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    Lanny Paul VENABLE v. STATE of Arkansas
    CR 75-207
    538 S.W. 2d 286
    Opinion delivered July 12, 1976

      Don Langston and Hubert Grave?, for appellant.

      Jim Guy Tucker, Atty. Gen., by; B. J. McCoy, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was charged and found guilty of the murder of Donnie Edward Douglas on December 21, 1974, while engaged in the perpetration of the crime of rape of Sherry Douglas in violation of Ark. Stat. Ann. § 41-4702 (A) (Supp. 1973). He was sentenced to life imprisonment without parole. He seeks reversal of the judgment of conviction on 15 grounds. We find no basis for reversal of this judgment on any of them or on any objection made during the course of the trial. We shall review the points for reversal argued by appellant in the order raised by him and state the facts disclosed by the evidence only to the extent necessary for proper treatment of them.

I
THE COURT ERRED IN REFUSING TO SET BAIL.

Appellant moved that the court set bail pending trial. He admits in argument here that it would have been difficult for him to have made bail in any amount and that his motion was actually an attack upon the constitutionality of our capital felony murder statute’s provision for the death penalty. He argues that the death penalty is cruel and unusual punishment contrary to Art. 2 § 9 of the Arkansas Constitution and Amendment Eight to the United States Constitution. We have held the death penalty provision of the act constitutional on similar attacks. Collins v. State, 259 Ark. 8, 531 S.W. 2d 13; Neal v. State, 259 Ark. 27, 531 S.W. 2d 17. See also, Graham v. State, 253 Ark. 462, 486 S.W. 2d 678. Appellant somehow reads the diverse opinions of individual justices of the United States Supreme Court to collectively mandate abolition of the death penalty, at least as embodied in the Arkansas statutes. We do not so read these opinions. See Collins v. State, supra. It seems to us that this is foreclosed by the decisions of the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2971, 49 L. Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 944 (1976). See Criminal Law Reporter, Vol. 19, No. 13. Be that as it may, any challenge by appellant to the death penalty is moot, because he was sentenced to life imprisonment without parole. Harris v. State, 259 Ark. 187, 532 S.W. 2d 423.

II
THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S MOTION THAT JURORS WHO WOULD NOT CONSIDER THE DEATH PENALTY NOT BE EXCUSED FOR CAUSE IN THAT PART OF THE TRIAL AT WHICH DEFENDANT’S GUILT OR INNOCENCE WOULD BE DECIDED.
Ill
THE COURT ERRED IN OVERRULING DEFENDANT’S MOTION FOR A ONE WEEK CONTINUANCE IN ORDER TO PRESENT EVIDENCE THAT A JURY COMPOSED ONLY OF PERSONS WHO WOULD CONSIDER THE DEATH PENALTY IS MORE LIKELY TO CONVICT THAN IS A JURY COMPOSED OF A CROSS SECTION.
IV
THE COURT ERRED IN OVERRULING DEFENDANT’S MOTION FOR PAYMENT OF TRAVEL EXPENSES AND WITNESS FEES TO EXPERT WITNESSES WHO WOULD TESTIFY THAT A JURY COMPOSED ONLY OF PERSONS WHO WOULD BE WILLING TO CONSIDER THE DEATH PENALTY IS MORE LIKELY TO CONVICT THAN IS A JURY COMPOSED OF A CROSS SECTION.

This case was set for trial in March, 1975, but continued until April 28, 1975, in order to permit appellant’s attorney to prepare for trial. On April 24, 1975, appellant moved in limine that prospective jurors who are opposed to, and who would under no circumstances vote for, the death penalty not be excused for cause in that portion of the trial at which the defendant’s guilt or innocence was to be determined on the ground that a jury composed of only persons who would consider the death penalty would be more likely to convict him than would a jury composed of a cross-section which included persons who would refuse to consider the death penalty and that trial before a jury composed of persons who would be willing to impose the death penalty would deny him a fair trial and otherwise violate rights guaranteed him by the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and the due process clause of Art. 2 § 8 of the Arkansas Constitution. By oral amendment, appellant also invoked the constitutional guaranties of right to trial by an impartial jury in the Sixth Amendment to the United States Constitution and Art. 2, § 10 of the state constitution. Motion was denied. In passing, it appears to us that failure to excuse jurors who would be unwilling to consider the death penalty under any circumstances could, in effect, nullify our death penalty statute, because it requires that the same jury which determines guilt also determine the sentence to be imposed in the sentencing stage of a bifurcated trial. See Ark. Stat. Ann. § 41-4710 (Supp. 1973). Be that as it may, we find no error in the circuit judge’s action on this motion. Basically, the constitutional law on the subject of excusal of jurors for cause because of their unwillingness to consider the death penalty under any circumstances is stated in Withers poon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968) and Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968), decided the same day. The very argument advanced by appellant was rejected in Witherspoon, in the light of information then available to the court. In Bumper, the court also rejected the argument that a jury so selected deprived a defendant of his Sixth Amendment right to trial by an impartial jury. We find no violation of constitutional rights in denial of this motion.

In effect, appellant recognizes the impact of the holding in Witherspoon on his contention, but says that he was prepared to make the showing which was lacking in Witherspoon. On April 24, 1975, at 12:43 p.m., appellant filed his motion for a continuance from April 28 to May 5 to enable him to obtain the attendance of Dr. Daniel Taub, a psychologist of Springfield, Missouri, who he alleged was employed at the Medical Center for Federal Prisoners there. On the same date, appellant filed a motion asking that the court order the Treasurer of Sebastian County to pay the $500 witness fee of Dr. Taub, along with his travel expenses, alleging that this doctor had indicated in a telephone, conversation with appellant’s attorney that, in the doctor’s professional opinion, a jury composed entirely of persons who would be willing to impose the death penalty would be more likely to convict a defendant than would a jury which included some who would not consider the death penalty. It was further alleged that appellant’s attorney had attempted, without success, to obtain the testimony of expert witnesses locally and had been informed that no local experts had any experience in the area.

Appellant also moved on April 25, 1975 that the case be continued to May 5, 1975, in order that he might obtain the attendance of Dr. Faye Goldberg, a psychologist, employed by the University of Chicago in Chicago, Illinois, who had indicated in a telephone conversation with appellant’s attorney that she held the same professional opinion as that attributed to Dr. Taub and that her opinion would be supported by testimony in accordance with an article written by the witness, a copy of which was attached to the motion. The article was entitled, “Toward Expansion of Witherspoon, Capital Scruples, Jury Bias, and Use of Psychological Data to Raise Presumptions in the Law” and reprinted from the Harvard Civil Liberties Law Review, Vol. V, No. 1, January, 1970, pp. 53-69.

All the motions regarding these points for reversal were heard by the circuit court on April 28.

The granting or denial of a motion for continuance to obtain the attendance of an absent witness lies within the sound judicial discretion of the trial judge, and his action will not be reversed on appeal in the absence of such a clear abuse of that discretion as to amount to a denial of justice. Figeroa v. State, 244 Ark. 457, 425 S.W. 2d 516; Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500; Freeman v. State, 258 Ark. 496, 527 S.W. 2d 623. The denial of a motion which is not in substantial compliance with statutory requirements is not an abuse of discretion.

One of the critical factors in the consideration of such a motion is the diligence of the party seeking the continuance in obtaining the testimony or the attendance of the witness. Ark. Stat. Ann. §§ 27-1403 (Repl. 1964), 43-1706 (Repl. 1964); Thacker v. State, supra. In denying the motion, the circuit judge pointed out that appellant’s attorneys, the Public Defenders, were appointed on January 2, 1975, that the case was continued for one month to permit them to prepare for the trial, that he had specifically inquired of the Public Defender’s office five or six days before the trial date about any possible motions for continuance and was not informed of any, and that the inquiry was made partially because the judge had been advised that the prosecuting witness was coming from California for the trial and some 20 or 25 witnesses, many of whom did not reside in Arkansas, had been subpoenaed for the April 28 date. Even though appellant’s attorney advised the court that he had exhausted all possibilities of locating witnesses in Arkansas who were qualified to testify on the subject and did not learn of the identity or availability of the witnesses sought until after the. court’s inquiry, we cannot say that the court’s implicit finding that there was a lack of due diligence in obtaining the attendance of either witness to support appellant’s motion in limine was erroneous.

In order to obtain a continuance because of the absence of a witness, it is necessary that the movant support his motion by affidavit stating what facts affiant believes the witness will prove and not merely the effect of such facts in evidence. In the case of an expert witness, this would at least require that the basis of his opinion be stated. The requirement was not even substantially complied with in the case of Dr. Taub. Assuming however, for the purpose of his motion that attaching the article written in 1970 by Dr. Goldberg was a sufficient statement of facts to which the witness would testify, it is not verified by anyone’s affidavit, as required by statute. Nor does anyone, by affidavit, express the belief that the facts stated are true. Furthermore, the materiality of the factual background for the testimony of the expert witness does not appear on the face of the motion, because her opinion seems to be based on 1966 data. The failure to file the required affidavit is another significant factor in appellate review of the trial court’s action in denying a motion for continuance. Thacker v. State, supra; Brown v. State, 252 Ark. 846, 481 S.W. 2d 366.

If all the other requirements for a continuance had been met, the testimony of Dr. Goldberg could not well be the basis for appellant’s position. Appellant argues that the United States Supreme Court, in Witherspoon, invited the same kind of evidence Dr. Goldberg could have furnished. Appellant points out that in rejecting the precise argument he advances, the United States Supreme Court said that the data adduced by the petitioner there was too tentative and fragmentary to establish the premise and that the court could not conclude on the basis of the record before it, or as a matter of judicial notice, that exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or innocence and substantially increases the risk of conviction. It seems evident to us from footnotes in both the Witherspoon and Bumper opinions that the very article which appellant relies upon as indicative of Dr. Goldberg’s probable testimony was among the fragmentary scientific data rejected by the Witherspoon court as insufficient.

Appellant has failed to show that there was an abuse of the trial court’s discretion in denying his motion for continuance to permit him to make a showing of at least questionable relevance on the matter of jury selection. We perceive no significant difference, insofar as the trial court’s discretion is concerned, between this case and Blanton v. State, 249 Ark. 181, 458 S.W. 2d 373, cert. den. 401 U.S. 1003 (1970), where we held that there was no abuse of discretion in the denial of a motion for continuance to permit a defendant to investigate the nature and makeup of a jury panel to determine its economic class composition.

V
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO ASK A PROSPECTIVE JUROR IF HE WOULD IMPOSE THE DEATH SENTENCE.

We find no error. Appellant argues that the asking of the following question of a prospective juror by the prosecuting attorney was error: “I believe your answer was that you would consider the death penalty, but then when it came right down to it if the circumstances justified it, would you impose it?” Appellant objected on the basis that the proper test was whether the juror would consider the death penalty. Appellant argues that the question was improper because it asked the juror to state whether he would vote for the death penalty in a specified hypothetical situation. We could well agree with appellant if the question had included a statement of a certain hypothetical situation or set of facts and tended to commit the juror to vote for the death penalty if that factual showing were made. This was not the case here. As a matter of fact, the prosecuting attorney, in pursuing the line of questioning, stated that no one knew what the evidence would be without hearing it, and that it was difficult for one to say what he might do. The juror’s eventual affirmative answer was that he would go along with the death penalty if the circumstances justified it. We think the argument here is a semantical one which merits no consideration.

VI
THE TRIAL COURT ERRED IN REFUSING TO STRIKE FOR CAUSE A PROSPECTIVE JUROR WHO STATED THAT, GIVEN A CHOICE OF VOTING CONVICTION OF CAPITAL FELONY MURDER OR ACQUITTAL, HE COULD NOT VOTE FOR ACQUITTAL, IF THE EVIDENCE PROVED MURDER BUT DID NOT PROVE CAPITAL FELONY.

We do not read the record on this point as appellant does. The prospective juror had never served as a juror before. It is clear to us that he did not fully understand questions by appellant’s attorneys about the requirement that the state prove both murder and its commission in the perpetration of rape and felt that proof of murder alone would be sufficient for a conviction and for application of the capital felony murder statute. On the basis of these answers, appellant challenged the juror for cause. The prosecuting attorney then took up voir dire examination. Here again, the juror was not able to distinguish between murder and capital felony murder in his answers. He did state, however, that he would follow the court’s instructions. In response to further questioning by appellant’s attorneys, the juror answered that he could not vote to acquit the defendant if the state failed to prove perpetration of a rape beyond a reasonable doubt but proved beyond a reasonable doubt that he committed murder. Appellant again challenged the juror for cause. The trial judge then explained that there were different degrees of murder, that only capital felony murder could carry a death penalty, and that the court might or might not give instructions on first degree murder along with a capital felony murder instruction. The judge then asked if the case were submitted only on the capital felony murder charge and the state failed to prove the rape beyond a reasonable doubt, whether the juror would still vote to find the defendant guilty of capital felony murder. The juror responded, “Not necessarily, no.” The court then asked whether the juror could listen to the evidence and return his verdict on that evidence and the instructions given, even if the juror did not agree with the instructions, and received an affirmative answer. Thereafter, the court denied the challenge.

VII
THE COURT ERRED IN REFUSING TO STRIKE FOR CAUSE A PROSPECTIVE JUROR WHO STATED HE HAD AN OPINION WHICH IT WOULD TAKE PROOF TO REMOVE.

Here again, we evaluate the record differently. The juror did equivocally say that he had an opinion based upon newspaper and television accounts of the crime. When asked if he had an opinion, he answered, “Well, yes and no. It just — I’d have to hear the evidence, you know, of the case. I don’t have a set opinion on it, really, either way.” Upon pursuit of the point by appellant’s attorney, the juror stated that he would “follow what the witnesses and the court decide” and that it would not require any proof other than what he heard in court to remove “what [I] now understand about the case,” but that it would take some proof in court. Upon challenge for cause, the circuit court interrogated the prospective juror thus:

THE COURT: Did I understand you to say — If I misquote you, please tell me — that you would follow the law and the evidence and the instructions?
A. Yes.
******
THE COURT: Would you take into consideration anything else?
A. No, sir.
THE COURT: Would you take into consideration your opinion, regardless of how lightly held or strongly held it is at this time?
A. (Nods head no).

We find no abuse of the trial court’s discretion in denying the challenge for cause.

VIII
THE COURT ERRED IN OVERRULING DEFENDANT’S OBJECTION AND ALLOWING A WITNESS TO TESTIFY TO TELEPHONE CONVERSATIONS WHICH OCCURRED OUTSIDE THE PRESENCE OF THE DEFENDANT.

The witness was Modine Sosebee, a friend and neighbor of Donnie Douglas and Sherry Douglas, the victim of the murder and the alleged victim of the rape respectively. The friendship was close. The two couples went to the same church, as did Mr. and Mrs. Edward Douglas, Donnie’s father and mother, and the parties visited occasionally on the telephone. The Douglases owned a hog and had planned to butcher it at the Sosebee residence, one-half mile across the field from the Donnie Douglas house, on Saturday, December 21, with the help of the Sosebees. Mrs. Sosebee testified that she received a telephone call about 6:00 a.m. on that day, from Sherry, who said that they would be unable to butcher the hog because Donnie had gone to Alabama with Roger Pierce (Donnie’s stepbrother) to pick up Angie’s (Roger’s sister’s) car. Mrs. Sosebee said that on the next day, Sunday, Bertha Douglas, Donnie’s stepmother, called on the telephone. An objection to this witness’ relating the statements of Bertha (Mrs. Edward) Douglas was sustained. The objection was on the grounds of hearsay and the right to confrontation. The objection on the right to confrontation was overruled, since it was disclosed by the state’s attorney that Bertha Douglas would be a witness. The state’s attorney also stated that the telephone conversation was not offered to show the truth of the statements but to show that the conversation took place. The court then overruled the objection. The witness then said that Mrs. Douglas asked if the kids (Donnie and Sherry) were there, and said there had been a death in the family and that members of the family had been trying to reach Donnie and Sherry the day before without success. Mrs. Sosebee said that she then reported the substance of her conversation with Sherry on Saturday morning, and that Mrs. Douglas replied that Donnie and Roger did not go to Alabama and then said, “Something has happened. We’re going to go look for those kids. Roger got back yesterday morning and Donnie wasn’t with him.” The court then admonished the jury that this conversation was not offered for the purpose of showing its truth but merely to show that it had taken place.

Appellant only argues the hearsay objection here. In considering this objection, it is necessary that we consider some of the background that had already been developed. Sherry Douglas had testified about the plans to butcher the hog and that Donnie’s parents knew of the plans. She had also testified that Donnie and Roger had planned to go to Alabama to pick up an automobile, but that Pierce had actually left without Donnie on Friday. She said that appellant had killed her husband and raped her during the night, and directed her to call Mrs. Sosebee and tell her that Donnie had changed his mind about killing the hog on Saturday but she had told appellant that she should say that Donnie had gone to Alabama with Roger and would kill the hog when he got back. The reason she made this suggestion was because she knew Donnie had seen Mrs. Sosebee on Friday evening and thought he might have told her that Roger had gone to Alabama without him and that Mrs. Sosebee might know that something was wrong and knew that Mrs. Douglas would know and that someone would come over to see what was wrong.

Mrs. Bertha Douglas later testified that on Saturday she had received a telephone call concerning the whereabouts of Donnie and Sherry Douglas and had called Mrs. Sosebee, who told her of the telephone call from Sherry. Mrs. Douglas said that, since she knew that Roger had gone to Alabama alone and had returned with the car on Sunday morning, her husband then went to Donnie’s home, but he soon returned, and, as soon as she could get someone to babysit with a granddaughter, both of them went to the residence of Donnie and Sherry. It was then about 5:00 p.m. She said Donnie’s car was gone but that a Chevrolet car was sitting there. After attending to hogs, chickens, ducks and dogs on the place, Mr. Douglas went to the front door, and later both went to the back door, where they found a hole chopped in the door that had not been there when Mr. Douglas came over in the morning. She would not permit her husband to break in. According to her, they then went to church and delivered some Christmas gifts, but she continued to worry about Donnie and Sherry and called a deputy sheriff, who with another officer went to the Donnie Douglas house along with the elder Douglases. There they found Donnie’s car parked at the house, his body on the floor, and appellant asleep on a bed to which Sherry, who was nude, was tied.

Since Mrs. Douglas did testify, the right of confrontation was preserved. No objection was made to the testimony of Mrs. Douglas when she related the telephone conversation with Mrs. Sosebee. In view of this failure to object, the admonition given by the trial court, the relevancy of the telephone conversation to the actions of the elder Douglases leading to the discovery of their son’s body and the insignificant bearing the statements of Mrs. Douglas had on the issues in the case, the error, if any, in admitting this evidence was harmless.

IX
THE COURT ERRED IN OVERRULING DEFENDANT’S OBJECTION AND ALLOWING THE PROSECUTOR TO ASK LEADING QUESTIONS ON DIRECT EXAMINATION.

These objections were directed at the examination of Richard Lanier, a service station operator who had seen appellant and Sherry Douglas at his station on Saturday, December 21, on two occasions. We have reviewed the record as abstracted and are unable to say that the trial judge abused his discretion.

X
THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S MOTION FOR MISTRIAL AFTER THE STEPMOTHER OF THE DECEASED BROKE DOWN ON THE WITNESS STAND AND ASKED WHY ANYONE WOULD WANT TO KILL THE DECEASED.
XV
THE COURT ERRED IN REFUSING TO DECLARE A MISTRIAL WHEN THE WIFE OF THE DECEASED, AND ALLEGED VICTIM OF RAPE, RAN FROM THE COURTROOM CRYING DURING THE PROSECUTOR’S SUMMATION.

These points relate to emotional reactions of a witness on the one hand and a victim on the other. At the conclusion of her direct examination, Mrs. Douglas identified appellant as the person brought out of her stepson’s house when she and her husband went there with the officers by pointing him out. Immediately the prosecuting attorney asked that the record show that she had identified appellant and Mrs. Douglas, crying, exclaimed:

Oh, my God! Why, Lord, why Donnie, why Donnie, why? Why would anybody want to kill him (crying).

Appellant’s prompt motion for a mistrial was denied but his subsequent alternative motion for an admonition to the jury was granted by the following statement:

Any remarks that the witness made voluntarily that were not in response to questions are not considered evidence and will be disregarded by the jury.

The record is not so clear as to the actions of Sherry Douglas. Appellant’s attorney stated, in moving for a mistrial before making his closing argument, that Sherry Douglas, who had been sitting near the jury box, had run from the courtroom crying during the prosecuting attorney’s opening argument and that he could hear her sobbing, crying and talking outside the courtroom after her exit and was sure that the jury had. The prosecuting attorney was sworn and testified that he was within three or four feet of the jury when the incident was supposed to have occurred and that he did not hear Sherry Douglas crying or saying anything, although he was aware that someone had left the courtroom. Appellant testified that he saw Sherry Douglas get up and leave the court; oom crying and heard her crying until someone closed the door behind her. Thereafter, he said, he heard her sobbing. This motion was overruled. The trial judge was not asked to admonish the jury.

Emotional outbursts by the relatives of murder victims and by victims of crimes are not unusual and are difficult to control. In these instances there were no accusatory remarks or remarks directed at the accused. The trial judge must have been aware of all that took place in his presence and was in a better position to evaluate the impact of these occurrences than anyone else. He had a wide latitude of discretion in the control of the trial. Utilization c/ the extreme and drastic remedy of declaration of a mistrial should be a last resort. We find no abuse of discretion in the denial of motions for a mistrial.

XI
THE COURT ERRED IN REFUSING TO DIRECT A VERDICT OF ACQUITTAL AS TO CAPITAL FELONY MURDER.

Appellant here contends that the evidence is insufficient to present a jury question as to his guilt of capital felony murder saying that, even when viewed in the light most favorable to the state, it did not show that the killing was committed by a person (appellant) engaged in the perpetration of rape. He tacitly concedes that the evidence on behalf of the state, if believed, is sufficient to show tfiat he killed Donnie Douglas and that he raped Sherry Douglas, even though he steadfastly denies having done either b it he argues that the evidence does not show that the kii’ing was done in order to accomplish the rape.

Of course, the necessary evidence may be circumstantial. The circumstances shown were sufficient basis for a reasonable mind to conclude, without resort to speculation or conjecture, that the killing was done while appellant was engaged in the perpetration of the crime of rape. A review of the evidence in the light most favorable to the state shows could come and drink a beer. They took Venable to his mother and stepfather about a city block away from the Douglas residence. He was a frequent visitor to the Douglas home after he had come to trade cars with Donnie and had met Sherry some two or three weeks prior to the slaying of Donnie. Lanny Venable, the Sosebees and the elder Douglases knew of the plan to butcher the Douglas hog at the Sosebee residence on Saturday, December 21. All of them knew about the plans of Donnie Douglas and Roger Pierce to go after an automobile in Alabama. On Friday night Lanny Venable went with Donnie and Sherry Douglas to the Grand Avenue Lounge where Donnie played in a band. While there, Venable sat at the table with Sherry. He drank 10 or 12 cans of beer and she drank Sprite. The lounge closed at about 12:30 a.m. on Saturday and the three went to one or more places in search of drugs, without success. Sherry Douglas said that her husband was trying to get them for Venable. She testified that, on the way home, Venable asked if he might not come to the Douglas house and drink a beer. She said she told him she was tired and wanted to go to bed and that Donnie had said that he was tired, too, but that Venable could come and drink a beer. They took Venable to his mother’s house so he could let her know where he was going. The Douglases left Venable there and went to their own house. Sherry said that she went to bed immediately. Venable testified that he got his rifle while at home, then got in his car and proceeded to the Douglas house. His excuse for getting the rifle was that there had been a problem about wolves or wild dogs. After Venable arrived, Donnie Douglas was playing tapes on his stereo tape player. The door between the bedroom and the living room was open. Sherry Douglas said that she could hear the two talking about a pizza Venable had brought but heard no argument between them. She heard Donnie talking about butchering the hog and then heard him walk across the room toward the stereo and change tapes. According to her, as soon as she heard the tape plugged up, she heard a shot and a thump, turned over and found Venable standing by her bed pointing a gun at her. She had glanced at the clock and noted that it was 2:10 a.m. She said that Venable told her that if she didn’t do just as he said, he would kill her, too, and that prison had made him like he was. He added that if she were not pregnant, he would kill her right then, too. She said that when she tried to get off the bed and go to her husband, he shoved her back on the bed, hung a blanket over the door, made her lie down and started talking to her. She testified that when she asked him why he killed her husband, Venable said he had to in order to get him out of the way, that he had to talk to her, he was sorry, it was something he had to do and shortly thereafter he made her remove her clothing, engage in oral sex with him and then raped her. She said that Venable’s rifle was right beside the bed and that she was afraid to resist him. After the intercourse, she said he tied her hands and feet to the bed with a cord he cut from the television set in the house and went to sleep for about 10 minutes. She said that later in the morning she called Modine Sosebee at Venable’s direction while he was holding a gun on her. She explained that she worded the conversation about killing the hog as she did because she thought Mrs. Sosebee would know something was wrong and would investigate. She said that Venable raped her again during the morning and then took her to his mother’s house while no one was at home, made her cook breakfast for him, raped her again and then took her into Oklahoma, returning to the Douglas home on Sunday at about 1:00 p.m. when he poked the hole in the door, but locked it from the outside with a padlock. She stated that he again forced her to have intercourse with him but suggested that they leave and come back after dark, so it would not be so risky for him to leave. According to her, he said he would tie her to the bed, so that it would take several hours for her to get loose and enable him to escape before she called the police. She said they did return, he raped her again, tied her up and went soundly to sleep, not having slept but 10 minutes since he killed her husband. She said that while she was tied to the bed, she had seen car lights outside, then saw a car back out. It was after the car had left that Venable fell asleep. Shortly thereafter Donnie’s parents and the officers carne and rescued her.

Venable testified that Sherry killed Donnie when he plugged in the tape, using Venable’s rifle. He admits the frequent acts of i itercourse, except for the oral sex, but said that there was no force or compulsion involved. He explained that he tied Sherry to the bed as part of a prearranged plan for him to get away and for her to say that someone had broken into the house, shot her husband and raped her.

All the circumstances certainly afforded a reasonable basis for finding that Venable killed Donnie Douglas to enable him to perpetrate the crime of rape on Douglas’s wife. It would be difficult to assign any other motive for the killing, if Venable was the killer.

XII
THE COURT ERRED IN REFUSING TO SUBMIT NO HIGHER AN OFFENSE THAN SECOND DEGREE MURDER TO THE JURY.

Appellant moved for a directed verdict as to first degree murder and moved that no issue be submitted on any greater offense than second degree murder. There was no prejudicial error as there was sufficient evidence to support the conviction of capital felony murder.

XIII
THE COURT ERRED IN ALLOWING THE STATE TOXICOLOGIST WHO STATED THAT HE WAS NOT A PHARMACOLOGIST OR AN EXPERT TO TESTIFY TO INFORMATION HE HAD AS TO HOW LONG CERTAIN DRUGS WILL REMAIN IN THE BLOODSTREAM.

The State Toxicologist was subpoenaed and presented as a witness by appellant. The witness testified that he had analyzed samples of blood taken from the body of Donnie Douglas. He found methamphetamines, Qualude, also known as Methoqualone, phenobarbitol and a blood alcohol content of 0.07 percent by “weight volume” of alcohol. He did not do a quantitative analysis to determine the amount of drugs present. On cross-examination, he said that since he was not a pharmacologist he could not say now long the drugs could have been in the bloodstream when the test was made, except in relation to information he had gained in order that he might carry on his job as an analyst. When asked what that information was, appellant’s attorney’s objection was overruled on the basis that the question was proper cross-examination. The witness then stated that, in cases in which he had performed analyses, there were those in which, to the best of his knowledge, the phenobarbitol had been taken as long as 20 days before the tests were made.

The relevance of the witness’ testimony is not readily apparent. Someone shot and killed Donnie Douglas as he changed a tape on his stereo tape player. No one suggests that he had done anything at the time to provoke or invite an assault or that his death was caused by anything other than the gunshot wound. If the testimony related to mitigating circumstances, it is sufficient to say that the jury imposed the lesser punishment for capital felony murder. Assuming, however, that the evidence was admissible as a part of the res gestae, in view of the fact that the questions were propounded on cross-examination, and, in view of the discretion invested in the trial judge to control cross-examination and to determine the qualification of a witness to give opinion evidence, we find no abuse of discretion.

XIV
THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT THE STATE MUST PROVE THE ELEMENTS OF A MURDER IN ORDER FOR THE DEFENDANT TO BE CONVICTED OF A CAPITAL FELONY.

Appellant argues that the court should have instructed the jury that they must find the elements of first degree murder, or at least all the elements of second degree murder before they could find appellant guilty of capital felony murder. Of course, in our view of the evidence, it sustains a conviction of capital felony murder, but appellant’s complaint here goes to the matter of instructions to the jury. Appellant relies upon commentary on the equivalent section of the new Arkansas Criminal Code, Ark. Stat. Ann. § 41 - 1501, effective January 1, 1976. Since this provision was not in effect at the time of the offense charged or the time of trial, we forego any abstract discussion of its construction. It is sufficient for the purposes of this case to say that we view the capital felony murder statute in existence at the time of this offense in the same light that we have heretofore viewed the felony murder statute. In that light, proof of a homicide in the commission of rape relieves the state of the burden of proving premeditation, deliberation or the specific intent to take human life. See Bosnick v. State, 248 Ark. 846, 454 S.W. 2d 311; Murray v. State, 249 Ark. 887, 462 S.W. 2d 438; Walker v. State, 239 Ark. 172, 388 S.W. 2d 13.

We have, as in other cases involving the death penalty, reviewed the record for other objections made during the course of the trial and find none worthy of consideration.

The judgment is affirmed.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Bernard BULLON v. Ernest MONROE
    76-92
    539 S.W. 2d 434
    Opinion delivered July 12, 1976
    [Rehearing denied September 13, 1976.]

      Pickens, Boyce, McLarty & Watson, for appellant.

      Bowie, Carlyle & Erwin, for appellee.
   Conley Byrd, Justice.

Appellant Bernard Bullón brought this action against appellee Ernest Monroe under the Small Claims Statute, Ark. Stat. Ann. § 75-918 (Repl. 1957), to recover $101.00. Monroe admitted that he had agreed to pay for the damages that he had done to appellant’s 1972 Toyota Corona station wagon, but denied that the damages amounted to $101.00. The trial court found the damages to be $50.00 and entered judgment for that amount. On appeal appellant contends:

“I. The court erred in awarding to the plaintiff only $50.00 in damages.
II. The court erred in refusing to assess double damages and attorney’s fees.”

POINT I. The contention that there is no substantial evidence to support a judgment for less than $101.00 is without merit. Admittedly appellant’s automobile had been damaged prior to the parking lot incident in question and there is a considerable difference of opinion among the witnesses as to whether the damages shown on the repair estimate were caused by the parking lot incident. As we view the evidence the trial court could have fixed the damages at any figure from the $4.58 tender of Monroe to the $101.00 figure testified to by appellant and his witnesses. At least we cannot say that there is no substantial evidence to support the $50.00 finding.

POINT II. Appellant here argues that Monroe had no meritorious defense to this small automobile damage claim and that despite the fact he recovered less than the $101.00 which he claimed, the trial court should have entered a judgment for double the amount of the damages plus a reasonable attorney’s fee. We cannot agree with appellant.

The basic legislative purpose of the small claims statute “was evidently to provide an effective remedy for the enforcement of claims so small that in the past they have often not been worth the expense of litigation and could therefore be ignored by the wrongdoer with impunity,” Ford v. Markham, 235 Ark. 1025, 363 S.W. 2d 926 (1963).Furthermore, being penal in nature it must be strictly construed, Rouse v. Weston, 243 Ark. 396, 420 S.W. 2d 83 (1967). When viewed in the light of the purpose of the statute and its penal nature we must conclude that a wrongdoer has a meritorious defense that will defeat the penalty provisions of the statute when the fact finder determines that the actual loss or damage is less than the amount demanded. To construe the statute otherwise would permit one who suffered only $100 in damages to extort another $100 from the wrongdoers on the premise that if the wrongdoer does not pay the $200 demand it would cost him at least $250 when he went to court.

Affirmed.


author: Frank Holt, Justice.

text:
    In Re Louis Art DODRILL
    76-54
    538 S.W. 2d 549
    Opinion delivered July 12, 1976

      McArthur, Johnson, Lofton, Wilson & Jacobs, for petitioner.

      W. Dent Gitchel, for Supreme Court of Arkansas Committee on Professional Ethics.
   Frank Holt, Justice.

In February, 1975, the circuit court rendered a judgment suspending petitioner’s license to practice law for twelve months and ordering that his license “be reinstated thereafter only upon the petitioner’s satisfactory passing the regular examination for admission to the Bar administered by the State Board of Bar Examiners.” Petitioner argues that the provision of the court’s judgment which requires him to satisfactorily pass the regular bar examination is a nullity because the circuit judge was without the power or authority to impose such a condition on the reinstatement of his suspended license. Therefore, petitioner asserts that since the one year period of suspension is completed his license should be forthwith reissued to him.

Proceedings involving the disbarment of an attorney are civil in nature. Hurst v. Bar Rules Committee of the State of Arkan sas, 202 Ark. 1101, 155 S.W. 2d 697 (1941). Amendment 28 to the Arkansas Constitution (1874) provides:

The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.

Rule 5 of our Supreme Court Rules on Professional Conduct (1973), promulgated pursuant to Amendment 28, provides in pertinent part:

If the Judge or Chancellor finds, upon the hearing before him, that the attorney has been guilty of professional misconduct, he shall reprove, reprimand, suspend, or disbar such attorney, as the testimony may warrant ....
Either the Committee or the attorney defendant may appeal to the Supreme Court from the action taken by the Judge or Chancellor. . . .

Further, as to jurisdiction, it was succinctly said in Feldman v. State Board of Law Examiners, 438 F. 2d 699 (8th Cir. 1971):

The principle is firmly established that the judicial branch of the government, acting through the courts, has exclusive jurisdiction to admit, control and disbar attorneys.

Here, in a disbarment proceeding, the trial court clearly had jurisdiction with the power and authority to impose the lesser penalty; i.e., to conditionally suspend petitioner’s license “as the testimony may warrant. ...” which we equate with the imposition of reasonable conditions upon termination of the suspension. If the condition was unacceptable when imposed, petitioner’s remedy was by appeal to test the reasonableness of the condition. Admittedly, petitioner failed to exercise his right of appeal within the proper time. Consequently, he is not entitled to a review of his petition which asserts that the court was without the power and authority to require him to pass the bar examination as a condition to the reinstatement of his license.

Petition denied.


text:
    ARKANSAS STATE HIGHWAY COMMISSION v. George Forbes ALCOTT
    76-79
    539 S.W. 2d 432
    Opinion delivered July 12, 1976
    [Rehearing denied September 13, 1976.]

      Thomas B. Keys and Philip N. Gowen, for appellant.

      Lightle, Tedder, Hannah & Beebe, for appellee.
   Frank Holt, Justice.

In this eminent domain case, pursuant to Ark. Stat. Ann. § 76-532 (Repl. 1957), appellant condemned a strip of land approximately 50’ wide and 126’ long out of a city lot 70’ wide. The strip was taken for the asserted purpose of restoring public access to an adjacent parcel of land which was landlocked as a result of the recent construction of a highway. On appellee’s motion the cause was transferred to chancery court for a determination as to whether the taking of the lot was for public use. The chancellor enjoined the appellant from any further construction on or use of the tract involved. From that ruling comes this appeal.

Appellant contends that the court erred in holding that the lands taken by appellant were not taken for a public use. It argues that the taking was necessary because restoration of public access to the adjacent property would substantially reduce right-of-way costs and, therefore, would be in the best interest of the state. Appellant argues further that in effect the taking of appellee’s property constituted an exchange of property. Appellant relies upon Arkansas Highway Commission v. Morgan Estate, 243 Ark. 450, 420 S.W. 2d 525 (1967). We find no merit in appellant’s arguments.

Private property can be taken under the power of eminent domain only for a public use. City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W. 2d 486 (1967); Cloth v. Chicago R.I. & P. Ry. Co., 97 Ark. 86, 132 S.W. 1005 (1910); and Ozark Coal Co. v. Pa. Anthracite Rd. Co., 97 Ark. 495, 134 S.W. 634 (1911). Whether or not a proposed use for which private property is taken is for a public or private use is a judicial question which the owner has a right to have determined by the courts. City of Little Rock v. Raines, supra.

Here appellant’s own witness testified, as abstracted:

The public is using this. They are paying for it. . . . The purpose of the highway acquiring this was for access to Mr. Corbin’s use. The right of way department made this decision to acquire a private right of way for Mr. Corbin to get service access to the property. . . . But it was a condemnation. That is solely for the purpose of providing Mr. Corbin a private driveway, to reduce damages to the adjoining property. ... I don’t think the Highway Department is going to maintain this property. We made the right of way available for Mr. Corbin’s use. We haven’t traded any property with him. We haven’t conveyed it to anybody. We do not intend to maintain it and Mr. Corbin would have no right to convey it as a right of way into his property. . . . Mr. Corbin has no control over that road. . . . There was no trade of this piece of property. ... I consider that I traded in the sense that I restored access that I had taken. . . . that was our intent, to restore access to Mr. Corbin’s property to reduce damages. . . . There was not any piece of property exchanged for this piece of property.

The evidence adduced by appellant clearly shows that this taking was not for a public use. To the contrary, it was for the purpose of providing a private driveway and this the state cannot do.

Since we agree that the taking was not for public use, we deem it unnecessary to consider appellant’s other contention that the court erred in finding that appellant did not comply with Ark. Stat. Ann. § 76-2203 (Repl. 1957).

Affirmed.


author: Elsijane T. Roy, Justice.

text:
    TRI-B ADVERTISING, INC. v. ARKANSAS STATE HIGHWAY COMMISSION et al
    76-58
    539 S.W. 2d 430
    Opinion delivered July 12, 1976
    [Rehearing denied September 13, 1976.]

      Howell, Price, Howell & Barron, for appellant.

      Thomas B. Keys and Chris Parker, for appellees.
   Elsijane T. Roy, Justice.

Appellant Tri-B Advertising, Inc. filed a complaint for damages against the Arkansas State Highway Commission (Commission) and Folk Construction Co., Inc. (Folk), appellees herein. The complaint alleged that the Commission ordered its agent Folk, as part of an eminent domain action, to remove an outdoor advertising sign owned by appellant and that its property valued at $2500 was taken for public use without compensation in contravention of the Arkansas Constitution. Each appellee filed a demurrer to the complaint, and both were sustained by the trial court.

On appeal Tri-B Advertising, Inc. first contends that the trial court erred in granting appellees’ demurrers because appellant’s complaint stated a common law cause of action against them.

Under its first assignment of error appellant urges that in failing to follow necessary statutory procedure prior to removal of its sign the Commission became vulnerable tó a common law cause of action in a State court. It is contended by appellant that it received neither notification of the condemnation action taken against it nor compensation in the form of a deposit to cover the estimated value of the condemned property. Appellant argues that this failure to provide compensation is violative of § 22, Article 2 of the Constitution of Arkansas which requires that before private property shall be acquired for public use just compensation shall be tendered.

Appellees, without disclaiming in any manner appellant’s assertions of the taking of the property without notice or compensation, contend that § 20, Article 5 of the Arkansas Constitution forestalls making an agency of the State a defendant in any State court.

It is well settled that in determining the sufficiency of a complaint on demurrer, every reasonable intendment should be indulged in favor of the complaint, and if facts stated in the complaint, together with all reasonable inferences to be deduced therefrom, constitute a cause of action, the demurrer should be overruled. Mortenson v. Ballard, 209 Ark. 1, 188 S.W. 2d 749 (1945). Green Seed Co. of Ark. v. Williams, 246 Ark. 463, 438 S.W. 2d 717 (1969); Comer Lbr. & Supply Co. v. Woodward, 235 Ark. 632, 361 S.W. 2d 259 (1962).

The State of Arkansas, its officers and its agencies cannot be made a defendant in any of its courts. Article 5, § 20, Arkansas Constitution. The Arkansas State Highway Commission is an agency of the State, and suit cannot be maintained against the Commission. Ark. State Highway Commission v. Nelson Brothers, 191 Ark. 629, 87 S.W. 2d 394 (1935). This immunity extends to suits for torts. Wenderoth v. Baker, 238 Ark. 464, 382 S.W. 2d 578 (1964); Ark. State Highway Commission v. Lasley, 239 Ark. 538, 390 S.W. 2d 443 (1965).

In Bryant v. Arkansas State Highway Commission, 233 Ark. 41, 342 S.W. 2d 415 (1961), we stated:

The suability of the Highway Commission was considered in a series of decisions closely following the Nelson Brothers case. In Ark. State Highway Comm. v. Par tain, 192 Ark. 127, 90 S.W. 2d 968, it was held that where the Commission was threatening to take private property without making any provision for compensation, the landowner was entitled to enjoin the Commission from taking the property until an amount sufficient to cover the damages had first been deposited in court. Such an injunction, restraining the commissioners from acting illegally, was not regarded as a prohibited suit against the State. But where the landowner stood by and permitted the Commission to take, occupy, and damage his lands, he could not maintain an action against the Commission to recover his damages, for such a coercive proceeding would constitute a suit against the State. Federal Land Bank of St. Louis v. Ark. State Highway Comm., 194 Ark. 616, 108 S.W. 2d 1077; Ark. State Highway Comm. v. Bush, 195 Ark. 920, 114 S.W. 2d 1061.

The complaint states the device had been removed prior to the filing of this suit. The “taking” of any property interest in the sign as a fixture had likewise been completed. See Ark. State Highway Commission v. Holden, 217 Ark. 466, 231 S.W. 2d 113 (1950); Ark. State Highway Commission v. Flake, 254 Ark. 624, 495 S.W. 2d 855 (1973).

The Bryant decision, supra, has been reaffirmed in Ark. State Highway Commission v. Flake, supra, and Shipley v. Crawford County, 253 Ark. 1021, 490 S.W. 2d 439 (1973), and appellant,is limited to a remedy in the State Claims Commission. Ark. Stat. Ann. § 13-1402 (Repl. 1968).

Appellant’s second contention is that the court erred in granting appellee Folk’s demurrer because the complaint states a cause of action for the commission of an intentional tort. In Ark. State Highway Commission v. Steed and Steed, 241 Ark. 950, 411 S.W. 2d 17 (1967), we held:

. . . [Tjhere is no liability on the part of a contractor if he follows the designs and plans and specifications of the condemnor and complies with his contract with it if he did not do so in an improper or unskillful manner or was not guilty of negligence which caused the damage to which complaint is made. (Citations omitted.)

However, the converse of this principle is also true. If the contractor does not act in compliance with these requisites he may become liable even though acting under directions of the Commission.

In 40 C.J.S. Highways § 212 the general rule of law is stated as follows:

However, the contractor, and not the highway authority, is liable for damages resulting from his own tortious acts in the performance of the contract, as where he is negligent, or commits an unauthorized trespass on the property off the right of way. Even though the highway authority may be immune from liability for damage, such immunity is not shared by the contractor. * * *

In Bucton Construction Company v. Carlson, 225 Ark. 208, 280 S.W. 2d 408 (1955), we upheld a judgment against a contractor who negligently performed such a contract.

When we view the complaint construing every reasonable intendment in favor of the pleader, as we are required to do when its sufficiency is tested by a demurrer, we find a factual issue is presented as to whether the damage done to appellant’s property was caused by some negligent or tortious act on the part of the contractor. Therefore the demurrer should have been overruled.

The judgment of the trial court is affirmed as to the Commission and remanded for action not inconsistent with this opinion as to Folk.

        Comer Lbr. & Supply Co. v. Woodward, supra.


author: Elsijane T. Rov, Justice. John A. Fogleman, Justice,

text:
    Horace Junior ROGERS v. STATE of Arkansas
    CR 76-36
    538 S.W. 2d 300
    Opinion delivered July 12, 1976

      Hubert Graves, for appellant.

      Jim Guy Tucker, Atty. Gen., by. Jackson Jones, Asst. Atty. Gen., for appellee.
   Elsijane T. Rov, Justice.

On April 22, 1975, appellant Horace Rogers was charged under Ark. Stat. Ann. § 41-1001 (Repl. 1964) with the crime of burglary. He was additionally charged with being a habitual criminal according to the provisions of Ark. Stat. Ann. § 43-2328 (Supp. 1975).

Appellant was tried and found guilty of burglary. Thereafter evidence of prior convictions was introduced by the State in support of its charge under the Habitual Criminal Statute. The past convictions included charges of burglary and grand larceny to which appellant had entered a plea of nolo contendere; a sentence under the provisions of Title 18 U.S.C. §§ 5031-42 for the crime of uttering committed during appellant’s minority and a two year sentence received by appellant in Oklahoma stemming from a guilty plea to a charge of second degree burglary. The charge of grand larceny to which appellant entered a plea of nolo contendere resulted in a five year probationary sentence.

Appellant first cites error in the lower court’s ruling which admitted as evidence of a previous conviction his probationary sentence for grand larceny. Appellant contends that inasmuch as he was not committed to prison as a result of the charge of grand larceny, but rather received a probationary sentence, this could not be construed as a conviction and cannot serve as the basis for applying the Habitual Criminal Statute.

In support of this argument appellant cites State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W. 2d 83 (1935), Tucker v. State, 248 Ark. 979, 455 S.W. 2d 888 (1970), and Sutherland v. Arkansas Department of Insurance, 250 Ark. 903, 467 S.W. 2d 724 (1971), as reflecting the view that a commitment to prison is a necessary predicate to a finding of a conviction. The Habitual Criminal Statute is not controlled by the same interpretative logic that has governed the decisions earlier cited.

Rodgers, supra, concerned construction of a statute providing for revocation of a license to practice medicine upon “conviction of a crime involving moral turpitude.” Tucker, supra, concerned construction of a statute providing “that a person who has been convicted of a felony, and has not been pardoned, is disqualified to act as a grand or petit juror.” Southerland, supra, concerned construction of a statute providing that an insurance agent’s license could be revoked upon “ ‘ [c]onviction, by final judgment, of a felony involving moral turpitude.’ ” (Italics supplied.) Each of these cases dealt with only one particular crime and none involved the Habitual Criminal Statute which in the emergency clause stated that:

. . . [T]he passage of this Act will provide for greater punishment of habitual criminals and reduce the number of persons committing more than one felony and reduce the number of crimes committed in this State. * * * (Italics supplied.)

The statute provides that:

Any person convicted of an offense, which is punishable by imprisonment in the penitentiary, who shall subsequently be convicted of another such offense, shall be punished as follows: (Italics supplied.)

The crime with which appellant was charged and found guilty was punishable by a term of imprisonment. The legislature intended the word “conviction” as used in Ark. Stat. Ann. § 43-2328 (Supp. 1975) to mean the establishment of guilt prior to and independently of judgment and sentence. This usage of the word “conviction” has been specifically recognized by the Court. In Fanning v. State, 47 Ark. 442, 2 S.W. 70 (1886), the Court stated:

A conviction is defined to be “that legal proceeding of record which ascertains the guilt of the party, and upon which the sentence or judgment is founded.”

The statutory purpose was to discourage individuals from repeatedly committing acts constituting felonies under our law, i.e., acts which are “punishable by imprisonment in the penitentiary.” It was the repeated commission of such offenses which concerned the legislature, not the actual punishment by imprisonment or lack of it which the offender received for any such previous offense.

It would not be reasonable to assume that the legislature intended a person who was found to have committed a felony for which he was actually imprisoned should receive a harsher penalty than a person who was found to have committed the same felony but was placed on statutory probation. For the foregoing reasons we find no merit in this contention.

Appellant also questions the admission of testimony that he had been charged in the United States District Court with the crime of uttering and sentenced under the Federal Juvenile Delinquency Act to a term not to exceed his minority-

An adjudication in federal court as a juvenile delinquent is not deemed a criminal conviction. Fagerstrom v. U.S., 311 F. 2d 717 (8th Cir. 1963). The stated legislative intent of the Act is that any adjudication of juvenile delinquency thereunder shall result in the determination of a status and not conviction for a crime. Cotton v. U.S., 355 F. 2d 480 (10th Cir. 1966). See United States v. Caniff, 521 F. 2d 565 (2d Cir. 1975), cert. denied 423 U.S. 1059, 96 S. Ct. 796, 46 L. Ed. 2d 650 (1976), to the same effect.

For the foregoing reasons the court erred in allowing the sentence under the Federal Juvenile Delinquency Act to be admitted in evidence.

The erroneous admission of this conviction requires that appellant’s plea for a sentence reduction be recognized. Ark. Stat. Ann. § 43-2328 provides in part applicable to this appeal that:

If the fourth or subsequent offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for the fourth or subsequent offense for a determinate term not less than the maximum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than one and one half (1 1/2) times the maximum sentence provided by law for a first conviction; provided, that any person convicted of a fourth or subsequent offense shall be sentenced to imprisonment for not less than five (5) years.

Since we have determined that of the two prior convictions contested by appellant as inadmissible one must be so declared, three previous admissible convictions remain. When cumulated with appellant’s instant conviction the language of § 43-2328(3) becomes applicable. This section makes mandatory the imposition of the maximum term of imprisonment, 21 years, against one falling within its ambit. It additionally provides that a multiplier may be used to lengthen this term, and it is clear that the jury, in sentencing appellant to a 31 1/2-year term of imprisonment, thus increased the period of incarceration by use of this device. However, because we cannot ascertain beyond speculative persuasion what role the inadmissible conviction played in enhancing appellant’s sentence and because the potential for prejudice is thereby engendered, we reduce this sentence to the minimum permissible term, or 21 years. See Roach v. State, 255 Ark. 773, 503 S.W. 2d 467 (1973), and Richards v. State, 254 Ark. 760, 498 S.W. 2d 1 (1973).

Accordingly, should the attorney general decide, within 17 days, to accept this reduction the judgment will be affirmed as modified. Otherwise the judgment will be reversed and the cause remanded for a new trial.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I must dissent because I think the court has misconstrued the Habitual Criminal Act as to the probationary sentence. This act is highly penal and must be strictly construed against the state and in favor of the accused. Higgins v. State, 235 Ark. 153, 357 S.W. 2d 499. Otherwise, I would agree that the statute might possibly be construed as the majority has construed it. But if the strict construction rule is applied, the very language of the statute mandates a construction more favorable to appellant. Actually the Habitual Criminal Act imposes collateral consequences just as did the statutes involved in State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W. 2d 83; Tucker v. State, 248 Ark. 979, 455 S.W. 2d 888; and Sutherland v. Arkansas Department of Insurance, 250 Ark. 903, 467 S.W. 2d 724. If there is any difference, a statute calling for greatly extended terms of imprisonment may well call for an interpretation more, rather than less, favorable to appellant. But this is mandated by the very language of the act itself. The language seized upon by the majority, “punishable by imprisonment in the penitentiary,” is not a limitation on the word “conviction.” The purpose is to eliminate misdemeanors. The meaning of the word conviction is made clear by Ark. Stat. Ann. § 43-2330 (Repl. 1964) which speaks to that which must be proved as a prior conviction, i.e., the “conviction and judgment of imprisonment in the penitentiary.” There could be no other reason for including the words “judgment of imprisonment in the penitentiary.”

      Title 18 U.S.C., §§ 5031-42.


author: Walter R. Niblock, Special Justice.

text:
    ARKANSAS POWER AND LIGHT CO. v. Jetta Catherine JOHNSON, Administratrix of the Estate of Richard Lee JOHNSON, Deceased
    75-322
    538 S.W. 2d 541
    Opinion delivered July 12, 1976

      House, Holmes & Jewell, for appellant.

      McMath, Leatherman <S? Woods, P.A., by: Phillip H. McMath, for appellee.
   Walter R. Niblock, Special Justice.

Jetta Catherine Johnson, Appellee, brought this action as Administratrix of the estate of Richard Lee Johnson, deceased, on her behalf as widow and on behalf of her two minor children, against Arkansas Power and Light Company, Appellant.

Richard Lee Johnson was employed as a painter by Don McCormick Paint Company for approximately two weeks prior to his death. During that time, he had worked at the Community Church, 20th and Louisiana in Little Rock, Arkansas. When the accident occurred, Johnson had begun to apply the second coat of paint, repeating the work he had done in applying the first coat.

The church, on the west side, has three levels, namely a one-story annex that has a flat roof, and two additional slanted roof levels above the flat roof. On either side of the building are two telephone poles, the north pole standing erect, and the south pole leaning to the east. Various wires were strung from the poles including an Arkansas Power and Light Company neutral wire, hanging approximately 14 feet above the flat roof level. Also, strung from these poles, about 20 feet above the flat roof, was an Arkansas Power and Light Company primary conductor, which carried 7620 volts.

On the day of his death, Mr. Johnson began work at 8:00 a.m. He was working on the fiat roof, using an aluminum ladder extended to about 22 feet and an electric spray painting machine. Working with him was Robert Cochran, also a painter. The two painted along the west side of the building, going from north to south. While Mr. Cochran went down to the ground to get more paint, Mr. Johnson picked up the ladder, holding it vertically and proceeded to move the ladder south to go around the corner. When Cochran last saw Johnson, he was moving the ladder around the corner.

Mr. Cochran testified that while he was on the ground, he heard Mr. Johnson make a groaning noise. He found Mr. Johnson lying on the roof on his back. The aluminum ladder was dangling toward the ground. Mr. Johnson was breathing irregularly, but died shortly thereafter.

An autopsy revealed a small lesion on the deceased’s right little toe which was found to be an electrical exit wound and that death was by electrocution. However, the deceased also was afflicted with cirrhosis of the liver, and at the time of death he had a blood alcohol level of .06%.

Mr. Earl Looper testified, over the objection of the appellant, that approximately six weeks after the death of Mr. Johnson, he received an electrical injury, which required hospitalization, at the same spot as did the deceased. Mr. Looper was repairing the church roof and was also using an aluminum ladder. The parties stipulated that the physical conditions existing at the time of both accidents were not only substantially similar but identical.

Mr. Robert Frank, an electrical engineer, testified for the appellee that, in his opinion, the conditions concerning the existence of the powerlines in question were unsafe and in violation of the National Electric Safety Code. However, Mr. Charles Dietz, witness for the appellant, testified that the measurements were in compliance with the National Electric Safety Code.

The case was tried before the jury- on two separate occasions, on each occasion the jury returned similar verdicts in favor of the plaintiff. In the first trial, the jury erroneously awarded the estate of the deceased $96,200.82, even though the estate was entitled to recover only funeral expenses and some $10,000.00 for conscious pain and suffering. Therefore, the plaintiff joined in the defendant’s motion for a new trial which was granted. The second trial again resulted in a verdict in favor of the plaintiff for $151,616.42. It is from this judgment that appellant appeals.

Appellant raises two points for reversal. It is first argued that the trial court erred in admitting the testimony of Earl Looper concerning his subsequent electrocution on the same premises on which deceased suffered his fatal shock. We find this point to be without merit.

The general rule with regard to the admissibility of evidence of similar occurrences is that such evidence is admissible only upon a showing that the events arose out of the same or substantially similar circumstances and the burden rests on the party offering such evidence to prove that the necessary similarity of conditions exists. Fulwider v. Woods, 249 Ark. 776, 461 S.W. 2d 581 (1971); 32 CJS Evidence, § 584. There is no question that the appellee adequately sustained this burden at the trial since the defendant stipulated “that the conditions of the building and of the facilities both of Arkansas Power and Light Company and any other physical matters connected with the location are the same today as they were in April, 1972, and in June, 1972.”

The issue, therefore, becomes one basically of relevance. It is appellant’s contention that evidence of a prior similar accident is admissible only for the purpose of showing notice of a dangerous condition to the alleged tortfeasor. Not only is this point irrelevant because we are concerned here with a subsequent accident, but it is a misinterpretation of our prior decisions. St. Louis Southwestern Railway Company v. Jackson, Adm’r, 242 Ark. 858, 416 S.W. 2d 273 (1967), is cited for this proposition; however, in that opinion we stated:

“The annotation in 70 ALR 2d 170 points out that 38 states and several of the federal courts have held evidence of a prior similar accident admissible to establish a dangerous or defective condition at the place in question, where the dangerous condition of the place in question is at issue. In addition, 36 such states and several of the federal courts have held such evidence admissible to show defendant’s notice of the existence of the defect.” 416 S.W. 2d at 276.

Nowhere in that opinion was it stated that evidence of a prior similar accident is admissible only to show knowledge of the dangerous condition on the part of the defendant.

In allowing the introduction of the evidence in question, the trial court stated:

“The statement I made about proffered evidence applies, of course, to his motion as it does to others, but I have given considerable time and concern and attention to this matter since it was a question in the first trial. I have come to the conclusion that under appropriate conditions and proper foundation evidence of the subsequent accident may be introduced in this case to prove, not necessarily the existence of a particular physical condition or situation because that you say you have stipulated or will stipulate, but to show that the plaintiff’s injury was caused by the alleged defective dangerous condition or situation, to show that the situation as of the time of the accident sued for was dangerous and to refute any argument, which I assume will be made, or evidence to the effect that it was impossible for this to happen. I’m talking about the first instance where Johnson was injured, to refute any evidence or claim that it is impossible for that accident to have happened.” ***

As authority for its position, the trial court relied on McCormick, Evidence, § 200 (2nd Ed. 1972), Rowe Auto and Trailer Sales, Inc. v. King, 257 Ark. 484, 517 S.W. 2d 946 and Fulwider v. Woods, 249 Ark. 776, 461 S.W. 2d 581 (1971). McCormick recognizes that proof of other similar accidents and injuries in negligence cases may be offered for the purpose of proving the existence of a particular physical condition, situation or defect; showing that the alleged defective or dangerous situation caused the plaintiff’s injury. He points out that the need is plainer where the issue of cause is in genuine dispute because the inference of causation is an elusive one as to which circumstantial evidence is appropriate. We agree with appellee that these purposes were adequate to call for the exercise of the trial court’s discretion as to admissibility of the Looper testimony.

In Fulwider v. Woods, supra, we stated:

“The question involved is basically one of relevance. Its resolution involves the same or similar factors involved in determining admissibility of proof of prior or subsequent conditions or conduct to prove an existence of a condition or conduct at the time in issue. This determination is usually held to be within the discretion of the trial court. See Giroux v. Gayne, 108 NH, 394, 236 A. 2d 695 (1967); Cogswell v. C. C. Anderson Stores Co., 68 Idaho 205, 192 P 2d 383 (1948); Jenson v. Southern Pacific Company, 129 Cal. App. 2d 67, 276 P. 2d 703 (1954); Manning v. New York Telephone Company, 388 F. 2d 910 (2nd Cir., 1968); Little Rock Gas and Fuel Co. v. Coppedge, 116 Ark. 334, 172 S.W. 885. Of course, there is no reversible error in such cases in the absence of an abuse of discretion.” 461 S.W. 2d at 587.

Although the Fulwider case dealt with the admissibility of evidence showing subsequent conduct in an action concerning fraudulent misrepresentations, that case is not so distinguishable that its principle is inapplicable to the case at bar. The cases cited in Fulwider to support the principle that the relevance and admissibility of evidence concerning prior or subsequent accidents are within the discretion of the trial court, include many personal injury actions. In Manning v. New York Telephone Company, the court stated:

“Appellant complains of the admission of testimony relating to the condition of the pole step hole on dates as much as three years after the accident as evidence of the condition of the pole step hole at the time of the accident. Whether evidence of a subsequent condition should be admitted depends upon the time elapsed and the likelihood of a change in condition during that interval. Absent an abuse of discretion, a trial judge’s decision to admit such evidence will not be disturbed on appeal.” (citations omitted) 388 F. 2d at 912.

Admission of evidence of subsequent incidents, like that of prior incidents poses the question of relevancy, even though the admission of the former must be approached with greater caution than the latter. Questions of relevancy address themselves to the sound judicial discretion of the trial judge. The exercise of that discretion should not be reversed on appeal except for manifest abuse.

Several cases of other jurisdictions which involve electrocution have also held evidence of subsequent accidents admissible. In Moran v. Corliss Steam Engine Co., 21 RI 386, 43 A. 874 (1899), testimony concerning electrical shocks received by employees subsequent to the shock received by the plaintiff was held admissible as being relevant to prove the particular conditions and lack of insulation at the time of the accident. In Robinson v. Western States Gas and Electric Co., 184 Cal. 401, 194 P. 39 (1920), evidence of a shock suffered by another individual approximately three months after the plaintiff’s electrocution was introduced to show that if the conditions produced a shock upon one person, in all probability it would have produced the same shock upon the deceased palintiff. In Vicksburg Railroad and Light Co. v. Miles, 88 Miss. 204, 40 So. 748 (1906), evidence of subsequent electrical shocks was admitted to prove that the railroad had not properly grounded its rails. These cases and others are discussed in the Annotation at 81 ALR 685.

Without further belaboring the authorities on the question, we have concluded that we cannot say that the trial judge abused his discretion in admitting the testimony of Looper. In arriving at this conclusion, we do not consider the similarity of conditions existing at the time of the two incidents as the sole basis for the judge’s exercising his discretion to admit the evidence. The critical factor was aptly pointed out by the trial judge in his remarks in ruling on admissibility, i.e., that the proximate cause of Johnson’s death was a very important issue in the case. The cause of death had been for some period of time something of a mystery. Consequently, the evidence of causation was based upon circumstances and the opinions of medical experts. Under these peculiar circumstances we find no abuse of discretion in admitting this evidence.

The second point relied upon for reversal by the appellant is that the trial court erred in overruling appellant’s motion for directed verdicts and for judgment non obstante veredicto. Appellant argues that as a matter of law it was not negligent or, in the alternative, that the decedent’s own acts and omissions constitute sufficient negligence to bar recovery under Ark. Stat. Ann. § 27-1730.1 (Repl. 1962). Both parties introduced testimony concerning whether or not the appellant complied with the standards of the National Electric Safety Code. Appellant points out our prior statement that construction in compliance with the Code constitutes a prima facia showing of the lack of negligence on the part of the utility company. Southwestern Gas and Electric Co. v. Deshazo, 199 Ark. 1078, 138 S.W. 2d 397 (1940). Electric companies are responsible to the public for the steady production and supply of power and it is inconceivable that, they should be held liable for injuries which cannot reasonably be foreseen, especially when adequate safety measures have been taken. Arkansas Power and Light Co. v. Lum, 222 Ark. 678, 262 S.W. 2d 920 (1954). Therefore, appellant argues that since the company complied with the safety measures enunciated in the National Electric Safety Code, it is not negligent as a matter of law. However, in Arkansas Power and Light Co. v. McGowan, 227 Ark. 55, 296 S.W. 2d 430 (1956), we found that compliance with the rules of the National Electric Safety Code can be a factual question of negligence to be determined by the jury.

Even though the specific standards of the National Safety Code were complied with, an expert witness called by appellant testified that these were minimum standards which were not practical for this particular installation. More importantly, he pointed out that the code itself recognized that service requirements frequently called for higher factors of safety and said that, in view of the particular situation here, the mere fact that there was more than the minimum diagonal clearance between the building and the primary conductor was meaningless. The evidence established that the south pole tilted to the east causing the horizontal measurement at the south end ot be 1.64 feet from the insulated primary wire to the roof line. If the pole were vertical, the distance would have been 4.22 feet The table accompanying the National Electric Safety Code requires a minimum horizontal clearance of three feet. More importantly, the evidence established that there was a vertical clearance between the roof and the uninsulated primary line of 19.662 feet and a horizontal clearance of 2.495 feet at the north end. The base of the supporting poles at the north and south ends of the building were virtually equidistant from the building. The south pole supported a 1200 pound transformer attached to the east side of the pole. The guy wire on this pole extended to the south rather than to the west, so that its fall was not directly opposed to the weight of the transformer. At the time of the trial, the south pole leaned toward the building, so that the point of attachment of the primary conductor was 3.7 feet east of a vertical plane from the bottom of the pole. As a result, the clearance of the uninsulated primary wire at the south end where Johnson was found lying on his back was 20.42 feet vertically or 1.64 feet (or approximately 19-3/4 inches) horizontally. Appellant’s Director of Distribution Plant Department said that the pole would probably not have been leaning when installed, and that if it had been in an erect position, the horizontal clearance would have been the same at both locations. He admitted that if a ladder 15 inches wide were turned perpendicular to the wire, and flush with the edge of the roof, only five inches clearance would be left. Of course, the clearance would have been much greater but for the slant of the pole. It was much greater at the north end. As one moved the ladder extended vertically the clearance of the uninsulated wire diminished at a rate that was significant but not necessarily obvious to one carrying a ladder such as that Johnson had and endeavoring to hold it in a vertical position while moving it. It is hardly necessary to say that the use of such ladders on the church roof should have been foreseen.

We have consistently held that persons or companies supplying electrical energy to the public must exercise ordinary care in the construction of service lines, to make inspections at reasonable times to see that the equipment is kept in reasonably safe condition, and to diligently discover and repair defects. Brakensiek v. Nickles, 216 Ark. 889, 227 S.W. 2d 948 (1950); Arkansas Power and Light Co. v. Bollen, 199 Ark. 566, 134 S.W. 2d 585 (1939); Arkansas General Utilities Co. v. Shipman, 188 Ark. 580, 67 S.W. 2d 178 (1934). In view of the fact that the leaning pole allowed a clearance of only 1.64 feet between the non-insulated power line and the roof, it was reasonable for the jury to conclude that the appellant had failed in its duty to inspect and repair defects, or failed to maintain safety standards which might have required insulation or the wire or moving it.

In the case of Futrell v. Arkansas-Missouri Power Corp., 8 Cir., 104 F. 2d 752, 754, the court said:

“(1) It is elementary that in considering a motion to direct a verdict the testimony and all inferences that reasonably may be drawn therefrom must be accepted in the light most favorable to the plaintiff.” Adams v. Barron G. Collier, Inc., 8 Cir., 73 F. 2d 975.
“(2) It likewise is elementary that an issue of negligence generally is a question for the jury and only where all reasonable minds must reach the same conclusion from the facts does it become one of law for the Court and justify the direction of a verdict.” Glynn v. Krippner, 8 Cir. 60 F. 2d 406; May Department Stores Co. v. Bell, 8 Cir., 61 F. 2d 830.
“(3) An electric company, because of the very nature of its business, is required to use a high degree of care in the erection, maintenance, operation and inspection of its plant and equipment used in the generation and transmission of electricity for the protection of those likely to come in contact therewith. ” Dierks Lumber and Coal Co. v. Brown, 8 Cir. 19 F. 2d 732; Arkansas Light & Power Co. v. Cullen, 167 Ark. 379, 268 S.W. 12; Arkansas General Utilities Co. v. Shipman, 188 Ark. 580, 67 S.W. 2d 178.

In the case of Arkansas Power nnd Light Co. v. Hoover, 182 Ark. 1065, 34 S.W. 2d 464, 469, this Court said:

“Moreover, this instruction was erroneous and should not have been given. We have repeatedly held that it was the duty of the company to keep its appliances in safe condition, and that either the wires must be kept insulated, or must be so located as to be, comparatively speaking, harmless. If the company does not choose to properly insulate a deadly wire of its maintenance, it must place the same underground, at a high altitude, or at some inaccessible place.
“We said in a recent case: ‘The authorities appear to be unanimous in holding that there is no such duty, (to insulate all wires) but the cases do hold, as we understand them, that this duty must be performed, or other sufficient safety methods employed to prevent contact with wires conveying the current at such places as danger of contact may reasonably be anticipated.’ Arkansas Power and Light Co. v. Cates, 180 Ark. 1003, 24 S.W. 2d 846, 848.” McGowan, 296 S.W. 2d at 426.

Since the reviewing court is bound to examine the evidence in the light most favorable to the appellee, Jones v. American Pioneer Life Insurance Co., 255 Ark. 474, 500 S.W. 2d 748 (1973), and bound to sustain the jury verdict if there is any substantial evidence to support it, Black v. Johnson, 252 Ark. 889, 481 S.W. 2d 701 (1972) and Arkansas General Utilities Co. v. Shipman, supra, we must affirm the jury’s finding of appellant’s negligence. This conclusion is further supported by our recent statement in Woodruff Electric Cooperative Corp. v. Daniel, 251 Ark. 468, 472 S.W. 2d 919 (1971):

“We have long recognized the rule that the very nature of the business of an electric company requires it to use a high degree of care in the erection, maintenance, operation, and inspection of its equipment which is used in the transmission of its electric power, so as to prevent injury to one likely to come in contact with the power line. ” Arkansas Power and Light Co. v. McGowan, 227 Ark. 55, 296 S.W. 2d 420 (1956).

In Arkansas Power and Light Co. v. Cates, 180 Ark. 1003, 24 S.W. 2d 846 (1930) we recognized that:

“The duty of an electric company in reference to keeping its appliances in safe condition is a continuing one. Not only must it exercise a high degree of care in the original selection and installation of its electric apparatus, but thereafter it must use commensurate care to keep the same in a proper state of repair. The obligation of repairing defects does not mean merely that the company is required to remedy such defective conditions as are brought to its actual knowledge. The company is required to use active diligence to discover defects in its system. In other words, an electric company is bound to exercise due care in the inspection of its poles, wires, transformers and other appliances.”

Appellant argues in the alternative that since the decedent’s contributory negligence exceeds its own negligence, the appellee is barred from recovery by our comparative negligence statute. This theory is based upon two points. The first is that the decedent was charged with knowledge of the dangerous qualities of electricity and as the deceased had previously worked on the same building, his lack of attention must have been the cause of his death. The second point raised by appellant is based on the blood alcohol content of the decedent’s body which appellant argues is proof that the deceased had been drinking on the morning of the accident. There is also evidence that Johnson’s appearance was normal when he was at work on the morning of his death and testimony by his wife tending to prove that he had consumed no alcohol after he had drunk some beer before retiring on the preceding night.

The question of the contributory negligence of the deceased was clearly one for the jury’s determination in this case. In Arkansas-Missouri Power Co. v. Davis, 222 Ark. 686, 262 S.W. 2d 916, 919 (1953), a case similar on its facts, we stated:

“We think the testimony of Harvill and Zander was sufficient to take the case to the jury on the question of whether the defendant power company was negligent in permitting the electric line to remain within about 4 feet of the signboard after the construction of the board. The testimony of these two witnesses is one of the distinguishing features between this case and the case of Arkansas Power and Light Co. v. Lum, 222 Ark. 678, 262 S.W. 2d 920. It might be asked, how can it be said that the power company should have anticipated the very thing that did happen, but that the injured party be relieved from any duty to foresee what might happen even though he realized the dangerous qualities of electricity. The answer is that the questions of negligence and contributory negligence were peculiarly within the province of the jury to decide, there being sufficient evidence to justify the submission of both issues.”

In Arkansas Power and Light Co. v. McGowan, supra, which involved an electrocution caused by a ladder coming into contact with the electrical wire, we also held the question of contributory negligence to be before the jury. We cannot say that Johnson’s negligence was as great or greater than that of appellant as a matter of law. The jury was instructed as to assumption of risk and comparative negligence. An appropriate instruction on the question of intoxication and its bearing on the question of negligence was also given. Therefore, this issue was properly submitted to the jury in the case at bar. There is sufficient evidence to support the jury’s determination. This verdict must be upheld.

Affirmed.

Roy, J., not participating.