author: Frank Holt, Justice. JOHN A. FOGLEMAN, Justice,

text:
    Bill SMITH v. Louise RAMSEY
    74-84
    513 S.W. 2d 501
    Opinion delivered July 22, 1974

      Albert R. Hanna, for appellant.

      Nolan, Alderson & Jones, for appellee.
   Frank Holt, Justice.

Appellee brought this action against the appellant seeking possession of' certain cattle of the alleged value of SI,750. The appellant controverted the alleged ownership of the cattle. A jury resolved the issue in appellee’s favor by awarding her $1,800, which was reduced by the trial court to $1,750 to conform to the amount sought by the appellee in her complaint. Appellant contends for reversal that the trial court erred in failing to grant a mistrial following the testimony of one of appellee’s witnesses indicating that appellant had discussed with him a settlement offer. Likewise, error is asserted in overruling appellant’s motion for a new trial.

Appellee’s witness McCormick is related by marriage to appellee. He testified that following appellant’s “first trial” that he told appellant that the cattle belonged to appellee, his relative. The appellant responded by claiming ownership. The appellant later came to him, McCormick, and offered $1,250 “to compromise” the case. At this point the appellant moved for a mistrial. The court then conducted an in chambers examination of McCormick. There he testified that he had discussed with appellant the disagreement of ownership three times since the controversy arose. One of these occasions was two or three days before the appellant’s first trial pertaining to the possession of the cattle. Since then he had asked the appellant twice to make a compromise offer because his relative, the appellee, didn’t want to send the appellant “to the pen”. The offer of $1,250 compromise was finally made to him to transmit to the appellee. The trial court determined in chambers that the offer to compromise to appellee’s “agent” was inadmissible. The court then proceeded to give a very comprehensive cautionary instruction to that effect and enunciated the policy reasons as to why compromise offers are inadmissible: i.e., it permits complete freedom of negotiations between parties and, therefore, discourages or settles litigation. When he inquired of the jurors if they could disregard the inadmissible testimony there was no response. The court told the jurors that he understood their silence to mean they could totally disregard the testimony about any offer of compromise.

Offers of compromise are inadmissible as evidence of liability because of the strong policy interest in the settling of disputes before a trial. We have so held on several occasions. Strahan v. Webb, 231 Ark. 426, 330 S.W. 2d 291 (1959); Folsom v. Watson, 217 Ark. 158, 228 S.W. 2d 1006 (1950); Cunningham v. Davis, 203 Ark. 982, 159 S.W. 2d 751 (1942); Lake v. Wright, 186 Ark. 227, 53 S.W. 2d 233 (1932); Hinton v. Brown, 174 Ark. 1025, 298 S.W. 198 (1927). The rule is really akin to a privilege rather than a rule of competency. McCormick, Evidence § 273 (2nd. Ed. 1972). The one to whom or through whom the offer is made is not the decisive factor. The controlling consideration is the policy encouraging friendly adjustments of potential or actual litigation. Otherwise litigation would be instituted finally resulting in court trials with additional expense to the parties as well as further overloading our court dockets. The fact that the compromise offer in the instant case was not communicated to the appellee by an agent does not render it admissible. See e.g., Pentz v. Penn. Fire Ins. Co., 92 Md. 444, 48 A. 139 (1901), where plaintiff’s question to defendant’s agent as to whether the agent had been authorized to offer a compromise was properly excluded, and Harrison v. Dist. of Columbia, 95 A. 2d 332 (D.C. Mun. Ct. App. 1953), where appellant denied paternity of an illegitimate child but offered to pay a thousand dollars to settle to the mother’s brother who was neither the complaining witness nor her representative, held, evidence of offer was inadmissible.

In the case at bar, we note that appellee’s counsel elicited from McCormick before the jury that he had discussed the ownership of the cattle with the appellant after “the first trial” at Farmerville. Appellant maintained the cattle were his. The witness was then asked if appellant later came to him and said anything further about the cattle. It was then that the witness responded that the appellant had made the 11,250 compromise offer. The jury returned a verdict of $1,-800 which was reduced to $1,750 to confrom with the allegations in the complaint.

Appellee agrees that a compromise offer as a general rule is inadmissible because of the strong policy reasons which encourage settlement of potential as well as actual litigation. However, appellee asserts that the cautionary instruction given by the trial court was sufficient to remove any prejudicial effect. In the circumstances, we cannot say with confidence that the prejudicial effect of the compromise offer was completely removed and extinguished despite the meticulous and very thorough cautionary instruction. Appellant’s motion for mistrial as well as his motion for a new trial based upon the prejudicial effect of the compromise offer should have been granted. It follows that the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

FOGLEMAN. J., dissents.

JOHN A. FOGLEMAN, Justice,

dissenting. I do not feel there was any prejudicial error in this case and I would affirm the judgment.

I am not at all certain the testimony on which the issue is raised was inadmissible. The witness McCormick was not shown to have been an agent of appellee. According to appellant’s abstract, before objection was made he gave the following testimony:

.... I discussed cattle owned by Mrs. Ramsey with Mr. Smith just after the first trial at Farmerville. I told him that the cows were Louise’s and he said they were his.
Then on April 15 (T. 14) of this year he came to my house. He drove up and I went out where he was and Bill said “You get up here in the car. I want to talk to you.” I got up there in the car with him and he said, “I want you to go down to Louise’s or Mrs. Ramsey’s and tell her I’ll give her SI,250.00, you know, to compromise.”

After objection, according to appellant’s abstract, he added:

Well, to finish it, (T. 17) Bill said, “I’ll give her $1,-250.00 and the cows back, but one of the calves are about dead. The cows run at it and knock it around and it’s about dead. Truett West is my lawyer and I’ll go over to Ellis Smith’s and see them.” He asked if I would go ahead and see Mrs. Ramsey but she had flu and I wouldn’t go down there.

I concede that the portion of the testimony given before the objection, standing alone, would have been inadmissible. But if the witness had been permitted to complete his statement, as he did in chambers, there is a very good argument supporting its admissibility.

This theory was clearly recognized in Cunningham v. Davis, 203 Ark. 982, 159 S.W. 2d 751. That was a suit for overtime pay under the authority of the Fair Labor Standards Act. The appellee-plaintiff was permitted, over objection, followed by motion for mistrial, to testify as follows:

“Q,. What did he ask. you? A. If I didn’t want to compromise and let him pay me for the overtime when he was paying twenty-five cents —

The trial judge instructed the jury not to consider the offer of compromise as evidence against the defendant, but left the testimony to the jury for what it was worth. We quoted from the annotation “Admissibility of admissions made during discussion of compromise” to Erickson v. Webber, 80 A.L.R. 919. The statements were to the effect that if a statement forming a part or connected with an offer of compromise is an admission of an independent fact pertinent to the question in issue, evidence of the statement is admissible and that “express admissions of liability made during negotiations for compromise have been held to be admissible in evidence.” We also cited 26 Am. Jur. 478, Evidence, § 566, and Lake v. Wright, 186 Ark. 227, 53 S. W. 2d 233. There is very respectable authority in support of this principle. II Wigmore 34, 39, § 1061; O'Bryan v. Home-Stake Production Company, 195 Kan. 213, 403 P. 2d 978. The nearest we seem to have come to a rejection of this rule is Wilkerson v. Gerard, 200 Ark. 125, 138 S.W. 2d 76. I submit that there was a much more positive admission of liability here than there.

While I agree the majority reached the right result in holding that, the fact the offer was not made to appellee or to one who was her agent was not decisive, it was necessary to resort to authorities in foreign jurisdictions to support this decision. I find authorities seeming to permit a contrary resült. See San Francisco Iron & Metal Co. v. American Milling & Industrial Co., 115 Cal. Ap. 496, 1 P. 2d 1008; 31 C.J.S. Evidence § 285, p. 728.

Regardless of the correctness of the court’s ruling, however, there is enough support for appellee’s position that, in considering the prejudicial effect of the testimony, we should view it as having been offered in good faith and not in a deliberate effort to prejudice the jury, an important element in determining whether a mistrial should have been declared. It should also be noted in this regard that the testimony as to the offer came as a response to an inquiry whether appellant had come to the witness and said anything about the cattle. The response of the witness probably was a little more comprehensive then the examiner expected. A simple “yes” would have been a complete answer.

I cannot conceive of any means the trial court could have taken to sanitize the trial by elimination of any possible prejudice than was taken herein. The effect of the majority opinion is that a mistrial must be declared whenever any testimony relating to an offer of compromise is heard by the jury, however it may have come about and regardless of the lack of bad faith on the part of the parties. We have said many times that the declaration of a mistrial is such a drastic step that it should not be resorted to unless justice cannot be served by a continuation of the trial or unless prejudice cannot be removed by any other step or means. See Rickett v. Hayes, 256 Ark. 893, 511 S.W. 2d 187 (1974). Usually such a step has been reserved for cases where there is flagrant misconduct of counsel or a deliberate and gratuitous reference to obviously improper matter. See. Shroeder v. Johnson, 234 Ark. 443, 352 S.W. 2d 570; Ward v. Haralson, 196 Ark. 785, 120 S.W. 2d 322; First National Bank of Springdale v. Hobbs, 248 Ark. 76, 450 S.W. 2d 298; Oliver v. Jones, 239 Ark. 572, 393 S.W. 2d 248; Ragon v. Day, 228 Ark. 215, 306 S.W. 2d 687. Usually we say that the trial judge must be accorded the broadest latitude in determining the appropriate action to eliminate the prejudicial effect of incompetent testimony. See Arkansas State Highway Commission v. Shepherd, 239 Ark. 1010, 395 S.W. 2d 743; Briley v. White, 209 Ark. 941, 193 S.W. 2d 326. Here the majority has really accorded him no latitude in just such a matter.

I dissent!

       Twenty-five cents per hour was the straight-time pay basis.


source: Caselaw Access Project

author: CARLETON Harris, Chief Justice.

license: Public Domain

text:
    Bill C. NELSON II v. STATE of Arkansas
    CR 74-26
    513 S.W. 2d 496
    Opinion delivered September 16, 1974

      Sam Sexton, Jr., by: Jim D. Spears, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee.
   CARLETON Harris, Chief Justice.

Bill C. Nelson II was convicted of slaying his wife, Virginia S. Nelson, the jury giving him life imprisonment for first degree murder. From such conviction, appellant brings this appeal. For reversal, six points are asserted, which we proceed to discuss, though not in the order set out by appellant.

It is contended that the court erred in overruling appellant’s motion for a directed verdict as to the charge of first degree murder because of insufficiency of the evidence.

We do not agree. The evidence reflected that Nelson was estranged from his wife at the time of the shooting; that on the Thursday before the shooting (which occurred around midnight on Saturday), appellant called Laura Spaulding, a friend of his wife, and asked if his wife had been seeing her first husband, stating, “if he saw them out together he would blow their heads off”; that on the next day, Nelson went to the apartment of Mrs. Spaulding, his wife being present, and though not getting into the apartment, argued with his wife from the outside, then left, after.which Mrs. Nelson called the police. Nelson again returned to the apartment on Saturday afternoon, looking for his wife’s ex-husband, went through various rooms, argued with his wife, and Mrs. Spaulding requested him to leave. The witness and Mrs. Nelson left the apartment to meet some friends, and upon returning around midnight, found Nelson crouched beside the fence with a rifle. He ordered them into the house. There, in the presence of seven other persons, appellant raised his gun, cocked it, and shot his wife to death. There was testimony that he remarked, “I came, I did what I intended to do” and left. There was also evidence, which will be more fully discussed in the next paragraph, to the effect that Nelson had taken out an insurance policy on his wife, to which she objected, about two weeks before the shooting. Of course, the evidence was sufficient to sustain the conviction, even without the testimony relating to insurance.

W. H. Weldon, manager of an insurance company, who was Nelson’s last employer, testified that appellant had written a policy of life insurance on his wife in the amount of $10,000. Weldon said this was a “joint policy”, both Nelson and his wife being the other’s beneficiary. The witness said that a sales promotion campaign was in progress, with extra rewards to be given to salesmen who were successful during the campaign. Guy Morrow, a brother-in-law of Mrs. Nelson, testified that he was at the Nelson home when the insurance policy was discussed and that Mrs. Nelson did not seem pleased. He said that he overheard Nelson say “that if she didn’t sign the policy, he was going to be very irritated and there would possibly be some family problems.” Subsequently, he testified that Nelson “kind of laughed and said, ‘Well, I just may kill her and collect the money myself.’ ”

Counsel for appellant argues that this testimony was not relevant in any way “other than upon some wild theory as to possible motive for murder.” Counsel contends that the State’s attorney did not offer this evidence in good faith, knowing that the policy was sold during a sales campaign and that all the company salesmen were being encouraged to take out these policies. We do not agree with this statement. While it appears from the record that jealousy was the primary motive for the shooting, the fact remains that there can be more than one motive and the prosecuting attorney was justified in offering this evidence to the jury. After all, it is the function of that body to determine what facts are significant or not significant, and whether the fact under discussion had any bearing on the killing.

Appellant argues that the court erred in permitting jurors to ask questions of the witnesses. This happened about a half dozen times, and the judge was very careful to tell each witness not to answer until he had held the question to be proper. A detailed discussion of this point is unnecessary since in the case of Ratton v. Busby, 230 Ark. 667, 26 S.W. 2d 889, we held to the contrary, citing 58 Am. Jur. Witnesses, § 558 with approval to the effect that it is not error for a trial judge to give the jury permission to interrogate a witness without any special request from them so long as the questions asked are germane to the issue. In the case before us, as previously stated, the court was quite careful in determining that only proper questions were propounded and we see no abuse of discretion.

It is asserted that the court erred in permitting the prosecuting attorney to ask leading questions on re-direct examination. Six questions are listed, all of which, with the possible exception of one, we would not class as leading questions, but even if some of the questions could be considered in that category, we certainly can find no prejudice.

It is argued that on four occasions, the trial court erred in limiting defense counsel’s cross-examination. Though we permit a full cross-examination of witnesses upon subjects mentioned in the examination in chief, we have held numerous times that the scope and extent of such examination are largely discretionary with the trial court. See Bartley and Jones v. State, 210 Ark. 1061, and cases cited therein. The first instance mentioned by appellant refers to several questions asked the witness relative to the expression on appellant’s face when he shot his wife. The witness had already answered several times that she did not observe Nelson’s face when he fired the shot and the court was merely curtailing repetition. This was not an abuse of discretion. See Vaughn v. State, 252 Ark. 260, 478 S.W. 2d 759. While examining this witness, counsel also asked, “Mrs. Spaulding, is the reason you couldn’t see his face, as you sit in the witness chair and you think about it, you know that at the time the shot was fired Bill Nelson had no awareness that the shot was being fired?” The court did not permit the question, stating to counsel that he was “testifying”. As we said in Woodruff Electric Coop. v. Daniel, 251 Ark. 468, 472 S.W. 2d 919, “Even though the cross-examiner has the right to ask leading questions, this does not accord him the right to in effect testify by making statements.”

The second instance mentioned by appellant refers to the cross-examination of Ronnie Bogard, a young man of teen-age, who was present in the room when the shot was fired. On the original cross-examination, Bogard was asked if there were changes in the way Nelson appeared insofar “as the look that he had.” Bogard answered that he had the same look until just before he fired the shot when “he kind of got a mean look on his face, and then did it.” The next question on cross-examination was, “Did he have a wild look in his eye?” Counsel never during the balance of the cross-examination referred to the statement by Bogard relative to the “mean look”. The apparent purpose of the cross-examination of Bogard was to support the contention of insanity, and an extensive examination was conducted of the witness for that purpose.

The last question asked on cross-examination was, “Ronnie, can you describe for the jury what Bill Nelson looked like at the time of this shooting?”, to which the witness replied, “I’d say about two seconds before and right after he had did it, he looked like he went into some kind of a trance, like his mind went blank or something.” Counsel then stated, “No further questions.” On re-direct, when asked to describe the physical features of Nelson, Bogard again mentioned that appellant looked “mean”. On re-cross, several questions were asked about the expressions “mean”, “trance”, and “blank”. The court finally halted this examination, and we certainly find no abuse of discretion. In the first place, it appears that the subject was fully covered and the witness’s answers were only a reiteration of earlier testimony. In the next place, the “mean” expression was used by the witness in his original cross-examination and no further questions asked. Likewise, the “trance” expression was used by the witness in the original cross-examination and no further questions asked. As pointed out in 98 C.J.S. Witnesses, § 429, p. 237:

“As a general rule, recross-examination is not allowable as a matter of right; the question of permitting recross-examination, and the scope and extent thereof, are in the sound discretion of the trial court, whose action will not be disturbed unless an abuse of discretion is shown.”

The next instance mentioned by appellant as to curtailment of cross examination relates to a question asked as follows:

“Q. Mr. Carruth, did he, Mr. Cowan, advise you that it appeared to him that Mr. Nelson did not know that the shot was fired at the time it was fired, and that he was shocked after discovering that Mrs. Nelson had been shot?”

The court sustained an objection, holding that the evidence was hearsay. Counsel for appellant agrees that such testimony was hearsay but contends that it was admissible as part of the res gestae. Cowan was one of the people present when the shooting occurred and Carruth was the first police officer to arrive. This officer questioned the various witnesses to the shooting and this was the basis of the question asked him by counsel. We agree with the State that Cowan’s statement was not a part of the res gestae. For one thing, though it is indefinite as to when Carruth arrived and the statement was made, it is certain, as pointed out by the State, that if such a remark were made, it was not earlier than five to ten minutes after the shooting occurred and probably much later. In Liberty Cash Growers, Inc. v. Clements, 193 Ark. 808, 102 S.W. 2d 836, we held that remarks made by a truck driver in an action to recover damages for negligence were not a part of the res gestae when the remarks were made five minutes after the accident, this court stating that the remarks constituted what the witness said about the act, rather than the act speaking for itself. The statement by Cowan was simply a response to questions from the officer and constituted only a narrative of a past occurrence. Cowan had testified during cross-examination that he had “okayed” a written statement by his wife which included a comment that Nelson had looked shocked that he had shot Mrs. Nelson. Cowan, when asked if he was agreeing that Nelson looked shocked replied, “No, not really. I just don’t really know what he looked like.” However, the questioning of Carruth was not for the purpose of testing Cowan’s credibility, and, in fact, the court mentioned that if counsel subsequently ascertained that Cowan had made statements to Carruth different from his (Cowan’s) testimony, Carruth could be placed back on the stand by appellant for the purpose of showing that fact. At any rate, we hold that this statement was not a part of the res gestae, and was therefore inadmissible as hearsay evidence.

The last contention of improper limitation on cross-examination refers to a question asked Officer Harvey of the Fort Smith Police Department as to whether it was “a matter of common knowledge in the police department that Bill Nelson was undergoing psychiatric care.” Nelson was a former police officer, and of course the other officers were acquainted with him. Harvey answered that he had “heard statements to that effect”, but had no personal knowledge of that fact. He was then asked:

“Q. Let me ask you this. Did anybody ever say to the Chief or Assistant Chief, ‘look, here’s a man who’s under psychiatric care. Is this what we really need on the Police Department?’ ”

An answer to this question would have been inadmissible for more than one reason, and certainly was not proper recross-examination since it did not relate to anything asked on redirect examination.

Finally, it is asserted that the court erred in refusing to permit medical librarians to read from medical records which had been offered into evidence by appellant. These records were offered as a matter of furthering the defense of insanity and appellant desired that the hospital employees read inter alia the dates of several brain concussions suffered by appellant, medication prescribed, final diagnosis, and summary of the hospitalizations. The records were properly offered under the provisions of Ark. Stat. Ann. § 28-928—929 (Repl. 1962), but this fact in itself does not necessarily mean that all the contents of such records were relevant or competent. In Royal Service v. Whitehead Construction Co., 254 Ark. 234, 492 S.W. 2d 423, we stated that though certain business records may be admissible in evidence under the provisions of the statute just mentioned, said statute does not make such evidence either material or relevant. Appellant achieved his purpose in offering these records, for the matters heretofore mentioned, with the permission of the court, were not only fully discussed by Mr. and Mrs. Nelson, parents of appellant, but by both the psychiatrist who testified for the defense, and the psychiatrist who testified for the State. The several concussions and circumstances surrounding were related to the jury in detail, and we cannot say that the mere reading of such records by non-experts would have added anything of value to the evidence. Even if the ruling of the court had been erroneous, no possible prejudice could have resulted.

A reading of the record clearly reflects that the trial court carefully tried this case, rendered the rulings complained of only after studied thought, and conducted the proceedings with thorough competence and impartiality.

Affirmed.

      Harvey had originally testified that he had overheard an argument between Mr. and Mrs. Nelson at their former apartment. On re-direct examination, two questions were asked, first, the date that Harvey visited the apartment, and second, if this occurred before Nelson “went into the hospital.” Appellant contends that the reference to “hospital” permitted the question herein under discussion.


author: Frank Holt, Justice.

text:
    George Buddy WILLIAMS v. STATE of Arkansas
    CR 74-58
    513 S.W. 2d 793
    Opinion delivered September 16, 1974
    [Rehearing denied October 14, 1974.]

      Booth & Wade, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury convicted appellant of the crime of maiming (Ark. Stat. Ann. § 41-2502 [Repl. 1964]) and imposed a sentence of seven years in the Department of Correction. We first consider appellant’s contention for reversal that the court erroneously permitted two officers to testify about certain statements made to them by the appellant preceding the alleged offense. We find no merit in this contention.

Each of these officers testified that the appellant came by the jail where they were working and in a conversation voluntarily stated to them that he was “mad” and intended to “hurt” the prosecuting witness that night. Appellant asserts that this evidence was inadmissible since it contravenes Miranda v. Arizona, 384 U.S. 436 (1966). Clearly that case only requires that a person “taken into custody or otherwise deprived of his freedom of action in any significant way” be advised of his constitutional rights “when questioning” is “initiated bv law enforcement officers.” We have said that Miranda is not to be so interpreted that a defendant cannot “voluntarily open his mouth. ” Hammond and Evans v. State, 244 Ark. 1113, 428 S.W. 2d 639 (1968). It is uncontradicted, in the case at bar, that the appellant volunteered to the officer-witnesses his immediate plan to commit an assault upon the prosecuting witness. It follows Miranda is not applicable.

Neither can we agree with the appellant that his oral statements to these officers are within the scope of our recently enacted discovery statute. Ark. Stat. Ann. § 43-2011.2 (Supp. 1973). This statute reads in pertinent part:

Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph any relevant (1) written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney. . .

Therefore, the trial court correctly ruled the discovery statute is inapplicable in the case at bar.

Neither can we agree with appellant’s contention that the trial court abused its discretion in refusing to grant appellant’s motion for a continuance when it was learned on the day of the trial that the state would introduce evidence through these two officer-witnesses that the appellant had told them he intended to harm the prosecuting witness. It appears that the prosecuting attorney promptly advised the appellant’s counsel as quickly as he learned that appellant’s inculpatory statements were made to these two officers. Suffice it to say that appellant was furnished, as requested, the names, addresses and occupations of the two witnesses in advance of the trial. Appellant had adequate opportunity to interrogate these witnesses with reference to any knowledge they had relating to the alleged offense. It is well settled that the granting of a continuance is within the sound discretion of the trial court. Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500 (1973); and Perez v. State, 236 Ark. 921, 370 S.W. 2d 613 (1963). In the case at bar, the appellant has not demonstrated that the trial court abused its discretion.

The appellant also contends that the court abused its discretion in admitting a broken wine bottle into evidence because it was not adequately linked to the alleged crime. We do not agree. One day following the commission of the alleged offense, a broken wine bottle was removed from the scene of the crime. The victim testified that he and the appellant lived at the same residence and that appellant came into his room and cut him with a broken wine bottle. Their landlady testified that she saw the appellant holding a bottle of wine before the offense was committed and immediately afterwards she saw a broken bottle in the room. The broken bottle was relevant to the theory of the state’s case and tended to prove the matter in issue in support of the victim’s credibility. Williams v. State, 250 Ark. 859, 467 S.W. 2d 740 (1971); Gross v. State, 246 Ark. 909, 440 S.W. 2d 543 (1969); and 22A C.J.S. Criminal Law § 601.

Appellant also contends that the court erred in permitting the victim to testify because he was incompetent. We need not consider this contention inasmuch as there was nr objection which is required by § 43-2725.1 and it is raised fo the first time on appeal. Ford v. State, 253 Ark. 5, 484 S.W. 2d 90 (1972). Furthermore, the trial court conducted a hearing in chambers and found the witness to be competent inasmuch as he testified that he understood the nature and obligation of an oath and he would be subject to punishment for false swearing. This comports with the proper standard. Keith v. State, 218 Ark. 174, 235 S.W. 2d 539 (1951); and Allen v. State, 253 Ark. 732, 488 S.W. 2d 712 (1973). Also trial courts are given broad discretionary powers in determining the competency of a witness and we do not find error unless there is demonstrated a clear abuse of that discretion. Allen v. State, supra; and Ray v. State, 251 Ark. 508, 473 S.W. 2d 161 (1971). In the case at bar, we certainly cannot say the court abused its discretion.

It is next contended that the trial court erred in permitting prejudicial cross-examination of the appellant. The appellant was asked on cross-examination if he had committed certain other criminal acts. We have consistently approved the format of this type of questioning on cross-examination, when asked in good faith, to test the credibility of the witness, the state being bound by the answer. Butler v. State, 255 Ark. 1028, 504 S.W. 2d 747 (1974). In the case at bar we find no prejudicial cross-examination is demonstrated by any questions propounded.

Finally, it is asserted by the appellant that the evidence is insufficient to support the verdict. In determining the sufficiency of the evidence upon appellate review, it is only necessary to ascertain that evidence which is most favorable to the appellee and if any substantial evidence exists then we affirm. Murphy v. State, 248 Ark. 794, 454 S.W. 2d 302 (1970). The state adduced evidence that the appellant made statements that he was going to harm the prosecuting witness a short time before he did so. Appellant was observed holding a wine bottle and drinking from it at the scene of the crime a short time before it occurred. Appellant was angry and broke into the prosecuting witness’ room. The prosecuting witness testified that the appellant cut him several places about his body with a broken bottle resulting in the loss of an eye. Immediately following the crime the prosecuting witness was found bleeding profusely from his wounds and blood, broken glass and a broken bottle were observed at the scene. Certainly this evidence is amply sufficient without detailing further evidence to sustain the jury’s verdict.

Affirmed.


author: FRANK Holt, Justice.

text:
    Lois ROGERS v. STATE of Arkansas
    CR 73-141
    513 S.W. 2d 908
    Opinion delivered September 16, 1974
    [Rehearing denied October 21, 1974.]

      Kenneth C. Coffelt, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen., for appellee.
   FRANK Holt, Justice.

Appellant was convicted by a jury of possessing stolen property and his punishment was assessed at five years imprisonment in the Department of Correction. We affirmed. Rogers v. State, 250 Ark. 572, 466 S.W. 2d 252 (1971). Pending his appeal, appellant was released to serve a federal prison sentence. Upon being paroled he was returned to the proper state authorities, pursuant to a detainer, to serve the previously imposed state sentence. At that time eleven of the twelve trial jurors asked the court by written petition to suspend the three year old judgment. These jurors personally appeared before the court in support of their petition. During this hearing, one of the jurors testified that she had consistently voted for the minimum sentence of one year. However, in the belief that a majority vote of the jurors controlled, she agreed to the five year verdict. The trial court refused to suspend the sentence, '[’hereupon the appellant filed a motion to vacate the judgment and set aside the jury verdict on the basis of this juror’s testimony. On appeal from a denial of that motion, appellant asserts that the jury verdict was invalid and a nullity because the juror’s testimony is uncontradicted that she agreed to the verdict in the belief that “she thought the majority ruled.” Consequently, appellant argues the verdict was not unanimous. We cannot agree.

Ark. Stat. Ann. § 43-2204 (Repl. 1964) reads:

A juror cannot be examined to establish a ground for a new trial; except it be to establish, as a ground for a new trial, that the verdict was made by lot.

A verdict by lot is defined as involving an element of chance. Blaylack v. State, 236 Ark. 924, 370 S.W. 2d 615 (1963); Speer v. State, 130 Ark. 457, 198 S.W. 113 (1917). See also Strahan v. Webb, 231 Ark. 426, 330 S.W. 2d 291 (1959); Patton v. State, 189 Ark. 133, 70 S.W. 2d 1034 (1934); Arnold v. State, 150 Ark. 27, 233 S.W. 818 (1921); and Fain v. Goodwin, 35 Ark. 109, (1879). In the case at bar, we cannot construe thejuror’s testimony as tending to establish that the jury verdict resulted from any element of chance. To hold otherwise would subvert the public policy upon which the statute is based; i.e., shielding the stability and sanctity of a jury verdict. If a juror is permitted to impeach a verdict, as in the case at bar, the juror would be permitted to nullify the solemn action under oath of that juror as well as the other fellow jurors.

Furthermore, it does not appear that the appellant availed himself of the right to poll the jury upon rendition of its verdict to ascertain if the verdict was that of each juror as provided by § 43-2160. The statute provides that the verdict cannot be received if a juror says it is not his veridet. Neither do we deem it of any significance that thejuror’s testimony was elicited by the state upon cross-examination. The answer was not responsive to the question. Even so, the statute plainly safeguards a jury verdict from impeachment by the testimony in the case at bar.

Affirmed.


author: George Rose Smith, Justice.

text:
    James Rupert BYLER v. STATE of Arkansas
    CR 74-68
    513 S.W. 2d 801
    Opinion delivered September 23, 1974

      Robert A. Newcomb, for Dept, of Correction, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is a Rule 1 petition by which the appellant Byler seeks to withdraw his plea of guilty to a charge of second-degree murder, on the grounds that he did not validly waive the assistance of counsel and did not intelligently and voluntarily enter the plea of guilty. The Honorable John L. Anderson, circuit judge, accepted the plea after a brief hearing on April 4, 1973. The Honorable Elmo Taylor, circuit judge, denied Byier’s Rule 1 petition after a more extensive hearing on February 2, 1974. This appeal is from the latter order.

We defer for the moment a statement of the facts now before us, because this case can best be understood in the light of fairly recent developments in this area of the criminal law.

A convenient starting point is Rule 11 of the Federal Rules of Criminal Procedure, governing federal district courts. That Rule, as revised in 1966, reads:

A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of noto contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea. [Federal Rules of Criminal Procedure, Rule 11.]

In McCarthy v. United States, 394 U.S. 459 (1969), the district court failed to observe the Rule’s directive that the judge personally inquire whether the defendant understands the nature of the charge against him and is aware of the consequences of his plea. The Supreme Court held that the omission entitled the defendant to an opportunity to plead anew. A month later the court refused to make the McCarthy rule retroactive. Halliday v. United States, 394 U.S. 831 (1969).

Another month later, in Boykin v. Alabama, 395 U.S. 238 (1969), two dissenting judges asserted that the Boykin majority had in effect made Federal Rule 11 binding upon the States as a matter of constitutional law. Although we do not construe the Boykin majority opinion to be that far-reaching, the court unquestionably held that State trial judges must determine whether pleas of guilty are intelligently and voluntarily made and, further, that such a determination cannot be presumed from a silent record.

The clearest and most detailed discussion of recommended procedures is to be found in the American Bar Association’s “Standards Relating to Pleas of Guilty” (1968). In quoting those sections of the Standards that are especially applicable to the case at bar we are not to be understood as making them inflexibly binding, to the letter, upon the trial courts of this State, either retrospectively or prospectively. The draftsmen of the Standards say themselves: “The responsibility of the judge varies, depending upon such circumstances as the complexity and comprehensibility of the indictment and the defendant’s intelligence, education, age, and experience.” Commentary, Section 1.4(a). Nevertheless, we must observe that compliance with the Standards will go far toward achieving the twofold purpose of (1) assuring justice both to the accused and to the public and (2) minimizing the dreary necessity of having to reconsider in postconviction proceedings points that should have been set at rest when the plea of guilty was accepted.

We quote those parts of Section 1 of the Standards that are particularly pertinent to this case:

1.4 Defendant to be advised by court.
The court should not accept a plea of guilty or nolo con-tendere from a defendant without first addressing the defendant personally and
(a) determining that he understands the nature of the charge;
(b) informing him that by his plea of guilty or nolo con-tendere he waives his right to trial by jury; and
(c) informing him:
(i) of the maximum possible sentence on the charge, including that possible from consecutive sentences;
(ii) of the mandatory minimum sentence, if any, on the charge; and
(iii) when the offense charged is one for which a different or additional punishment is authorized by reason of the fact that the defendant has previously been convicted of an offense, that this fact may be established after his plea in the present action if he has been previously convicted, thereby subjecting him to such different or additional punishment.
1.5 Determining voluntariness of plea.
The court should not accept a plea of guilty or nolo con-tendere without first determining that the plea is voluntary. By inquiry of the prosecuting attorney and defense counsel, the court should determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and, if it is, what agreement has been reached. If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court. The court should then address the defendant personally and determine whether any other promises or any force or threats were used to obtain the plea.
1.6 Determing accuracy of plea.
Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as may satisfy it that there is a factual basis for the plea.
1.7 Record of proceedings.
A verbatim record of the proceedings at which the defendant enters a plea of guilty or nolo contendere should be made and preserved. The record should include (i) the court’s advice to the defendant (as required in section 1.4), (ii) the inquiry into the voluntariness of the plea (as required in section 1.5), and (iii) the inquiry into the accuracy of the plea (as required in section 1.6).

We turn now to the facts in the case at hand. Byler, a middle-aged man, had only a first-grade education. He cannot read or write. Jimmy Zomant, the victim of the asserted homicide, died of a gunshot wound on March 31, 1973. On April 2 Byler was charged by information with second-degree murder. On April 4 Byler appeared before the court without counsel and pleaded guilty. The hearing, transcribed upon less than three typewritten pages, could hardly have taken more than five minutes. Before pleading guilty Byler was asked nine questions, all of which he answered either “Yes, sir,” or “No, sir.” There was no testimony.

Seven of the nine questions had to do with the appointment of an attorney for Byler and are not. now directly pertinent. By his responses Byler acknowledged that he did not have an attorney, that he understood that the court would appoint one for him, that he did not want an attorney, and that he waived his right to have one.

The other two questions, the first being dual in form, were the only inquiries touching upon whether Byler’s plea of guilty was intelligently and voluntarily made. Both questions were put by the prosecuting attorney, not by the court:

Mr. Raff: Mr. Byler, do you understand the elements of the charge against you? Do you understand what your defenses would be?
Mr. Byler: Yes, sir.
# }jc # # #
Mr. Raff: You also understand, sir, that you are waiving your constitutional right to a trial by jury to determine the issues that are involved and the charges that have been brought against you? You understand that, too, don’t you, sir?
Mr. Byler: Yes, sir.

Byler than pleaded guilty. The court, upon the prosecuting attorney’s recommendation, sentenced Byler to imprisonment for ten years. No statement or explanation of the minimum or maximum penalty had been made.

It is apparent that the court’s procedure in accepting Byler’s plea of guilty did not meet the minimum requirements laid down in Boykin v. Alabama, supra, much less the more detailed safeguards contemplated by the quoted Standards. The key question is whether the deficiencies were supplied by the record made at the second hearing.

At that hearing Byler, testifying in his own behalf, asserted on direct examination that he could not read or write, that he had been knocked in the head shortly before the earlier hearing and didn’t know what he was saying, that he had been arrested for a felony in 1946, that he did not know the lesser included offense (s) in the charge of second-degree murder, that he did not understand the law of self-defense, and that before entering the plea of guilty he had not had an opportunity to discuss the charge with an attorney.

On cross-examination Byler admitted that he was convicted of first-degree murder in 1946. (That conviction was reversed and the cause remanded for a new trial. Byler v. State, 210 Ark. 790, 197 S.W. 2d 748 [1946]. The present record is silent as to the further proceedings in that case.) Byler acknowledged that he had a lawyer in the earlier case and that he understood, in the cross-examiner’s words, “what the elements of murder were, what you were accused of, and what that meant . . .?” Byler’s answer: “Yes, sir.”

The court then questioned Byler, who supplied a few details about the 1946 trial, such as the surnames of his lawyer and of the prosecuting attorney. The court then asked about the present charge of second-degree murder. Byler was evasive, saying that he had been knocked in the head “at the party when it happened” and that he had been drinking; but the fact remains that the record contains no admission by Byler, other than his plea of guilty, that he actually committed the crime with which he was charged. See section 1.6 of the quoted Standards.

At the close of the hearing Judge Taylor stated his findings that Byler, though illiterate, was not ignorant and was smarter than he pretended to be; that Byler knew what he was doing when he waived his right to an attorney; and that his statement about having been knocked in the head (which was disputed by the jailor) was untrue. Those findings are amply supported by the proof.

The difficulty is that the trial court made no finding whatever upon the second point raised by Byler’s Rule 1 petition and argued by his attorney at the hearing; that is, that Byler’s plea of guilty was not made intelligently and voluntarily. The omission is readily understandable, for the record falls fatally short of meeting even the minimum showing required by the Boykin decision. Byler actually received no information at all at the first hearing. No one explained to him such essential but difficult legal matters as the definition of second-degree murder, the defenses to that charge, or its lesser included offenses. There is nothing even to hint that he was aware of the minimum or maximum penalty for the offense charged. No facts were brought out either with regard to the asserted homicide or with regard to Byler’s part in it.

In this court the State argues simply that Byler, even though illiterate, must have known all those things, because he was found guilty of first-degree murder 27 years before the second homicide took place. Upon the meager record before us such a conclusion could be reached only by means of speculation and guesswork. No such finding was made by the trial court, undoubtedly because the State adduced no proof to support such a conclusion. In the light either of the Boykin ruling or of the cited Standards we can find no basis for denying the appellant’s Rule 1 petition.

The judgment is reversed and the cause remanded with directions that the appellant be permitted to withdraw his guilty plea, with such further proceedings as may be appropriate.

Harris, C. J., and Byrd, J., dissent.


author: Lyle Brown, Justice.

text:
    Sherrill AVANTS v. STATE of Arkansas
    CR 74-83
    513 S.W. 2d 805
    Opinion delivered September 23, 1974

      Robert A. Newcomb, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee.
   Lyle Brown, Justice.

This appeal is from a conviction of first degree rape for which a thirty-year sentence was imposed. Only those facts which are pertinent to a discussion of the points for reversal need be related.

Point I. The refusal to grant appellant’s motion to dismiss denied him a right to a speedy trial. Appellant was charged on November 11, 1973, and held without bail. Trial was set for February 4, 1974, but was postponed at the request of the State and rescheduled for March 4, 1974. Again the trial was postponed at the request of the State and rescheduled for March 26, 1974. As a result of the recited continuances appellant filed a motion to dismiss for failure of the State to give him a speedy trial. [Appellant does not contend our statute restricting the number of court terms that an accused may be incarcerated before trial was violated. Ark. Stat. Ann. § 43-1708 (Repl. 1964).] The court denied the motion but directed that appellant be released on his own recognizance awaiting a trial date. See Ray v. State, 254 Ark. 74-B, 491 S.W. 2d 585 (1973).

Appellant makes no showing of prejudice as a result of the continuances. He did not attempt to show that the continuances were granted without good cause. Furthermore, the time spent in jail awaiting trial was credited against his sentence. Lapse of time between the filing of the charge and the trial date is only one factor to be considered in passing on the question of whether the constitutional right to a speedy trial has been violated. An important factor is a showing of prejudice. Barker v. Wingo, 407 U.S. 514 (1972). The point is without merit.

Point II. The trial court erred in allowing non-expert witnesses to give opinion testimony as to whether a stain on a jacket was blood and whether an object was a human tooth. Appellant left his jacket in the car of the prosecuting witness. It was introduced in evidence without objection. When the prosecuting witness identified the jacket she pointed out blood stains thereon. There was no objection to the testimony. Later in the course of the trial, the husband of the prosecuting witness identified the stains as being blood, to which appellant objected. If it was error to permit the husband to identify the stain as blood it was harmless error because the jacket had already been introduced and the prosecuting witness had been permitted to identify the stains as blood. Eddington v. State, 225 Ark. 929, 286 S.W. 2d 473 (1956).

The prosecuting witness testified that in the course of her resistance she struck appellant in the mouth with a wrench. She examined her car the next morning and found a tooth. Appellant testified he had lost a tooth that night but insisted that it was knocked out in a scuffle with a male friend. The prosecuting witness was permitted to exhibit the tooth and to testify it was the one she found. Appellant contends the tooth could only be identified as a human tooth by an expert witness. The prosecuting witness testified she knocked out one of appellant’s teeth and that appellant complained to her that he lost a tooth in the scuffle. Expert testimony was not necessary to enable the jury, based on their own experiences and the evidence presented, to ascertain whether the tooth came from appellant’s mouth. Bailey v. State. 255 Ark. 34, 498 S.W. 2d 859 (1973).

Point III. The trial court erred in allowing pictures of the victim’s face to be introduced into evidence. We do not agree. The pictures certainly corroborated the testimony of the prosecuting witness that she resisted appellant’s advances and that she was physically subdued into the act of intercourse. We cannot say the court abused its discretion. Since they were otherwise admissible, the fact they might tend to prejudice the jury does not render them inadmissible. Oliver v. State, 225 Ark. 809, 286 S.W. 2d 17 (1956).

Point IV. The verdict of the jury is not supported by the evidence. We have carefully examined the abstracted testimony and find it indeed very substantial.

Affirmed.


author: JOHN A. FoGLEMAN, Justice.

text:
    David W. SWISHER v. STATE of Arkansas
    CR 74-64
    514 S.W. 2d 218
    Opinion delivered September 23, 1974
    ([Amended on Denial of Rehearing October 28, 1974.]

      Harold Hall, Public Defender, by: John W. Achor, Chief Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen., for appellee.
   JOHN A. FoGLEMAN, Justice.

Appellant filed a motion for post-conviction relief under Criminal Procedure Rule 1 from his conviction of forgery and uttering on October 9, 1973 in a trial in which he was represented by the public defender. No appeal was taken. The only ground for reversal of the circuit court judgment denying appellant relief is the assertion that the court erred in refusing to admit some paper, which he asserts, without support in the record, would have established that he was not released from the Texas State penitentiary until after the crimes of which he was found guilty had been committed. No explanation is offered for appellant’s failure to appeal.

Criminal Procedure Rule 1 was not designed to permit review of mere error in the conduct of a trial and it is not a substitute for a direct appeal. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657. The rule permits review only to determine whether a sentence is subject to collateral attack for violation of constitutional rquirements or statutory enactments or for other such reasons. Thacker v. Urban, 246 Ark. 956, 440 S.W. 2d 553. Even if we should hold that the paper (of which no proffer was made) was admissible, either as an official document or a business record (and we do not) this would not afford any basis for relief under our rule governing post-conviction relief. Errors in ruling on competency of evidence are not a basis for collateral attack under Criminal Procedure Rule 1.

The judgment is affirmed.

      It is true that appellant’s counsel asked to be permitted to introduce this paper, but no proffer was made for the record, so it is impossible for us to know its content or review the court’s ruling, even if it were otherwise admissible. See Cy Carney Appliance Co. v. True, 226 Ark. 961, 295 S.W. 2d 768, 61 A.L.R. 2d 1264; Arkansas State Life Ins. Co. v. Allen, 166 Ark. 490, 266 S.W. 449; 7. .7. Ellis & Co. v. Farrell, 146 Ark. 274, 225 S.W. 349.


author: J. Fred Jones, Justice.

text:
    Ruby Helen CHARLESTON v. STATE of Arkansas
    CR 74-65
    514 S.W. 2d 209
    Opinion delivered September 23, 1974
    [Rehearing denied October 28, 1974.]

      Harold Hall, Public Defender, by: John W. Achor, Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

The appellant, Ruby Helen Charleston, was charged on information with voluntary manslaughter in the killing of her paramour, James Singleton, with whom she lived as his wife and by whom she had one child. At a trial before the circuit judge, sitting as a jury, she was convicted of the charge and was sentenced to two years in the penitentiary with one-third of the time to be served before parole. On appeal to this court the appellant contends that the trial court erred in admitting statements made by the appellant into evidence, and also contends that the evidence is insufficient to sustain the conviction. We do not agree with either contention.

The appellant and the decedent lived in Little Rock and in addition to their own child, the appellant had two other children who lived in the home. The appellant was the only witness who testified as to her and James’ activities on the night of his death. She gave three contradictory statements to the police officers and also testified at the trial, and the facts upon which all versions agree appear as follows:

On the night of James’ death he and the appellant had gone to some place in or near the town of Scott where the appellant drank some beer and danced with one of the male patrons who was a stranger to them. James voiced objections to the appellant as to the manner in which she danced with the other" man. The appellant carried James’ .22 caliber revolver in her purse and on their return trip to their home in Little Rock, they both were angry and the appellant refused to talk to James. After arriving at their home in Little Rock, they continued to quarrel over the incident at Scott. James accused the appellant of dancing closer to the other man than she did with him and suggested that if she cared so much for the other man that she go to him, and the appellant responded that she might just do that. The appellant said that upon their return home from Scott, she went directly to the bathroom and James followed her. She said James jerked her up off the commode and then shoved her back down on it. Following the bathroom incident the appellant’s versions differ as to what took place until she called James’ sister by phone and stated that James had shot himself.

When James’ sister, father and the officers arrived, James was lying on his back in bed with his trousers on and with a fatal gunshot wound high on his forehead slightly on the left side. The evidence was to the effect that the course of the bullet was straight into the head and that both the appellant and James had metal tracings on their hands consistent with having handled the gun.

The appellant gave one oral and two written statements in her own handwriting to the police officers and she testified at the trial. The trial court held that her statements were voluntarily made and they were accepted in evidence. The appellant first told the officers that James asked her if she believed he loved her more than he did his parents and when she answered in the negative, he inquired if she believed he would shoot himself over her and the children and when she answered in the negative, he shot himself.

The appellant then gave a written statement in which she said that after the incident in the bathroom, James asked for his gun and she gave it to him. She said James then struck her with a belt; that she attempted to take the gun away from him and it discharged.

In the second written statement the appellant said that after the bathroom incident, she “got smart” with James and he got a belt and started beating her. She said he had done that before and she was getting tired of it. She said she got the gun with the intention of making him stop beating her; that he attempted to take the gun from her and it discharged. She said she didn’t intend to kill James but that she did it.

The appellant testified that after the bathroom incident, she had gone to the bedroom and had lain down on the bed when James came into the bedroom. She said he undressed and went to bed. She said James then told her he loved her more than he did his parents and she told him he was lying. She said she had taken the gun from her purse and placed it under her pillow. She said James then asked her if she believed he would kill himself over her and the children. She said when she answered in the negative, he started begging for the gun. She said she was lying with her back to James and she finally took the gun from under her pillow and threw it over to him. She said she then heard the gun discharge.

“. . . [T]he gun was under my pillow, and he kept asking me for his gun and I told him I wasn’t going to give him anything. And, so, he kept begging and begging, and I had my back to him and I just throwed the gun over to him, and the next thing he asked me, ‘You don’t believe I really love you and the kids more than I do my father and mother?’ and I told him no. And then he said, ‘You don’t believe I’ll kill myself over you and them kids?’, and I said no. The next thing I heard the gun go off.”

The appellant testified that before undergoing the trace metal test the officers told her that if gunpowder markings were found on her hands, she would be sent to the penitentiary for life.

“The tall detective, he told me, he said, ‘If we find gun-powders on your hand, I’ll see you in the penitentiary the rest of your life.”

The appellant said that because of this statement by the detective she became “scared” and gave the written statements. After testifying that James committed suicide as above set out, the appellant then testified as follows:

“Q. Now, Ruby, is that the first story you told the detective that was in here?
A. Yes.
Q. What did he say?
A. He said, he told me like this. He said, ‘I just can’t believe that. If we find gunprints on your hand, that’s all there is to it.’
Q. What else did he say, that’s all there is to it?
A. He meant that he would see me — he would send me to the penitentiary for the rest of my life.
Q. Why did you give that second statement, Ruby?
A. Because I was scared.
Q. Why did you write it out?
A. I didn’t know what else to do.
* * *
Q. Now, even after you gave that statement, you gave another one?
A. Yes.
Q. Why did you do that?
A. Because they keep asking me questions and questions over again, and I was scared, and I just didn’t know what else to tell them.”

James’ father, Alexander Singleton, testified that when he arrived at his son’s house, the appellant was hugging James’ body and was crying. He said he heard her say, “James I didn’t intend to do this.” Detective Plummer testified that after the appellant finished writing her second statement, she acted out the occurrence. In this connection he testified as follows:

“She explained to me at the time, this is after she had written the last statement, that she was on the bed and sitting in the middle of the bed, had this weapon in her left hand, and Mr. Singleton was standing at the foot of the bed, or either with his knees on the bed, and had his hand on the gun trying to take it from her when it went off. She acted this out for me. In other words, exhibited, you know, what had occurred.”

In both of the appellant’s handwritten statements she stated that no threats or promises had been made to get her to give the statements. While the appellant’s statements were certainly conflicting, it is really not seriously contended they were coerced by the officers or not voluntarily made. We agree with the trial court that the statements were admissible in evidence.

In 22A C.J.S. § 732, at page 1049, is found the following statement:

“The state of mind which renders a statement involuntary is that induced by mistreatment, threats, promises, or physical or mental abuse which deprives an otherwise rational mind of the exercise of its free will and powers of decision and discernment; it is not that mental condition which arises from an inner sense of wrongdoing and fear of its consequences.”

The appellant argues that in determining the volun-tariness of a confession, the court should look to the whole situation and surroundings of the accused and the appellant cites Dewein v. State, 114 Ark. 472, 170 S.W. 582, but in that case we also said:

“In order to render a confession involuntary there must be some threat or inducement held out to overcome his will.”

The appellant admitted that the officers explained her constitutional rights to her and she so states in her handwritten statements. She also testified that the officers were real nice to her. The trial judge sitting as a jury could have reasonably concluded that the statement the appellant said the officers made to her, prior to making the metal tracing test, prompted her to offer some reasonable explanation for gunpowder she had reason to believe might be found upon her hands. Her first written statement was to the effect that she was attempting to take the gun away from James when it discharged and apparently after further questioning, she admitted that she held the gun and that it discharged when James attempted to take it away from her. We are of the opinion that the statements the appellant gave the officers fell far short of being induced by mistreatment, threats, promises, or physical or mental abuse, and that the statements were voluntarily given.

Manslaughter is defined as the unlawful killing of a human being, without malice express or implied, and without deliberation. Ark. Stat. Ann. §§ 41-2207 and 41-2208 (Repl. 1964) define voluntary manslaughter as follows:

“Manslaughter is the unlawful killing of a human being, without malice express or implied, and without deliberation.
Manslaughter must be voluntary, upon a sudden heat of passion, caused by a provocation, apparently sufficient to make the passion irresistible.”

The appellant testified that James undressed and went to bed and then committed suicide after she finally gave him the pistol in compliance with his repeated requests. James had his trousers on when the officers arrived on the scene and we are of the opinion that the evidence was sufficient to support the conviction for voluntary manslaughter in this case.

Affirmed.


author: CONLEY Eyrd, Justice.

text:
    Loamma HOLCOMB, By Her Father And Next Friend, Charles HOLCOMB v. Patsy GILBRAITH
    74-96
    513 S.W. 2d 796
    Opinion delivered September 23, 1974

      Estes, Storey & Estes, for appellant.

      Putman, Davis & Bassett, for appellee.
   CONLEY Eyrd, Justice.

Appellant Loamma Holcomb, age 14, was struck by an automobile driven by appellee Patsy Gilbraith while crossing Highway 59. The jury found the issues in favor of appellee and appellant through her father brings this appeal. For reversal appellant contends that the trial court erred in giving AMI 614 (on sudden emergency); in refusing AMI 605 (On duty to anticipate behavior of children); and in modifying Ark. Stat. Ann. § 75-628(d) (Repl. 1957).

The proof shows that all parties were acquainted with each other and that appellee knew that appellant was in the habit of crossing the highway from her home to go to her grandparents’ home on the other side of the highway. All witnesses generally agree that the point where appellant was crossing the highway is blocked from the view of a north bound motorist until the motorist gets within 400 or 500 feet of the place involved.

Appellant testified that before going across the road she had looked both to the south and the north and that she did not see any vehicles. She says that she was just angling across the road.

Appellee testified that she was driving a 1970 Model Ford LTD. The car was in good shape. She had had the front end aligned and the wheels balanced only two days before. Appellee testified that when she first observed appellant, the latter was walking on the right-hand shoulder of the road. When appellee was within 100 feet of appellant, appellant made a sudden turn onto the highway. Appellee then applied her brakes, blew her horn and pulled to the left. She testified that at first she thought she missed appellant, but she then realized that the appellant was hit by the right front fender. Appellee says that when she first saw appellant she took her foot off the accelerator and pulled to the left. On cross-examination appellee described appellant as just walking along the highway with her head down — appellant didn’t seem to be very alert.

The skidding distance of appellee’s car varied with the witnesses. One witness, who stepped off the distance estimated it to be 150 to 160 feet. Appellant’s father placed the skid marks at 230 feet.

POINT 1. We find no merit in appellant’s contention that the instruction on sudden emergency should not have been given. There was proof in the record to the effect that appellant while walking along the road suddenly turned into the path of appellee’s automobile. See Johnson v. Nelson, 242 Ark. 10, 411 S.W. 2d 661 (1967).

POINT II. The trial court refused to give appellant’s requested instruction No. 1 (AMI 605) which reads as follows:

“A person who knows, or reasonably should know that a child may be affected by his failure to act, is required to anticipate the ordinary behavior of children and use care commensurate with any danger reasonably to be anticipated under the circumstances. A failure to use this degree of care is negligence.”

To sustain the action of the trial court, appellee argues:

“In determing the standard of care to which a minor is held, this Court has for many years made reference to ‘intelligence,’ ‘understanding,’ ‘experience,’ ‘discretion,’ ‘capability,’ and ‘capacity’ as well as ‘age.’ See Comment, AMI 304. It is, of course, well known that some young people mature faster than others. Some are more intelligent, quick witted, comprehending and observant, while others tend to remain awkward and inattentive for a longer than usual period. It is consideration of these things that should determine whether or not AMI 605 should be given in case of injury to a minor. ...”

In discussing whether a child should be held to the standard of care of an adult in negligence cases, the annotator in 77 A.L.R. 2d at page 932 §7 states the matter in this language:

“Whether the question of a child’s contributory negligence is regarded as one of capacity, standard of care or compliance with that standard, the courts are in general agreement that normally, if not always, a question of fact for the jury is presented rather than one of law for the court. ...”

This Court is in accord with the general view, see Brotherton v. Walden, 204 Ark. 92, 161 S.W. 2d 391 (1942) and Garrison v. St. Louis, I.M. & S. Ry Co., 92 Ark. 437, 123 S.W. 657 (1909). We need not here decide at what age the issue becomes one of law for we are dealing with a girl between the ages of 14 and 15 who was injured on the day she graduated from junior high school. It is also true as the appellee argues that some children develop faster than others, but we know of no reason why jurors would be any less capable in determining those facts than a court. It follows that we conclude that the trial court erred in refusing to give AMI 605 as requested by appellant.

POINT III. The statutory duty of a pedestrian crossing at other than crosswalks is set out in Ark. Stat. Ann. §75-628(a) and (d) in this language:

“(a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk, or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway. . . . (d) Notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn 'when necessary, and shall exercise proper precaution upon observing any child, or any confused or incapacitated person upon a roadway.”

The trial court in instructing the jury as to the above statute removed the words “child, or any confused or incapacitated person” and in its place put “person.”

Appellee contends that appellant was not prejudiced by the court’s modification but since we are reversing for the court’s error in refusing AMI 605 supra, we point out that under the circumstances of this case the statutory language should have been used without modification.

Reversed and remanded.


text:
    Billy Ray COX v. STATE of Arkansas
    CR 74-76
    513 S.W. 2d 798
    Opinion delivered September 23, 1974

      James H. Pilkington Jr. and Albert Graves, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee.
   FRANK Holt, Justice.

A jury found appellant guilty of burglary and assessed his punishment as a habitual criminal at 31 1/2 years imprisonment in the Department of Correction pursuant to Ark. Stat. Ann. § 43-2328 (Supp. 1973). There was no appeal and appellant now seeks postconviction relief. The trial court conducted an evidentiary hearing and denied the petition. Appellant first contends for reversal, through present court appointed counsel, that the court erred in overruling his motion for a continuance. We cannot agree.

On July 17, 1973, the date of the trial, a continuance was sought by oral motion. It was predicated upon the basis that a witness, who was under subpoena, was “supposedly out of state” and her testimony, in effect, would provide an alibi for the appellant. The case was first set for trial in July, 1972, and later reset for October, 1972, at which time it was continued on the defendant’s motion because of the absence of a material witness. On January 4, 1973, a hearing was scheduled and appellant did not appear. An alias warrant was issued for him and the hearing was rescheduled for January 15, 1973, and again appellant failed to appear. On April 13, 1973, a Miranda hearing was conducted and at that time appellant was found in contempt of court for “failing to appear twice” upon his admission that “he knew of the settings” at which he did not appear. The case was then set for trial on April 27, 1973. On that date it appears that the asserted material witness was present, pursuant to a subpoena, and was admonished to be available at the forthcoming trial. On trial date, July 17, 1973, she was not present. The witness left no forwarding address and was believed to have left the state. No one appeared to have any knowledge about when she would be available. When appellant’s retained counsel stated that the absent witness would provide an alibi, the state responded it was their understanding that this witness, if present, would contradict the appellant’s alibi. In overruling appellant’s oral motion for a continuance, the trial court observed “[According to the subpoenaes issued it appears that we’ve got some eight or nine witnesses involved in this case, all witnesses, who, if we get a continuance for every one of them for being absent one time we are going to be here five years trying to get this case tried.”

It is well settled that granting a continuance is within the sound discretion of the trial court and on appeal we do not disturb that decision unless abuse of discretion is shown. Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500 (1973), Mash v. State, 248 Ark. 323, 451 S.W. 2d 869 (1970). In Thacker we enumerated factors to be considered such as diligence of the movant, probable effect of the testimony, future availability, and the likelihood of procuring the attendance of the absent witness. Furthermore, we said the failure to file an affidavit pursuant to Ark. Stat. Ann. § 27-1403 (Repl. 1962) stating the affiants belief of the truth as to what the absent witness would testify, its materiality and that the witness is not absent because of any acts on his part “is a significant factor in appellate review of the trial court’s denial of such a motion.” In the circumstances of the case at bar, we cannot say that the appellant has discharged the burden of proof by demonstrating that the trial court abused its discretionary authority.

Appellant next contends for reversal that he was denied effective assistance of counsel. In support of this contention appellant argues that his retained counsel failed to inform him of his right to appeal, as an indigent, by court appointed counsel and merely advised him that it would cost money to appeal. Appellant testified that he was unaware of his right to appeal as an indigent. It is true, as appellant asserts, that he has an absolute right to appeal. Ark. Stat. Ann. § 43-2701 (Supp. 1973). In fact, the very purpose or genesis of our Rule 1 is in furtherance of that guarantee by permitting postcon-viction relief where there is demonstrated a denial of any constitutional or statutory right. Appellant’s retained trial counsel testified and appellant admitted that the feasibility of an appeal was discussed at trial and it is uncontradicted that the appellant himself made no complaints about any matter occurring during the trial that could be the basis for an appeal. Appellant’s trial counsel also testified that appellant stated he didn’t know of any appealable grounds. Neither did he indicate indigency. His attorney testified that in his judgment no “appealable matters” existed. Appellant is thirty years of age and has a seventh grade education. He acknowledges that he has been in the penitentiary on four sentences, including the present one, and has experienced the services of four attorneys.

Appellant has the burden of showing that trial counsel by “acts or omissions (or both) of his attorney result in making the proceedings a farce and a mockery of justice, shocking the conscience of the court, or that petitioner’s representation by counsel was so patently lacking in competence or adequacy that it becomes the duty of the court to be aware of and correct it.” Sheppard v. State, 255 Ark. 40, 498 S.W. 2d 668 (1973). See also Davis v. State, 253 Ark. 484, 486 S.W. 2d 904 (1972). Furthermore, there is a presumption that an attorney is competent, and appellant has the burden to show otherwise. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973); and Credit v. State, 247 Ark. 424, 445 S.W. 2d 718 (1969). We have also said that trial tactics and strategy of a defendant’s trial counsel involve “elements of discretion and judgment upon which conpetent counsel might disagree especially after the event.” Credit v. State, supra. In the case at bar, the appellant’s retained counsel is a veteran practitioner with some thirty years experience. We are firmly of the view that appellant has not demonstrated any prejudicial error with respect to him being denied the right of appeal through effective assistance of counsel.

Appellant next contends for reversal that the trial court failed to advise him of his right to appeal. We need not consider this contention as this allegation was not raised in his Rule 1 petition and cannot be raised for the first time on appeal. Fleschner v. State, 253 Ark. 58, 484 S.W. 2d 342 (1972); and Carney v. State, 250 Ark. 205, 464 S.W. 2d 612 (1971).

Appellant asserts that the trial court erred in permitting appellant’s trial counsel to stipulate that he had previously been convicted of four felonies which resulted in the enhancement of his sentence. Appellant argues that the stipulation of these previous convictions was prejudicial inasmuch as the trial court did not question the appellant as to whether he consented to it. We are of the view that even though the better practice would be for the trial court to inquire about his consent to the stipulation, we cannot say that the appellant has shown that he did not knowingly approve or acquiesce in the stipulation. As previously indicated, appellant has a seventh grade education, was thirty years of age, and is no stranger to criminal proceedings. It appears from the transcript that these convictions were read into evidence from the local court docket sheets. It was a factual issue for the jury to consider which, as any other fact, the parties could agree upon. Ark. Stat. Ann. § 43-2330.1 (Supp. 1973) provides in pertinent part that “if the defendant admits such previous conviction(s), then the prior conviction(s) shall be considered in fixing the punishment for the current offense. ...” It appears that the trial strategy was to minimize the effect of the four previous convictions by acknowledging, which the statute permits, that which was readily capable of proof by the local court records, resulting, therefore, in a lesser sentence.

After reviewing the record, we are of the view that the evidence is sufficient to sustain the trial court’s denial of appellant’s petition. Appellant has not demonstrated any infringement of his constitutional or statutory rights.

Affirmed.

BROWN, J., not participating.


author: CaRLETON HARRIS, Chief Justice. JOHN a. FOGLEMAN, Justice,

text:
    Carl RAY, Individually, and as Administrator of The Estate of Teri Leann RAY, and Loretta K. RAY v. Sherry D. MOCK
    74-60
    513 S.W. 2d 916
    Opinion delivered September 30, 1974

      Tackett, Moore, Dowd <2? Harrelson, for appellants.

      McMillan & McMillan, for appellee.
   CaRLETON HARRIS, Chief Justice.

This litigation relates to Ark. Stat. Ann. § 75-913 (Repl. 1957), the guest liability statute. Loretta K. Ray was injured and the two-year-old child of appellants was killed when the car in which they were riding with appellee, Sherry D. Mock, struck a tree and overturned. Carl Ray, Individually and as Administrator of the Estate of his young daughter, together with Mrs. Ray, instituted suit for damages against appellee, but after presentation of the evidence on their behalf to the jury, the trial court directed a verdict in favor of Mrs. Mock. From the judgment so rendered, appellants bring this appeal.

The proof reflects that Mrs. Ray and Mrs. Mock had made arrangements to meet their husbands in Pisgah, Arkansas to attend a musical performance on the night of May 5, 1972. The two ladies went to Pisgah in an automobile being driven by Mrs. Mock. Upon arrival, they were unable to locate their husbands, and apparently there was no musical being presented. After searching for the husbands, they finally saw them parked on the side of the road near Antoine. According to Mrs. Ray, appellee was rather “peeved” at her husband for his failure to be present at the meeting place and did not stop where the husbands were parked, but proceeded on toward Arkadelphia. The witness said that as they came into a curve, she observed that Mrs. Mock was driving “too fast”; that she looked at the speedometer and Mrs. Mock was driving 90 miles per hour; that this speed was attained on a straight stretch just before reaching the curve. Mrs. Mock lost control of the automobile and it crashed into a tree, killing the child. In their brief, appellants emphasize three acts in support of their contention that there was sufficient evidence of wilful and wanton misconduct on the part of Mrs. Mock to send the case to the jury. It is first pointed out that appellee was peeved at her husband because she had been unable to locate him, and that this anger influenced her in operating the car at a high speed. Second, the testimony on the part of appellants reflects that Mrs. Mock was driving up to 90 miles per hour and had passed a sign indicating a curve and a 45 mile per hour suggested safe speed just prior to the collision. Thirdly, it is observed that Mrs. Ray testified that she told appellee “She couldn’t make the curve going that fast, and she could slow down, or she could let me and the baby out.”

We are of the view that the trial court erred in granting the directed verdict. In McCall v. Liberty, 248 Ark. 618, 453 S.W. 2d 24, this court, citing an earlier case, Harkrider v. Cox, 230 Ark. 155, 321 S.W. 2d 226 (1959), said:

“It is only when fair minded men could not differ as to the conclusions to be drawn from the evidence that a plaintiff is entitled to an instructed verdict.”

The essence of an action under the host - guest statute is the requirement that a plaintiff prove wilful and wanton misconduct on the part of the defendant driver, and we have said that to constitute wilful misconduct, there must be a showing of “a conscious failure to perform a manifest duty in reckless disregard of natural or probable consequences to the life or property of another.” McCall v. Liberty, supra.

Here, there was evidence that an upset or angry motorist was driving 90 miles per hour on a road containing curves, with a two-year-old child in the automobile, and we are definitely of the opinion that these circumstances presented a jury question, i.e., we feel that the situation was one wherein fair-minded or reasonable men could differ as to the degree of negligence. Of course, it may well be that appellee can present evidence which will convince the jury that Mrs. Mock’s operation of the car was not wilful or wanton as that term has been construed — but again, this is a fact question, and accordingly one for a jury to determine, rather than the trial court.

Appellants also urge the court to adopt what they term the “modern trend of law” by holding that a two-year-old child, since it does not voluntarily accept a ride in an automobile, cannot be classified as a guest. Of course, if this contention be true, a showing of simple negligence on the part of appellee would be sufficient. A discussion of this point is unnecessary since this question was before the court in Tilghman, Administrator v. Rightor, 211 Ark. 229, 199 S.W. 2d 943, and we held that in defining a guest, the statute, presently Ark. Stat. Ann. § 75-914 (Repl. 1957), makes no exception in favor of a minor, and it thus follows that appellants’ contention is without merit.

In accordance with the reasoning set out under the first point, the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

It is'so ordered.

FOGLEMAN, J., concurs.

JOHN a. FOGLEMAN, Justice,

concurring. I concur because of an additional fact not mentioned by the majority. To me, the real evidence of wilfulness and wantonness on the part of appellee was the testimony of Mrs. Ray about her protest just before the disastrous event. This testimony tended to show:

Mrs. Mock had honored a previous protest about her speed on a curve registered by Mrs. Ray. In a straight stretch approaching the curve where Mrs. Mock lost control of the vehicle, Mrs. Ray, observing that Mrs. Mock was increasing the speed and that the speedometer then registered 90 miles per hour, asked Mrs. Mock to slow down, told her she couldn’t make the curve at that speed and requested that Mrs. Mock either slow down or let her and the baby out of the vehicle. Mrs. Ray made the protest 30 seconds before appellee’s car entered the curve.

If Mrs. Ray’s testimony is to be believed, Mrs. Mock travelled at least three-quarters of a mile on a straight stretch after the protest was made without responding to it in any way. This to me is evidence of both wilfulness and wantonness, but without it I am at least doubtful that we could say that the circuit judge erred.

      This statute is identical with § 1303, Pope's Digest oflhc Statutes of Arkansas, in effect when Tilghman was decided.