author: David Newbern, Justice. John I. Purtle, Justice,

text:
    Willie Louis JACKSON v. STATE of Arkansas
    CR 86-101
    720 S.W.2d 282
    Supreme Court of Arkansas
    Opinion delivered November 24, 1986
    [Rehearing denied December 15, 1986.]

      John H. Bradley, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by. William F. Knight, Asst. Att’y Gen., for appellee.

      PurtIe, J., would grant rehearing.

   David Newbern, Justice.

The appellant was charged October 31,1984, with rape of a child less than eleven years old by sexual intercourse and deviate sexual activity by forcible compulsion. Ark. Stat. Ann. § 41-1803 (Repl. 1977). This statute has since been amended to make the “statutory rape” age less than fourteen. See Ark. Stat. Ann. § 41-1803 (Supp. 1985). The appellant was found guilty and sentenced to life imprisonment. He alleges error in allowing the victim and her five-year-old brother to testify at the trial. He also alleges it was error to have allowed the mother of the alleged victim to testify as to the alleged victim’s statement made after the incident. We find no error and affirm.

The incident occurred when the mother left four children at their home with the appellant while she walked to a nearby store. The children’s ages at the time were: the alleged victim, a daughter eight years old; two brothers aged six and four; and a baby aged one month. The children’s testimony showed the two boys and the baby were in the back bedroom into which a television had been moved, allegedly by the appellant. The alleged victim said she was in the living room of the house when the appellant approached her with a kitchen knife and had her lie down on a bed in that room. She testified that he removed her clothes and performed oral sex on her, as well as using his fingers. This was witnessed by the two little brothers one of whom said they had crawled from the bedroom to the living room to watch. He said the appellant got a belt and forced them back into the bedroom. Testimony showed he then returned to the living room with the kitchen knife and removed his clothes and had intercourse with the alleged victim. This was also witnessed by the two little boys who had once again returned to the living room to watch, according to one of them.

The alleged victim’s testimony and that of her mother showed she then washed herself and her underwear in a dishpan in the living room before her mother returned from the store. The mother testified that upon returning from the store, she immediately knew something was wrong with the alleged victim who was upset. After questioning, the alleged victim finally revealed to the mother what the appellant had done. The brothers then also confirmed what had happened. The mother confronted the appellant, and he left the house. The alleged victim was then examined by the mother and taken to the hospital. The medical report to which both sides stipulated showed that the alleged victim’s hymenal ring was irritated but not broken. The mother also testified that when she examined the alleged victim after being told of the rape, she found the alleged victim’s vagina was irritated and red and contained blood. The medical report, which was compiled after the washing occurred, did not show any blood or sperm. The mother was allowed to testify that the alleged victim told her, “My uncle raped me” over the objection by the appellant that it was hearsay.

The alleged victim who was ten at the time of the trial testified first. She stated she knew not to tell a lie and that she should always speak the truth. She answered when asked general questions such as her name, school, and teacher’s name, but when the questions turned to the incident she was very shy and reticent. She nodded her head either affirmatively or negatively in response to questions. She indicated the answer to some questions by pointing, for example, to her genital area. She finally told the judge during voir dire that she was embarrassed to tell what happened. The judge allowed the deputy prosecutor to ask leading questions.

When the brother who was five at the time of trial testified, he was equally reticent. The judge let both children testify over objections of appellant regarding their competency.

The appellant did not testify nor did he offer any witnesses on his behalf.

1. Competency of child witnesses

The question of the competency of a witness is a matter lying within the sound discretion of the trial court and, in the absence of clear abuse, we will not reverse on appeal. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). The trial court must begin with the presumption that every person is competent to be a witness. Arkansas Rule of Evidence 601. The guidelines established by this court with respect to competency of a witness expressed in Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982) are:

[t]he ability to understand the obligation of an oath and to comprehend the obligation imposed by it; an understanding of the consequences of false swearing; and the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the fact finder a reasonable statement of what was seen, felt or heard. [275 Ark. at 179, 628 S.W.2d at 307, quoting Kitchen v. State, supra.]

The issue of competency of a witness is one in which the trial judge’s evaluation is particularly important due to the opportunity he is afforded to observe the witness and the testimony. Clifton v. State, 289 Ark. 63, 709 S.W.2d 63 (1986).

As long as the record is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember and relate facts, we will not hold there has been a manifest error or abuse of discretion in allowing the testimony. Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982); Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982). [289 Ark. at 65, 709 S.W.2d at 64.]

In a child rape case, the matter of the competency of the child is primarily for the trial judge to decide, as he is better able than we to judge the child’s intelligence and understanding of the necessity for telling the truth. Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949).

In Harris v. State, 238 Ark. 780, 384 S.W.2d 477 (1964), we said that, as the trial judge is given wide discretion in making the determination of competency, absent clear abuse, we will not disturb that ruling on appeal. There we reversed the trial judge’s finding of competency because of the direct conflicts and irreconcilable differences throughout the six-year-old girl’s testimony. We said it was the duty of the trial judge throughout the testimony of such a witness to evaluate the competency of the witness and not just rely upon his preliminary decision. In the present case there are no direct conflicts or irreconcilable differences in the testimony of the victim or that of her brother, and in fact there is harmony between the two children’s testimony regarding what happened.

During the direct examination of each child witness there were many questions asked which went unanswered. The judge held a voir dire of both witnesses after their testimony had begun, to evaluate further their competency and found that they were competent. We approved of this procedure in Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). See also Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982).

Our cases do not hold that below a certain age a witness cannot testify. We have allowed a child as young as six to testify and approved a finding of competency where the trial court made the determination based on the guidelines noted above. Hoggard v. State, supra.

The practice of examining a child witness through leading questions has been approved by us as being within the sound discretion of the trial judge. Bullen v. State, 156 Ark. 148, 245 S.W. 493 (1922); Hamblin v. State, supra. The age and shyness of the witness are important factors to be considered. Murray v. State, 151 Ark. 331, 236 S.W. 617 (1922); Hamblin v. State, supra. We approve of this procedure in child rape cases because of (1) the seriousness of the crime, (2) the natural embarrassment of the witness about the incident, (3) the child’s fear of being in a courtroom full of people, (4) the necessity of testimony from a victim, (5) threats toward victims from these perpetrators, and (6) to avoid the possibility that an accused might escape punishment for a serious offense simply because of the victim’s reluctance to testify. Hamblin v. State, supra. We commended the judge for his patience in that case in trying to search for the truth. Similar patience was demonstrated in this case. If it appears necessary to lead a child witness to elicit the truth we will affirm the judge’s allowing leading questions absent an abuse of discretion. Crank v. State, 165 Ark. 417, 264 S.W. 936(1924); Hamblin v. State, supra. See also West v. State, 209 Ark. 601, 192 S.W.2d 135 (1946).

As the dissenting opinion observes, the testimony of the victim and her little brother was interspersed with agonizing pauses. It may be the most extreme case of witness reluctance and leading we have seen. However, when all was said and done, these excerpts from the direct testimony of the victim stand out:

Mr. Bearden [Prosecutor]: Did he had something in his hand,. . . ?
Note: Witness nods affirmatively.
Mr. Bearden: What, do you remember?
Note: Witness nods affirmatively.
Mr. Bearden: What was it?
Note: No audible response.
Mr. Bearden: Do you remember what it was?
Note: Witness nods affirmatively.
Mr. Bearden: What was it? Tell me.
Note: No audible response.
Mr. Bearden: Just look up and tell me. What was it?
Witness: Case knife.
Mr. Bearden: His what? What did he touch you with?
Witness: His — (long pause)
Mr. Bearden: His what?
Witness: His tongue.
Mr. Bearden: Can you point and show me where his head was?
Note: Witness points.
Mr. Bearden: You are pointing down between your legs?
Note: Witness nods affirmatively.
Mr. Bearden: Yes?
Witness: Yes.
Mr. Bearden: Could you feel him touching your private parts with his tongue, . . . ?
Witness: Yes.
Mr. Bearden: Did you see his private parts?
Witness: Yes.
Mr. Bearden: Yes? Did he touch you with his private parts, . . .?
Witness: Yes.
Mr. Bearden: Did he hurt you?
Note: Witness nods affirmatively.
Mr. Bearden: Yes?
Witness: Yes.
Mr. Bearden: Could you feel his private parts inside your private parts, . . . ?
Witness: Yes.

Similar exerpts could be presented from the testimony of the victim’s little brother. There were the same excruciating repetitions and long pauses, but he ultimately said his uncle, the appellant, “put his hand down there,” referring to his sister’s private parts, and he responded “Yes, sir” when asked if he had seen the appellant put his private part between the victim’s legs.

We find no error by the trial judge on this point.

2. Mother’s testimony

The objection to the mother’s testimony raised in this point occurred when she was asked by the deputy prosecutor: “What did she [the alleged victim] say to you?” The defense objected on the ground of hearsay, was overruled, and the mother responded, “She told me ‘my uncle raped me.’ ”

This statement by the alleged victim made as her mother confronted her just after the incident comes into evidence under the exception to the hearsay rule found in Ark. R. Evid. 803(2), which reads:

Hearsay Exceptions — Availability of declarant immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or conditions:

In Bryan v. State, 288 Ark. 125, 702 S.W.2d 785 (1986), we held that the father of a six-year-old boy could testify as to what the son told him after the incident when the father questioned him regarding the sexual offense allegedly committed on him by the appellant because it was an excited utterance under Unif. R. Evid. 803(2) which is now the Arkansas rule. We also allowed this type of testimony in other rape cases for the same reason. See Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). It has been approved in child sexual offense cases as well. See Weaver v. State, 271 Ark. 853, 612 S.W.2d 324 (Ark. App. 1981); Green v. State, 7 Ark. App. 175, 646 S.W.2d 20 (1983).

As the introduction of evidence is a matter within the sound discretion of a trial judge, in the absence of abuse of that discretion we will not reverse. Hamblin v. State, supra.

3. Sufficiency of the evidence

The appellant was charged with rape by sexual intercourse and deviate sexual activity under Ark. Stat. Ann. § 41-1803 (Repl. 1977), which was in effect in 1984, as follows:

(1) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(a) by forcible compulsion, or . . .
(b) who is less then eleven (11) years old.

Those terms were defined in Ark. Stat. Ann. § 41-1801 (Repl. 1977) as follows:

(1) ‘deviate sexual activity’ means any act of sexual gratification involving:
(b) the penetration, however, slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person.
(9) ‘sexual intercourse’ means penetration, however slight, of a vagina by a penis.

The evidence of penetration by either the appellant’s tongue, finger, or penis comes from the testimony of the victim and her brother, which is corroborated by the stipulated medical report. The appellant raised this objection by a directed verdict motion for acquittal based upon insufficient evidence of penetration. On appeal we view the evidence in the light most favorable to the party against whom the motion is made, and a directed verdict is only proper when there is no substantial evidence from which a jury could possibly find for the non-moving party. Norton v. State, 260 Ark. 412, 540 S.W.2d 588 (1976); Williams v. State, 260 Ark. 457, 541 S.W.2d 300 (1976).

The testimony of the alleged victim which shows penetration is enough for conviction. Stevens v. State, 231 Ark. 734, 332 S.W.2d 482 (1960). Penetration can be shown by circumstantial evidence, and if that evidence gives rise to more than a mere suspicion, and the inference that might reasonably have been deduced from it would leave little room for doubt, that is sufficient. Whitmore v. State, 263 Ark. 419, 565 S.W.2d 133 (1978).

The victim here testified to penetration by the appellant’s tongue, finger and penis. This was corroborated somewhat by the testimony of the brother and the stipulated medical report regarding the hymenal ring irritation. The alleged victim’s testimony need not, however, be corroborated to be sufficient. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980); Urguhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981); Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982); Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984); Kitchen v. State, supra.

Even though the child may not use the correct terms for the body part but instead uses his own terms or demonstrates a knowledge of what and where those body parts referred to are, that will be sufficient to allow the jury to believe that the act occurred. Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949).

As there was sufficient evidence of penetration given by the alleged victim and her brother, the judge properly denied the appellant’s motion for directed verdict.

4. Speedy trial

The appellant was arrested on September 3, 1984, and evaluated under orders of the trial court on two different occasions for competency. On October 14, 1985, the appellant filed a motion to be released from custody because of a violation of Rule 28.1 of Arkansas Rules of Criminal Procedure, which reads:

(a) Any defendant charged with an offense in circuit court and incarcerated in a city or county jail in this state pending trial shall be released on his own recognizance if not brought to trial within nine (9) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
(b) Any defendant charged with an offense in circuit court and incarcerated in prison in this state pursuant to conviction of another offense shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

The appellee admits the appellant was incarcerated for 284 days, in violation of Rule 28.1 (a). The appellant urges us to apply the remedy found in Rule 28.1(b). We decline to do so because Rule 30.1 (b) states that discharge is not a remedy for this violation. See Bell v. State, 270 Ark. 1, 603 S.W.2d 397 (1980); Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980).

Subsection (a) is mandatory, but if a judge refuses to release a defendant after nine months as provided in the rule, the remedy is to seek a writ of mandamus from this court. Cash v. State, 271 Ark. 881, 611 S.W.2d 510 (1981); Bell v. State, supra; Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983).

We have held that bail and release violations are not the sort for which we will reverse an otherwise valid conviction. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984).

As we are required to do in any case in which a life imprisonment sentence has been imposed, we have reviewed all objections abstracted by the appellant which were decided against him in the trial court, and we have found no error.

The judgment is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. In my opinion neither the alleged victim nor her five year old brother “testified” in this case. The mother of the alleged victim ramrodded the whole proceeding. It was the prosecutor who testified more than anyone else. The only way to portray the testimony accurately, or the lack thereof, is to set it out verbatim. While the alleged victim was on the stand, the following questions were asked by the prosecutor:

MR. BEARDEN: Julie, if you could, I want you to in your own words, and talking loud enough so these ladies and gentlemen over here can hear you, tell them what happened after your mother left.
NOTE: Long pause, no audible answer.
MR. BEARDEN: Nobody is going to hurt you. Just talk to the jury and tell them what you remember.
NOTE: Long pause, no audible answer.
MR. BEARDEN: What did your W.L. do? (Tr. 129-130)
NOTE: Long pause, no audible answer.
MR. BEARDEN: Can you look at the jury and tell them what he did? Nobody is going to hurt you. Just tell the truth.
NOTE: Long pause, no audible answer.
MR. BEARDEN: Julie, look at me. Tell these ladies and gentlemen what you remember about that night.
NOTE: Long pause, no audible answer.
MR. BEARDEN: Your momma went to get some Pampers, right?
NOTE: Witness nods head affirmatively.
MR. BEARDEN: Where were Sidney and Edward?
WITNESS: At home.
MR. BEARDEN: Huh?
WITNESS: At home.
MR. BEARDEN: At home? What room were they in?
WITNESS: In the bedroom.
MR. BEARDEN: Can you talk up just a little bit?
WITNESS: In the bedroom.
MR. BEARDEN: In the bedroom? Where was Uncle W.L.?
WITNESS: In the front.
MR. BEARDEN: In the front? Where were you?
WITNESS: In the front.
MR. BEARDEN: In the front? How did your two brothers get back into the bedroom?
NOTE: Long pause, no audible response.
MR. BEARDEN: Did somebody put them back there?
NOTE: Witness nods affirmatively.
MR. BEARDEN: Who put them back there?
NOTE: No audible response.
MR. BEARDEN: Remember who put them back there?
NOTE: Witness nods affirmatively.
MR. BEARDEN: Who?
WITNESS: Uncle W.L.
MR. BEARDEN: Uncle W.L.? Is that what you said?
WITNESS: Yeah.
MR. BEARDEN: Okay. What happened after W.L. came into the front room with you?
NOTE: Long pause, no audible response.
MR. BEARDEN: Just look up at me and just tell what you remember about it. Okay?
NOTE: Long pause, no audible response.
MR. BEARDEN: Tell me what you remember about it?
NOTE: Long pause, no audible response.
MR. BEARDEN: Does it embarrass you to talk about it?
NOTE: Witness nods affirmatively.
MR. BEARDEN: Julie, this won’t take long. Just look at these ladies and gentlemen over there and tell them what happened.
NOTE: Long pause, no audible response.
MR. BEARDEN: Did he do something?
NOTE: Witness nods affirmatively. (Tr. 131-132)
MR. BEARDEN: Yes?
WITNESS: Yes.
MR. BEARDEN: What did he do?
NOTE: Long pause, no audible response.
MR. BEARDEN: Do you remember?
NOTE: Witness nods affirmatively.
MR. BEARDEN: Just tell these ladies and gentlemen what you remember.
NOTE: Long pause, no audible response.
MR. BEARDEN: Can you look up at me?
WITNESS: Uh-huh.
MR. BEARDEN: Nobody is going to hurt you. Tell me what happened.
NOTE: Long pause, no audible response.
MR. BEARDEN: Can you remember?
NOTE: Witness nods affirmatively.
MR. BEARDEN: Just go ahead and tell me what happened so that they can hear you.
NOTE: Pause, no audible response.
MR. BEARDEN: Did he say anything to you?
NOTE: Witness nods affirmatively.
MR. BEARDEN: What did he say?
NOTE: Pause, no audible response.
MR. BEARDEN: Do you remember?
NOTE: Witness nods affirmatively.
MR. BEARDEN: Just tell the jury what you remember?
WITNESS: He said — (Tr. 132-133)
MR. BEARDEN: What did he say?
WITNESS: He said—
MR. BEARDEN: He said if what?
WITNESS: If —(long pause)
MR. BEARDEN: What did he say?
WITNESS: If you — (long pause)
MR. BEARDEN: He said if what?
NOTE: No audible response.
MR. BEARDEN: Look at the jury and tell them what he said.
NOTE: Long pause, no audible response.
MR. BEARDEN: Just tell them the truth.
WITNESS: He said if I — (pause)
MR. BEARDEN: If you what?
WITNESS: He said — (pause)
MR. BEARDEN: Go ahead and tell us what happened. Nobody is going to hurt you.
NOTE: Long pause, no audible response.
MR. BEARDEN: Did he say anything to you about what he was going to do if you told anybody?
NOTE: Witness nods affirmatively.
MR. BEARDEN: What did he say about that?
WITNESS: He said — (long pause)
MR. BEARDEN: What did he say about it?
WITNESS: He said that if I said something — (pause)
MR. BEARDEN: If you said something — what was he going to do?
NOTE: No audible response.
MR. BEARDEN: Did he have something in his hand, Julie?
NOTE: Witness nods affirmatively.
MR. BEARDEN: What, do you remember?
NOTE: Witness nods affirmatively.
MR. BEARDEN: What was it?
NOTE: No audible response.
MR. BEARDEN: Do you remember what it was?
NOTE: Witness nods affirmatively.
MR. BEARDEN: What was it? Tell me.
NOTE: No audible response.
MR. BEARDEN: Just look up and tell me. What was it?
WITNESS: Case knife.
MR. BEARDEN: Case knife?
NOTE: Witness nods affirmatively.
MR. BEARDEN: Did he have it in his hand?
NOTE: Witness nods affirmatively.
MR. BEARDEN: Let me show you this, Julie. Does this look like what you are talking about?
WITNESS: Yeah.
MR. BEARDEN: Is that the kind of knife you are talking about?
NOTE: Witness nods affirmatively.
MR. BEARDEN: What did he say he would do with it if you told anybody?
NOTE: Long pause, no audible response. (Tr. 134-135)
MR. BEARDEN: Did he say he would hurt you?
NOTE: Witness nods affirmatively.
MR. BEARDEN: Okay. Did he have this in his hand?
WITNESS: Yes.
MR. BEARDEN: Did it scare you?
NOTE: Witness nods affirmatively.
MR. BEARDEN: What did he do after that, Julie?
NOTE: No audible response.
MR. BEARDEN: Do you remember lying down?
NOTE: Witness nods affirmatively.
MR. BEARDEN: Did you have your clothes on?
NOTE: Witness shakes head negatively.
MR. BEARDEN: No? How did they get off?
NOTE: Long pause, no audible response.
MR. BEARDEN: Look up at me and tell me. This won’t take very long. How did they get off?
WITNESS: He — (long pause)
MR. BEARDEN: Tell me. Did Uncle W.L. have anything to do with your clothes?
NOTE: No audible answer.
MR. BEARDEN: Julie, did he, yes or no?
WITNESS: Yes.
MR. BEARDEN: Huh?
WITNESS: Yes.
MR. BEARDEN: Is that what you said, yes? (Tr. 135-136)
NOTE: Witness nods affirmatively.
MR. BEARDEN: What did he do with your clothes, Julie?
NOTE: No audible response.

It is clear from the above excerpt that this witness was unwilling to answer a question and did not know why she was in court.

It is also necessary to set out a sample of the state’s questions of Edward Brown, the five year old, and his responses.

MR. BEARDEN: How old are you?
WITNESS: Five.
MR. BEARDEN: You are five? You can talk louder than that, can’t you? How old are you?
WITNESS: Five.
MR. BEARDEN: Atta boy. How did you get here today?
NOTE: No audible response.
MR. BEARDEN: Did you drive or walk?
WITNESS: We drived.
MR. BEARDEN: You drove?
NOTE: Witness shakes head negatively.
MR. BEARDEN: How did you get here?
NOTE: No audible response.
MR. BEARDEN: Come on, sit up here. Answer my questions. Sit up straight. How did you get over here today?
WITNESS: We walked.
MR. BEARDEN: What is your teacher’s name?
NOTE: Pause, no audible response.
MR. BEARDEN: Did you forget?
NOTE: Witness nods affirmatively.
MR. BEARDEN: What grade are you in?
WITNESS: In kindergarten.
MR. BEARDEN: Kindergarten? Is this your first year in school?
WITNESS: Yes, sir.
MR. BEARDEN: Yes?
WITNESS: Yes, sir.
MR. BEARDEN: Alright. I want you to look up here at me, Edward. When is your birthday?
WITNESS: In January.
MR. BEARDEN: When?
WITNESS: January.
MR. BEARDEN: January?
NOTE: Witness nods affirmatively.
MR. BEARDEN: How far can you count? Show these ladies and gentlemen how good you can count.
WITNESS: 1, 2 —
MR. BEARDEN: Can you count to ten, Edward?
WITNESS: No.
MR. BEARDEN: That was good. Where do you live?
WITNESS: 7 and 1 /2 Dixon.
MR. BEARDEN: Where?
WITNESS: 7 and 1/2 Dixon.
MR. BEARDEN: 207 and 1 ¡2 Dixon?
WITNESS: Yeah.
MR. BEARDEN: Is that what you said?
WITNESS: Yeah.
MR. BEARDEN: I want you to look up now, Edward and talk straight to me so that these people can hear you. Who lives there with you.
WITNESS: My baby.
MR. BEARDEN: Your baby? Who else?
WITNESS: And my sister.
MR. BEARDEN: And did I ask you to come in here and tell the truth?
WITNESS: Yes, sir.
MR. BEARDEN: Did I try to get you to say something that wasn’t true?
WITNESS: No, sir.
MR. BEARDEN: Did I ask you to just come in here and say what you remember?
WITNESS: Yes, sir.
MR. BEARDEN: Is that what you intend to do today?
WITNESS: Yes, sir. (Tr. 158-159)
MR. BEARDEN: Do you understand that if you were to tell something wrong that wasn’t true, you might get into trouble?
WITNESS: No, sir.
MR. BEARDEN: Huh?
WITNESS: No, sir.
MR. BEARDEN: You don’t know that you might get into trouble if you tell a lie?
NOTE: Witness shakes head negatively.

The defense counsel cross-examined this witness in part as follows:

MR. BRADLEY: Do you know what you are in the courtroom for?
NOTE: Witness nods affirmatively. (Tr. 160-161)
MR. BRADLEY: What is that for?
NOTE: Witness shrugs shoulders.
MR. BRADLEY: You shrugged your shoulders. Do you know why you are in the courtroom?
NOTE: Witness shakes head negatively.
MR. BRADLEY: You are shaking your head no?
NOTE: No audible response.
MR. BRADLEY: You don’t know why you are in this Courtroom?
NOTE: Witness shakes head negatively.
MR. BRADLEY: You are shaking your head from left to right, no.
MR. BRADLEY: No further questions. I have the same objection here, Your Honor.

Therefore, during the cross-examination it was confirmed that this five year old witness did not know why he was in court.

More than 40 pages of testimony of these two young witnesses are abstracted. In all of this testimony there is no positive, unassisted testimony by either child which indicates that they were giving voluntary or positive testimony. The mother and prosecutor, through the mouths of these babies, did eventually coach them into “yes” or “no” answers on direct examination. This coerced testimony is insufficient to support the convictions.

The troublesome part of this case is that there is no supporting evidence to corroborate the alleged victim’s forced testimony. To the contrary, the examining doctor found the hymenal ring unbroken. Without breaking the hymenal ring, it is impossible to penetrate the vagina. This little girl is still a virgin. The crime lab report was negative for blood, hair, and semen. The mother testified clearly and unequivocally that she saw bleeding from the vagina. Such unfounded testimony may well have influenced the jury. It would have indeed been useless for the appellant to use a case knife to threaten the eight year old child. The five year old witness testified that he had a baby in the home.

The above errors are only a sample of the many which I find in this trial. Of all the cases cited in the majority opinion none is factually similar to the present case. The age of the children is the only similarity. The testimony given by these two witnesses, without the assistance of the prosecutor, was not sufficient to support a verdict of guilt. The testimony of the mother was either hearsay or opinion. I would reverse and remand because of the hearsay testimony of the mother and the prosecutor’s testimony through the children.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Thomas G. WILSON v. STATE of Arkansas
    CR 86-132
    720 S.W.2d 292
    Supreme Court of Arkansas
    Opinion delivered December 1, 1986

      Gibson Law Office, by: Charles S. Gibson, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant was tried upon three separate counts involving controlled substances. Two counts alleged that Wilson obtained specified controlled substances by subterfuge, a Class C felony. The jury acquitted Wilson of both those charges. The third count charged Wilson with a misdemeanor, that he knowingly and intentionally possessed a controlled substance, Talwin, in violation of Ark. Stat. Ann. § 82-2617(c) (Supp. 1985). Upon that count the jury found Wilson guilty and imposed a $900 fine. His appeal was lodged in this court as presenting a question about the statute of limitations, but we do not reach that issue.

Wilson was the administrator of a hospital at Lake Village. The State proved that on February 10, 1983, a physician authorized a nurse at the hospital to administer Tal win to the appellant, by injection. It is conceded that the prescription for the drug was valid. The prosecution’s evidence was that Wilson, instead of receiving the injection himself, persuaded the nurse to allow him to take the syringe containing the Tal win to his home, where he intended to deliver the syringe to his wife.

The appellant moved for a directed verdict on the ground that he did not unlawfully possess the drug because he obtained it pursuant to a valid prescription. The language of the statute on which the charge is founded clearly supports the appellant’s argument. The pertinent words are as follows:

(c) It is unlawful for any person to possess a controlled substance. . . unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice ....[§ 82-2617(c).]

The statute simply provides that possession of a controlled substance is unlawful unless the substance was obtained pursuant to a valid prescription. Wilson obtained the Talwin pursuant to a prescription; so his possession was lawful. The State admits that, but argues that the possession became unlawful when Wilson failed to use the prescription as directed; that is, to obtain an injection from the nurse. Hence, it is argued, we must look not only to the substance prescribed but also to the prescribed use of that substance. The State’s argument concludes: “If this court ignores the issue of prescribed use and holds for Wilson, prescriptions for controlled substances will become . . . peddler’s licenses for patients willing to sell their prescribed substances on the street.” Not so. Under subsection (a) of the same section it is made a felony for any person to possess a controlled substance with intent to deliver. For the commission of that felony it is immaterial whether the possession is lawful or unlawful, provided the intent to deliver exists. The present charge was merely that Wilson unlawfully possessed the drug, not that he intended to deliver it. His possession pursuant to a prescription was lawful. The motion for a directed verdict should have been granted.

Reversed and dismissed.


author: Jack Holt, Jr., Chief Justice.

text:
    FIRST STATE BANK OF SHERWOOD v. TWIN CITY BANK OF NORTH LITTLE ROCK
    86-121
    720 S.W.2d 295
    Supreme Court of Arkansas
    Opinion delivered December 8, 1986

      Gruber Law Office, by: Rita W. Gruber, for appellant.

      Friday, Eldredge & Clark, by: George Pike, Jr. and William A. Waddell, Jr., for appellee.
   Jack Holt, Jr., Chief Justice.

This case concerns the question of liability as between two banks victimized by a fraudulent scheme involving the use of documentary drafts. The trial court found that the bogus documentary drafts were not documentary drafts (as defined by the Uniform Commercial Code), but mere writings used in a fraudulent scheme. The court concluded that, although Twin City Bank, the payor/drawee bank, was late in returning the “drafts” unpaid to First State Bank of Sherwood, the depositary/collecting bank, the writings used in the scheme were not documentary drafts. As such, the court held the UCC provision making a payor bank accountable for late return did not apply and the depositary bank was left with the loss. We disagree and reverse and remand. This case was certified to this court by the court of appeals pursuant to Sup. Ct. R. 29(1 )(c) and (4)(b).

Joseph Tucker, d/b/a Tucker’s Used Cars, was a customer of First State Bank of Sherwood (FSB), appellant. Tucker wrote and presented to FSB three drafts payable to Tucker’s Used Cars on the account of Bobby Brant of B&B Auto Sales, a customer of appellee, Twin City Bank of North Little Rock (TCB). The drafts were written on the backs of envelopes, which were represented as containing car titles to be delivered against honor of the drafts. Although it was later discovered that there were no car titles inside the envelopes, the drafts appeared regular on their face. FSB, unaware of the bogus nature of the drafts, gave Tucker immediate credit upon presentment. FSB then forwarded the drafts to appellee Twin City Bank (TCB), which held the account upon which the drafts were drawn.

The transmittal letter sent with the drafts instructed the payor bank, TCB, not to hold them for over 48 hours. The trial court found through testimony that FSB extended this time limit to three days. The first two drafts were received by TCB on June 21, 1982 and returned unpaid and marked “Customer refused” on June 25, 1982. A notation on the letter indicated that TCB called, presumably to give notice, on June 24. The third draft was received by TCB on June 24,1982 and returned unpaid on July 1, 1982.

FSB sought to recover $26,150, the full amount of the three drafts, under Ark. Stat. Ann. § 85-4-302 (Repl. 1961), which states:

Payor bank’s responsibility for late return of item. In the absence of a valid defense such as breach of a presentment warranty (subsection (1) of Section 4-207), settlement effected or the like, if an item is presented on and received by a payor bank the bank is accountable for the amount of
(a) a demand item other than a documentary draft whether properly payable or not if the bank, in any case where it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, regardless of whether it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline; or
(b) any other properly payable item unless within the time allowed for acceptance or payment of that item the bank either accepts or pays the item or returns it and accompanying documents. [Acts 1961, No. 185, § 4-302.]

Contrary to the findings of the trial court, the writings in question were, in fact, documentary drafts. Documentary drafts are defined as “any negotiable or non-negotiable draft with accompanying documents, securities or other papers to be delivered against the honor of the draft.” Ark. Stat. Ann. § 85-4-104(l)(f).

The trial court held that neither the discovery of the fraudulent character of the drafts nor the return of the notices of dishonor by TCB was within the time specified, but that the claim of FSB should fail because “the ‘drafts’ handled by it and for which it now seeks recovery were not in fact drafts but to the contrary were mere writings used in a fraudulent scheme.” We hold that because these items were, on their face, documentary drafts, which were not known by FSB to be unauthorized until TCB tardily sent notice of their fraudulent nature, the strict requirements of § 85-4-302(b) apply and make TCB accountable for the drafts. Hamby Co. v. Seminole State Bank, 652 S.W.2d 939 (Tex. 1983); Union Bank of Benton v. First National Bank, 621 F.2d 790 (5th Cir. 1980).

TCB contends that § 85-4-302(b) is inapplicable because these drafts were not “properly payable” as required by that section. Such is not the case. Joseph Tucker, had on other occasions, drawn drafts on Bobby Brant’s account and in this instance the documentary drafts were regular on their face. FSB had a right to assume that if these drafts were not returned unpaid within the time specified that they were authorized and therefore properly payable. Because it was late notifying FSB, TCB is accountable for the amount of the documentary drafts.

TCB also argues that the trial court should be affirmed because FSB failed to use ordinary care in giving immediate credit to Tucker, and because FSB has already recovered from Tucker any losses it suffered. The trial court did not reach these issues because of its decision that FSB had no cause of action under § 85-4-302(b). Even if the evidence reflects that FSB was negligent, this argument would fail because the liability created by § 85-4-302(b) is a statutory liability and is independent of liability based upon negligence. Union Bank of Benton, supra; New Ulm State Bank v. Brown, 558 S.W.2d 20 (Tex. 1977); Hamby, supra. This principle was explained in State and Savings Bank v. Meeker, 469 N.E.2d 55 (Ind. App. 1984) as follows:

Also, it is crucial that business transactions involving negotiable instruments become final at a certain point and therefore the U.C.C. imposes automatic liability after the passage of specific time limits. . . . If banks were allowed to retain instruments beyond the time specified in the U.C.C. and avoid liability on equitable grounds, finality and certainty would not exist in the business world. Therefore, State and Savings Bank cannot avoid the strict liability imposed by U.C.C. 4-302 on equitable grounds.

The only defenses available to TCB would be a breach of the presentment warranty by FSB, or those defenses found in § 85-4-108(2), which TCB has not asserted. Hamby, supra.

If TCB’s final assertions are correct, FSB should not be allowed to recover twice for the loss incurred by giving credit on the bogus drafts. Starcraft Co. v. C.J. Heck Co. of Texas, Inc., 748 F.2d 982 (5th Cir. 1984); State and Savings Bank, supra; Hamby, supra. Because the trial court did not reach this issue, it should be decided on remand to what extent, if at all, FSB has been compensated for its loss through other sources. Union Bank of Benton, supra.

Reversed and remanded.


text:
    Dwight David LOWE v. STATE of Arkansas
    CR 86-66
    720 S.W.2d 293
    Supreme Court of Arkansas
    Opinion delivered December 8, 1986

      Jones, Tiller & Walker, by: Marquis E. Jones, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

At issue in this case is whether the appellant’s right to a speedy trial has been violated. We hold that he was denied a speedy trial, reverse the trial court’s decision to the contrary, and dismiss the charges against him.

The appellant was charged by information with theft of property on June 6, 1984. He was arrested on June 7, 1984, and released on bond. He filed a motion for discovery on August 22, 1984. On January 31, 1986, appellant filed a motion to dismiss the charges on speedy trial grounds. That motion was denied on February 4,1986. The trial judge did not state any reasons for the denial. Appellant filed an interlocutory appeal of that decision with this court, although a writ of prohibition is the proper method of challenging the trial court’s ruling. Ark. R. Crim. P. Rule 28.1 (d). In disposing of this matter, we will treat this appeal as a petition for a writ of prohibition and decide the case on the merits. See Norton v. State, 273 Ark. 289, 618 S.W.2d 164 (1981).

Arkansas R. Crim. P. Rule 28.1(c) states:

Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, including release from incarceration pursuant to subsection (a) hereof, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Rule 28.2(a) provides that the time for trial shall commence running from the date the charge is filed unless circumstances exist that are not applicable here. Rule 28.3 lists excluded periods, but none are alleged by the state and none can be found in the court order, or elsewhere in the record.

Rule 30.1 reads as follows:

[A] defendant not brought to trial before the running of the time for trial, as extended by excluded periods, shall be absolutely discharged. This discharge shall constitute an absolute bar to prosecution for the offense charged. . .

Once the speedy trial rules have been prima facie violated, the burden is upon the state to show good cause for the untimely delay. Glover v. State, 287 Ark. 19, 695 S.W.2d 829 (1985). The state has not met its burden in this case in that no reasons are cited for the delay. In fact, the Attorney General’s office rightfully concedes error on the part of the trial court.

Accordingly, the decision of the trial court is reversed and the charges against appellant are dismissed.


text:
    James Kevin DYER v. STATE of Arkansas
    CR 86-113
    720 S.W.2d 297
    Supreme Court of Arkansas
    Opinion delivered December 8, 1986

      John W. Settle, by: J. Fred Hart, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant, James K. Dyer, aged 31, was convicted of three charges of kidnaping and one of rape committed by forcible deviate sexual activity. The jury imposed four life sentences, with the court making the rape sentence run consecutively to the three concurrent kidnaping sentences. The three arguments for reversal question Dyer’s competency to stand trial, his capacity to commit the crimes, and the sufficiency of the proof that the children were kidnaped. We affirm.

The prosecutrix testified that as she finished putting her children, both under three, in her car at a Fort Smith bowling park, Dyer came up with an open pocket knife and forced her to drive him out a highway. While threatening her with the knife and once holding it to one child’s throat, Dyer showed the prosecutrix pornographic pictures, said he wanted to do those things with her, and forced her to remove her upper clothing as she drove. He made her stop the car and perform oral sex upon him. He then ordered her to get out of the car with him. Two passing motorists saw the prosecutrix almost unclothed and being threatened by Dyer. They stopped, overpowered Dyer, and had another motorist call the police.

Before the trial began the trial judge held a hearing upon defense counsel’s oral request that Dyer be found incapable of standing trial. The evidence adduced by both sides was fully sufficient to support the court’s refusal to find Dyer unfit for trial. It was shown that he is somewhat mentally retarded, was twice severely burned during childhood, and has a substantial speech defect. His mother could not control him. From the age of 13 Dyer spent most of his time in the care of public institutions, including the Children’s Colony and Rogers Hall. He did not learn to read or write. After Dyer’s mother and two sisters had testified, Dyer himself testified at some length. Although he showed a lack of knowledge about how long 40 years is, what was going to happen at the trial, what a prison looks like, and other matters, he testified that he remembered the incident and knew he broke the law and did wrong. He evidently understood the many questions and gave coherent answers. The State presented the written findings of Dr. Ragsdill, a psychiatrist who had treated Dyer at the State Hospital. Three days after Dyer was first committed on August 26, 1985, the doctor wrote a letter to the trial judge stating that Dyer was not able to cooperate effectively with an attorney and recommending that the charges be dropped and a treatment commitment be issued. After further examinations and treatment, Dr. Ragsdill wrote on October 27 that Dyer was able to comprehend the charges and effectively assist his attorney. The doctor found that Dyer had understood the criminality of his conduct and did not lack the capacity to conform his conduct to the requirements of the law. The diagnosis was mild mental retardation and antisocial personality traits. The defense produced no expert testimony.

On the issue of Dyer’s capacity to commit the offenses, the jury heard much the same testimony during the course of the trial. In addition, Dr. Ragsdill was called as a defense witness and on cross examination repeated the substance of his second letter, affirming Dyer’s capacity. The prosecutrix’s detailed account of the protracted incident supports the conclusion that Dyer knew exactly what he was doing. Neither of the first two points has merit.

On the third point it is argued that the State failed to prove that the two children were kidnaped, because the testimony did not prove either that the children were restrained of their liberty or that any such restraint was for one of the purposes enumerated in the Criminal Code. Ark. Stat. Ann. §§41-1701 and -1702 (Repl. 1977). Under the Code, a person commits the offense of kidnaping if without consent he restricts another person so as to interfere substantially with his liberty, with the purpose of “facilitating the commission of any felony.” § 41-1702(l)(c). “Restraint without consent” includes restraint of a person under 14 without the consent of a parent. §41-1701(2). There can be no question about Dyer’s having restrained the prosecutrix for the purpose of committing rape, as charged. The jury was instructed on the issues and could readily have found from the testimony that the children were restrained of their liberty by being kept in the car throughout the episode and that the restraint was for the purpose of facilitating the commission of the principal offense. There is no requirement in the statute that the persons being restrained, here the children, must be the intended victims of the particular felony which the restraint facilitates. The proof was sufficient to support the verdicts.

This being a life-imprisonment case, we have examined all the objections brought to our attention and find no prejudicial error.

Affirmed.


author: Darrell Hickman, Justice. David Newbern, Justice,

text:
    Johnny York DOBY v. STATE of Arkansas
    CR 86-93
    720 S.W.2d 694
    Supreme Court of Arkansas
    Opinion delivered December 8, 1986

      William R. Simpson, Jr., Public Defender, by: Carolyn P. Baker, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Johnny York Doby was convicted of possession of a controlled substance with intent to deliver and theft by receiving a pistol. Having eight prior felony convictions, he was sentenced to a total of 40 years imprisonment.

On appeal he argues that an oral confession used against him was not voluntarily given. He also argues that the court was wrong in refusing to instruct the jury that it could find him guilty of a lesser crime of possession of a controlled substance. These are his legal arguments. Actually, on the witness stand, Doby denied possessing any drugs, having a pistol, or making a statement to the police. His defense was that there was no truth at all to the state’s case.

We affirm the trial court’s decision that the confession was admissible and find the court was right in refusing the instruction because there was no rational basis to give it.

After Doby was arrested and taken to the police station, Detective Sam Williams of the Little Rock Police Department informed him of his rights several times. Williams testified that Doby acknowledged knowing his rights and waived the right to counsel. He said Doby declined to make a written statement but agreed to make an oral statement and did not object to Williams making notes. Williams also said that Doby admitted having the drugs, which consisted of 84 Dilaudid tablets, 44 Valium tablets, and two PBZ tablets. Williams testified from his notes that Doby told him that he sold the Dilaudid for $45.00 each and the Valium for $ 1.00 to $ 1.50 each. He also stated that Doby told him that the .38 caliber snub nose revolver was needed for his protection and that he bought the gun for $30.00 worth of cocaine. Doby admitted to Williams that he sold cocaine in small amounts.

Detective Williams testified that he used no coercion. He further stated that while Doby seemed “weak”, he did not observe any cuts or bruises and did not know if Doby had been struck several times by a police officer. He said Doby never told him he was in pain, never mentioned that he had cancer, and did not appear to be under the influence of any intoxicants.

The arresting officer, Hardy Wayne Forrest, said he knew Doby from previous contacts, having arrested him about a week before this arrest. According to Forrest, he arrested Doby about 9:15 p.m. on April 13, 1984, when he responded to a call about a prowler. When he arrived, he saw Doby walking down the street, he asked him to stop and identify himself and Doby began to run. Forrest chased him, and when he caught up with him, Doby pulled a gun. Forrest told Doby to drop the gun or he would shoot; Doby started to walk away. He was told again to stop and drop the weapon and finally he did.

According to Forrest, when he was handcuffing Doby, Doby resisted and tried to escape. When Doby began to fight, he used force to wrestle him to the ground. Forrest called for assistance. A police cadet was with Forrest at the time. Forrest admitted he struck Doby several times but that he only did so to overcome Doby’s resistance. He denied using a club or flashlight to hit Doby and saw no cuts or bruises on him. He said he checked the weapon and found it had been reported stolen in October 1983. The owner of the gun, who was familiar with guns, later testified that it was worth $200.00 or more.

Doby’s testimony conflicted sharply with the officers’ testimony. He said he did not have a gun, did not resist arrest or have in his possession any drugs. He said he was struck before he was placed in the police vehicle and then was later taken out of the vehicle, searched and beaten. He said he was struck several times with a flashlight after he was handcuffed, and several officers were involved in this beating. He said he was beaten again at the police station, and the officer had to be restrained by other officers. He said that after the handcuffs were removed, this same officer tried to hit him again; but he ducked and the officer struck the wall. He pointed to a bandage on Forrest’s hand as evidence of that blow.

Doby said he was advised of his rights, but he was groggy, in a state of shock, and in some pain from his cancer. He said he had Hodgkins’s Disease, a form of cancer. He denied that he agreed to make a statement and said the officer did not tell him their conversation would be used against him. He denied that the officer asked him if he could take notes. He also denied he ever made a statement.

Doby agreed that no promises or threats were made but said he was beaten. Forrest testified in rebuttal that Doby was never struck while.handcuffed, or with a flashlight, or at the station. He said the ace bandage on his hand was put there because he strained his hand during the scuffle with Doby. He also added that the gun was loaded.

The trial judge sharply questioned the officers during their testimony. At the conclusion of the evidence, he observed:

You were a lot better off before Mr. Doby testified, Mr. Simpson [counsel for the defendant]. I just don’t find him to be worthy of any belief... I just will not accept as truth his version of the incident. The one that I viewed as being very close before .... I’m more convinced of the truthfulness of the police officers. And I feel like the circumstances are such that the defendant was properly advised of his constitutional rights. That he made a voluntary statement.... Those statements will be permitted to be used against him in any kind of forthcoming trial.

Two arguments are made by Doby concerning the confession: it was not voluntary because he was weak and sick and was beaten before giving it, and because, after he was advised of his rights, he expressly stated that he did not wish to write a statement. In Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985), we said:

On appeal, this court makes an independent determination of the voluntariness of a confession, but we do not set aside the trial judge’s finding unless it is clearly against the preponderance of the evidence. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). The burden is on the state to show that the statement was made voluntarily, freely, and understandably, without hope of reward or fear of punishment. Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979). Conflicts in the testimony as to voluntariness are for the trial court to resolve. Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983).

In this case we have an obvious situation where the trial court’s finding on credibility should be given due consideration. Doby’s testimony removed any doubts the judge may have had about the voluntariness of the confession. We cannot say the trial court was clearly wrong, and considering the totality of the circumstances, we agree with its findings.

Doby’s second argument also fails because of his testimony. He argues that, as a matter of law, he was entitled to have the jury instructed that it could find him guilty of the lesser offense of possession of a controlled substance. The trial court said it would make no sense to give such an instruction because Doby denied ever possessing any drugs, much less with the intent to sell. Actually, Doby wants the benefit of the possibility that a jury might return a finding of a lesser offense and lesser punishment even though he denies he is guilty.

Doby argues that the jury was entitled to disbelieve him and believe only part of the officers’ testimony. Doby referred to his cancer but offered no proof of it. He also referred to the fact that he used Valium and Dilaudid but offered no proof of a prescription. Indeed, the state offered evidence that the normal dosage of Dilaudid was an eight to ten day supply at the most, and one four milligram tablet (which is the size tablet found on Doby) would be the most anyone could take at one time.

Doby rested his entire defense on his credibility against that of the officers. So as a practical matter, it came down to whom should the jury believe. There would be no rational basis to find the officers lied in part in this case. Their testimony so sharply conflicted with Doby’s that it would not be reasonable to expect a jury to pick and choose and come up with a finding of a lesser offense when to do so would require a finding that Doby was a liar and the officers liars in part. If Doby had admitted possessing the drugs, it might make sense to require the charge of the lesser offense. But his defense was that he was entirely innocent of any crime: he possessed nothing. Therefore, the jury only had one question to decide, whether he was guilty as charged.

Doby relies on two recent court of appeals’ decisions for his argument: Flurry v. State, 18 Ark. App. 64, 711 S.W.2d 163 (1986); Holloway v. State, 18 Ark. App. 136, 711 S.W.2d 484 (1986). In Flurry the charge was rape, and the defense was a total denial of any crime. The court of appeals decided it was error to refuse to give a lesser included offense instruction of carnal abuse in the third degree. The court said there was a rational basis but did not say exactly what it was. Instead, the court discussed several cases and seemed to rely on language in Fike v. State, 255 Ark. 956, 504 S.W.2d 363 (1974), which says a jury can believe or disbelieve anything. We are reversing Flurry this date on review.

In Holloway the charge was aggravated assault, and the court, again, held it error to fail to give a lesser offense instruction on lesser assaults. The defense was alibi. The court of appeals justified reversing the case because there was no direct evidence that the gun was loaded. Again, the opinion seems to rely on the language from the Fike case. The Fike case was decided before Ark. Stat. Ann. § 41-105 (3) (Repl. 1977) was adopted as part of the Criminal Code, effective January 1, 1976.

Our recent cases are entirely inconsistent with the rationale of these court of appeals’ cases. In Frederick v. State, 258 Ark. 553, 528 S.W.2d 362 (1975), the charge was assault with intent to rape. We rejected the argument that a lesser charge of simple assault should have been submitted to the jury, finding that it was a question of being guilty of assault with intent to rape or nothing at all. We refused to apply the broad language of the Fike case. In Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981), the charge was first degree murder. A manslaughter instruction was requested. The defense was that the shooting was accidental or in self-defense. We relied on Ark. Stat. Ann. § 41-105 (3) and held under those circumstances a manslaughter instruction would have been useless, since there was no rational basis for it: it was first or second degree murder or nothing at all. In Smith v. State, 277 Ark. 403, 642 S.W.2d 299 (1982), the charge was aggravated robbery. The defendant denied entirely the charge. A lesser instruction on robbery was sought. We found no error in denying this request. We held again there must be some rational basis to give such an instruction, and, obviously, there was none. Smith was guilty of aggravated robbery or he was innocent. Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984), involved a charge of burglary and theft of property. The defense was alibi: he was not there to commit any offense. We found no error in denying a request for a lesser offense instruction on theft by receiving. There was no rational basis for it. According to the appellant, he had received the allegedly stolen goods several years before they were stolen. The appellant’s own testimony was inconsistent with such a charge. So it made no sense to confuse the jury.

We have the same case before us as a matter of principle. Doby denied he even possessed any drugs or a gun. It was a case of all or nothing.

There is little doubt that the court of appeals is going in a different direction than we are on this principle of law. When the Flurry and Holloway cases are laid beside our recent cases, there is an obvious difference in approach to the problem and resolution of it. For that reason, the Flurry and Holloway cases are overruled on the principle of law at issue here: a lesser included offense instruction need not be given unless there is a rational basis.

Affirmed.

Purtle, Dudley, and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. The majority opinion suggests that if the jury disbelieves the appellant’s testimony it must believe all of the testimony presented by the appellee’s witnesses if any of it is credible. The only justification offered for this conclusion is the sharp contrast between the police testimony and that of the appellant. That justification has no logical foundation but plays only on the facts of this case. If we are to be consistent in following this justification, we will presumably require a lesser included offense instruction when the contrast in testimony is less stark. However, I do not believe that is the reading to be given the majority opinion. It will be construed as holding that anytime a criminal defendant denies having committed any of the acts with which he is charged he is entitled to no instructions on lesser included offenses. That construction will deprive the jury of avenues it might take in its search for the truth. I find no rational basis for saying a jury must take an all-or-nothing approach in these circumstances. The lack of logic in the majority opinion’s position is amply demonstrated by considering its fundamental proposition: Because the jury (and the trial judge) thought everything the appellant said was untrue, everything said by the state’s witnesses was true.

It surely does no harm to require instruction on lesser included offenses, and I see no reason not to do so unless under no construction of the law with respect to the facts presented by the prosecution could a lesser included offense have been committed. I do not subscribe to the majority opinion’s conclusion that jurors will just be “confused” when a lesser included offense instruction is given. I believe them capable of making the required distinctions.

In Fike v. State, 255 Ark. 956, 504 S.W.2d 363 (1974), an issue was whether one accused of assault with intent to rape was entitled to an instruction on the lesser included offense of assault. In that case, the accused did not testify, but we said:

In the case at bar, it is not questioned that the prosecutrix’s testimony is sufficient to sustain the verdict of assault with intent to rape. However, the jury has the sole prerogative to accept all or any part of a witness’ testimony whether controverted or not. Therefore, the jury had the absolute right, as trier of the facts, to evaluate the evidence and consider whether only an unlawful assault was committed upon her by appellant or even acquit him. The trial court should have given the instruction relating to the lesser included offense. . . . [255 Ark. at 959, 504 S.W.2d at 365, emphasis added.]

It is true, as the majority opinion says, that Fike v. State, supra, was decided prior to the adoption of Ark. Stat. Ann. § 41-105(3) (Repl. 1977) which states that there must be a rational basis for requiring the giving of an instruction on a lesser included offense. That fact is, however, insignificant for, as the commentary to the statute observes, the statute was intended to adopt the conclusion we reached in that respect before the code’s adoption, citing Caton and Headly v. State, 252 Ark. 420, 479 S.W.2d 537 (1972).

The majority opinion’s citations to Frederick v. State, 258 Ark. 553, 528 S.W.2d 362 (1975); Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981); and Smith v. State, 277 Ark. 403, 642 S.W.2d 299 (1982), are all unpersuasive, because in each of them the state’s undisputed evidence showed that the crime charged was committed and that if the appellant committed any of it he committed all of it. In none of those cases was it said that the appellant’s denial of participation in the crime made it unnecessary to instruct on a lesser included offense.

The only case cited by the majority opinion, the holding of which supports its position, is Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984). In that case the appellant was charged with burglary and theft of property, and the appellant argued on appeal he was entitled to an instruction on the lesser included offense of theft by receiving. He put on three alibi witnesses whose testimony was that the appellant had been in possession of one of the allegedly stolen items since before the theft occurred. This court said, “[s]ince the appellant’s position was that he was innocent of any theft, his request for the lesser included offense of theft by receiving was not rational.” That opinion was wrong, and it was as illogical as the majority opinion here. Rather than making the “rational basis” determination by evaluating the state’s evidence against the accused, as had the previous cases, the opinion subtly shifted the emphasis to the evidence presented by the accused. The result of this kind of thinking is that a plea of not guilty obviates the necessity of giving a lesser included offense instruction. The response to that assertion may be that we will only decline to require it when the accused testifies or presents other evidence denying his guilt. Again, this has the effect of denying the jury an opportunity to evaluate the state’s evidence except to say it is all true or all false.

The prosecution will be hurt in some cases as much as the accused will be hurt in others by this illogical and unnecessary ruling. Presumably there will be cases where the state’s evidence would be strong enough to convince a jury to convict of a lesser included offense but not of the offense charged. The trial court, reading Roberts v. State, supra, and the majority opinion here, may decline to give the lesser included offense instruction, because of the accused’s testimony denying guilt, and thus deprive the jury of the opportunity to convict the accused of an offense of which he has been proven guilty. It makes no sense to me, and therefore, I respectfully suggest that Roberts v. State, supra, should be overruled and we should return to the reasonable practice of determining whether there is a rational basis for instructing on a lesser included offense by looking to the state’s evidence to determine whether, as a matter of fact, an instruction on a lesser included offense would be justified.

Purtle and Dudley, JJ., join in this dissent.


text:
    Lonnie FLURRY v. STATE of Arkansas
    CR 86-105
    720 S.W.2d 699
    Supreme Court of Arkansas
    Opinion delivered December 8, 1986

      Person & VanWinkle, by: J. Randolph Shock, for appellant.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

We granted review of the court of appeals’ decision to reconcile the decisions of our two courts on the question of giving a lesser included offense instruction when there is no rational basis for it. In this case the court of appeals decided the trial court committed error when it refused to give a lesser included offense instruction. We reverse that decision. Flurry v. State, 18 Ark. App. 64, 711 S.W.2d 163 (1986). Contemporaneously with our decision, in Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), we overrule the case of Holloway v. State, 18 Ark. App. 136, 711 S.W.2d 484 (1986). In Doby we set out the cases we have decided on this issue and compare them with the court of appeals’ decision in Holloway and in this case. Our cases are decidedly contrary to the court of appeals’ decisions and, therefore, two court of appeals’ decisions must be overruled.

The evidence in this case focused on a rape charge against Lonnie Flurry involving his 14 year old daughter. The facts are set out in full in the court of appeals’ decision. She testified that her father began having intercourse with her regularly when she was in the eighth grade. The incident which brought about the rape charge occurred on March 10, 1984. Flurry’s defense was one of complete innocence and that nothing improper occurred between him and his daughter. Nevertheless, he requested jury instructions on the lesser included offenses of carnal abuse in the third degree and sexual misconduct. The difference between these offenses and rape, which we are concerned with, is the element of forcible compulsion; that is, Flurry asked for the jury to consider whether he was guilty of having intercourse with his daughter without force. The trial court found there was no rational basis to give the instructions because Flurry was either guilty of rape or innocent of any wrongdoing since Flurry denied any crime occurred.

The court of appeals concluded that the trial court should have instructed the jury that it could consider whether Flurry was guilty of the lesser included offense of carnal abuse in the third degree. Evidently, this would mean that a jury might conclude from the testimony of the daughter that she consented to sexual intercourse on March 10, 1984.

The court of appeals based its decision on language in Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980), and Fike v. State, 255 Ark. 956, 504 S.W.2d 363 (1974). The Fike decision was made before the statute in question was adopted as part of the Criminal Code, effective January 1, 1976. For the first time, a court was not obligated to give a lesser offense instruction unless there was a rational basis. In Robinson, we found a basis for giving a lesser offense instruction. As we explained in Doby v. State, where the defendant denies any act occurred, there may be no rational basis for a lesser offense instruction. Ark. Stat. Ann. § 41-105 (3) (Repl. 1977); Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984). In this case there was none.

We are not dealing with consenting adults in this case; we are dealing with a case of a father accused of raping his young daughter with evidence that it had been going on for some years. It is inconceivable to us, but if the father in this case had defended the charge on the basis of his daughter’s consent, he might have an argument. But on the facts we have before us, the trial court correctly refused the requested instruction.

The only other issue we need address is whether the trial court correctly granted the state’s motion in limine, preventing the defense from bringing to the jury’s attention other sexual acts by the victim. The trial court ruled that under the Rape Shield Statute, codified at Ark. Stat. Ann. § 41-1810.1 et seq. (Repl. 1977), the victim’s sexual acts with persons other than Flurry would not be considered in Flurry’s trial. See Eskew & Bolton v. State, 273 Ark. 490, 621 S.W.2d 220 (1981). The defense argued, and the court of appeals agrees, that since these alleged acts occurred after March 10, 1984, these acts were not “prior acts” under the statute and therefore could be considered.

The trial court correctly excluded the evidence. The Rape Shield Statute was intended to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges, paraded before the jury and the public, when such conduct is irrelevant to the defendant’s guilt. The “prior” acts mentioned in the statute do not refer to sexual acts occurring before the incident in question, but merely any sexual conduct by the victim. Kemp v. State, 270 Ark. 835, 606 S.W.2d 573 (1980), does not hold that the Rape Shield Statute only concerns sexual conduct before the date of the alleged crime.

Flurry also argues that the trial court erred in not listening to the tape recording of a conversation between the victim and her stepmother before ruling on the state’s motion in limine as required by Ark. Stat. Ann. § 41-1810.2 (Repl. 1977). After granting the motion, the trial court allowed Flurry to proffer for the record the content of the tape. Flurry had already summarized the content of the tape in response to the state’s motion. Flurry stated one purpose for the tape’s introduction was to establish a motive for the victim to leave home because her parents were too strict.

The trial judge’s ruling on the motion did not preclude the defense from bringing up such evidence. The trial judge stated that he would rule on those questions when they arose. During cross-examination, the defense asked the victim about her motive for the charge. No attempt was made by the defense to use the tape to prove her motive. The defense has demonstrated no prejudice by the trial court’s ruling. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). Furthermore, the defense did not file a motion before trial as required by Ark. Stat. Ann. § 41 -1810.2 to determine the admissibility of this evidence. See Small v. State, 276 Ark. 26, 631 S.W.2d 616 (1982). We find no prejudicial error in the trial judge’s action.

Because of the two errors stated above, we reverse the judgment of the court of appeals and reinstate the original judgment and conviction entered. We agree with the court of appeals’ treatment of the other issues.

Purtle, Dudley, and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. All of the reasons for my disagreement with the majority are stated in my dissenting opinion in the companion case, Doby v. State, 290 Ark. 408, 720 S.W.2d 694, being released today. However, I cannot resist pointing out that, as in Doby v. State, supra, the majority opinion plays on the facts with less emphasis given to that which should receive the attention of an appellate court, that is, the law. We must ever bear in mind that our job is to leave factual determinations to trial judges and jurors while we determine how they fit with statutes and precedential decisions.

The majority opinion notes that the appellant was found by the jury to have engaged in sexual intercourse with his fourteen-year-old daughter. The majority opinion, however, then states it is “inconceivable to us” that the appellant could defend on the basis she could have consented. Whether she consented is a factual determination which, in this case, the jury should have been allowed to make.

The general assembly has established fourteen as the age of consent, Ark. Stat. Ann. § 41-1803(c) (Supp. 1985), and it makes no exception for parent-child intercourse. Whether it is “inconceivable to us” is thus irrelevant unless the facts presented by the state showed forcible compulsion and no rational alternative. If the state had, for example, shown the victim to have been beaten or threatened into submission and that the person who engaged in sexual intercourse with her was the same person who did those things, then I would agree there would have been no rational basis for any instruction on a lesser included offense. That was not the case here.

For the reasons stated in my dissenting opinion in Doby v. State, supra, I conclude we should not determine the propriety of lesser included offense instructions on the basis of the accused’s denial of guilt.

Purtle and Dudley, JJ., join in this dissent.


author: John I. Purtle, Justice.

text:
    Larry WHITE v. APOLLO-LAKEWOOD, INC.
    86-102
    720 S.W.2d 702
    Supreme Court of Arkansas
    Opinion delivered December 8, 1986

      Leon N. Jamison, for appellant.

      Bridges, Young, Matthews, Holmes & Drake, for appellee.
   John I. Purtle, Justice.

The lower court granted appellee’s motion to dismiss appellant’s complaint, stating that the court did not have jurisdiction because the rights and remedies pursuant to the workers’ compensation act constitute the exclusive remedy between employer and employee for death or injury arising out of and in the course of employment. The trial court was correct.

The complaint alleged the appellee-employer deliberately and intentionally assigned the appellant-employee to duties which were known to almost certainly cause injury to the employee. The allegations included not only the failure to warn the employee of dangerous conditions, but also the concealment of the nature of those conditions from the employee. The complaint alleged fraud, deceit and wilful and wanton conduct by the employer. It was also alleged that the employer concealed the nature of the injuries from the employee even after such injuries caused the employee to be hospitalized.

The employer accepted the injury caused by the inhalation of toxic fumes as one covered by the workers’ compensation act and benefits were paid to the employee pursuant to the act. After the appellant was injured the first time he was again required to do the same work with the same exposure. The facts of this case, as alleged, indicate the employer knew there was danger of injury to his employees simply by working in the plant. The plant produced agricultural chemicals.

Although the complaint, as amended, alleged wilful and intentional infliction of emotional distress, outrage, fraud, deceit and about everything else that could have been alleged, the genesis of all such allegations was the nature of the work in the chemical plant. We have dealt with this issue in the cases of Cain v. National Union Fire Insurance Co., 290 Ark. 240, 718 S.W.2d 444 (1986), and Miller v. Ensco, Inc., 286 Ark. 458, 692 S.W.2d 615 (1985). In Cain, the bad faith action was based upon the refusal of the insurance carrier to pay a claim on time. There we held that the remedies under the workers’ compensation act were the exclusive remedies for failure to timely pay medical expenses incurred by an injured employee, and that the tort of bad faith was not separately actionable.

In Miller we considered a factual situation very close to the present appeal. There it was claimed the employer committed an intentional tort by requiring the employee to work in an unsafe place and by causing him to be directly exposed to the chemical PCB. In Miller, we again held that the workers’ compensation act was the exclusive remedy for injuries arising out of and in the course of the employment. Regardless of the description, character, or style of the complaint in circuit court, the injuries in this case obviously arose out of and in the course of the employment and therefore the only remedy available to the appellant is pursuant to the act.

In our prior opinions we have uniformly held that the benefits pursuant to the workers’ compensation act constitute an exclusive remedy for work-related injuries. However, in a case where the employer or his agent goes completely outside the employer-employee relationship and commits a wilful personal battery upon an employee, the act is no longer the exclusive remedy. See Heskett v. Fisher Laundry and Cleaners, 217 Ark. 350, 230 S.W.2d 28 (1950). In Heskett we stated:

The complaint in the instant case alleges that an officer and general manager of appellee committed a vicious, unprovoked, intentional and violent assault and battery upon appellant during the course of the employment under circumstances which, if substantiated, would entitle appellant to both actual and exemplary damages at common law. We conclude that the rule laid down in Boek v. Wong Hing, [citation omitted], is supported by sound reasoning and that appellant is entitled to elect to either claim compensation under the compensation act or treat the wilful assault as a severance of the employer-employee relationship and seek full damages in a common law action. Appellant having elected to pursue the latter remedy, it follows that the trial court erred in sustaining the demurrer to the complaint against appellee.

We hold that the actions complained of in the present appeal were not of such magnitude as to constitute an intentional tort and thereby remove the employer from the protection of the act. It cannot be reasonably argued that the injuries alleged in the case before us did not actually arise out of the work performed by the employee. Therefore, the only remedies available to the appellant are those pursuant to the workers’ compensation act.

Affirmed.


author: Robert H. Dudley, Justice. George Rose Smith, Justice,

text:
    Carey CARPENTER, Individually and on Behalf of the Minor Children Richard Carey CARPENTER, et al., and as Father and Next Friend v. Don BISHOP, Special Administrator of the Estate of Sheryl Andrei CARPENTER, Deceased
    86-103
    720 S.W.2d 299
    Supreme Court of Arkansas
    Opinion delivered December 8, 1986

      Howell, Price, Trice, Basham & Hope, P.A., by: Dale Price, for appellant.

      Davis, Cox & Wright, by: Constance G. Clark, for appellee.
   Robert H. Dudley, Justice.

The primary issue in this case is whether a viable fetus born dead has a cause of action against a mother who negligently caused the death of the fetus. The trial judge granted a judgment on the pleadings. ARCP Rule 12(c). We affirm.

Because of the procedure below, we take the factual allegations of the complaint as true. Those facts are that the mother, Sheryl Carpenter, was eight and one-half months pregnant when she negligently drove an automobile into a bridge abutment, killing herself and the viable fetus. Carey Carpenter, as father and next friend, filed suit for the dead fetus against the mother. He also filed a derivative suit in his own capacity and on behalf of siblings. Because this action is barred by the parental immunity doctrine, we need not decide whether a viable fetus born dead is a “person” who has a cause of action under the wrongful death statute, Ark. Stat. Ann. §§ 27-906 to 27-910 (Repl. 1979).

Our first case involving the doctrine of parental immunity was Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938), in which a six year old boy, through his mother and next friend, filed a suit against his father for an unintentional injury. We held that an unemancipated minor did not have a cause of action against a parent for an unintentional tort.

We next considered the doctrine concerning an unintentional tort in the case of Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980), a suit by a two and one-half year old boy against his maternal grandparents. We reaffirmed the doctrine with respect to unintentional torts and extended it to people acting in the place of parents.

In Brown v. Cole, 198 Ark. 417, 129 S.W.2d 245 (1939), we held that the doctrine would not protect an adoptive father who intentionally poisoned his adoptive son. In Attwood v. Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982), a father intentionally got drunk and willfully drove his car at such a rate of speed that he lost control and wrecked the car, causing injury to his child. We held that such intentional and willful conduct fit into an exception to the parental immunity doctrine for the reason that a parent who intentionally and willfully injures his child has abdicated his parental responsibilities and is not entitled to an immunity which has as its purpose the encouragement of those responsibilities.

In summation, a parent or a person acting in the place of a parent is immune from suit for an unintentional injury to his child, but the parental immunity doctrine does not protect a parent from liability for an intentional or willful injury to his child. In the case at bar the suit by the dead fetus was for an unintentional injury, or simple negligence, and the mother’s estate is immune from the suit by the fetus regardless of whether the fetus is a “person” as defined by the wrongful death statute.

Appellant alternatively argues that even if the claim of the fetus against the mother is barred by the parental immunity doctrine, the claims of the father and siblings are not barred. That argument is also without merit.

The actions by the fetus and children under the wrongful death statute, Ark. Stat. Ann. § 27-906 (Repl. 1979), are derivative claims or claims derived from the death of the fetus. Because the claim of the fetus against the mother is barred, so are the derivative claims.

Affirmed.

George Rose Smith, J., concurs.

George Rose Smith, Justice,

concurring. The doctrine of parental immunity still governs in Arkansas negligence law, but it takes little prophetic ability to realize that the doctrine’s life expectancy is short. The second edition of the Restatement of Torts broadly rejects the doctrine, with some exceptions. Restatement, Torts (2d), § 895G (1979). Prosser & Keaton’s newest revision of Torts shows that in a rapid sequence of developments beginning in 1963, the doctrine has been rejected, also with exceptions, in more than half the states. Section 122 (5th ed. 1984).

One exception to a complete rejection of parental immunity is stated in the Restatement, Section 895G, Comment k:

Just as the parent-child relationship creates an analogy to consent in the case of an intentional tort, so in the case of a negligent tort there is an analogy to the defense of assumption of risk. For activities central to that relationship, particularly within the home itself, there is some relaxation of the stricter standard of conduct applied in dealing with third persons. A child thoughtlessly leaves his skates in a hallway and the parent trips over them or slides on them and falls, or a parent delays fixing a slightly broken step or calling a carpenter to do it and the child falls as a result; these occurrences are normally regarded as commonplace incidents in family life and usually treated as accidents rather than the basis for imposing legal liability.

I think that reasoning applies to this case. As Justice Holmes said in what was for many years the landmark case on the unborn child’s cause of action, “the unborn child was a part of the mother at the time of the injury.” Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242 (1884). In our case the unborn child was still in fact completely dependent upon the mother when the accident occurred. Her own instinct for self-preservation protected the child better than anything else could possibly have done, so that the analogy of assumed risk is appropriate.

Moreover, in all probability the surviving husband and children have inherited all the property that Mrs. Carpenter may have had. The survivors’ grief for the loss of wife and mother must have been overwhelming. For them to come into a court of law and seek compensation, doubtless from an insurance company, on the theory that the mother’s negligence somehow violated a duty she owed to them is repugnant to one’s sensibilities. I do not believe that the law should countenance a cause of action as ignoble as this one seems to me to be.