author: JOHN A. FOGLEMAN, Justice. George Rose Smith, Justice,

text:
    Lee Edward SMITH v. STATE of Arkansas
    5811
    505 S.W. 2d 504
    Opinion delivered February 25, 1974

      John M. Fincher, for appellant.

      Jim Guy Tucker, Atty. Gen.; by: O. II. Hargraves, Dep. Atty. Gen., for appellee.
   JOHN A. FOGLEMAN, Justice.

Lee Edward Smith was found guilty of burglary of the residence of William Montague and grand larceny of two typewriters and a television set which were taken therefrom. As a basis for reversal appellant contends firstly, that “his confession should have been suppressed because it was induced by violence and, thus, was involuntary” and secondly, that the evidence to sustain the conviction was insufficient, because the evidence. other than the challenged confession, was more exculpatory than incriminating.

Upon the basis of our decision in Smith v. State, 254 Ark. 538, 494 S.W. 2d 489, we find merit in appellant’s challenge of the admissibility of the testimony. We there said:

[Other states where the issue has been presented] have adopted a reasonable and practical approach in determining the voluntariness of a confession. They hold that all material witnesses must be called or their absence satisfactorily explained in order for the state to meet its burden of proving that a confession was voluntarily given. In Mercer v. State, 206 A. 2d 797 (Md. 1965), the appellant’s conviction was reversed because his testimony that he was physically mistreated by two detectives was uncontradicted by either of the persons accused of the mistreatment. However, in Gill v. State, 289 A. 2d 575 (Md. 1972), that court held that it is not required that “each person who had casual contact with the accused, once he was in police custody or being interrogated, must testify to the voluntariness of the confession in order for the prosecution to satisfy its burden. But when it is contended that someone employed coercive tactics to obtain inculpatory statements, the charge must be rebutted.” In People v. Armstrong, 282 N.W. 2d 712 (Ill. 1972), the appellant was properly advised of his constitutional rights before making a statement. A motion to suppress was sought and refused. The state failed to produce all witnesses material to the making of the statement or explain their absence. It was held that appellant’s statements should have been suppressed. From that opinion:
“The burden of proving that a confession is voluntary is one which the State must assume when the admissibility of a confession is questioned on the grounds that it was coerced. Only by producing all material witnesses connected with the controverted confession can the State discharge this burden.”
See, also, Stevens v. State, 228 So. 2d 888 (Miss. 1969).
We hold that whenever the accused offers testimony that his confession was induced by violence, threats, coercion, or offers of reward then the burden is upon the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence.

Smith was arrested by Patrolman Vernon Wilson of the Little Rock Police Department when found in an automobile from which some of the stolen property was recovered. Vernon turned Smith over to the Detective Bureau at police headquarters. Detective Billy C. Johnson testified that he read a standard form to Smith advising him of his rights and that later, in one of the six interrogation rooms at police headquarters in a statement given to him and Officer J. H. Hale, Smith admitted the burglary and theft. The statement was a confession. On cross-examination Johnson denied striking or manhandling Smith or having observed anyone else striking or even touching him. He also denied that, immediately after the interrogation. Smith was bleeding at the ears, or that his face was puffed out, or that he had asked for a doctor. Hale did not testify.

On the other hand, Smith testified of physical abuse during interrogation. He said that when he denied burglarizing the house, one of the officers slapped him, and the other hit him on the side of his head. According to him, he was left alone for an hour before the officers returned and told him that he was going to tell them he had burglarized the house, but when he refused, they again left. He added that they then returned after an interval of 35 to 40 minutes, and, after having thrown something in his eyes, again left but returned in 15 or 20 minutes and beat him with a telephone book. According to him, his ear was then bleeding. It was then, he said, that he signed a confession. His testimony that he then requested medical aid was contradicted, but he was seen by Dr. John Wassell on a subsequent date. Unfortunately, a malfunction of mechanical recording equipment has deprived us of all the physician’s testimony as a witness for appellant, but it was revealed on cross-examination that this doctor, upon seeing Smith some six days after the latter’s arrest, found a ruptured eardrum which could only have been caused by a blow to the head or Smith’s suddenly ascending to, or descending from, a high altitude. Smith was also corroborated by suspected accomplices who were detained at the police station while he was being interrogated. One of them was his sister, who said that, after having heard the police beating Smith, she entered the interrogation room where they had been and saw that his nose and one ear were then bleeding. Bobbie Adair, who was in the automobile with Smith and others when he was arrested by police officers, testified she first heard a policeman “hollering” in the room where Smith was and then heard Smith say something like “hold it.” Calvin Perry also said he heard the policeman whip Smith and heard Smith “hollering.”

We cannot, and do not say, the testimony of Smith and his companions must be accorded greater weight than that of the police officer. It is clear, however, that the state did not meet its burden of proof as defined in Smith v. State, supra. No explanation whatever was offered for the failure of officer J. H. Hale to appear and testify. The state’s evidence shows that Hale was present when Smith made the statement, and his name was signed as a witness at the end of the statement. It goes without saying that he was a material witness on the question. There is certainly evidence by and on behalf of the accused that the confession was induced by violence, threats and coercion. Consequently, there was no way the state could have met its burden of proving that the in-custody statement was voluntary, without either calling Hale as a witness or giving an adequate explanation for his absence.

Although the state does not so contend, it has been suggested in our consultation that the judgment should not. be reversed on this point, because (1) the question was not properly raised in the trial court and (2) the point is not argued on appeal. We cannot subscribe to either position.

It must be kept in mind that the case was tried to the circuit judge as fact-finder, a jury trial having been waived. The record reveals that the attorney who represented Smith at the trial first objected to Johnson’s reading the standard “rights form” supposed to have been signed by Smith because at the time he signed this form “he was under extreme duress and physical abuse and feared for his own safety.” The attorney also asked the circuit judge to reserve his ruling until Smith had testified on the subject. The circuit judge permitted the state to proceed. When Officer Johnson undertook to read the statement, the attorney made a general objection, and the statement was marked for identification. It was not offered into evidence until after the witness was cross-examined, when appellant’s attorney again objected and asked the court to reserve its decision. The state then rested and appellant’s attorney moved for dismissal on the basis that the only proof of guilt was appellant’s statement which “was given under duress and supreme fear for his own welfare and life” and testimony that some of the stolen merchandise was found in the auto in which the police found Smith. Thereafter, Smith and his witnesses testified, and their testimony included that above-mentioned with reference to coercion of Smith. After the testimony was completed, appellant’s motion!to dismiss was renewed. This motion, based upon Smith’s attorney’s additional statement that the only indication of appellant’s guilt was a statement which, in the attorney’s opinion, was obtained through duress and threats and appellant’s fear for his own safety, was denied. Appellant’s attorney then introduced the testimony of Calvin Ferry and renewed the motion to dismiss, arguing that the only evidence connecting Smith with the crime was the confession. He then reviewed the testimony supporting the finding that Smith had been beaten.

The defendant was not required to challenge the confession by a motion to suppress, although that would be the better procedure in a jury trial. We see no reason why the procedure followed by defendant’s attorney is not sufficient, at least in a nonjury trial. Not only do we consider the objections made sufficient to put the burden of proving the volun-tariness of the confession on the state, we held in the earlier Smith case that, whenever the accused introduced evidence of coercion, the burden of the state could only be met by calling all material witnesses or giving adequate explanation for the absence of any who did not testify. Nowhere in Smith does it appear that, in making an objection based upon a contention the state has failed to show a statement is involuntary, a defendant must point out, in precise words, that a material witness was not called.

Appellant stated his point for reversal thus:

The court erred in refusing to grant defendant’s Motion to Dismiss and/or in refusing to direct a verdict in favor of defendant.

His argument was divided into two subdivisions. Subdivision A was thus stated:

Firstly, appellant contends his confession should have been suppressed because it was induced by violence and thus was involuntary. Edmonson v. State, 72 Ark. 585. Due process requires that a confession be voluntarily made. Lee v. State, 229 Ark. 354, cert. den. 359 US 930.

After outlining the evidence of coercion, appellant then stated:

The burden of proving that the confession was voluntary is on the prosecution and it must be proven by a preponderance of the evidence. Lego v. Twomey, 404 US 477. And a confession is presumed to be involuntary. Mitchell v. Bishop, 248 Ark. 427, cert. den. 91 S. Ct. 578; Scott v. State, 251 Ark. 918. The only evidence presented by the state to prove that the statement was voluntary was the testimony of Detective Johnson who testified that he did not touch Smith or force him in any way to sign the confession (R. 32). The signing of the confession was witnessed by Detective Sergeant J. F. Hale, but the state did not bother to call him to testify regarding the circumstances (R. 37).
Appellant submits that the state wholly failed to overcome the presumption of involuntariness of the confession and prove it voluntary by a preponderance of the evidence. The confession should therefore have been suppressed and the charge dismissed, because there was no other evidence to connect appellant with the crime of burglary and grand larceny.

Subdivision B then followed. It was an argument that the evidence was insufficient to support a finding of guilty because the confession was tainted and other evidence did not show guilt. These arguments cannot be said to constitute a waiver of the point which we find to constitute reversible error, except by an extremely hypertechnical appraisal in which we should not engage. It cannot reasonably be said that appellant did not, in support of the argument in his brief that the state failed to meet its burden of proving the confession voluntary by a preponderance of the evidence, specifically point out that the state did not call Hale as a witness.

In this respect this case differs significantly from Upton v. State, 254 Ark. 664, 497 S.W. 2d 696, where no complaint was made, on appeal, that two of the four persons present at the interrogation of the accused were not called to testify. We said in Smith v. State, 241 Ark. 748, 410 S.W. 2d 126, that the state was not required to produce every witness to a confession. To the extent that this opinion might appear to permit an affirmance in this case, it was certainly limited in the subsequent case of Smith v. State, 254 Ark. 538, 494 S.W. 2d 489, to require the calling of every material witness on the question of voluntariness. We have never held, and we do not now hold, that the state must call every witness who had any connection, however remote and inconsequential, with the giving of an incustody statement. When that participation is significant, however, and the witness would be a “material” one, the rule of Smith v. State, 254 Ark. 538, 494 S.W. 2d 489, stands undiluted.

We cannot agree with appellant that the evidence, exclusive of the confession, was insufficient to support a conviction. Neither can we say that the state cannot either produce Hale as a witness on retrial or give an adequate explanation of his absence. Consequently, we cannot agree that the charge should have been dismissed by the trial court or that we should dismiss it.

The judgment is reversed and the cause remanded.

George Rose Smith, J., dissents.

George Rose Smith, Justice,

dissenting. The majority, as I read the briefs, are reversing the trial court’s judgment upon a ground that the appellant’s attorney has not seen fit to argue in this court; that is, that Officer Hale was not called by the State to testify about Smith’s confession.

It was in the case of Smith v. State, 254 Ark. 538, 494 S.W. 2d 489 (1973), that we first considered the possibility that the State is under a duty to call all witnesses, other than casual ones, who participated in obtaining a defendant’s confession. There Smith’s counsel argued the point in this court, citing cases from other jurisdictions. We found the argument convincing and adopted the rule now relied upon by the majority. It was a decided innovation in our law, for in earlier cases we had upheld dozens of confessions which were not attested by every officer who took part in the interrogation.

The Smith case was decided six months before this appellant’s brief was filed, but counsel does not cite that case. Neither does his brief state the rule announced in Smith, that the State must call all participating interrogators. In fact, the proof indicating its possible applicability is mentioned only casually, in this sentence: “The signing of the confession was witnessed by Detective Sergeant J. F. Hale, but the state did not bother to call him to testify regarding the circumstances.” It is hard to believe that counsel chose that sentence as a means of asserting reversible error under the rule of the Smith case. I have no doubt that the appellant’s attorney is going to be genuinely surprised upon learning the ground upon which he has obtained a new trial.

If we could say with assurance that that new trial is going to benefit the appellant by correcting an injustice that occurred at the first trial, I would not be inclined to note my disagreement with the majority opinion. But of course that possibility is extremely remote. We have no idea what Officer Hale will say about the confession, but it is reasonable to assume that defense counsel, in preparing for the trial, interviewed the officer and found nothing favorable in his expected testimony. Thus in all probability the new trial will be a waste of time and expense, which is doubtless why the point was not argued in the appellant’s brief.


source: Caselaw Access Project

author: J. FRED Jones, Justice.

license: Public Domain

text:
    Freddie Lee McGRUDER v. STATE of Arkansas
    CR 73-166
    505 S.W. 2d 498
    Opinion delivered February 25, 1974

      Gordon L. Humphrey, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. //. Hargraves, Dep. Atty. Gen., for appellee.
   J. FRED Jones, Justice.

Freddie Lee McGruder was convicted at a jury trial in the Cross County Circuit Court of the crime of grand larceny and was sentenced to seven years in the penitentiary. He now appeals from a denial of post-conviction relief following a Rule I hearing on June 18, 1973. McGruder contends that his constitutional rights were violated in that he was not properly represented by counsel at all significant stages of the proceedings; that his constitutional rights were violated in that he was denied an opportunity to fairly present his defense through the effective assistance of counsel; that through threats and harassment by police officials prior to his trial he was denied a fair trial and due process of law to which he was entitled under the Fourteenth Amendment. We find no merit in these contentions.

In his Rule I petition McGruder alleged that he was convicted of grand larceny in a jury trial and that he was represented at the trial by employed counsel of his own choice. He alleged that his attorney was incompetent in several respects including failure to exercise any peremptory challenges in the selection of the jury; failure to challenge for cause, or peremptorily strike, a Mr. Hall and a Mrs. Hicks from the jury; failure to order the issuance of a subpoena for his key witness, and failure to object to errors committed in the trial and to questions asked witnesses by the prosecuting attorney. He alleged in his verified petition that his counsel bribed his relatives into paying him $100, and that his counsel took more interest in the prosecution side of the case than he did in the defense. He further alleged that he was not advised of his constitutional rights upon arrest or after his arrest, and that police Officer Todd tried to force him to “cop out.” He alleged that following the jury verdict, the trial court never did pass sentence upon him and he alleged he had other grounds on which his constitutional rights were violated.

The record of the Rule I hearing in this case consists of 150 pages and is one of the most complete records we have seen on appeal in a Rule I case. Both McGruder and the state were well represented at the hearing and the trial court went to considerable length in not only affording McGruder every opportunity to present any evidence he had in support of the allegations in his petition, but in affording him the opportunity to participate fully in the hearing at any point in the proceeding he so desired. McGruder took full advantage of the opportunity thus afforded him but we shall only discuss here so much of the testimony that bears on his allegations.

At his Rule 1 hearing McGruder testified that he requested his counsel to subpoena Louise Townsend as a witness. He said his counsel explained to him that he was charged with grand larceny; that he had nothing on his person when arrested; that no one saw him take the shotgun he was accused of stealing and that he did not think they needed Louise Townsend as a witness. He said he asked his attorney to subpoena Johnny Jefferson at the preliminary hearing “which he did ask the court over there for. ...” He said he explained to his attorney what these witnesses would testify to, and the record on this point appears as follows:

“Q. And what did you tell him?
A. I just told him, I say, ‘Well, she knows,’ I say, ‘I didn’t take no gun out of the car with me, and the only gun, I understand, that I had possession of was a rifle which belonged to my stepfather.’ And she was going to testify to that, verify that, you know, speaking about the gun.”

McGruder testified that he asked his attorney to strike the name of Willie Hall, Jr. from the jury and that his attorney replied something to the effect that Hall used to work for him, and refused to strike or challenge Hall. He said he told his attorney that he at one time stayed with his sister who lived next door to Hall, and his sister had advised him that upon occasions Mr. Hall was kind of jealous of his wife. He said he also asked his attorney to strike Mrs. Betty Sue Hicks from the jury. He said one of the police officers told him that the whole town was against him and he knew, and pointed out to his attorney, that Mrs. Hicks lived in the town. He said he at one time worked for Mrs. Hicks’ husband but that they had never had any trouble except little “squawks” about work.

McGruder testified that in final summation before the jury, the prosecuting attorney accused him of being a professional thief, and that his attorney did not object. He said there were several questions asked and comments made, some of which were not shown in the record, to which his attorney should have objected, but did not do so.

McGruder testified that while riding to jail in a police car following his arrest. Officer Todd told him that even if he came clear at his trial he would never get out of town, so the best thing to do was “cop out, go to the penitentiary, do a little time and get out.” He said that while he was in jail awaiting trial. Officer Todd sent this message and advice to him through fellow-prisoners, including Jay Frazier. He said he was never advised of his constitutional rights and was never told he could have an attorney.

In response to some of McGruder’s allegations and testimony at his Rule 1 hearing, the trial court read to him excerpts from the trial record. As to McGruder’s contention that the trial court failed to pronounce sentence following the jury verdict, the trial court read to McGruder from the trial record, which not only showed the pronouncement of sentence, but showed that McGruder was advised of his right to appeal; the amount of appeal bond; McGruder’s inquiry as to whether a property bond would be acceptable and the court’s answer that the sheriff would determine the nature of the bond. In response to these excerpts from the record, McGruder said: “The transcript done been tampered with; I see that now.”

The trial court called to McGruder’s attention, from the record made at the trial, that McGruder’s attorney requested a drawn and struck jury; that as the jurors were drawn and questioned one at a time, the prosecuting attorney excused one, McGruder’s attorney had four disqualified and excused by the court, and that his attorney excused four on peremptory challenges. McGruder responded by stating he remembered his attorney and the prosecuting attorney picking the jury; that it was not himself picking the jury; that his attorney was not actually his attorney, “he was just somebody up there.” On cross-examination, when asked to give examples of some of the things he felt his attorney should have objected to, McGruder said: “I don't want to, you know, it might have some bearing on this case in future proceedings. I want to just like I say, leave it.”

Willie Hall, Jr. was called as a witness by McGruder at his Rule 1 hearing. Mr. Hall testified that he served as foreman of the jury at McGruder’s trial; that McGruder had at one time stayed one or two weeks with his sister who lived next door to Hall. He said he had never had any animosity or hard feelings toward McGruder and had never had any reason to do so. He said he had never expressed or entertained any jealous feelings toward his wife or McGruder, and had never actually known anything about McGruder except that he did see him around his sister’s home during ap-proximatély two weeks that he was there. He testified that he was asked on voir dire examination if he was acquainted with McGrudWand answered that he was.

it ¡Mrs. Betty Hicks was also called as a witness by M<?G.ruder and testified at his Rule 1 hearing. She said she had never known McGruder or heard anything about him prior to the trial; that she did not know McGruder ever worked >foi? her¡husband and had no knowledge of any arguments or ill feeling between McGruder and her husband. She testifiedi that, she had no ill feeling or prejudice against McGruder.

i Jay ;Frazie,r was called as a witness for McGruder and testified tliaC he was incarcerated in the Cross County jail while iMcGr.qder was in jail awaiting trial. He said he talked with McGruder on several .occasions but he emphatically denied, that.he ever conveyed any messages to McGruder frjpm Officer Todd or anyone else.

’At the'conclusion of this testimony Mr. McGruder an-rtcfííncéd that it looked to him like the witnesses had been taffiperéd with and had lied. He said he would like to have th'é’oppdrtuhity of calling additional witnesses, Evelyn Joyce Spencer, Jimmy.Malone and Billy Ray Todd. The trial court observed that it appeared the purpose of their testimony \yould' be ‘td impeach the testimony of the witnesses who had jiigt Testified, but the court ordered subpoenas issued for the vMIulslfe requested by McGruder.

V:ifa;,T*h©sstate then called Officer Tommy Voyles, who was j^oliberhréf of the City of Parkin at the time McGruder was asraSe&bed iand tried. He testified he had a warrant for Mr<Sit?uder.’s arrest and upon finding McGruder not at home hes;stilhhad the warrant in his car when McGruder came up to him in company with some friends and surrendered himself. He said he served the warrant on McGruder and tóh'k1 b-irri to the county jail. He said that on the way to the ébünf-y'Jaik ’hé advised McGruder of his constitutional rights fb^femáin'silent and to the appointment of an attorney. He áMd McGruder stated that he did not want to say anything aíWÜPtMt he did not do so, except he did say he did not steal thé^ishó'tgian. Officer Voyles said he had no further contact wiffrMcOruder after he delivered him to the county jail, and that he had never known, or had any contact at all with, Jay Frazier who had previously testified. He said he had never, sent any messages to McGruder by Frazier or anyone else; He said Officer Todd was in the car with him and McGruder on the way to the county jail, and he heard no threats, advice or statements that could have been construed as threats made to McGruder at any time.

Herbert Todd, an officer with the Parkin Police Department, testified that he rode in the car with Chief Voyles and McGruder to the county jail in Wynne. He said that at no time did he take any confession or hear any confession taken from McGruder, and that at no time did McGruder make any statements of admission to the charge against him.. He said he was not present at McGruder’s trial and that he had no conversation with McGruder after he was delivered to the jail. He said that at no time did he offer any special consideration to McGruder if he would plead guilty or “cop but* ,” and that he never did convey any such suggestion to hith through any third party. He said he was acquainted With McGruder prior to his arrest; that he had lived arotihd Parkin all of his life and knew just about everybody there including McGruder. He said he had never entertained any prejudice or ill will toward McGruder. :. i

Following Officer Todd’s testimony, the hearing was recessed until noon, June 18, for the additional testimony bf the three witnesses subpoenaed by McGruder. When -the hearing was resumed on June 18, McGruder’s. attorney announced that two of the witnesses subpoenaed by McGruder were out of the state, and the sheriff had not been able to find the third witness, Jimmy Malone, and that McGruder desired to proceed without Malone. This was confirmed by McGruder, whereupon the state proceeded by calling attorney Robert M. Ford to testify.

Mr. Ford testified that he was attending municipal cOiirt when McGruder was arraigned for preliminary, hearing .a’ftd appeared before the bench without counsel. He .said the municipal judge requested him to confer with McGruder and represent him at the preliminary hearing..He said he did com fer with McGruder and after explaining to him the procedure at preliminary hearings, he entered McGruder’s plea of nót guilty and McGruder was bound over with bond fixed at $1,-000. He said McGruder was unable to make bond and that he charged no fee as was the usual custom when appointed at preliminary hearings in municipal court. He said McGruder asked him to continue representing him in circuit court and he agreed to do so for a fee of $250. He said McGruder told him lie had no money but that relatives would pay his fee. He said he contacted McGruder’s family as to McGruder’s wishes and was paid $100 on his fee. He said that he discussed possible plea bargaining with the prosecuting attorney; that the prosecuting attorney offered to recommend five years imprisonment if McGruder desired to enter a plea of guilty; that he conveyed this information to McGruder but that McGruder desired to stand trial by jury. He said that McGruder was cooperative and appeared satisfied with his services until after the trial. He said he followed his usual procedure of discussing the jurors with McGruder as they were called; that McGruder was given full opportunity to discuss with him any witness or any juror as they were called, and that no question was ever raised by McGruder concerning any juror who sat in his case. He said that both he and McGruder were satisfied with the jury as it was finally made up. He testified that he was sure he objected to any statements made, even in summation, which he considered prejudicial to McGruder. He said he paid the court reporter $7.50 out of his own funds to report the closing argument of the attorneys; that he did not have the closing argument of the prosecuting attorney transcribed, but would certainly have done so had he felt it would contain any remarks prejudicial to McGruder. He testified that Junior Cribbs, William Watson, Johnny Townsend or Johnny Jefferson and Leroy Tubbs were present at the preliminary hearing before the municipal court, and the witnesses whose absence McGruder was objecting to, were either subpoenaed by the state and could not be found, were present at the trial and available to testify, or were considered as unimportant to McGruder’s defense at the trial. He said he knew of no threats, intimidations, offers or inducements made to McGruder in order to get him to enter a plea of guilty. He said he did relate to McGruder what the prosecuting attorney had offered to recommend through plea bargaining, in the event McGruder desired to plead guilty, but the offer was rejected by McGruder.

On cross-examination Mr. Ford testified that McGruder did not request or suggest that Mr. Hall or Mrs. Hicks not be accepted on the jury, and that McGruder did not suggest that he had known either of them in the past. He testified that McGruder did not ask him to subpoena any specific witness. He said he did recall discussing Delores Townsend with McGruder; that she was a former girl friend of McGruder and that on the basis of his discussion with McGruder, he concluded that Delores Townsend’s testimony would have no bearing on the case and had he thoüght otherwise, he would have subpoenaed her. He said McGruder did not insist that Delores Townsend be subpoenaed as a witness. He said that at no time did McGruder relate to him any threats made against him by the police officers. He said he thought McGruder was satisfied with his services until after he was incarcerated in the penitentiary when McGruder wrote to him asking for a refund of the $100 he had been paid on his fee. He said that insofar as he knew there was no public feeling or sentiment against McGruder and that he did not so advise him.

The prosecuting attorney, Mr. Luker, testified that in following his regular procedure a few days after McGruder was placed in jail, he went to the jail and talked to McGruder about whether or not he was able to employ an attorney or wanted an attorney appointed for him. He said he furnished McGruder with a prepared indigency affidavit form to, be signed by him in the event he was indigent and desired the appointment of an attorney by the court. He said that McGruder advised him he was not interested in having a court appointed attorney as he intended to employ Mr. Ford. He said he discussed the matter with McGruder on two occasions, and that both times McGruder stated he was going to employ attorney Ford. He said he explained the indigency form to McGruder and told him if he desired the court to appoint an attorney for him, he could fill out the form and if it was properly filled out and he qualified for the appointment of an attorney, one would be appointed by the state at no charge to him. He said McGruder stated that he was unwilling to complete the form because he was going to employ his own attorney.

The petitioner’s handwritten petition is in a script and style that has become familiar to this court and from McGruder’s own testimony, it would appear he was not entirely familiar with all he had set out in his petition. In his original verified petition filed on May 21, 1973, the petitioner states:

“Petitioner was convicted of grand larceny in a jury trial on 2-9-72. Petitioner was then represented by employed counsel of his own choice.”

Mr. McGruder testified that Mr. Ford was appointed to represent him at the preliminary hearing and that he never did employ anybody to represent him following the preliminary hearing. The record then appears as follows:

“Q. Now, Freddie, who prepared this petition for you, by the way?
A. I prepared that. I prepared that petition myself.
Q. You prepared this petition yourself?
A. That’s right.
Q. All right. I call your attention to the first page of the petition that was filed in this court on May 21, 1973, and going down to the paragraph that is headed ‘Points To Be Relied Upon.’ It says, ‘Petitioner was convicted of Grand Larceny in a jury trial on 2-9-73. Petitioner was then represented by employed counsel of his own choice,’ period.
A. It supposed to be of‘not’ his own choice. Like I say, I say, I put in a name, too, but omitted ‘of not his own choice.’
Q. But you did prepare this petition?
A. Yeah, I did prepare the petition. I just left out a ‘not.’
Q. Now, —
A. I have a Copy of the petition where it speaks of ‘not his own choice.’ Like I say, I might have left it out, because sometimes I used to write them over, but I have a copy of my petition in this case.”

He then admitted that the petition was just like he sent it to the court and did not appear to have been altered.

When McGruder was asked to elaborate on the prejudicial argument he alleged was made by the prosecuting attorney, he said:

“Well, I refuse to answer. I refuse to take this opportunity because I want the record to be showing just what you was doing so, therefore, I am asking my attorney to leave it as they are.
THE COURT: You don’t want to answer the questions?
MR. HUMPHREY: Let me ask you this, Freddie, so we can be clear on this: Is there anything that you want to state now as regards Mr. Ford’s activities, or Mr. Luker’s activities, or anybody else’s activities in the Prosecuting Attorney’s office, that occurred here in front of the jury that you felt was unconstitutional, illegal, or improper in any way, that you want this Court to know? If there is anything like that that went on that you want to bring to the attention of this Court, you may do so now.
THE WITNESS: Well, like I said, I have went over that once or twice before. If you don’t mind I would just like to leave it as it is, as it is now. See, this is to help me in proper proceedings, not the Court or the attorneys.”

McGruder’s allegations and testimony concerning in-timidations and threats from Officer Todd, are such matters usually advanced in questioning the validity of a conviction on a plea of guilty or by use of statements or confessions in obtaining a conviction. McGruder was not convicted on a plea of guilty and the record discloses no statement of confession used against him. McGruder testified that threatening messages were conveyed to him from the police officers by Jay Frazier, another inmate in the county jail. Frazier, when called as a witness by MrGruder, emphatically denied any knowledge of such messages. McGruder also testified that the threats were made directly to him by Officer Todd. The record on direct examination is as follows:

“THE COURT: Who told you that?
THE WITNESS: Officer Todd.
THE COURT: All right.

THE WITNESS: And he say the best thing to do is cop out and get a little time and go on to the penitentiary and get out. This was the statement that he made in the car. And then after I was in jail he made the same statement again.” (Emphasis added).

After Officer Voyles testified' and it was apparent that Mr. Todd would be called to testify, the record reflects as follows:

“THE COURT: . . . but let me ask you this: The threats, you say, were in the presence of Mr. Voyles, was that also in the same car that Mr. Todd and Mr. Voyles was driving?
DEFENDANT McGRUDER: This was made at the County Jail, your Honor.
THE COURT: Oh, made at the County Jail?
DEFENDANT McGRUDER: Yes,. sir. When the threats, you know, at the jail there, it wasn’t Mr. Todd; when he asked me the question, you know, I thought it was Mr. Todd, you know, and anyway, he’s the one I was talking about; I had the names mixed up.”

The burden, of course, was on McGruder to show that his constitutional rights were violated in this case. Honaker v. State, 252 Ark. 975, 482 S.W. 2d 111, and we agree with the trial court that he failed to make such showing.

The judgment is affirmed.

Fogleman, J., not participating.


author: CONLEY Byrd, Justice. John A. FOGLEMAN, Justice,

text:
    Ralph HORTON et ux v. John P. McCONNELL et al
    73-166
    506 S.W. 2d 540
    Opinion delivered February 25, 1974

      Clark & McNeil, Jones, Stratton & Jones, and Henry & Gaddy, for appellants.

      Warren & Bullion, Smith, Williams, Friday, Eldredge & Clark, by: John T. Williams and Michael G. Thompson, Alex G. Streett, Pros. Atty., and Nathan Gordon, for appellees.
   CONLEY Byrd, Justice.

This litigation arises from a notice by the Assessment Coordination Division of the Arkansas Public Service Commission to the County Judge and other appropriate officials of Faulkner County that the latter would lose their State Turnback Funds if the percentage of assessment of real property in the county was not raised to the minimum level as set out in Act 153 of 1953. Thereafter, all of the school districts and municipalities except Conway School District No. 1 and the City of Conway filed a petition with the county court seeking the employment of qualified appraisers. (It appears that the Conway District and the City of Conway proceeded by a separate petition, but that petition got lost before reaching the county clerk’s of-fifc<e.J;The county court properly held the hearing and found that the. employment of appraisers was necessary. The members of the equalization board were appointed to hegotiaté a contract. A contract was negotiated with C. Jack Catoi d/b/a Jack Cato Appraisal Company, to appraise all of the property in the county except that within the Conway Sdhqol District and the City of Conway. The Conway School District and the City of Conway either employed or contracted with J. D. Kitchens, Harold Eidson, William A. Clark, and Newt Milarh to appraise all property in the School D|str|ct. A contract was later entered into with C. Jack Cato appraisal. Company to appraise certain commercial properties ánd'some areas that Harold Eidson et al were unable to appraise within the time limit. All such contracts were approved by the county court, and, at the time of the institution ipfjbis suit, all appraisals had been completed and all parties had been paid.

Appellants Ralph Horton et ux filed this action against the board members of the Cpnway School District, the %ipelfinterident of the Conway School District, all persons involved ip the reappraisal, the equalization board, and several county officials seeking to enjoin the use of such appraisals apd to. direct that each appraiser refund to the appropriate taxing unit all sums paid to him under the various contracts. The trial court denied appellants any relief, and for reversal they.here contend:

‘‘1. The contracts purportedly entered into between C. Jack Cato and all School Districts Municipalities in Faulkner County, other than Conway School District [Slq. 1 and the City of Conway, Arkansas, are invalid due to the failure to comply with the law regarding the employment of qualified professional appraisers.
“2. The contracts purportedly entered into by and between. Conway School District No. 1 and J. D. Kitchens, Harold Eidson, William A. Clark and Newt P. Milam, and the purported contracts by and between said Conway School District No. 1 and C. Jack Cato, are all invalid because of the total failure of compliance with<the law providing for the employment of qualified professional appraisers.”

POINT No. 1. We fail to see how the validly opinvalidi,ty of the various contracts of appraisal upon the record,before us would affect the right of the assessor or the e.qupíizatjjgp board to use the appraisals in the valuation of land fo,r}.ass|^ment purposes. However, we need not stand on that issu'qas controlling for the taxpayer’s remedy by appeal frorp^e.ca-tions of the assessor and the equalization board furnisne^,pi adequate remedy at law and a court of equity is without jurisdiction when the litigant has an adequate remedy at law,. Consequently, the chancery court properly denied the, re,r quest to enjoin the use of the appraisals. .. . .

POINT No. 2. Neither do we find merit in the contention that the appraisers should be required, to, refund Jhe moneys received for their services. There is no dispute in^the record that the county court properly received a petition from all of the school districts and municipalities except the City qf Conway and the Conway School District and that, pursuant to a notice, a hearing was held thereon. At that hearing it was determined that there was a necessity for a reappraisál pftjje real property and the equalization board, then, consisting of three members, was appointed to negotiate a contract. In Latham v. Hudson, County Judge, 226 Ark. 673, 678-679, 292 S.W. 2d 252 (1956), in approving a.contract entered into between the several school districts, municipalities, andj-ihe county court, we said: . ^ • :<

“From what has already been said, it is obvious that Legislature has placed a heavy burden upon the county courts. We cannot conceive that the framers ,of our Constitution and the members of our several general assemblies meant to place this heavy burden,„on the county courts and at the sarpe time deny,, them reasonable means for discharging such burden...
“We hold that the county courts, have the .power and authority, under the general powers conferred upon them by our State Constitution and legislative;fjpts, to enter into contracts for the employment of professional appraisers. The county court has the right to d^jermine the necessity for the employment of professional appraisers and to fix the compensation to be.paidjpr their services. See Strawn v. Campbell, County Judge, opipion of this court. May 28, 1956, 226 Ark. 449, 291 S.W. 2d 508, State Use of Prairie County v. Leathem and Company, 170 Ark. 1004, 282 S.W. 367; Section 28, Article 7 Constitution of Arkansas; Section 22-601 Ark. Stats. 1947.”

From the foregoing it would appear that the county court had the authority to enter into the contracts here involved. Consequently, such contracts would not be void and subject to collateral attack after payment by the county court.

Appellants also suggest that the payments made by the Conway School District were invalid and that the portion paid by it is recoverable in this action. In doing so they rely upon the cases of Blount v. Baker, 177 Ark. 1162, 9 S.W. 2d 802 (1928), and Shackleford v. Thomas, 182 Ark. 797, 32 S.W. 2d 810 (1930). We find no merit in the contention. Shackleford v. Thomas, supra, recognized that a school district could not recover money paid out on a voidable contract for services already performed. Furthermore, in Burnett v. Nix, 244 Ark. 235, 424 S.W. 2d 537 (1968), we approved payments to an appraiser for services directly beneficial to the school district. The appraisals here prevented a loss of the state turnback funds to the school district.

Affirmed.

FOGLEMAN, J., concurs.

John A. FOGLEMAN, Justice,

concurring. I concur as to the asserted liability of Cato for payments made under the contract with the county. The undisputed evidence is that Cato was paid by county warrants issued to him after claims filed by him against the county had been allowed by the county court. Appellants, or any other taxpayer, had the right to appeal from these orders. Art. 7, §§ 14 and 33, Constitution of Arkansas; Ark. Stat. Ann. § 27-2001 (Supp. 1973); Ladd v. Stubblefield, 195 Ark. 261, 111 S.W. 2d 555; McLain v. Miller County, 180 Ark. 828, 23 S.W. 2d 264; Echols & Helton v. Lincoln County, 154 Ark. 142, 241 S.W. 881. See also, Wright v. LeCroy, 184 Ark. 837, 44 S.W. 2d 355; Swilling v. Biffle, 192 Ark. 608, 93 S.W. 2d 328. Since the county court had jurisdiction of the claims, this afforded them a complete and adequate remedy at law, in the absence of fraud, bad faith or collusion, none of which is even asserted. State v. Baker, 197 Ark. 1075, 126 S.W. 2d 937; Ladd v. Stubblefield, supra; Monroe County v. Brown, 118 Ark. 524, 177 S.W. 40. See also, Swilling v. Biffle, supra.

Cato’s contracts with the school district are in an entirely different category. By no stretch of the imagination could it be said that there was any compliance with even the jurisdictional requirements of Act 351 of 1949, and amendments thereto. I suppose, however, that the rule that school districts have only those powers expressly granted by statute or necessarily implied in order to enable them to perform the duties expressly imposed upon them by law was eroded by this court’s decision in Burnett v. Nix, 244 Ark. 235, 424 S.W. 2d 537, sufficiently to indicate affirmance of the decree in respect to this contract with Cato and the employment of the individuals for fixing proposed assessed values on residential properties. If the application of the apparent doctrine of the Nix case that a school district board has the implied power to employ people to “play a part in preventing assessed values from falling below the minimum percentage required by law for the receipt of all available state-aid funds” as a necessary incident to doing all things necessary for the proper conduct of schools, along with the casual “proof text” of Safferstone v. Tucker, 235 Ark. 70, 357 S.W. 2d 3, that one of the prime duties of a school board is to conserve the resources of the district, is permitted to continue the process of eroding the wholesome rule abided by for well over a century, it will become meaningless. The Burnett and Safferstone statements may be used to justify almost anything the collective ingenuity of a school board might devise in the name of proper conduct of schools or conservation of its resources. Limitation would only be imposed when a court became disposed to find an “abuse of discretion,” if the court could bring itself to decide that the evidence of abuse was “clear and convincing. ” In my opinion, this is little, if any, limitation. I feel bound to the result reached here by the majority on the basis of the decision in Burnett, in spite of my dissent there, but I also feel bound to resist further erosion of the wise limitation on school board powers traditionally followed by this court from the beginning.

Insofar as the use of appraisals made is concerned, appellants availed themselves of the right to appear before the equalization board, according to the testimony of one of its members, who also said that the board, upon their complaint, made a reduction in the assessment of their property and hat the Hortons unsuccessfully appealed from the board action to the county court. It was stipulated that an appeal to the circuit court was pending. Certainly, they are not now entitled to question the use of the appraisals in this proceeding.

I concur in the result.


author: CONLEY Byrd, Justice.

text:
    Marie L. SHIPP v. BELL & ROSS ENTERPRISES, Inc. et al
    73-218
    505 S.W. 2d 509
    Opinion delivered February 25, 1974

      W. B. Howard, for appellant.

      Timón, Crain & Luttrell, by: John A. Crain, for appellees.
   CONLEY Byrd, Justice.

Appellees C. Quenton Bell and Wesley E. Ross brought this action for specific performance of an alleged oral and written agreement with appellant Marie L. Shipp to convey to them an undivided two-thirds interest in a forty acre tract of land, hereinafter referred to as the “Morrison tract”. Appellant pleaded the statute of frauds as a defense and also counterclaimed for a third of the profits realized by Bell and Ross in the purchase and sale of a 360 acre tract, hereinafter referred to as the “Williams tract”. The trial court found against appellant upon both the counterclaim and the specific performance issue. With respect to the latter the trial court held:

“. . .The court holds that the undisputed evidence oral agreement and written memorandum, reflect that Mrs. Shipp was acting for herself and as agent for Mr. Bell and Mr. Ross in negotiating the purchase of the forty acre tract from the Morrisons, and that because of this agency and trust relationship the statute of frauds is not applicable. Secondly, it is clear in examining the offer and acceptance with the Morrisons along with the memorandum signed by Mrs. Shipp that the agreement among Shipp, Bell and Ross to purchase the property was to be performed within one year and for this reason the statute of frauds does not apply. Thirdly, even if the statute of frauds were deemed to be applicable, it is the opinion of the court that the Shipp memorandum, the down payment check furnished by Bell and Ross and the offer and acceptance signed by the Morrisons and Mrs. Shipp combined together are sufficiently definite to satisfy the statute of frauds.”

For reversal appellant contends:

“ 1. The trial court erred in ordering appellant to convey two-thirds of the forty acre tract to appellees instead of an undivided one-tenth, for the reason that appellees were barred by the statute of frauds.
“2. The trial court erred in denying appellant a recovery of one-third of the profits realized by appellees’ sale of the three hundred and sixty acre tract of which appellant was equitable owne'r of an undivided one-third interest.”
Bell and Ross here concede the fact the contract was to be performed within one year will not prevent the application of the statute of frauds to the contract in question. They do insist, however, that a relationship of trust and confidence existed between them and Mrs. Shipp upon which a constructive trust should be imposed and that the memorandum signed by Mrs. Shipp together with their check for the down payment and the correspondence from her attorney was sufficient to satisfy the statute of frauds. Ark. Stat. Ann. § 38-101 (Repl. 1962).
The record shows that Bell and Ross were the sole stockholders in Bell and Ross Enterprises Inc., hereinafter referred to as the “corporation”. The corporation was subdividing a tract of land that had been platted as Holiday Hills Estates. Onjanuary 21, 1969, appellant, a real estate broker, entered into an exclusive agency contract with the corporation to sell lots in Holiday Hills Estates. Under date of July 7, 1970, she obtained an offer from Glen F. and Opal L. Morrison through their attorney Roy Danuser to purchase the 40 acre Morrison tract. There was some discussion between Bell and Ross and Mrs. Shipp about whether Bell and Ross would join in the purchase of the Morrison tract. As a result of those discussions Bell and Ross agreed to join in the purchase of the property and gave Mrs. Shipp $200 for the ea. nest money after she had executed the following handwritten agreement, to-wit:
“I, Marie L. Shipp, on this day am acting on, as buyer of forty acres joining Holiday Hills Estates, belonging to Glen F. and Opal Morrison, for Quenton Bell, Wesley E. Ross and myself, Marie L. Shipp, in equal ownership. I do hereby agree that upon completion of this transaction, I will deliver a Warranty Deed made to Quenton Bell, Wesley E. Ross and Marie L. Shipp. . .”

Thereafter, Roy Danuser would not authorize his clients to execute a warranty deed to Mrs. Shipp because of some title defects. Mrs. Shipp then elected under the offer and acceptance to acquire title insurance. For that purpose she retained William Nash, a Little Rock lawyer. After the commitment for title insurance was made, but before the conveyance from the Morrisons to Mrs. Shipp was executed, Bell and Ross sold the forty acre tract here involved to Resort Land Company. After Mrs. Shipp’s exclusive agency with the corporation was terminated, she refused to convey the two-thirds interest to Bell and Ross. The latter tendered two-thirds of the $2000 purchase price for the lands but refused before trial to pay any part of Mr. Nash’s expenses incurred by Mrs. Shipp in clearing the title.

In bringing their suit Bell and Ross at first alleged the tender of their two-thirds of the purchase price. After demurrers were sustained, they amended their complaint alleging that Mrs. Shipp was to obtain her one-third as compensation for acquiring the lands. During the trial both Bell and Ross retracted the latter pleading as erroneous.

Ross testified that on July 7, 1970, Mrs. Shipp was an employee of the corporation and that on or about that date there was an agreement between Mrs. Shipp and Ross and Bell concerning the acquisition of some land that was to be split three ways. The agreement, supra, was set forth in writing. Bell and Ross gave her a check for $200 as earnest money at that time.

On cross-examination Ross stated that the employment of Mrs. Shipp was by way of written document. Neither Ross, Bell nor the corporation had contributed anything to the expense of clearing up the title.

On redirect Ross stated that Mrs. Shipp had acted as agent for herself and Bell in acquiring other acreage. Admittedly this reference was to Plaintiff’s Exhibit No. 3.

Mrs. Shipp was then called as an adverse witness. She testified that she only employed Mr. Nash to straighten out the title and for no other purpose. Over objections of her trial counsel, Bell and Ross were permitted to introduce a letter written by Mr. Nash to Mr. Danuser wherein Nash, among other things stated:

“Mrs. Shipp is acting as agent for Quenton Bell, Mr. Wesley E. Ross, and herself, and upon tender of the deed will execute a proper deed or deeds of conveyance.”

Mrs. Shipp admittedly did not object at the time to Mr. Nash’s statement. On cross-examination she could not recall having received a copy of the letter but assumed that she received it if Mr. Nash said he sent it. Mrs. Shipp denied that she acted as agent for Bell and Ross in connection with Plaintiff’s Exhibit No. 3 and stated that she acted as a conduit and witness thereto as a favor to Bell and Ross. Until she contacted her present counsel, she did not know that she was not bound by the handwritten agreement. At the time she wrote the handwritten agreement Ross and Bell were going to let her in on something else later. At the time of writing the exhibit in question, she intended to let Bell and Ross have a two-thirds interest in the property in question, but she changed her mind about this matter after her discharge.

Ross was recalled and he stated that there was no understanding that Mrs. Shipp was to have one-third interest in the Morrison tract for her services in connection with its purchase. The matter of the sharing of the purchase price is not mentioned in the Exhibit, and the Exhibit makes no reference as to how the purchase price was to be paid. The three apparently understood it, but it was not contained in the Exhibit. The only contract they had concerning the forty acres in question is contained in the Exhibit.

Bell stated that his and Ross’s understanding with Mrs. Shipp was that she would pay one-third in cash. The original agreement provided that Mrs. Shipp would handle the buying of the forty acres. They were ultimately buying it individually. There was no agreement with the corporation as to what they would do with the land. The Exhibit was the only written contract with Mrs. Shipp. There never was an oral contract. There was no agreement with Mrs. Shipp about the sale of her interest to Resort Land. Bell and Ross had discussed with their attorneys three or four avenues for dividing the property or selling it at public auction.

In his deposition Bell stated that any time Mrs. Shipp wanted to buy for the corporation she made a separate deal. In dealing with Mrs. Shipp, Bell and Ross dealt exclusively by written contract. With reference to the Morrison tract the terms of the contract are expressed in the Exhibit. There were no modifications or changes of that agreement. Bell recognized that on July 16, 1970, he, Ross and Mrs. Shipp accepted an offer to purchase the 360 acre Williams tract for $18,000. However, the agreement was consummated by a deed being placed in escrow conveying only to Bell and Ross. The reason Mrs. Shipp was not included in the deed was because she executed an' instrument in writing that her one-third interest was to go to Bell. At the time she executed that writing, she was engaged in a controversy with the corporation claiming it owed her additional commissions. There was a discussion between Bell and Mrs. Shipp that since he only owned 50 per cent of the corporation, he could not compel Ross to do anything about paying the commissions. There was also a discussion that if Mrs. Shipp gave her one-third interest in the Williams tract to Bell, he would own two-thirds of the tract and Ross would thus have a minority interest. When Mrs. Shipp made the assignment, he kept his mouth shut, took the assignment and procured a conveyance to himself and Ross. The agreement on the Morrison tract was dated July 7, 1970, and the agreement on the Williams tract was dated July 16, 1970. Since Mrs. Shipp had agreed to allow Bell and Ross to purchase one-third interests in the Morrison tract, Bell felt it only fair to give Mrs. Shipp an opportunity to participate in the Williams tract. With reference to the Morrison tract the understanding was that the conveyance would be made to each of them as individuals rather than to the corporation.

Bell stated that at various times Mrs. Shipp would make demands for advances for money from the corporation. She would ask Bell rather than Ross, and Bell would go to Ross. After awhile it looked as though it irked Ross for Bell to relay such requests, and Bell finally told Mrs. Shipp to either ask the two of them together or to make her request directly to Ross.

On cross-examination by his counsel at the taking of his deposition, Bell testified Mrs. Shipp told them from the beginning that it was her intention to act as agent for all three of them in acquiring the Morrison tract.

While claiming that he didn’t remember Mrs. Shipp making any demands for commissions due her that, they failed to pay, Ross readily admitted in his deposition that the corporation did not always account to her twice monthly as her contract with it required.

To support her counterclaim, Mrs. Shipp testified that she and Bell were paramours and that that relationship continued through this litigation until after she filed her counterclaim. Because of this relationship she trusted Bell when he told her she would get what was legally hers and that he would take care of her. The relationship between the tracts here in issue was that Bell and Ross proposed to her that if she would let them in on the Morrison tract they would let her in on the Williams tract. In July of 1970, the corporation owed her commissions that they had failed to pay under their contract with her. Bell explained to her that there was nothing he could do about the commissions owed because he and Ross were “50-50” in the corporation. Bell then made representations and suggestions to her that if he owned two-thirds of the Williams tract he would have the larger part of that tract and he would see that she got the commissions that were due. He also stated that after she got her commissions, he would see that she got back her interest in the Williams tract. As a result of those representations she executed the assignment of her one-third interest in the Williams tract to Bell.

On cross-examination Mrs. Shipp admitted that at the time she signed the offer and acceptance on the Williams tract it was agreed that she would pay for her portion of the Williams tract out of her commissions, but she had never made a tender on the Williams tract. She also admitted that she had filed two lawsuits for her commissions, but she had not mentioned the Williams deal prior to the filing of the counterclaim here involved.

Roy Danuser testified that after he refused to let the Morrisons execute a warranty deed Bell called his office stating that he was not worried abóut the title and that he would pay $2000 for the land. That was the first time Mr. Danuser had heard of anybody in .the deal other -than Mrs. Shipp. At that time Bell did not ask for credit for the earnest money, but he did state he was not concerned about the title. When Mr. Danuser told Bell that the transaction was between Mrs. Shipp and the Morrisons, Bell then stated that Mrs. Shipp was acting for him.

The sale of the Williams tract to Resort Land resulted in substantial profits somewhere in the neighborhood of $75,-000.00.

The Morrison Tract.

The written agreement dated July 7, 1970, does not meet the requirements of the statute of frauds because there is nothing in writing to show the price that Bell and Ross were to pay for their one-third interest. In Wyatt v. Yingling, 213 Ark. 160, 210 S.W. 2d 122 (1948), we pointed out that for a contract to satisfy the statute of frauds it is essential that the contract give all of the essential terms without resort to the terms of the oral contract. When all of the written evidence is considered here even assuming Mr. Nash’s statements in his letters are binding on Mrs. Shipp, it is at once apparent that the written agreement does not contain the terms or the amount that Bell and Ross were to pay for their respective one-third interests. Both Bell and Ross admit this fact. Thus, if the trial court’s order of specific performance is to be sustained it must be done upon the basis of a constructive trust.

In an effort to put Mrs. Shipp in the relationship of trust and confidence-sufficient to support a constructive trust, Bell and Ross contend that they openly treated the corporation as a partnership. They also point to the acquisition of a third tract (the Allen tract), as shown by Plaintiff’s Exhibit No. 3, and the statements in the letters of Mr. Nash that Mrs. Shipp was acting as their agent.

The record does not show how Nash obtained the information that Mrs. Shipp was acting as an agent for Bell and Ross. It is admitted by Bell and Ross that Bell called Nash. Mrs. Shipp says that she only employed Nash to perfect the title to the Morrison tract. Recognizing that an agent’s authority to speak for his principal cannot be shown by the agent’s out of court statement, Bell and Ross .contend that because of Mrs. Shipp’s failure to dispute Nash’s statements Nash must be recognized as having apparent authority to make the statements. However, if we assume that Nash had apparent authority, the assertion that Mrs. Shipp was acting as agent for Bell and Ross must be weighed against the testimony of Bell and Ross that her services as an agent were gratuitous.

Plaintiff’s Exhibit No. 3 upon which Bell and Ross rely to show that Mrs. Shipp acted as agent for them on other occasions refutes their contention. That Exhibit is an offer and acceptance form for the Allen tract between Allen and the Corporation. In that part of the form provided for the signature of the real estate agent, the term “(AGENT)” is marked out and, in the place thereof, the word “Witness” is typed in. All other provisions having to do with a real estate broker or salesman have been marked through.

The exclusive agency agreement with the corporation does not support the position of Bell and Ross for it only gives Mrs. Shipp the authority to sell the lots in Holiday Hills Estates.

Neither can we find any merit in Bell and Ross’s contention they treated the corporation as a partnership. A corporation is an entity separate from its stockholders. Banks v. Jones, 239 Ark. 396, 390 S.W. 2d 108 (1965). The fact these stockholders each held fifty percent of the stock in the Corporation does not make it tantamount to a partnership. See Atkinson v. Reid, 185 Ark. 301, 47 S.W. 2d 571 (1932). The corporate existence cannot be so lightly regarded by its stockholders. Accordingly, they will not be permitted to subvert the corporate being at their whim for one advantage and disregard it for an inconsistent advantage.

‘“A corporation is treated as an entity separate from its stockholder or stockholders under all ordinary circumstances. Although courts have made exceptions under some circumstances this has been done where applying the corporate fiction “would accomplish some fraudulent purpose, operate as a constructive fraud, or defeat some strong equitable claim. ...” Those who are responsible for the existence of the corporation are, in those situations, prevented from using its separate existence to accomplish an unconscionable result. In the presept case, those who created the corporation in order to enjoy advantages flowing from its existence as a separate entity are asking that such existence be disregarded where it works a disadvantage to them. We do not consider it good policy to do so.’ Jonas v. State (1963), 19 Wis. 2d 638, 644, 121 N.W. 2d 235, 238, 95 A.L.R. 2d 880.” Stebane Nash Co. v. Campbellsport Mut. Ins. Co., 27 Wis. 2d 112, 133 N.W. 2d 737, 743-744 (1965).

See also Black & White, Inc. v. Love, 236 Ark. 529, 367 S.W. 2d 427, 8 A.L.R. 3d 809 (1963), where we considered a similar aspect of this problem. We there held one corporation could not hide behind a sibling corporation to avoid tort liability. Such would be contrary to right and justice. “It is only when the privilege of transacting business in corporate form has been illegally abused to the injury of a third person that the corporate entity should be disregarded.” Rounds & Porter Lumber Co. v. Burns, 216 Ark. 288, 290, 225 S.W. 2d 1 (1949). The principle of disregarding the corporate fiction is a two-way street; the existence of the corporation should be upheld rather than allow the stockholders to facilitate a wrong against one relying on it. See Black & White, Inc. v. Love, supra; 18 C.J.S. Corporations § 7(b).

To impose a constructive trust the law requires that the proof must be clear, cogent and convincing. Leake v. Garrett, 167 Ark. 415, 268 S.W. 608 (1925). On the record before us we cannot say that the proof as to Mrs. Shipp’s alleged relationship of trust and confidence in the acquisition of the Morrison tract has been proven by clear, cogent and convincing evidence.

The Williams Tract

Mrs. Shipp here argues that there was a special trust and confidence existing between her and Bell and that under the rule stated in Gillespie v. Holland, 40 Ark. 28 (1882), her gift to Bell was prima facie void. The general rule, however, is that where special trust and confidence exist between the parties to a deed, the gift to the party holding the dominant position is prima facie void. Thus, before she would be entitled to invoke the prima facie rule she must show that Bell was holding the dominant position. On that issue we cannot say that the evidence preponderates in Mrs. Shipp’s favor. It certainly cannot be inferred from the illicit relationship.

Furthermore, Mrs. Shipp testified that when the deal was first entered into she was expected to pay her one-third part of the $18,000 purchase price. Admittedly, she did not pay any of the purchase price.

Of course before Mrs. Shipp could hold Bell and Ross liable on a constructive trust she would be required to prove her case by clear, cogent and convincing evidence.

While the issue has admittedly given us some concern, we cannot say that upon the whole record the trial court’s finding that she voluntarily abandoned her interest in the property is contrary to a preponderance of the evidence.

So much of the decree as directed specific performance on the Morrison tract is reversed and remanded with directions to enter a decree awarding to Bell and Ross only the admitted one-tenth interest therein. Appellant is awarded all costs of this appeal.


text:
    Frank COCHRAN, Jr. and Theodis COCHRAN v. STATE of Arkansas
    5799
    505 S.W. 2d 520
    Opinion delivered February 25, 1974

      Walker, Kaplan & Mays, P.A., by: A. T. (loodloe, for appellants.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   CONLEY Byrd, Justice.

Appellant Frank Cochran, Jr. and Theodis Cochran were cnnvicted of assaulting an officer during an assemblage or riot in violation of Ark. Stat. Ann. § 41-2802.1 (Supp. 1973). On appeal they contend, among other things, that the trial court unduly restricted their voir dire of the venire.

The record shows that Officer Clarence Edward Kennedy of the Forrest City Police Department was struck and injured in the performance of his duties when investigating a disturbance in a black neighborhood. There were at least twelve persons involved in the assault. Following the attack upon Officer Kennedy appellants were arrested along with Curtis Cochran and Frank Cochran, Sr. Later in the day all four Cochrans were allegedly assaulted by a group of white people at the jail house when they were released on bond.

When the names of the jurors were called the trial court asked them as a group: “Would the fact that the Defendants are members of the black race and that the officer is a member of the white race tend to influence your verdict or tend to prejudice you either for or against the defendants in this case?” Having received no response, the trial court accepted their silence as a response that those facts would not influence their verdicts. Thereafter, the trial court would not permit appellants’ counsel to question the prospective jurors on voir dire with reference to racial prejudice. The trial court also refused to permit counsel to question the prospective jurors as to whether they knew anyone who participated in the incident at the jailhouse or had any information about the incident.

In Griffin v. State, 239 Ark. 431, 433, 389 S.W. 2d 900 (1965), we pointed out that wide latitude is allowed counsel in examining jurors on their voir dire and that such examination should not be limited to only that which might disqualify because such an inquiry also serves the purpose of determining whether counsel should exercise a prermptory challenge. In that connection we pointed out that in many instances “counsel decides whether to use a peremptory challenge not so much on what a venireman may say, but on how he says it.”

Of course as pointed out in Ham v. South Carolina, 409 U.S. 524, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973), appellants had a constitutional right under the Fourteenth Amendment to voir dire the jurors upon the subject of racial prejudice.

In holding that the trial court abused its discretion in unduly restricting the voir dire of the jurors, however, we are not saying that appellants have a right to ask all thirty-four of the questions set forth in their briefs. We do not find those questions in the record.

The State contends that the one question asked by the trial court was sufficient to focus the attention of the prospective jurors to any racial prejudice they might entertain. A sufficient answer to the State’s contention is found in Griffin v. State, Supra, 239 Ark. at 434, where we said, relying on Missouri Pac. Trans. Co. v. Johnson, 197 Ark. 1129, 126 S.W. 2d 931 (1939):

“ ‘ ... All trial lawyers, and all students of the science of jurisprudence, know that general questions directed to the jury panel, or to individual jurors, by a judge who at the beginning of the trial has no special information regarding the issues, or the relationship of the parties, or the attending circumstances, sometimes fail to elicit answers which may cause even the most conscientious juror to reveal an existing prejudicial status.1

We find no merit in appellants’ contention that the trial court abused its discretion in refusing their motions for severance. Ark. Stat. Ann. § 43-1802 (Repl. 1964).

The only other contention made by the appellants that is likely to arise on a new trial is their contention that the jury’s verdict was inconsistent in that Frank Cochran, Sr., and Curtis Cochran were only convicted of the lesser included offense of “obstructing justice,” Ark. Stat. Ann. § 41-2801 (Repl. 1964), a misdemeanor, whereas appellants were convicted of the felony of assaulting an officer during an assembly. We find no merit in the contention for there is evidence that Frank Cochran Sr. and Curtis Cochran were not in the position of assaulting or beating the officer whereas there is rather cogent evidence that appellants and a number of others were.

Reversed and remanded.


author: FRANK Holt, Justice.

text:
    FRONTIER MOBILE HOMES SALES, Inc. v. Jessie R. TRIGLETH
    73-227
    505 S.W. 2d 516
    Opinion delivered February 25, 1974

      W. H. Schulze, for appellant.

      W. K. Grubbs Sr., for appellee.
   FRANK Holt, Justice.

Appellee Trigleth purchased a new mobile home from appellant and executed a security agreement which was assigned with recourse by appellant to Westinghouse Credit Corporation. Approximately nine months later, Trigleth discontinued payments after notifying appellant of a revocation of the purchase agreement based upon non-conformity of the mobile home. Westinghouse filed a replevin action. Trigleth filed a cross-complaint seeking cancellation of the contract, a refund of his down payment to appellant Frontier and a recovery of his monthly payments made to Westinghouse, assignee of the security agreement. The trial court, sitting as a jury, cancelled the contract and awarded Trigleth judgment against appellant Frontier in the sum of $1,393.60 and against Westinghouse for the sum of $655.50, which was to be credited to Frontier. Appellee was also awarded a possessory lien on the mobile home. Frontier appeals from this judgment.

For reversal appellant first contends “[T]he court erred in permitting rescission of the contract where the mobile home was substantially in compliance with home as ordered, seller was making necessary correction of alleged defects, and buyer occupied home for a period of almost nine months.” We first observe that the section of the Uniform Commercial Code controlling Trigleth’s action in this case is Ark. Stat. Ann. § 85-2-608 (Add. 1961) which deals with revocation of acceptance. The committee comment 1. on that section indicates that the term rescission was purposely avoided. There it is said:

**** The section no longer speaks of‘rescission,’ a term capable of ambiguous application either to transfer of title to the goods or to the contract of sale and susceptible also of confusion with cancellation for cause of an executed or executory portion of the contract. The remedy under this section is instead referred to simply as ‘revocation of acceptance’ of goods tendered under a contract for sale and involves no suggestion of‘election’ of any sort.

Appellant is essentially arguing that the mobile home conformed to the contract and revocation did not occur within a reasonable time. These issues are controlled by § 85-2-608 (1) (a) (2). The pertinent parts read:

(1) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it
(a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; . . .
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.

Whether goods are non-conforming and a revocation of acceptance was given within a reasonable time were questions of fact. Dopieralla v. Ark. La. Gas Co., 255 Ark. 150, 499 S.W. 2d 610 (1973). For example, in Dopieralla, we held it was error to direct a verdict for the seller where the buyers had relied on the seller to supply an air-conditioner capable of cooling their place of business and continued to rely on the seller’s assurances that the unit would be made to work before stopping payments 40 months later when it became apparent that the unit would never perform properly. In Gramling v. Baltz, 253 Ark. 361, 485 S.W. 183 (1972), we held it was error to direct a verdict for the seller when the buyer delayed revocation of acceptance for over two years, relying on the seller’s continued assurances that the truck’s engine would be made to run properly and continued attempts at repairs by the seller proved useless. What constitutes a non-conforming delivery is to be “determined within the framework of facts in each particular case. ” Marine Mart, Inc. v. Pearce, 252 Ark. 601, 480 S.W. 2d 133 (1972).

Similarly, a reasonable time for revocation depends on the “nature, purposes, and circumstances of such action.” § 85-1-204 (2). That, too, is a question of fact and we will not reverse if substantial evidence exists. As in Dopieralla and Gramling, a consumer must not be penalized for his continued patience with a seller who promises to make good a non-conforming delivery.

We have long recognized that on appeal, in determining the sufficiency of the evidence, we need only to consider the testimony adduced by the appellee or that which is most favorable to him. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689 (1935). We review the evidence in the case at bar. The agreement and the purchase of the mobile home required a change of living room furniture, the installation of an air-conditioner and ice maker refrigerator. When the appellant seller delivered the mobile home, Trigleth found incorrectly installed paneling, faulty wiring, loose sewer pipes, a refrigerator without an ice maker, no air-conditioner, only partial fulfillment of the agreed furniture replacement, and a hole in the front end of the home. Appellee promised to make corrections. The air-conditioner, which was later provided, never operated properly and during the summer months the temperature reached 110 degrees inside the home. Appellee Trigleth’s wife was pregnant and was told by her doctor that because of a blood disorder she would lose her baby Unless she had the benefit of air-conditioning. She lost her baby. By October, 1971, (the purchase was in July, 1971) Trigleth had his attorney notify appellant Frontier that he was retaining the option of cancellation of the contract unless the necessary repairs were made as promised such as the immediate repair of the hole in the front end causing water to leak inside, the promised furniture, replacement of tiles, repair of the oven which had never functioned properly, and the delivery of an ice maker refrigerator. It was agreed that since the weather was cooler, the repair of the air-conditioner could be made in the forthcoming spring. On March 27, 1972, appellee Trigleth, through his attorney, notified the appellant Frontier 'that he was cancelling the contract due to Frontier’s unfulfilled promises as to the deficiencies. Trigleth demanded a return of his payments and claimed a lien on the home as security. As of that date, the air-conditioner was not fixed, the leaking hole remained, the oven was inoperative, an ice maker refrigerator was never delivered, and the floor tiles were defective. A copy of the letter was forwarded to Westinghouse. The Trigleths moved out and discontinued use of the mobile home.

Appellant Frontier presented some evidence contradicting Trigleth; however, as indicated, in Baldwin v. Wingfield, supra, we need only look to the appellee’s evidence or that which is most favorable to him to determine if substantial evidence exists to support a verdict. We are of the view that the evidence is amply substantial in the case at bar to support the finding of the trial court, sitting as a jury, that the mobile home was a non-conforming product within the meaning of our code and that the revocation of acceptance occurred within* a reasonable time.

Appellant’s second contention for reversal is that the “court erred in granting judgment against third-party defendant, Frontier Mobile Home Sales, Inc., for refund of payments made by defendant, Trigleth, as the measure of damages is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, and there was no evidence of any damage introduced by Trigleth.” Appellant does not rely on the proper standard for computing damages here. The controlling code section is § 85-2-711 (1) and allows a buyer, inter alia, to recover so much of of the price as has been paid and § 85-2-711 (3) gives him a security interest on the price paid. The trial judge correctly set Trigleth’s damages accordingly.

Appellant’s final contention is that the trial court erred in not decreasing the judgment against appellant Frontier by the reasonable rental value of the mobile home for the nine months of occupancy by Trigleth. Since the issue is raised for the first time on appeal, we cannot now consider it.

Affirmed.


author: CARLETON HARRIS, Chief Justice.

text:
    CALHOUN COUNTY, Arkansas v. Hugh TAYLOR et al
    73-235
    505 S.W. 2d 753
    Opinion delivered March 4, 1974

      Beryl F. Anthony Jr., for appellant.

      Shackleford & Shackleford, for appellees.
   CARLETON HARRIS, Chief Justice.

On October 27, 1971, the Calhoun County Court entered an order condemning certain lands for purposes of widening Highway No. 274 between Hampton and Tinsman. The two tracts involved are owned respectively by Hugh and Lillian Taylor, and Alma Gardner. A claim was filed with the County court by the Taylors in the amount of $6,000.00 and said claim was disallowed. Mrs. Gardner filed a claim for $6,500.00, and it, too, was disallowed. On appeal to the Circuit Court, the jury returned a verdict for the Taylor property in the amount of $4,750.00 and rendered a verdict for Mrs. Gardner in the amount of $5,000.00, plus $480.00 for a Temporary construction easement rental. Judgment was entered for these amounts respectively, and from such judgments, appellant, Calhoun County, brings this appeal. For reversal, it is simply asserted that there was no substantial evidence to support the verdicts.

Mrs. Taylor and Mrs. Gardner each testified that she was not familiar with property values, and neither endeavored to give a market value of her respective property. Two expert witnesses, Sam Crawford, a licensed realtor and broker of El Dorado, and Cecil Nutt, a land appraiser of Calhoun County, testified on behalf of appellees. Crawford, after explaining how he reached his conclusions, gave the figure of $8,105.00 as the value of the Taylor tract before taking, and the figure of $4,623.00 as the value of the tract after taking, or a total damage of $3,482.00. As to the Gardner tract, he considered before taking value to be $18,383.00 and the after taking value as $13,806.00, or total damage of $4,-577.00. Nutt testified that the before taking value of the Taylor tract was $8,800.00, the after taking value $3,920.00, or damage in the amount of $4,880.00. He listed before taking value of the Gardner property as $18,771.00, the after taking value as $13,267.00, thus reaching the figure of $5,504.00 for damages.

The amounts awarded being greater than the appraisal of Crawford, appellant asserts that the jury had to rely on Mr. Nutt’s testimony and it is alleged that the last does not constitute substantial evidence since, in reaching his conclusions, Nutt did not apply any depreciation in determining the values of the Taylor and Gardner homes and other buildings; rather, he based his before and after taking values on the cost of building similar houses at 1971 prices, even though the Taylor house was 24 years old and the Gardner house 15 years old, at the time of the taking. It is appellant’s contention that the failure to include depreciation costs in his appraisals is fatal to conclusions reached, and does not constitute substantial evidence, thus necessitating a reversal.

Under our cases, we are unable to consider this contention, because of the failure to note proper objections. No objection was made to Nutt’s testimony, nor was there any motion to strike his values because of the manner in which he had reached his conclusions; nor was there any request for a judgment non obstante veredicto, nor a motion for new trial.

In Montgomery County v. Cearley, 192 Ark. 868, 95 S.W. 2d 554, the argument was made by appellant that t'he evidence was not legally sufficient to support the verdict.

We disagreed, stating:

“It is insisted also that the testimony of the appellees and their witnesses as to the acreage actually taken in the construction and widening of the highway is demonstrably false, and we are asked, to take judicial notice of the accuracy of certain calculations submitted by counsel for appellant. On this proposition all that need be said is that plats were introduced in evidence, appellees and their witnesses testified regarding the acreage actually taken, and appellant did. not see fit on the trial of the case to dispute this testimony. The estimates made by the witnesses may have been inaccurate, but it was certainly appellant’s duty to disclose this at the trial of the case. It is too late to bring this first into question on appeal. Likewise, as to the evidence complained of and the instructions given by the court, on the trial no objection was made or exceptions saved to any of these questions. These observations dispose of all the questions presented except the sufficiency of the testimony. It requires the citation of no authority to support this view, for it is a rule well settled by the text writers and decisions of the courts of almost universal application, that questions, of whatever nature, not raised and properly preserved for review in the trial court, cannot be considered on appeal.”

In Arkansas State Highway Commission v. Newton, et al, 253 Ark. 903, 489 S.W. 2d 804, a similar contention was made and this court stated:

“The actual objection, that the witness had given no fair and reasonable basis for his valuation, did not bring to the trial court’s attention either of the deficiencies now being urged. Had the omissions been pinpointed, the witness could have been examined further in the light of the true facts, which were readily available. It is not our practice to reverse the action of the trial court when the error could have been easily remedied upon a proper objection. ”

Numerous cases hold likewise.

Affirmed.

       Hugh Taylor died during the time that the appeal from County Court was pending in the Circuit Court.

       Marvin Russell, an employee of the Arkansas Public Service Commission, testified as to values on behalf of appellant, and James Williamson, a resident engineer for the Arkansas Highway Department, testified relative to the amount of property taken.

       The testimony conflicted as to the amount of land actually taken, varying on the Taylor property from .12 acre out of a 2.25 acre tract (appellants’ testimony) to .41 acre (according to witnesses for appellee). As to the Gardner property, there was a variance from .77 acre out of a 23.81 acre tract (appellants’ witness) to 1.75 acres (according to witnesses for appellee).


author: LYLE Brown, Justice.

text:
    Thomas P. McKIM v. NORTHWESTERN NATIONAL CASUALTY CO.
    73-233
    505 S.W. 2d 756
    Opinion delivered March 4, 1974

      James C. Cole, for appellant.

      Laser, Sharp, Haley, Young & Boswell, P.A., for appellee.
   LYLE Brown, Justice.

Appellant Thomas P. McKim instituted this suit against appellee insurance company on appellant’s automobile policy, alleging negligence on the part of Larry Jester, an uninsured motorist. At the close of appellant’s presentation of evidence, the trial court granted appellee’s motion for a directed verdict. Appellant here contends his evidence was sufficient to make a jury question on the issue of liability.

No eyewitnesses to the accident testified. Officer Linden Davis was on the scene within a short time and gave a detailed description of what he found. Rex Franklin, a friend of appellant, inspected the premises a few days after the accident, and later testified. Appellant testified but was unable to recount the accident because since since the accident he had been suffering from retrograde amnesia. That condition resulted from a serious injury to his head in the accident. We proceed to give a fair summary of the accident as reconstructed by appellant’s witnesses.

The accident occurred at about 9:30 p.m. on November 30, 1970; the weather was clear and dry. Larry Jester was driving south on Garland Street in the city of Malvern. Almost in the center of the block is a car wash. The street and the car wash lot were paved with asphalt. There were no sidewalks or traffic markings. Appellant, a pedestrian, was either crossing or had crossed Garland Street in front of the car wash. He was apparently walking in a northwesterly direction, headed for a small industry where his wife worked on the night shift. He was going there to get his wife’s car to transport a pistol, which he had borrowed, to its owner, Rex Franklin.

There was a street light at each end of the block and the point of impact in front of the car wash was dark. The investigating officer had to use a flashlight and a car spotlight to investigate the accident. The car wash was closed and no lights were on. Appellant was wearing a dark jacket and dark trousers, described as “olive drab” color. A set of keys belonging to appellant was found in Jester’s lane of traffic, some six feet on the other side of the imaginary curb line between the street and the car wash. Appellant’s body was found on the car wash side of the curb line, being some 5’ 10” over on the car wash property. The body was located almost in line with the car keys but just a few feet to the south of that line. Jester’s car was stopped in his lane of traffic some seventy-five feet south of the car keys. There was a dent on the bumper and on the right part of the hood. The officer found the brakes and lights to be in good working order. There were no skid marks. The officer took a statement from the driver, Jester, but it was not introduced.

On the corner of the block just north of the car wash is a Tastee Freeze and it was lighted that night. Cars are in the habit of circling the Tastee Freeze and then coming south on Garland Street. Whether Jester made such a circling movement, or whether he was proceeding down Garland street in the usual manner, is now shown, by the record. The keys were found 130 feet south of the nearest corner of the Tastee Freeze.

Another object found at the scene of the accident was the pistol appellant was carrying. It was found in somewhat of an even north and south, line from appellant’s body and towards where Jester’s car stopped. The pistol bore fresh scar marks.

Appellant said the last thing he remembered was “when I got in from work that afternoon”. The next thing he remembered was about eight days later when he found himself in the hospital. The trousers he was wearing at the time of the accident were introduced; they had a hole in them and a tear across the right hip. The shoes he was wearing were scuffed and the jacket was torn. With respect to his walking in the street he said: “I was trained in the military about when walking dpwn a highway or street, where there is no sidewalk, to walk facing, traffic on the left side of the street. I formed a habit of doing that”.

We have searched for substantial evidence of negligence on the part of the driver, viewing the same in the light most favorable to plaintiff-appellant. We have also taken cognizance of the rule that “a well-connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence,.. . and that any issue of fact in controversy can be established by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions”. Woodward v. Blythe, 246 Ark 791, 439 S.W. 2d 919 (1969). Nevertheless, we have no hesitancy in concluding that at most, appellant’s evidence would do nothing more than afford the jury a choice of possibilities. When the evidence presents no more than such choice we have said that it is not substantial. Kapp v. Sullivan Chevrolet Co., 234 Ark. 395, 353 S.W. 2d 5 (1962). In the case at bar the appellant alleged: (a) failure to keep lookout, (b) inadequate warning, (c) excessive speed, (d) lack of required control, and (e) inadequate headlights. Applying the facts and circumstances established, we are simply unable to say that either of the allegations is supported by substantial evidence. Possibility of proximate cause is not enough; a reasonable probability must be shown by substantial evidence. Davis v. Kemp, 252 Ark. 925, 481 S.W. 2d 712 (1972).

Affirmed.