers’ Compensation Commission also denied and dismissed the claim finding that Mr. Thompson did not sustain a compensation injury.

The opinion of the two doctors appears in the record. Dr. Jack Dobson, a general practitioner at Fordyce, Arkansas, examined the body, but he had never seen Mr. Thompson during his lifetime. Dr. Dobson suggested an autopsy which was performed by Dr. Elliott, a pathologist at El Dorado, Arkansas. The autopsy report indicated that Mr. Thompson had suffered a heart attack some 14 years earlier. Dr. Elliott expressed an opinion that decedent died of his ischemic coronary disease, either as a result of arrhythmia or an infarction of sufficient severity to preclude historic changes prior to death. Dr. Dobson stated that he did not have an opinion as to whether the decedent died from arrhythmia or from an infarction. He could not answer the question as to whether arrhythmia relates to work effort. He said “I can’t answer that question because I’m just not aware of the relation between work and stress and the induction of arrhythmia.” When asked whether the work or labor performed that day would cause or contribute to the death if the decedent did in fact die from a myocardial infarction, Dr. Dobson replied that “any infarction in a person with 80% occlusion of the coronary arteries could be induced by labor.” However, he went on to say: “I thinkit could have, the amount of work he did that day. Again, I don’t know whether it did.”

We have two doctors with slightly differing opinions regarding causal connection of the heart attack with the job in this case. Dr. Elliott says that there was nothing in his findings to indicate any causal connection to the work. Dr. Dobson states that it could be, but he simply does not know. Dr. Dobson was reluctant to even admit a possibility of causal connection.

In denying the claim the. Commission found that the medical evidence in this case does not establish that the work Mr. Thompson was doing on November 20,1977, was a sole or a contributing cause of the fatal heart attack he suffered on that day. Therefore the claimant has not met the burden of proof required. After a careful review of the record, we are unable to say that there is no substantial evidence to support the Commission’s findings.

The decision of the Commission is affirmed.


author:
James H. Pilkinton, Judge.
      Marian F. Penix, Judge,

text:
    Otha Lee CONLEY v. STATE of Arkansas
    CA CR 79-45
    590 S.W. 2d 66
    Opinion delivered November 7, 1979
    Petition for Review denied December 3, 1979
    Released for publication December 5, 1979

      Robert A. Newcomb, for appellant and cross-appellee.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., and John Wesley Hall, Jr., for appellee and cross-appellant.
   James H. Pilkinton, Judge.

Appellant was charged with burglary and rape in violation of Ark. Stat. Ann. § 41-2002 and 41-1803 respectively. He was found guilty by a jury on both charges. Punishment was fixed at three years imprisonment for burglary and twenty years for rape. The sentences were directed to be consecutive. Appellant brings this appeal from the judgment and sentence imposed by the Pulaski County Circuit Court.

I.

Appellant made a statement to police after his arrest. A pretrial hearing was held and the trial court granted appellant’s motion to suppress the statement on the grounds that (1) the state failed to have present at the hearing all of the witnesses who were present at the time the statement was made, and (2) that the appellant had requested his attorney be present at the time of the statement, and his attorney was not there. In accordance with the trial court’s ruling, the prosecution was not permitted to introduce the statement as a part of its evidence in chief. Later during the trial when the defendant took the stand to testify in his own defense, and denied making the statement to police, another in-chambers hearing was conducted. The trial court then held that the state would be allowed to introduce evidence of the statement in question for the limited purpose of impeaching the credibility of the appellant. This was done, and appellant made no objection. However, appellant now urges that the trial court erred in failing to give a specific jury instruction as to the limited purpose for which the statement could be considered.

The record reflects that discussions concerning the nature and content of the jury instructions, occurred at several intervals during the trial. The first such discussion took place after the state had rested, and before the defense had begun to put on its case. At that time, all of the instructions which had been submitted by both sides were reviewed, and the trial court told the attorneys which ones would be given. The only instruction with regard to credibility of witnesses which had been submitted at that time was adopted by the judge as Court’s Instruction No. 5, which was the usual one on credibility of the witnesses, and of the weight that should be given to their testimony. Both sides approved this instruction. Later at the in-chambers hearing held during the presentation of the defense’s case when the judge decided to allow the state to use the appellant’s prior statement for the purpose of attacking his credibility, the following discussion occurred:

MR. ACHOR: That’s right. He says he didn’t tell the policeman that. He says he told the policeman the same thing he told here. Now, you have already ruled that it’s inadmissible as an involuntary statement.
THE COURT: As to the merits of the statement but not as to his credibility.
MR. ACHOR: I think with this we will need another instruction. We might as well get it straight right now.— that this was not for the purpose of proving the truth of this statement.

That is all that was said by counsel for appellant concerning the limited instruction. Nor was there ever any further attempt by appellant, either at the time the state offered the evidence in question, or at the time when the instructions were ready to the jury, to have a limiting instruction given. At the close of the case for the defense, and after both sides had rested, the record reveals the following:

THE COURT: (in chambers) Are you ready to charge this jury and read instructions to them?
MR. HALL: Yes, your Honor.
THE COURT: Anything else, gentlemen?
MR. ACHOR: No, sir.

Immediately later in the courtroom, the following occurred:

THE COURT: Both sides rest?
MR. HALL: (for state) Yes, sir.
MR. PATTERSON: (for defense) Yes, your Honor.
THE COURT: Are you ready for me to instruct the jury?
MR. PATTERSON: Yes, your Honor:
MR. HALL: Yes, sir.

Appellant contends that the statement of defense counsel, quoted above, to the effect that I think we will need another instruction, etc., constituted an adequate offer of a limiting instruction. We do not agree. Rule XIII of the Uniform Rules for Circuit and Chancery Courts (251 Ark. 1117) provides:

No party may assign as error the giving or the failure to give an instruction to a jury unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection.

Suffice to say that appellant made no objection to the instructions as given by the court, nor did he offer a proper limiting instruction. The purpose of requiring objections is to give the trial court an opportunity to correct any error or omission on its part. Griffin v. State, 248 Ark. 1223 at 1232, 455 S.W. 2d 882 (1970). Clearly no limiting instruction was ever submitted to the trial court by appellant; thus, under the circumstances here, there was no. error in the trial court’s failure to give such an instruction. Perry v. State, 255 Ark. 378, at 384, 500 S.W. 2d 387.

II.

It is next contended the trial court should have granted appellant’s motion for a mistrial when the prosecuting attorney allegedly allowed the ‘ ‘rap sheet’ ’ on the defendant to be seen by the jury. The record reveals that the prosecutor asked the defendant whether the one robbery conviction he had testified to was his only felony conviction and whether he had been to prison only one time. At that point, according to the record, the state’s attorney approached the defense table, apparently to hand appellant’s counsel a sheet of paper that was only later identified (after the jury had been removed), as a “rap sheet.”

If any particular attention was called to this piece of paper, it was the result of the action of defense counsel. As the prosecutor approached‘the defense table to hand the public defender a copy of the sheet, the following occurred:

MR. ACHOR: (Counsel for appellant) I don’t want to see that. I see that certified copy you got there. I see you got something there with a seal on it.
THE COURT: Gentlemen, if you are going to discuss something —
MR. ACHOR: Judge, may we approach the bench?

At this point counsel for both sides approached the bench, and conferred with the court out of the hearing of the jury, as follows:

MR. ACHOR: I would like to move for a mistrial, him flashing that before the jury.

The court had the jury taken out of the courtroom, and the matter was further discussed. The court then made the following statement:

All right, gentlemen, the record is complete at this time. The court finds that the defense raised the question of his prior conviction. The court further finds that Mr. Bentley asked him and he admitted the robbery, as he did on direct. He asked him if that was all, if there were any others, and he said, “No.” So far as the jury knows, that is all. There was some discussion, probably inaudible, from the defense counsel and from the prosecutor which was initiated by both counsel, and defense was as culpable in it as the prosecutor.
I do not think that this jury has heard or seen anything that can be detrimental to this man’s right to have a fair trial. I will overrule the motion for a mistrial.

There was a question of fact presented as to whether or not the sheet was seen by the jury, or the comments of counsel overheard. The trial judge resolved the issue against appellant. Parrott v. Arkansas, 497 F. 2d 1123 (8th Cir. 1974). The facts here are entirely different from those in Shaddox v. State, 243 Ark. 55, 418 S.W. 2d 780 (1967), and the other cases which appellant cites as authority for his contention that a mistrial shpuld have been granted. We find np merit in appellant’s point II.

III.

Appellant also claims that the trial court commented on the evidence, and his motion for a mistrial should have been granted. During the redirect examination of the prosecutrix, the following exchange occurred:

BY MR. HALL, DEPUTY PROSECUTING ATTORNEY: How certain are you that the man sitting at the counsel table is the man who was with you that night?
MR. ACHOR: Your Honor, this is not proper in the context of the trial. This would have been proper on direct but not now.
MR. HALL: This is redirect.
THE COURT: Sustained.
MR. HALL: Your Honor, I would like to point out that they brought up the question of identification.
THE COURT: Mr. Hall, I’m not sustaining it for the reason Mr. Achor says. I’m sustaining it because the lady has identified the man sitting at the counsel table as the assailant.

Out of the hearing of the jury the public defender moved for a mistrial which was denied.

THE COURT: I just said what the witness has testified to, Mr. Achor. Overruled.

The remark of the trial court here was merely a restatement of the witness’s testimony. Consequently, it did not constitute a comment on the evidence in violation of Article 7, Section 23 of the Arkansas Constitution, as appellant claims. See Lisko v. Uhren, 130 Ark. 111, 196 S.W. 816.

IV.

The issue raised by appellant in his final point for reversal concerns an incident which occurred at the beginning of the voir dire of the jury. After the jury panel was sworn, the court introduced the attorneys and the defendant to the prospective jurors. Then the judge had the witnesses to be identified by name, and asked the panel if any juror knew any of these witnesses. Two other rape victims were included by the state as possible witnesses. As it later developed, the court did not permit the state to use these two witnesses, and that matter is the subject of the cross appeal in this case. Appellant contends the introduction to the jury panel of the other two alleged rape victims, as possible witnesses, was error and that the court should have granted his motion to strike the whole jury panel.

The record does not indicate that the prospective jurors were ever informed as to what relationship the two had to the case. They were introduced by name only, and then put under the rule. No prejudice to the defendant could have resulted from this incident, particularly when no final ruling had been made by the court on the eventual admissibility of their testimony. If appellant was prejudiced by what happened here, then conceivably every prosecutor would risk reversal when he attempts during voir dire to determine whether any member of the panel is acquainted with any of the potential witnesses before knowing whether their testimony will be necessary or admissible.

Appellant cites Sharron v. State, 262 Ark. 320, 556 S.W. 2d 438 (1977) as support for his argument that reversal on this point is required. The facts in Sharron were entirely different, and that case is clearly distinguishable from the one before us. Appellant’s argument on this point lacks validity.

THE CROSS APPEAL

At the conclusion of the trial, the state sought to put the other alleged victims on in rebuttal to the defendant’s claim of consent by the victim in the case being tried. The state made a proffer and the court excluded it as too prejudicial. This cross appeal is from the trial court’s rejection of the proof of other crimes under U.R. Evid. 404(b). Since this case is being affirmed on direct appeal, little need be said about the cross appeal. The Arkansas Supreme Court has already ruled that evidence of other crimes is admissible for limited purposes. A decision on the cross appeal in this case is not necessary to the uniform administration of criminal law. It is clear that the admissibility of relevant evidence under Rule 404(b) of the Uniform Rules of Evidence may be decided on a case by case basis. Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79 (1974) and Rios v. State, 262 Ark. 407, 557 S.W. 2d 198 (1977).

Finding no error, this case is affirmed on direct and cross appeal.

Penix, J., concurs.

Marian F. Penix, Judge,

concurring. I concur with the majority in affirming the defendant’s conviction, but I would grant the cross-appeal.

Rape is a crime unlike all others in that proof of consent is an absolute defense. Even where two consenting adults enter into a double suicide pact and they both willingly die, society rejects the consent and we call it a “murder-suicide”.

Before our legislature wisely eliminated an attack on the character of the female victim as evidence, many rape trials consisted primarily of an effort to picture the female as a person whose wanton sexual activities of the past made her fair game for the male defendant, and, whatever ensued was of minor significance.

Except for attacks upon young male inmates of penitentiaries, rape almost exclusively is a problem of the female. Its victims may be eight years of age, or eighty, attractive or homely, brash or shy, and of.all races, creeds and strata of society. Sadly, the occurrence of this crime continues to increase in Little Rock, in Arkansas, and over the nation.

The writer of this opinion dares not work in her office when the Justice Building is empty because she’s unwilling to subject herself to the danger of rape. No male opinion writer is ever faced with this sinister problem.

In this case the female victim testified she was awakened by the defendant standing over her bed and threatening her with a knife if she didn’t submit to his sexual assault upon her. Defendant testified the female had been lonely and invited him to her home and consented to the sexual relationship.

Here, a male defendant says the prosecuting witness, who alleges she was raped, actually consented.

The fact to be established, non-consent, is crucial in a rape case . . . Often the more serious problem is proving non-consent. . . Absent a physical struggle resulting in bruises or lacerations, such resistance is often difficult to prove . . . Certainly, the fact that an individual commits a rape at one time has no bearing on whether another consented to intercourse at a later time. Here, however, the People did not offer the prior acts to prove prior rapes, or that the defendant is a bad man with criminal propensities. The People offered the prior acts to shown the scheme, plan or system employed by the defendant in raping the complainant . . . People v. Oliphant, 250 N.W. 2d 443 at 450 (Mich. 1976).

See also Fisher v. State, 57 Ala. App. 310, 328 So. 2d 311 (1976); State v. Valdez, 23 Ariz. App. 518, 534 P. 2d 449 (1975); Pendleton v. State, 348 So. 2d 1206 (Fla. 1977); Dean v. State, 277 So. 2d 13 (Fla. 1973). In this case three other females were willing to undergo embarrassment and humiliation and describe the details of sexual assaults upon them by this same defendant in the same eight-week period in the same neighborhood and in much the same manner. This indeed was relevant to the defendant’s intent in the trial at hand. Such evidence should have been allowed after an adequate precautionary instruction limiting consideration of the evidence to show the defendant’s motive, intent, knowledge, or absence of mistake. Ark. Stat. Ann. § 28-1001 (Supp. 1977) Rule 404(b). McCormick, Evidence § 190, at 448-51 (2d ed. 1972); State v. Thomas, 110 Ariz. 106, 515 P. 2d 851 (1973); Carroll v. State, 212 Tenn. 464, 370 S.W. 2d 523 (1963); Turnbow v. State, 451 P. 2d 387 (Okla. Crim. 1969); Humphrey v. State, 54 Ala. App. 62, 304 So. 2d 617 (1974); People v. Therriault, 42 Ill. App. 3d 876, 356 N.E. 2d 999 (1976). See Louisell & Mueller, Federal Evidence § 140 (1978); Annot., Admissibility, in prosecution for sexual offense, of evidence of other similar offenses, 77 A.L.R. 2d 841 (1961).

When Patty Hearst said she participated in a bank robbery only because she was under duress the court allowed evidence of her willing participation in a later robbery to rebut this female accused’s claim of duress in the earlier robbery. U.S. v. Hearst, 563 Fed. 2d 1331 (1977)

Appellant raised the defense of duress at trial and offered substantial evidence to support it. To convict appellant, therefore the government was required to show appellant was not acting under duress when she participated in the San Francisco robbery. The evidence of appellant’s involvement in the Los Angeles activity was relevant to this issue because it tended to show appellant willingly engaged in other criminal activity with persons of the same group at a time not unduly remote, p. 1336.

It may well be that the ultimate precedent on this point should come from our Supreme Court under its Rule 29.

I would grant the cross-appeal and admit the excluded evidence of nearly identical assaults on other females which are close in time and location to the case being tried.


author: Marian F. Penix, Judge.

text:
    Nancy Moss WHARTON v. Clementine MOSS, Executrix
    CA 79-162
    594 S.W. 2d 856
    Opinion delivered November 7, 1979
    Rehearing denied December 12, 1979
    Review denied January 7, 1980
    Released for publication March 17, 1980

      Spitzberg, Mitchell & Gill, by: John P. Gill and James E. McClain, Jr., for appellant.

      Hurst Law Firm, by: Q. Byrum Hurst, Jr., for appellee.
   Marian F. Penix, Judge.

This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

The question in this case is whether there is sufficient evidence to rebut the presumption that a will in the possession of or accessible to the testator was revoked by the testator if the will cannot be produced at his death.

Lee Moss died in March 1977. His survivors include his widow, Clementine Moss, the defendant and appellee, and a daughter, Nancy Moss Wharton, the plaintiff and appellant. The widow seeks to establish that an unexecuted copy dated January 10,1949, located in the office of decedent’s attorney is proof the will was executed and not subsequently revoked. The daughter denies the unexecuted copy is the actual will and protests establishing it as a lost will. The probate judge ruled the document to be the decedent’s will. The daughter appeals.

Ark. Stat. Ann. § 60-304 (1971) provides:

No will of any testator shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by at least two (2) witnesses, a correct copy or draft being deemed equivalent to one (1) witness.

In Rose v. Hunnicutt, 166 Ark. 134, 265 S.W. 651 (1924) the court held that non-production of a will raises a presumption of revocation. The court expressed the state of the law as follows:

It will be presumed that a testator destroyed a will executed by him in his lifetime, with the intention of revoking same, if he retained custody thereof, or had access thereto, and if it could not be found after his death. Rose, supra.

The presumption a will is revoked is two-pronged. The first hurdle for the proponent of a lost will to scale is the actual execution of the will. The widow has presented proof of the actual execution in the testimony of two disinterested parties who witnessed the execution of the will; Q, Byrum Hurst Sr., the decedent’s attorney who drew up the will and testimony of L. W. Ray who witnessed the execution of the will. We find this evidence sufficient to prove its execution. The daughter offered evidence the will copy was typed on a different typewriter from the one used by testator’s attorney during the time period the will was allegedly drawn. In studying the record, however, we hold the widow’s proof to be preponderant.

However, the second test for the proponent of a lost will to meet, by a preponderance of the evidence, is the will was not in fact revoked by the testator. The widow relies upon Garrett v. Butler, 229 Ark. 653, 317 S.W. 2d 283 (1958). There the court held the burden was on appellee to overcome presumption of revocation by a preponderance only. The facts in the Garrett case are distinguishable from this one. In the Garrett case there was evidence the will had been seen to be in existence in possession of the testator not long before death. Also in Garrett there was evidence a number of people had access to the testator’s personal effects, which evidence was persuasive the will was fraudulently destroyed after death and not by the testator. In this case there is no evidence offered to suggest fraudulent destruction, nor did anyone actually see the will in the testator’s possession. The widow made inferences about her son-in-law Joe Wharton, but no direct evidence was offered. It is just as logical to infer Lee Moss revoked his will as it is the son-in-law crept into the office while Mr. Moss was in Houston and destroyed it.

The record reflects no evidence the will might have been misplaced or destroyed by accident. There was ample evidence Lee Moss, though visually impaired, was successful in business and was known to be meticulous in keeping his records.

We hold the evidence sufficient to prove the will was executed by Lee Moss, but the evidence insufficient to overcome the presumption Lee Moss had revoked the will.

Reversed.

Hays, J. not participating.


text:
    James D. CATES v. STATE of Arkansas
    CA CR 79-54
    589 S.W. 2d 598
    Opinion delivered November 7, 1979
    Released for publication November 28, 1979

      McArthur & Lassiter, P.A., by: Jack T. Lassiter, for appellant.

      Steve Clark, Atty. Gen., by: Robert J. DeGostin, Asst. Atty. Gen., for appellee.
   Marian F. Penix, Judge.

This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

This appeal is from a conviction on the charge of theft of property under Ark. Stat. Ann. § 41-2203(b). Defendant waived ajury and was sentenced to two years imprisonment.

The defendant contracted with Mr. and Mrs. Gary Apple on September 26, 1977 to build a house in Scott, Arkansas. The defendant agreed to build the house in ninety days for $32,000. An escrow account was set up at Twin City Bank in North Little Rock in the amount of $32,000 for construction costs. When defendant received a bill from subcontractors or materialmen he would take it to Apples to approve, then the bank would disburse money based on Apples’ approval. Defendant worked off and on on the house until March 1978. He withdrew from the construction even though it was only 77% complete. Defendant had withdrawn $28,500 from the escrow account ostensibly to pay materialmen and laborers and to discharge liens. The defendant converted $4,000 to his own use instead of using it to discharge liens. A criminal information was filed on July 21, 1978 and defendant was tried on December 13, 1978.

The state called as a witness, Duke Dugan, former loan officer who had supervised the escrow account for the construction loan. He testified he no longer was employed at Twin City Bank but he had gone to work at Twin City in December, 1977. Over the objections of defendant Dugan testified as to what the bank records showed in October and November as to withdrawals from the escrow account. The State contended the bank record was admissible as a record of regularly conducted business under Rule 803(6) of Arkansas Uniform Rules of Evidence. Under that Rule, seven factors must be present for the records to be admissible — 1) record other compilation 2) of acts or events 3) made at or near the time the act occurred 4) by a person with knowledge (or from information transmitted by such a person) 5) kept in the course of a regularly conducted business 6) which has a regular practice of recording such information 7) all as shown by the testimony of the custodian or other qualified witness. Rogers v. Lyon, 253 Ark. 856, 489 S.W. 2d 506 (1973); Hale v. State, 252 Ark. 1040, 483 S.W. 2d 228 (1972); United States v. Morton, 483 F. 2d 573 (8th Cir. 1973).

The State introduced bank records through Dugan because he was familiar with the bank’s record keeping and was also familiar with the Apples’ escrow account. The State submits Dugan’s familiarity with the account, in addition to his prior employment at the bank, qualified him as a witness within the meaning of Rule 803(6) supra. The trial judge has the discretion to determine the qualification of witnesses and the admissibility of evidence. There is no showing of an abuse of discretion.

The defendant alleges the court erred in sustaining the State’s objection to cross-examination of Dugan by defendant’s attorney.

Q. Mr. Dugan, do you think that Mr. Cates might have bid too low on this house?
MR. WILLIAMS: Objection.
THE COURT: Sustained.
MR. LASSITER: Your Honor, I think he would be qualified to give that opinion if he is familiar with the house industry.
THE COURT: I don’t think he is. Save yourexception.

The defendant's attorney hoped to produce responses from Mr. Dugan indicating Mr. Cates had bid too low on the home. He contends the responses would have been directly relevant to whether defendant intended to commit theft when he entered the contract with the Apples. The State called Dugan to show the Apples set up an escrow account and he was authorized to disburse money from the account to defendant when Apples approved the disbursements for payment to subcontractors and materialmen. The court sustained the State’s objection to the defendant’s attorney’s question for two reasons. One, the witness was not qualified to render an opinion as to whether defendant’s bid was too low and secondly, the question wasn’t relevant to a determination of the fact in issue. The court properly determined that whether defendant had bid too high or too low is not relevant to the issue of whether, five and one half months later, the defendant meant to deprive Apples of their money, when he withdrew it to pay lienholders and instead kept it for himself. Even if the testimony were relevant, it would be inadmissible as opinion evidence offered by a non-expert. Dugan was not called by defendant as his expert witness. In sustaining the objection the court did not abuse his discretion. White v. Mitchell, 263 Ark. 787, 568 S.W. 2d 216 (1978); Harvey v. State, 261 Ark. 47, 545 S.W. 2d 913 (1977).

The defendant alleges the evidence is insufficient to support a conviction of theft of property by deception.

Ark. Stat. Ann. § 41-2203: 1) A person commits theft of property if he: b. knowingly obtains the property of another person, by-deception or by threat, with the purpose of depriving the owner thereof.

Ark. Stat. Ann. § 41-203(2) defines “knowingly”:

A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

In reviewing the record and studying the testimony of the witnesses, we find insufficient evidence to support the court’s verdict of guilty of theft of property within the meaning of § 41-2201 supra. The statute states:

Deception as to a person’s intention to perform a promise shall not be inferred solely from the fact that he did not subsequently perform the promise.

The only evidence in this case to support the conclusion drawn by the trial court that Mr. Cates did not intend to pay off the liens, and, therefore, committed theft by deception, is inferred solely from the fact he didn’t-subsequently pay off the liens. The trial judge, sitting as a jury, indicates his misunderstanding of the requirements of the statute under which appellant was charged.

MR. LASSITER: I believe you still have to have criminal intent whatever it is.
THE COURT: Well, I guess you can presume that from the fact he didn’t pay it . . .

The presumption taken by the court is one which the statute specifically states cannot be taken.

We hold there was insufficient evidence to convict appellant of theft of property by deception.

Reversed and remanded.


author: George Howard, Jr., Judge. Ernie E. Wright, Chief Judge,

text:
    Randy BOCKSNICK v. STATE of Arkansas
    CA CR 79-83
    595 S.W. 2d 227
    Opinion delivered November 7, 1979
    Rehearing denied December 12, 1979
    Affirmed by Supreme Court February 11, 1980
    Released for publication March 17, 1980

      Robert Irwin, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Judge.

The appellant was acquitted, by a jury, of aggravated robbery, but was found guilty of interfering with a law enforcement officer. Appellant received a five-year term to the Arkansas Department of Correction and a fine of $1,000.00.

For reversal, appellant claims his conviction is not supported by substantial evidence.

The facts are: Appellant was observed by Officer L. V. Collins, City Marshal of London, carrying a 30-30 rifle and refused to surrender the rifle to Officer Collins. Appellant directed Officer Collins to stand back or appellant would kill him. Appellant proceeded to a local grocery store and attempted to obtain ammunition which served as the basis for the aggravated robbery charge.

Subsequently, two Pope County Deputy Sheriffs who had been summoned by Officer Collins to assist him were fired upon by appellant when the deputy sheriffs approached appellant and ordered him to surrender. The refusal of the appellant to submit either to the demands of Officer Collins as well as the deputy sheriffs constitutes the basis of the charge of interfering with a law enforcement officer.

It is undisputed that neither Officer Collins, nor the deputy sheriffs were seeking to serve any legal processes upon anyone, not even appellant, but their prime concern was to induce the appellant to surrender his rifle and to submit to arrest.

The applicable statute provides:

A person commits the offense of interference with a law enforcement officer if he knowingly employs or threatens to employ physical force against a law enforcement officer engaged in performing his official duties.

We are persuaded that Breakfield v. State, 263 Ark. 398, 566 S.W. 2d 729 (1978) is dispositive of the issue before us. The Arkansas Supreme Court said in Breakfield:

Criminal statutes must be strictly construed with doubts being resolved in favor of the defendant . . . Applying this standard to this case and considering the evidence, we do not find substantial evidence to support the conviction of Breakfield for interfering with a police officer in the performance of his duties. Breakfield should have been charged with resisting arrest, or disorderly conduct, or both. However, those charges are not before us.

Reversed and remanded.

Wright, C. J., and Hays, J., dissenting.

Ernie E. Wright, Chief Judge,

dissenting. The majority have concluded Breakfield v. State, 263 Ark. 398, 566 S.W. 2d 729 (1978) mandates a reversal of the judgment convicting appellant of Ark. Stat. Ann. § 41-2804. I respectfully disagree. In Breakfield the officer was attempting to arrest the accused after the officer requested the accused to leave his office and accused declined to leave. Thereafter, accused left and the officer pursued him outside and the accused threatened to kill the officer. After a scuffle the officer subdued and arrested the accused.

The only evidence that the accused interfered with the officer in the performance of his duties was the statement of the officer that, “I was just before attempting to interview the complainants. They were inside the office or were coming in.” The court on appeal held this was not substantial evidence to support the conviction for interfering with a police officer engaged in performing his official duties.

In the present case the officer had information appellant had been involved in some trouble and started looking for him. Earlier in the day he had driven appellant home and appellant had the smell of alcohol. He saw appellant coming across the tracks with a 30-30 rifle in his hand. The officer approached appellant and said, “Randy, let me have the gun.” Appellant put the gun to the officer’s chest and said, ‘ ‘Back up . . . back up, I will kill you. ’ ’ The accused then ran and was later arrested with the help of other officers.

Under the circumstances here, the officer was engaged in performing his official duties in conserving the peace. Given the circumstances that appellant had been driven home smelling of alcohol, that the officer had received a report that he was involved in some kind of disturbance, and finding the appellant with the 30-30 rifle, the officer was acting properly in the discharge of his duties when he asked appellant to surrender the 30-30 rifle. The officer was justified in concluding appellant was involved in disorderly conduct under Ark. Stat. Ann. § 41-2908(l)(g) when he requested appellant to surrender his gun. This section provides the purposeful creation of a hazardous condition to cause alarm is disorderly conduct. The response to the officer’s reasonable request in the line of duty was a threat to kill the officer.

Appellant did not deny officer’s testimony.

I would affirm. I am authorized to say Judge Hays joins in this dissent.


author: David Newbern, Judge. Marian F. Penix, Judge,

text:
    M. M. COHN CO. et al v. Pauline HAILE
    CA 79-59
    589 S.W. 2d 600
    Opinion delivered November 7, 1979
    Released for publication November 28, 1979

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellants.

      Pickens, Boyce, McLarty & Watson, by: James McLarty, for appellee.
   David Newbern, Judge.

In this workers’ compensation case the appellants ask us to reverse the award to the claimant because it is not supported by substantial evidence. The primary assertions of the appellants are (1) that the medical testimony proves the claimant’s functional disability is no more than 20%, and (2) the claimant has chosen to withdrawn from the labor market because she has reached retirement age and is eligible for social security benefits. .

The claimant was 62 years old when she fell as the result of slipping on an oily substance on the floor while she was at work as a salesperson for M. M. Cohn. Her shoulder was fractured, and after a long period of treatment, including surgery, one physician concluded her shoulder sustained functional disability of 10% and her right upper body was disabled. 10%. Another doctor concluded she had a permanent partial impairment of 20% to the right upper extremity as a result of the injury, and that she would be unable to lift anything over head with that extremity “for a period of time” and “probably should not lift any weights over ten pounds with this extremity.” He also recommended that if she performed limited work, she “might be allowed to sit for a period of time’ ’ in the event she developed pain on her right side.

The claimant consulted a vocational psychologist who concluded:

“I . . . feel that due to her age [64 at the time of his evaluation] and disabilities, that it will be very difficult for her to locate competitive employment and while she states a strong desire to be suitably employed and to return to her former activites, my suggestions for this lady would be retirement.”

The claimant was also evaluated by a clinic psychologist whose deferred diagnosis of her was “psychoneurosis with depression.” He found she did not have an interest in going back to productive work and that in his opinion “she probably would manifest stress-related difficulties if she were involved in full-time work.” His conclusions also included the following:

This psychologist is of the opinion that the probability of Mrs. Haile going back to some productive work is very small. I do not feel that she is capable of full time employment given her age and physical problems. If she were younger in age and had the use of her arm, she could be expected to succeed in a rehabilitation program and secure employment suited to her abilities. Should her injury not [have] occurred, Mrs. Haile would have had numerous occupations from which to choose: . . .

We hold there is substantial evidence this claimant is totally disabled. The Arkansas Supreme Court long ago departed from the restrictive view that only anatomical or functional disability could be considered in determining disability to the body as a whole. The departure came in Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961), and since that case was decided we have been among the great majority of jurisdictions which allow consideration of several factors in determining not just functional bodily limitations, but loss of earning capacity as a predicate for workers’ compensation. See, Wright, Compensation for Loss of Earning Capacity, 18Ark. L. Rev. 269(1965), and 2 Larson, Workmen’s Compensation Law, §§ 57.51 and 57.61 (1976). Professor Larson suggests the principle and the factors as follows:

If the evidence of degree of obvious physical impairment, coupled with other factors such as claimant’s mental capacity, education, training, or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. [2 Larson, supra, § 57.61, pp. 10-136 and 10t137]

The odd lot doctrine refers to employees who are able to work only a small amount. The fact they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible. 2 Larson, supra, § 57-51, pp. 10-107, et seq.

In Arkansas Best Freight Sys., Inc. v. Brooks, 244 Ark. 191, 424 S.W. 2d 377(1968), the Supreme Court sustained an award of compensation for total disability despite medical evidence the claimant was only functionally disabled to the extent of 50%. The court said:

“Loss of the use of the body as a whole’ ’ involves two factors. The first is the functional or anatomical loss. That percentage is fixed by medical evidence. Secondly , there is the wage-loss factor, that is, the degree to which the injury has affected claimant’s ability to earn a livelihood . . . [T]he second element is to be determined by the Commission, based on medical evidence, age, education, experience and other matters reasonably expected to affect the earning power. [244 Ark. at 193]

In Johnson County v. Timmons, 249 Ark. 1106, 463 S.W. 2d 365 (1971), the Supreme Court sustained an award based on a finding of 70% disability to the body as a whole despite medical evidence which supported a finding of 10% functional disability. The claimant was 64 years old. The Court said:

“Apparently the Commission was convinced that because of his age, limited education, lack of training, and physical disability, job opportunities for the claimant will now be scarce; and that he will never be in a position to earn a wage approaching more than thirty per cent of his prior average wage rate. There was substantial evidence to support those conclusions. [249 Ark. at 1110-1111]

The foregoing authorities permit the Commission to consider the age of the claimant and her overall condition and prospects for employment. The testimony of the physicians and the psychologists, when combined with that of the claimant as to her limited education and experience constitutes substantial evidence of her disability. It becomes.even more substantial in view of her statement that she had applied to go back to work at Cohn’s, but had not been rehired.

Neither Ark. Stat. Ann., § 81-1310(c)(2) (Supp. 1979), which states exceptions to cases in which compensation will be paid, nor any other section we have found makes an exception excluding compensation to persons who are eligible for or are drawing social security benefits. Apparently no such exception exists in Arkansas or elsewhere. See, Larson, supra, § 57.61, n. 25.

Affirmed.

Judge Penix dissents.

Marian F. Penix, Judge,

dissenting. I do not believe the record reflects substantial evidence to support the Commission’s award. The only medical evidence introduced as to the claimant’s percentage of disability was that of two orthopedists. Dr. Blankenship discharged claimant with a finding she had suffered a permanent partial impairment of 20% to her right upper extremity. Dr. Thomas discharged claimant with a rating of 10% permanent partial.

Certainly Mrs. Haile has suffered a compensable injury which has resulted in a permanent disability of 20% to her upper right extremity. But the compensable injury is not the only factor which prevents Mrs. Haile from returning to the job market. It is understandable a 64 year old woman who has worked in jobs which required long hours on her feet, such as sales clerking, is tired. It is also understandable she would not be motivated at this stage in her life to returning to full time employment. There is no doubt the claimant has restricted use of her right shoulder. But these facts standing alone are insufficient to prove total disability. I don’t believe the purpose of benefits awarded under the Arkansas Workers’ Compensation Law includes the-situation we have here. The Workers’ Compensation Law should not be expanded into another retirement program. The law was enacted to compensate members of the work force who suffer on-the-job injuries. Mrs. Haile suffered an on-the-job injury. The most medical evidence reflects 20% disability. The Commission’s award should be reduced to that amount.

I respectfully dissent.


author: Ernie E. Wright, Chief Judge.

text:
    John UROSEVIC v. Tom HAYES and Donna HAYES, and William KEEL and Ruth KEEL
    CA 79-146
    590 S.W. 2d 77
    Opinion delivered November 14, 1979
    Released for publication December 5, 1979

      Hobbs, Longinetti & Bosson, by: Louis J. Longinetti, III, for appellant.

      Glover, Sanders, Parkerson & Hargraves, by: Robert S. Hargraves, for appellees and cross-appellants.
   Ernie E. Wright, Chief Judge.

The Appellant, John Urosevic, appeals from the decree of the Chancery Court of Garland County ordering that he and the appellees, his adjoining landowners, immediately cause a retaining wall providing lateral support to appellees’ land to be restored with the cost to be shared equally between appellant and appellees. The appellees cross-appealed contending appellant should bear all the costs for restoring the retaining wall. The case has been assigned to the Court of Appeals pursuant to Rule 29 (3).

Appellant contends the court erred in ordering appellant’s property restored to its prior condition and in requiring him to contribute one-half of the cost of repairs.

In the cross-appeal appellees contend the court erred in ordering appellees to contribute one-half the cost of restoring the retaining wall on appellant’s property, and argue appellant should bear all the cost.

As the contentions are intertwined they will be jointly discussed.

The decree made the following findings:

At some unknown time in the past, probably prior to 1913, the Defendant’s predecessors in title excavated their property and built a brick building wall along the boundary line with the property owned by the Plaintiffs’s predecessors in title.
Subsequently, and probably in 1913, the building was destroyed and new improvements were constructed not covering the entire excavated area, thereby leaving the original building wall standing along the boundary line.
At some time, also unknown, the Plaintiffs predecessors in title placed fill against the original brick wall thereby putting additional pressure on the wall.
In May of 1978, the wall was struck by lightning and a portion of the wall collapsed causing the erosion of some of the Plaintiff s land. This was an Act of God and was not caused by the fault or negligence of any party.
That in the interest of fairness and equity, the Court exercises its right to create an equitable remedy by requiring the wall to be restored to such a condition as to prevent further erosion of Plaintiffs property and that the cost of restoration shall be shared equally by the Plaintiffs and the Defendant.

Neither of the parties contend the court erred in its findings, but both appellant and appellees contend the court erred in the application of the law.

The Arkansas Supreme Court apparently has not had occasion to pass upon this type issue; however, it is a well settled common law doctrine that the owner of land has the right to the lateral support of his soil in the natural state, and the law provides recourse for violation of this right.

In 1 Am. Jur. 2d, Adjoining Landowners, § 37, the following language is found:

The principle that the owner of land has the right to lateral support from the adjoining soil, and the adjacent proprietor may not remove the earth to such an extent as to withdraw the natural support of his neighbor’s soil without being liable for the injury, may be regarded as a settled doctrine of the common law.

Numerous cases from various jurisdictions in support of this rule are to be found in 2 C.J.S., Adjoining Landowners, § 9.

Ownership of land is acquired and held subject to the rights and burdens arising from such conditions. Sime v. Jensen, 213 Minn. 476, 7 N.W. 2d 325 (1942.)

The rule does not preclude a landowner from excavating upon his land, but he owes a continuing duty to protect an adjoining landowner’s property when the excavation removes lateral support. It is his duty to provide an artificial support if the conditions so require. 2 C.J.S. Adjoining Landowners, § 15. This duty extends to successive owners of the land that has been excavated. Gorton v. Schofield, 311 Mass. 352, 41 N.E. 2d 12 (1942); Braun v. Hamack, 206 Minn. 572, 289 N.W. 553 (1940); Lyons v. Walsh, 92 Conn. 18, 101 A. 488 (1917). The duty is absolute and is not predicated upon negligence. Williams v. Southern Railway Co., 396 S.W. 2d 98 (Tenn. App. 1965); and Levi v. Schwartz, 201 Md. 575, 95 A. 2d 322 (1953).

In the present case it is undisputed that as a result of the collapse of the wall appellees’ lands are subsiding and shifting upon appellant’s land. Appellees each have a dwelling house upon their respective land and they; will suffer continuing damages to their property unless lateral support to the land is restored.

It is apparent from the record that, while lightning struck the retaining wall on appellant’s land which provided lateral support to appellees’ land, the subsidence of appellees’ lands would not have occurred but for the excavation that had previously been made upon appellant’s land. However, the court found that additional pressure on the retaining wall was created by some fill having been placed adjacent to the wall on appellees’ lands, and from the record we conclude that this was a contributing factor in bringing about the collapse of the wall and the resulting subsidence of appellees’ lands. Under the circumstances of this case we conclude the Chancellor was warranted in balancing the equities by requiring the appellant to bear half the cost of restoring the wall and the appellees to bear half the cost. It appears restoration of the wall will be beneficial to the properties of both the appellant and appellees.

This proceeding was in equity and the court had the power and duty to devise a remedy appropriate to the peculiar circumstances of the case and we conclude the court’s decree was equitable, appropriate and not contrary to a preponderance of the evidence. Am. J. 2d, Equity, § 103.

Affirmed.


text:
    Donald G. MIZE v. STATE of Arkansas
    CA CR 79-90
    590 S.W. 2d 75
    Opinion delivered November 14, 1979
    Released for publication December 5, 1979

      Dan Stripling, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Chief Judge.

The Appellant, Donald G. Mize, was convicted by a jury of battery in the first degree in violation of Ark. Stat. Ann. § 41-1601 and sentenced to five years imprisonment. From the judgment of conviction he brings this appeal urging for reversal, that the court erred in denying appellant a hearing upon his motion to suppress the in-court identification of appellant.

Trial date had been set for June 26, 1979. Ón June 21, 1979 appellant filed a motion to suppress testimony by State’s witnesses identifying the appellant contending the identification resulted from a “police show-up” while the defendant was in custody in a police car. The motion alleged that such “show-up” was improperly conducted and improperly suggestive so as to taint the in-court identification of appellant.

Counsel for appellant first presented the motion to the court on the day of trial. The State objected to the motion as being untimely filed only five days prior to trial date contrary to Criminal Rule 16.2 (b), and argued the prosecuting witness could identify the accused without regard to having seen the accused in custody in the police car. Appellant did not contend he had been pointed out to the prosecuting witness when the witness viewed and identified the appellant in the police car shortly after the shooting. The court overruled the motion without an evidentiary hearing. Appellant’s abstract does not indicate any objection to the ruling of the court.

The prosecuting witness, a young black man, testified that while he was sitting in his stalled car on a store parking lot the appellant and another man, Ricky Jackson, drove up and after appellant had made some remarks to the prosecuting witness told the prosecuting witness he had to get out of town; appellant and his companion drove away and soon thereafter a black friend of the witness, Mr. Gaston, drove up and indicated he would stay with the witness until his mother could pick him up; the witness got in the friend’s truck and appellant and his companion pulled up and appellant had a shotgun sticking out the car window; Gaston pulled his truck over in front of the store and the prosecuting witness and Gaston got out to go in the store; at that time they were both struck with shots from a shotgun blast; the prosecuting witness was struck in the legs, back, elbow and arm with about 50 shots; Gaston was also struck; they went to a doctor’s office where they received medical attention and then ‘ ‘went outside to identify the occupants of the car’ ’.

At that point appellant renewed his motion to suppress any in-court identification. Out of the presence of the jury, the court instructed the prosecuting witness not to go into the fact that the witness made an out-of-court identification, and denied the motion to suppress. The witness testified the appellant, Mize, was the one who fired the shotgun.

The appellant took the stand and testified he and his companion, Jackson, the driver of the car, had been drinking and rabbit shooting; that they pulled up where the prosecuting witness was parked and asked if he was having trouble; that the witness called him a name; appellant told him he had better get out of town and appellant and his companion left; appellant and his companion drove back in about thirty minutes and the prosecuting witness called him a name; appellant then put the barrel of his gun out the window and told the witness and his companion they had better get out of town; appellant and his companion started into the store and appellant shot them in a fit of anger. There was no evidence of threats or violence by the prosecuting witness.

For reversal, appellant relies on Sims v. State, 258 Ark. 940, 530 S.W. 2d 182 (1975), and contends the view of the appellant by the prosecuting witness, while appellant was in custody in a police car very soon after the crime, constituted a lineup procedure within the meaning of the Sims case, and the identification of appellant while in custody in the police car was improperly suggestive. It is contended the procedure tainted the in-court identification of appellant by the prosecuting witness, and for this reason the in-court identification should be suppressed. While there appears to be valid reason to believe Criminal Procedure Rule 16.2 requiring motions to suppress evidence to be filed not less than ten days before trial was intended to apply to any kind of evidence and not limited to things seized in a search, we find it unnecessary to resolve this question.

The Sims case involved an in-court identification of the accused by the prosecuting witness after the witness had viewed the accused in a post indictment lineup, at a time when the accused had counsel. His counsel was not notified of the lineup and was not present. In the present case the appellant had not been indicted and had no counsel. It was important as a practical law enforcement procedure for the police to make a judgment as to whether appellant was the person to be held. The view of appellant in the police car occurred very shortly after the assault and there is no contention by appellant that he was pointed out to the prosecuting witness by any one ás the person making the assault. Also, the assault took place in daylight and the prosecuting witness, having been encountered by the appellant shortly prior to the final assault, had ample opportunity to view appellant, thus having a basis to reliably identify the appellant without reference to the in-custody view of appellant. The in-custody view here complained of served primarily to enable the police to determine they had custody of the person who had committed the assault.

The circumstances of the present case are controlled by Lindsey and Jackson v. State, 264 Ark. 430, 572 S.W. 2d 145 (1978), rather than by Sims. In Lindsey appellants objected to their in-court identification by the robbery victim on the ground they had been subjected to an out-of-court identification which did not involve a proper lineup. Appellants contended the out-of-court identification, which consisted of a view of the appellants promptly after the robbery, was suggestive and impermissible. The court held that a confrontation between a victim and suspect that takes place at a show-up rather than a lineup does not, without more, constitute a violation of constitutional rights. The court cited Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243 (1977) which held that reliability is the linchpin in determining the admissibility of identification testimony based on confrontation and that if from the totality of the circumstances the confrontation did not give rise to a very substantial likehood of irreparable misidentification, the in-court identification is properly admitted.

We hold from the totality of circumstances here there is no reasonable basis for contending the view of appellant by the prosecuting witness very soon after the assault and while the appellant was in police custody created a substantial likelihood of irreparable misidentification.

In this case, even if it be said it was error for the court to refuse the appellant’s motion for an evidentiary hearing on the motion to suppress an in-court identification of the appellant, reversal would not be required.

In Motes v. U.S., 178 U.S. 458, 20 S. Ct. 993 (1899), a written out of court statement of a witness was admitted in evidence against appellant over objection. On appeal the court said the improper admission of the evidence violated appellant’s constitutional rights to be confronted with witnesses against him. However, the court held, as the appellant took the stand and gave testimony of his actions which were clearly a violation of the law involved, the jury had conclusive proof of appellant’s guilt, and the improper admission of the incompetent evidence was of no consequence to appellant, and not prejudicial. This case was a forerunner of the modern rule set out in Schneble v. Florida, 405 U.S. 427, 92 S. Ct. 1056 (1972). There, even though the defendant did not take the stand, the court held the admission of certain incompetent evidence against the accused violated his constitutional rights, but that the error was harmless because the overwhelming properly admitted evidence of guilt was such that the mind of an average jury would not háve found the State’s case significantly less persuasive, if the court had excluded the incompetent evidence.

We affirm.