text:
    Roosevelt WILSON and Johnny DANCY v. STATE of Arkansas
    CR 77-37
    552 S.W. 2d 223
    Opinion delivered June 20, 1977
    (Division II)

      HaroldL. Hall, Public Defender, by: Robert J. Govar, Dep. Public Defender, for appellants.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellants Roosevelt Wilson and Johnny Dancy were found guilty, in a joint trial, of burglary and theft of property, committed on February 25, 1976, They were charged with having broken into the Victory Liquor Store in North Little Rock and having taken a quantity of bottled liquor therefrom. They were charged with being habitual offenders, and each admitted two prior felony convictions. The charges were laid under Ark. Stat. Ann. §§ 41-2202 — 2203 (Grim. Code, 1976). We find no reversible error and affirm.

Appellants rely upon three points for reversal, which we will treat in the order argued.

i

The circuit judge gave the state’s requested instruction No. 6 defining the crimes of burglary and theft of property. Appellants contend that we should reverse the judgments in this case for plain error in the giving of the last sentence of that instruction, which was designed to inform the jury when theft or property constitutes a felony. It reads thus:

Theft of property is a felony if the value of the property is less than $100.00 but more than $10,000.00.

Appellant Wilson was represented by an attorney from. the public defender’s staff. Dancy was represented by retained counsel. Wilson’s attorney made no objection to this instruction. Dancy’s attorney made only a general objection, which is insufficient basis for appellate review. Rule 13, Uniform Rules for Circuit and Chancery Courts. Appellants contend that the instruction was incorrect, ambiguous and misleading and so prejudicial to their substantial rights that this court should notice the error and reverse the judgment in spite of the fact that proper objection was not made in the trial court.

Of course, the error is obvious. Ark. Stat. Ann. § 41-2203 (2) (b) states:

Theft of property is a Class C felony if: (i) the value of the property is less than $10,000 but more than $100.

Appellants say that prejudice is clear in this case, in which they were given maximum sentences of ten years for habitual offenders. Ark. Stat. Ann. § 41-1001 (1) (c) (Grim. Code, 1976). If the value of the property stolen is $100 or less, the offense is a Class A. misdemeanor, punishable by imprisonment for not exceeding one year and/or a fine not exceeding $1,000. Ark. Stat. Ann. §§ 41-901 (2) (a), 41-1101 (2)(a). A quantity of liquor having a value of $250 to $300 was recovered from the person to whom the evidence had showed appellants had sold it. The owner of the store burglarized was able to positively identify only five bottles of this liquor, which were valued at less than $100. Appellants say that the instruction as given assured the imposition of felony liability if the state convinced the jury beyond a reasonable doubt that anything was taken.

We do not agree that the error was prejudicial. It is quite clear that the error was an inadvertent clerical misprision in the transposition of the figures $100 and $10,000 in the preparation! of the instruction. This error was so obvious and misinterpretation was so highly unlikely that we cannot overlook the failure of appellants to make proper objections. See 75 Am. Jur. 2d 595, § 627. We will take this action only when the error is so great that the trial court was under a duty to correct it immediately and no objection or admonition could have undone the damage or erased the effect of the error from the minds of the jurors. See, e.g., Bell v. State, 223 Ark. 304, 265 S.W. 2d 709; Wilson v. State, 126 Ark. 354, 190 S.W. 441. Even that is a practice which should be indulged in with great caution and invoked only to avoid a clear miscarriage of justice. See Minor v. United States, 375 F. 2d 170 (8 Cir., 1967), cert. den. 389 U.S. 882, 88 S. Ct. 131, 19 L. Ed. 2d 177. Craig v. United States, 337 F. 2d 28 (8 Cir., 1964), cert. den. 380 U.S. 909, 85 S. Ct. 891, 13 L. Ed. 2d 796. The unlikelihood that the instruction could be misinterpreted actually finds support in the failure of appellants’ attorneys to make a specific objection, which would have, beyond doubt, resulted in a prompt corrction of the ambiguous language. See Rhodes v. State, 208 Ark. 1043, 189 S.W. 2d 379. Appellants were called upon to call the court’s attention to the erroneous language. Lindsey v. State, 151 Ark. 227, 235 S.W. 782; Lockett v. State, 136 Ark. 473, 207 S.W. 55. It is also significant that neither of appellants requested a misdemeanor instruction on theft. Furthermore, the evidence that the theft was felonious is quite substantial, if the jury found, as it must have, that the principal witnesses were not accomplices of appellants.

II

Appellants contend that the trial court erred in denying their motions for mistrial after certain remarks were made by the prosecuting attorney during his opening statement to the jury. He said that the owner of the liquor store, Mrs. Leo Mabry, would say that she had been shot in a robbery and required to go to the hospital. When the motion for mistrial was made and denied, the prosecuting attorney advised the jury that the witness would say that neither of the appellants had anything to do with that robbery, but that the liquor store was boarded up at the time of the burglary because she was in the hospital.

When Mrs. Mabry testified, she remarked that she “had a couple of holdups.” When the attorney for one of the appellants moved for a mistrial, the witness spontaneously stated, “They had nothing to do with it, these on trial.” In denying this motion for mistrial, the trial judge directed the prosecuting attorney to get to the issue involved in the case, stating in effect that what had happened the preceding year might be a matter of concern at some other time or place, but not with the present facts. No admonition to the jury was requested by appellants in either instance.

We find no such prejudice to appellants as to call for the extreme and drastic step requested. A mistrial should not be declared unless the error is so prejudicial that justice cannot be served by a continuation of the trial. Gammel & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474; Hill v. State, 255 Ark. 720, 502 S.W. 2d 649. Any prejudice arising from whatever error there was in these statements was minimized, if not completely neutralized, by the prompt disavowal by the prosecuting attorney and by Mrs. Mabry of any intent to imply that either of appellants had anything to do with the robbery of her injury. There is no indication that the state prompted the apparently spontaneous remark by Mrs. Mabry. The court’s statement to the jury when it was made was, in effect, a sufficient admonition to the jury. See Ragsdale v. State, 132 Ark. 210, 200 S.W. 802.

Ill

Appellants contend that the evidence was insufficient to support their conviction, because there was no evidence tending to connect them with the burglary and theft, other than that given by two persons who were accomplices. One of these was Patricia Manning, a 17-year-old girl, who testified: she was “going with” Dancy at the time of the burglary; she was picked up by Dancy at her school on the evening of the burglary; Wilson and one Brooks were in the automobile driven by Dancy; they rode around until about 12, when Dancy took Wilson to some place on Broadway and parked the vehicle; Wilson and Brooks left the car, taking a bag with them; Wilson pulled some tin loose from the building and Brooks entered it; Brooks handed the sack out of the building to Wilson, who took bottles from it and put them in the trunk of Dancy’s car; Wilson took the empty sack back to the building and returned it to Brooks, who partially filled it and returned it to Wilson who took it to the trunk of the automobile after which Brooks came out of the building and both Brooks and Wilson got back in the car; Wilson asked Dancy to take him to a Seven-Eleven store somewhere near Burns Park, where Wilson used a telephone; that a white man named Bobby came to the store and Wilson and Brooks took liquor from Dancy’s car and put it in this man’s car; when Wilson got back in the car he said nothing except that he got $160; they took Brooks home and were stopped on the street when the police came up and arrested her, Wilson and Dancy; she did not hear anyone say anything about a burglary before they went to the building, which she identified as the liquor store that was burglarized; Wilson said nothing about this white man or what he intended to do; she did not know what was going on when they drove to this building; the officers told her they would drop the charges against her if she would tell what she knew; and she went with two police sergeants and identified the “white dude’s car.”

Bobby Banks testified that he had become acquainted with Wilson at a pool hall in North Little Rock, where he had been shooting pool with people who went to Banks’ deer camp, and learned that Wilson knew some of these people; that there was conversation about having drinks at the camp; that Wilson said that he had a cousin who had some alcohol that Banks could buy for the deer camp; that later Wilson brought some man he identified as the cousin to Banks’ house; that Wilson said his cousin was selling out his stock of liquor, in a liquor store he had, because he was going out of business; that Banks agreed to buy what he needed for the deer camp during the winter; that two days later, in response to a phone call at around 11:30 p.m., he went to a Seven-Eleven store about a block from his house and agreed with Wilson on the price of $160 for some liquor in the trunk of a car; that there were four people in the automobile; that he knew Dancy; that Wilson, Dancy and a girl were among the four people, but that he did not know the other person, a man; that he paid Wilson $160; that he and Wilson and Dancy loaded the liquor in his car; that there were many brands and various size bottles; that he had no knowledge that he was buying liquor that came from the Victory Liquor Store; that he had no agreement that Dancy, Wilson or anyone else to steal any liquor for him; that when he was arrested by the police the next morning, he cooperated with them, opened the trunk of his car for them, and drove the car to the police station and gave them permission to search his house; that he was charged with theft by receiving, was still charged, and had made no “deal” for his testimony, but hoped that his testifying would help him; that he bought the whiskey at night at a well-lighted place of business; that he thought the liquor was worth twice what he paid for it; and that he thought he was buying legitimate whiskey from a place that was going out of business.

The court gave instructions requested by appellants defining an accomplice and the necessity for corroborating testimony, together with a correct instruction on the subject which had been requested by the state. If the jury believed these witnesses, as it apparently did, they were not accomplices. An appropriate definition of accomplice was recently quoted from Simon v. State, 149 Ark. 609, 233 S.W. 917, in Burke v. State, 242 Ark. 368, 413 S.W. 2d 646, viz:

“The test, generally applied to determine whether or not one is an accomplice, is, could the person so charged be convicted as a principal, or an accessory before the fact, or an aider and abetter upon the evidence? If a judgment of conviction could be sustained, then the person may be said to be an accomplice; but, unless a judgment of conviction could be had, he is not an accomplice.
*****
“The term ‘accomplice’ cannot be used in a loose or popular sense so as to embrace one who has guilty knowledge, or is morally delinquent, or who was even an admitted participant in a related, but distinct offense. To constitute one an accomplice, he must take some part, perform some act, or owe some duty to the person in danger that makes it incumbent on him to prevent the commission of the crime. Mere presence, acquiescence or silence, in the absence of a duty to act, is not enough, however reprehensible it may be, to constitute one an accomplice. The knowledge that a crime is being or is about to be committed cannot be said to constitute one an accomplice. Nor can the concealment of knowledge, or the mere failure to inform the officers of the law when one has learned of the commission of a crime.”

Appellants contend that the testimony of Banks clearly showed that he was an accomplice and that he could have been convicted of theft by receiving stolen property under Ark. Stat. Ann. § 41-2206 (Crim. Code, 1976). He probably could have been. See Long v. State, 192 Ark. 1089, 97 S.W. 2d 67. But the testimony of Banks about his belief that he was the beneficiary of a bargain from a close-out sale, the circumstance of the transfer of the liquor to his vehicle in a brightly lighted location and his ready disclosures to police would have to be disregarded. The question of his status was properly submitted to the jury. The question whether a witness is an accomplice is usually a mixed question of law and fact and the findings of the jury are binding unless the evidence shows conclusively that he was an accomplice. Burke v. State, supra.

Appellants say that Miss Manning was an accomplice, as a matter of law, under the definition set out in Ark. Stat. Ann. § 41-303 (1) (c) (Crim. Code, 1976), claiming that she had a legal duty to prevent the commission of the offense and failed to make a proper effort to do so. It is true that she might have been found by the jury to be an accomplice, but her legal duty to prevent the offense is not defined by appellants, and we find little, if any, evidence to support that argument. The applicability of this portion of the section to this minor who had no official position and who was not an employee of, or otherwise connected with, the establishment burglarized is, to say the least, doubtful. It is not shown that she actively participated in the crimes charged and what she might have done to prevent them is not pointed out. Mere presence, or negative acquiescence and passive failure to disclose the crime are neither separately nor collectively sufficient to make one an accomplice. Johnson v. United States, 195 F. 2d 673 (8 Cir., 1952); Satterfield v. State, 245 Ark. 337, 432 S.W. 2d 472.

The judgment is affirmed.

We agree. Harris, C.J., and Byrd and Hickman, JJ.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Evelyn HUBBARD, Individually v. Leone C. SHARPE
    77-43
    552 S.W. 2d 21
    Opinion delivered June 20, 1977
    (Division II)

      Haskins, Eubanks & Wilson, by: Hugh F. Spinks, Jr., and
      Gary L. Eubanks, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Conley Byrd, Justice.

Dr. John Hundley, an orthopedic specialist, on direct examination testified that his total bill for treating appellant Evelyn Hubbard was $2,200.50. He considered his charges to be reasonable and necessary. On cross-examination and over the objection of appellant, Dr. Hundley testified that he was a member of the Arkansas Medical Society. He admitted that his charges for the treatment of one of his patients had recently been reviewed by a committee of the Arkansas Medical Society and that he was notified that his charges were three times the maximum charged by the average orthopedist. The letter from the reviewing committee of the Arkansas Medical Society was not introduced or read into evidence.

Appellant contends that the cross-examination of Dr. Hundley was in violation of the hearsay rule and that the evidence was irrelevant. The Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001, Rule 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The cross-examination here only elicited from Dr. Hundley that other experts in his same field had considered his charges in the past to be unreasonable. This was a fact within the knowledge of Dr. Hundley and would not be hearsay within the definition set out in Rule 801(c), supra. Our cases readily recognize that an expert on cross-examination may be examined to see how his opinion on the matter in issue compares with other recognized authorities for purposes of ascertaining the weight the fact finder should give to his opinion, Scullin v. Vining, 127 Ark. 124, 191 S.W. 924 (1917).

The characterization of Dr. Hundley’s charges by the Arkansas Medical Society as being three times as high as that charged by the average orthopedist was certainly relevant within the definition of Ark. Stat. Ann. § 28-1001, Rule 401, to the credibility of Dr. Hundley’s assertion that his total bill of $2,200.50 for the treatment of appellant was reasonable.

Affirmed.

We agree: Harris, C.J., and Fogleman and Hickman, JJ.


author: Frank Holt, Justice.

text:
    William Earl LOVE et al v. H. F. CONSTRUCTION COMPANY, Inc.
    76-391
    552 S.W. 2d 15
    Opinion delivered June 20, 1977
    (Division I)

      Williams <2? Gardner, for appellants.

      Gordon, Gordon <2? Eddy, for appellee.
   Frank Holt, Justice.

This appeal involves separate contracts for the construction by appellee of five dams for the appellants, Commissioners of Point Remove Creek Watershed Improvement District. By the terms of the written contracts, the appellee contractor was required to make whatever changes or modifications which might be requested by appellants during the construction of these dams. If any increased or lessened costs resulted and could not be agreed upon, the contractor had the right to reserve the claim and seek an adjustment later. After the completion of the projects and being unable to resolve their differences as to certain changes during construction, appellee contractor brought the suit against the appellants to recover certain claims allegedly due which resulted from modifications, changed conditions, an overrun, an underrun and a liquidated damage assessment. The quality of appellee’s construction is not disputed. The jury returned verdicts in favor of appellee on all five contracts. Appellants assert four points for reversal. They first argue that the court erred in denying their motion for a directed verdict on four of the five contracts in which appellee released all claims without also stating the dollar amount as to its excepted claims. Further, if that was not error then the court erred in not granting a directed verdict because of insubstantial evidence to support the verdicts. We discuss these contentions together.

The five written contracts specified that upon completion of the work, appellee would be paid when it furnished a final release of all claims against appellants “other than claims in stated amounts as may be specifically excepted by the Contractor from the operation of the release.” When appellee signed the releases and was paid, it excepted as to certain specifically listed claims on all of the five releases. Only on one of the five releases did appellee state the amount claimed.

Appellants argue that since the appellee contractor signed a release when paid, it is limited by the written terms of the contract to a recovery of those specific exceptions reserved and the amounts stated in the releases. Appellants rely on cases from the U.S. Court of Claims: U.S. v. Wm. Cramp & Sons Ship and Engine Building Co., 206 U.S. 118, 27 S. Ct. 676 (1907); J. G. Watts Construction Co. v. U.S., 161 Ct. Cl. 801 (1963); Shepherd v. U.S., 113 Fed. Supp. 648 (1953); and Indland Empire Builders, Inc. v. U.S., 424 Fed. 2d 1370 (1970). Here appellants recognize that these cases are not decisive. However, it is asserted that the principle of law enunciated there is persuasive. It is argued that the tenor of these cases is that a contractor’s release limits any future recovery unless there is a specific item, together with the amount claimed, reserved in the release. Even soihere, when the appellee contractor executed the releases, ?it excepted or listed certain claims on each of the five contracts. To say that appellee intended to release appellants from all claims would be inconsistent with the inclusion of the specifically excepted claims. As we now discuss, it appears the appellants had notice in writing of the dollar amount of each exception or claim (except two) before or at the time the releases were executed by the appellee. In our view, consequently, there was substantial compliance with the written contract requirement that the stated amounts were to be indicated in writing along with the enumerated exceptions or claims.

In testing the sufficiency of the evidence on a motion for a directed verdict, the testimony and all reasonable inferences are viewed in the light most favorable to the party against whom the verdict is sought. Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W. 2d 307 (1969). As to the substantiality of the evidence, we will not disturb the jury’s conclusion on appeal unless we can say there is no reasonable probability in favor of appellee’s version, and then only after giving legitimate effect to the presumption in favor of the jury findings. Beard v. Coggins, 249 Ark. 518, 459 S.W. 2d 791 (1970); Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W. 2d 822 (1968); and Lumbermens Mutual Ins. Co. v. Cooper, 245 Ark. 81, 431 S.W. 2d 256 (1968). Further, in testing the sufficiency of the evidence as being substantial on appellate review, we need only consider the testimony of the appellee and that part of the evidence which is most favorable to the appellee. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689 (1935).

Appellants primarily attack what is characterized as the “speculative” nature of the appellee’s supporting testimony with respect to additional sums due it as a result of modifications, etc., by appellants. However, the record shows that Watts, president of the appellee construction company, provided the jury with the necessary details (except two) concerning contract rates, applicable schedules, deletions and relevant facts in support of appellee’s claim for equitable adjustment or additional payments.

On Site 12, Contract WF-13, as to modification 3 (sloping of right abutment), Watts provided in writing by exhibit 5, before he signed the general release, an itemized cost schedule, deletions and the amount paid under the contract, showing a claimed adjustment due appellee of $18,448.72, which the jury awarded, for additional excavation. As to modifications 8 and 11, Watts testified that the necessity for more fill dirt entailed transportation of dirt from a further and more inaccessible site at a cost of $1.06 per cubic yard. Under the contract appellee was paid only $.30 per cubic yard, leaving an adjustment of $14,700 for the balance due. However, appellee does not document any writing which reserves this stated amount or claimed adjustment.

On Site 18-Contract WF-20, exceptions were made as to modifications 3 and 6. Watts testified that a change in the excavation process and the installation of asbestos pipe delayed operation for which he claimed a balance due of $23,188.16 as was detailed in a four page letter (exhibit 1) predating the release, based on a fixed cost per day operating formula. The jury reduced the claim to $12,500.

On Site 9, Contract WF-11, as to modification 15, Watts furnished in writing, by exhibits 13 and 13A, a schedule of increased costs of $7,096.32. By these exhibits and his testimony, there was an increase in the emergency spillway excavation over the 25% allowable by the contract. There was a .detailed schedule of increased costs because of the modifications. Watts testified that after deletions and a reduction of $2,611.84, the change here ran 9,856 cubic yards over the 25% allowable at a cost of $1.21 per cubic yard, while under the contract he was paid at a rate of $.49 per cubic yard, leaving a balance of $4,484.48 due, which the jury awarded. As to the $3,300 (22 days delay at $150 per day in completion) for liquidated damages assessed and withheld by appellants, it appears Watts protested this exact deduction when he stated in the final release that sufficient time was not allowed by appellants in the sequence of construction. He testified that the delay resulted frmm appellants’ modifications. As to modification 5, Watts testified as to extra expense in obtaining necessary sandstone from an outside source and transportation to the site. He claimed an adjustment of $5,632, which was awarded by the jury. However, it appears there was no exhibit or anything in writing presented to appellants as to the dollar amount claimed either before or at the time the appellee signed the release.

As to Site 5-Contract EF-2, Watts testified and provided a detailed cost analysis schedule for additional expenses occuring when excavation encountered large rocks instead of dirt. By exhibit 17, a letter attached to the release, appellee claimed the amount of $11,045 which the jury awarded for this change of the contract. Appellants agree that this exception and stated amount substantially conforms to the requirement of the contract. As to Site 17-Contract WF-23, modification 3, Watts .testified that there was a deletion in the rock excavation of the emergency spillway. Although this reduced the contract price, appellee encountered increased costs in the deletion and rental fees for equipment not used. It appears this was supported by a three page written cost computation schedule submitted to appellants in which appellee claimed an adjustment of $5,323 which the jury awarded.

We hold the court did not err in refusing to direct a verdict since there is ample substantial evidence to support the jury’s verdicts other than two exceptions indicated: i.e., the claims of $14,700 and $5,632. We recognize that appellee asserts that as to the dollar amounts claimed, a “declaration was made in writing before the releases were executed.” However, it does not appear there is anything in writing reserving the dollar amounts of these two claims. Consequently, these two claims are not in substantial compliance with the terms of the contract.

Neither do we agree with appellee that appellants’ acceptance of appellee’s final releases constituted a waiver of the requirement that the dollar amount be stated along with the exception. It was appellee who signed a final release. The contract required that any additional claims, which could not be resolved, should be reserved by listing the claim and stating the dollar amount in the release.

Appellants next contend that the lower court erred in refusing to give their requested instruction which, in effect, told the jury that if appellee failed to set out the stated amounts in the release forms, then the release “would bar” recovery. This instruction was properly refused because it does not adequately state the material issues of the case and is clearly of a binding nature. Miller v. Ballentine, 242 Ark. 34, 411 S.W. 2d 655 (1967).

Appellants attack the 10% interest awarded from the date of judgment. It is pointed out that at the time the contracts were entered into and completed the statutory rate of interest on judgments was only 6%. However, this statute, Ark. Stat. Ann. § 29-124 (Supp. 1975), was revised before trial allowing 10% interest on a judgment. Therefore, we find no error in applying the 10% rate of interest per annum.

Appellants also attack the prejudgment interest award of 6% from the date of contract completion. They contend that the claims here were unliquidated and, therefore, unascertainable without a trial. Hence, they argue, interest can only be awarded from the date of the judgment. We agree with appellee’s response that the claims here were capable of ascertainment with a reasonable degree of certainty and that the interest was properly allowed from the date of contract completion in order to adequately compensate appellee for the monies wrongfully detained. See Tech-Neeks, Inc. v. Francis, 241 Ark. 390, 407 S.W. 2d 938 (1966); Kincade v. C. & L. Rural Elec. Coop. Corp., 227 Ark. 321, 299 S.W. 2d 67 (1957); and Loomis v. Loomis, 221 Ark. 743, 255 S.W. 2d 671 (1953).

As indicated, there was not substantial compliance with the written terms of the contract with respect to the claims of $14,700 and $5,632. To that extent the judgment should be modified.

Affirmed as modified.

We agree: Harris, C.J., and George Rose Smith and Roy, JJ.


text:
    Richard E. BOOTH Jr. v. Donald H. SMITH et al and Bobby GARNER
    77-32
    552 S.W. 2d 19
    Opinion delivered June 20, 1977
    (In Banc)

      Jones & Petty and Marion B. Burton, for appellant.

      Holmes, Holmes & Trafford, by: Winfred A. Trafford, for appellees.
   Frank Holt, Justice.

In 1976 appellee Bobby Garner was the Democratic nominee for Justice of the Peace, District One, Jefferson County, and appellant was the Republican nominee for the same position at the general election. Before the election the appellant sought a declaratory judgment to the effect that Garner was not a qualified elector nor a resident of District One. He also sought a writ of mandamus against the appellee Election Commission (Smith, et al) directing that the ballots on which Garner’s name appeared not be Used in the election or that any votes cast for Garner not be counted nor certified. Appellant also sought certification as an unopposed candidate. The trial court, sitting as a jury, found that Garner was a qualified elector and resident of District One. For reversal, we first consider appellant’s argument that a candidate for office must, at all times, be a resident of a district he represents and a removal from that district, as here, is an abandonment of his candidacy. Therefore, appellant contends that Garner was not a qualified elector or resident of his district. We cannot agree.

It is true, as appellant asserts, that a Justice of the Peace must be a qualified elector and a resident of his township or district. Ark. Constitution, Art. 7, § 41 (1874). See also Ark. Constitution, Art. 19, § 4 (1874). §§ 4 and 10 of Amendment 51 are to the effect that once a voter registers in a county, as here, and remains there he does not have to register again unless he moves into another county or his permanent registration is cancelled or subject to cancellation. § 10 also provides that when a registered voter moves from one precinct to another one in the same county, the voter “may cause his [registration] to be transferred to his new address. ...” In other words, a re-registration is not required. Obviously, the voter could continue, as the trial court held, to vote in the precinct where he was properly registered.

Here it is undisputed that appellee Garner was a qualified elector, a properly registered voter and a resident of District One when he was nominated for Justice of the Peace for that district. Garner testified that he occasionally deals in real estate and in July, following the nomination, he bought a house as investment property. He temporarily moved outside his district into the house, made some improvements and stayed there until he located an apartment in District One. He then moved back into his district on October 12,1976, twenty days before the general election and nine days before this suit was filed by appellant. The lease on the apartment is dated October 12, 1976, and utility receipts indicate a electricity deposit was made on October 13, 1976. Garner testified that it was never his intent to change his residence outside of District One and his removal was temporary.

The findings by a trial court, sitting as a jury, as to residency requirements, have the force and effect of a jury verdict which we uphold if supported by any substantial evidence. Pike Co. Sch. Dist. 1 v. Pike Co. Ed. Bd., 247 Ark. 9, 444 S.W. 2d 72 (1969). There we also said that in resolving the issue of residence, the intent of the voter is correctly considered together with his conduct as to his asserted residence. It is also well established that in testing the sufficiency of the evidence on appellate review, we need only consider the testimony of the appellee and that part of the evidence most favorable to him. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689 (1935). Here the evidence is amply sufficient to support the finding of the trial court that Garner, admittedly a qualified elector and resident of District One before he moved therefrom, never abandoned his residency and, therefore, was qualified as a candidate in the general election.

It follows we need not concern ourselves with appellant’s argument that Garner did not transfer, twenty days before the election, his registration from the precinct in District One where he lived when nominated to the precinct in District One where he was residing at the time of the general election. At that time he was a qualified voter and a resident of District One, which is all the law requires.

Affirmed.

Harris, C.J., not participating.


author: Elsijane T. Roy, Justice.

text:
    Paul D. PEEVY, Administrator, et al v. Frances RITCHESON, Gary KENNAN, Administrator
    76-415
    552 S.W. 2d 218
    Opinion delivered June 20, 1977
    (In Banc)

      Estes, Estes & Estes, by: Peter G. Ester Jr. and Robert R. Estes, for appellants.

      W. Gary Kennan, for appellees.
   Elsijane T. Roy, Justice.

C. R. Ritcheson died on or about July 19, 1971, in Benton County, Arkansas. This is an appeal from an order of the probate court refusing to admit to probate a handwritten instrument as the holographic will of the decedent.

It was agreed by the parties inter alia that Ritcheson possessed the necessary testamentary capacity to make a will and that he had intended for some time to make a will; that the instrument in question disposed of Ritcheson’s entire property; that the purported will is not tainted with fraud, constraint or undue influence; and that the deceased is survived by his widow.

In January, 1971, Ritcheson asked his close friend, Paul D. Peevy, to help him prepare his will, but Peevy declined and suggested that Ritcheson see a lawyer. Ritcheson attempted to do so, but was unsuccessful. At one time the decedent stated he would make his own will, but evidently did not since several times thereafter he remarked he needed to see about getting his will drawn. In March, 1971, Ritcheson was involved in an automobile accident and remained in poor health thereafter.

Approximately one week before his death Ritcheson came by Peevy’s office complaining of considerable pain and asked Peevy to call his attorney for him so that he could have his will made. Ritcheson then made some notes pertaining to his proposed will on a yellow legal tablet, preparatory to going to the attorney’s office. Peevy telephoned Ritcheson’s attorney and was told the attorney was not in his office. Ritcheson then placed the legal tablet paper in his pocket and departed.

On July 19, 1971, Peevy, together with others, went to Ritcheson’s home and found him dead. Lying on Ritcheson’s dining room table was a brief case in which was found the handwritten instrument offered for probate. The yellow legal tablet sheet was never found.

On the trial court’s refusal to admit the instrument to probate this appeal was brought.

For reversal appellants first contend the court erred as a matter of law in making findings of fact contrary to and in conflict with the agreed statement of fact, which stated that the instrument in question disposed of all of decedent’s property.

in addition to the agreed statement of fact, at trial the parties stipulated:

It is stipulated between the parties that at the time of death of Mr. C. R. Ritcheson he owned three separate parcels of real estate in Benton County, Arkansas. A home in Rogers, Arkansas; approximately 19 acres in the vicinity of Pea Ridge, Arkansas; and approximately 39 acres in the vicinity of Avoca, Arkansas, all being in Benton County, Arkansas. That he had some interest in some real estate — correction, he had a mineral lease on some property situated in Illinois, Hamilton County, Illinois.

No objection was made to the stipulation, and no request made that the court consider the matter only on the aforesaid agreed statement of fact.

In addition to the stipulation the inventory of the estate of Ritcheson reflects the appraisement, sale and confirmation of sale of the above parcels of realty. The probate judge could not close his eyes to these facts; consequently, no error occurred when the court stated: “In this case there is not a full and complete disposal of all of the estate.”

Appellants’ other contention is that the court erred in refusing to admit the questioned document to probate.

It is imperative that a holographic document asserted as a will should clearly show intention to make a will before such instrument is declared by the courts to be a will. Smith v. Nelson, 227 Ark. 512, 299 S.W. 2d 645 (1957). Spec. Admr., el al, 252 Ark. 931, 481 S.W. 2d 741 (1972). However, we find the facts therein clearly distinguishable from the case at bar. In Smith v. MacDonald the testator executed a holographic will completely disposing of all his property, and his signature appeared in his own handwriting in two places on the face of the instrument in the following format:

. . . [T]he intention to make a will, and the existence of this intention is not a matter of inference, but must be expressed so that no mistake be made as to the existence of that intention.
Stark v. Stark, 201 Ark. 133, 143 S.W. 2d 875 (1940).
Appellants rely on the case of Smith et al v. MacDonald,
Page 1
Will of Julian Leland Rutherford
l Julian Leland Rutherford of Monroe County, Arkansas, being over the age of twenty one years and of sound and disposing mind and memory, do hereby make, publish and declare this to be my last will and testament, hereby revoking all wills here-to-fore made by me at any time.
(Thereafter specific directions follow.)

His signature also was on the envelope in which the instrument was sealed. The testator delivered the envelope to his attorney and told him it contained his will. Thus the probate judge correctly admitted the will to probate as testator’s last will and testament even though testator’s signature did not appear at the end of the instrument.

These facts are not present in this case. The decedent never stated it was his will and he did not mention his wife nor dispose of all of his property.

The facts in the instant case are similar to those in Nelson v. Texarkana Hist. Soc. & Museum, 257 Ark. 394, 516 S.W. 2d 882 (1974). In Nelson we held that if the testator’s name is written in or upon some part of the will other than at the end thereof, to be a valid signature it must be shown that the testator wrote his name where he did with the intention of authenticating or executing the instrument as his will.

In Nelson the document was styled “Will December 18th 1973,” and decedent’s name appeared in the second paragraph of the holographic instrument leaving certain property in memory of decedent’s mother, father and decedent. Two individuals were told the document was a will and, at the request of the writer, signed as witnesses to the instrument. Thus Nelson presents a much stronger case for probate than the case at bar. Nevertheless we held that decedent’s name was not written with the intent it constitute a signature, but of creating a memorial and did not meet the requirements of Ark. Stat. Ann. § 60-404 (Repl. 1971). The statute reads as follows:

Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator, such will may be established by the evidence of at least three [3] credible disinterested witnesses to the handwriting and signature of the testator, notwithstanding there may be no attesting witnesses to such will.

Ritcheson’s name appears only once in the document, that being where the deceased makes the following request:

... I request that everybody that is mentioned in will come to my funeral C. R. Ritcheson which will be at McLeansboro, 111.

It appears that the name of the writer was placed there not as his signature, but to emphasize the fact that he wanted everyone to come to his funeral. This assumption is supported by the fact that approximately a month prior to his death decedent wrote the following letter:

June 24, 1971
To the Office of Bentonville Manor Home
C. R. Ritcheson Leaving with the National States Rights Party on June 25th. Expect to arrive back the 27th or 28th of June.
We are going on a speaking tour in case I am wanted, get in contact with the Mayor of the city as we are located at Louisville, Kentucky friday night 25th of June, Covington, Kentucky. I do not know the time for
Indianapolis, Indiana and Dayton, Ohio.
C. R. RITCHESON [signed]
C. R. Ritcheson [typewritten]
In case of accident that disables me I herein authorize Paul D. Peevy of Springdale, Ark. to take charge of the care of my wife during my disability [this paragraph was added to the foregoing typewritten letter in decedent’s own handwriting].
C. R. RITCHESON
signed 6/24/71
(Paul D. Peevy Phone 751-5755 Springdale, Ark)

These actions indicated Ritcheson knew how to authenticate a writing, and the logical assumption follows that if Ritcheson intended the document to be his will he would have signed the instrument at the end and would have dated it. He did neither. Furthermore, the letter and note indicate Ritcheson’s concern for his wife by leaving instructions for her care when he was going to be gone for only a short time. Thus it does not seem likely he would overlook mentioning her when he drafted his last will and testament.

Appellants also have filed a motion for abstracting costs, contending appellees unnecessarily designated the entire contents of the record for appeal purposes in violation of Arkansas Supreme Court Rule 9(d), Vol. 3A (Supp. 1975). Appellants request $181.50 for transcript costs of documents designated by appellees included in the record and $960 for their attorneys’ time spent in abstracting the “immaterial and irrelevant portions” of the record designated by appellees.

Appellees contend appellants did not comply with Ark. Stat. Ann. § 27-2127.5 (Repl. 1962) in that they designated only a portion of the record and did not designate points to be relied upon for reversal, leaving appellees not knowing what points appellants intended to rely upon. Because of this neglect appellees argue it was necssary to designate the entire record to protect themselves.

In Black v. Morton, 233 Ark. 197, 343 S.W. 2d 437 (1961), we stated that in an appeal from the probate court’s decision in a will contest, where all matters pertaining to the will contest were included in the record filed by appellants, it is a complete record within the meaning of Ark. Stat. Ann. § 27-2127.5, notwithstanding the fact that the record did not contain other matters relating solely to the administration of the estate.

However, circumstances are not exactly the same here. Appellants in their first point of argument referred to certain parts of the record not designated by them, those documents being the following: inventory of estate of decedent, petition for sale of real and personal property, notice of sale, order, report of sale and claims against estate.

Furthermore, even though appellees designated the entire record this does not mean appellants are required to abstract irrelevant parts of the record but only those parts pertinent to the appeal.

In Harvey v. Castleberry, 258 Ark. 722, 529 S.W. 2d 324 (1975), we stated:

Inasmuch as the judgment must be affirmed, we may without embarrassment to counsel mention once more the basic requirements of Supreme Court Rule 9. The rule states that the abstract or abridgement of the record should consist of an impartial condensation, without comment or emphasis, of “only such material parts of the pleadings, proceedings, facts, documents, and other materials in the record as are necessary to an Understanding of all questions presented to this court for decision.” What the abstracter should strive for is to present a condensation of all the record that is necessary to an understanding of the case, but nothing more.

The rule limiting the abstract to material parts of the record is, of course, for the benefit of the members of this Court. An appellee cannot change the rule by designating immaterial matter for inclusion in the record, nor should such matter be abstracted by the appellant.

Our review of the record reflects that most of appellants’ additional abstracting was evidently caused by a misunderstanding of our Rule 9, and for this reason we allow costs recovery on this item of only $200 plus the $181.50 costs for additional documents in the record because of appellees’ designation.

The decree of the probate judge is affirmed, except as to the modification as to costs.

APPENDIX A

       Acopy of the handwritten instrument offered for probate is attached hereto as Appendix A.


author: George Rose Smith, Justice.

text:
    John Duane BUNKER v. Sheree Lammers BUNKER
    77-21
    552 S.W. 2d 641
    Opinion delivered June 27, 1977
    (Division I)

      Ross & Ross, for appellant.

      William E. Johnson and Timothy R. Tarvin, for appellee.
   George Rose Smith, Justice.

In this suit brought by Mrs. Bunker for divorce, alimony, child support, attorney’s fees, and similar relief, the key question is the extent to which the chancery court of Drew County, Arkansas, can exercise personal jurisdiction over the defendant husband, John Duane Bunker, who was residing in Louisiana when the suit was filed. The chancellor held that he had personal jurisdiction over Bunker only with respect to the cause of action for child support. An appeal and cross-appeal bring the entire case to us for review.

Bunker had been a lifelong resident of Arkansas and Mrs. Bunker was a college student at Fayetteville when the two were married in Oklahoma in 1963. During their marriage they lived principally in Arkansas but also in Texas and Guatemala. In April, 1975, they moved back to Arkansas and lived together in Drew County until November, when Bunker left Arkansas and apparently changed his domicile to Louisiana. Mrs. Bunker stayed in Drew County with the couple’s two children.

In January, 1976, Mrs. Bunker filed this suit for divorce, in Drew County, asserting a cause of action for personal indignities that occurred while the defendant was domiciled in Arkansas. Her attorneys knew that a valid divorce could be obtained in Drew County, which was Mrs. Bunker’s domicile and also the last matrimonial domicile. But counsel also wanted to obtain personal judgments for alimony, child support, and attorney’s fees. To that end, no attempt was made to obtain constructive service by warning order, which would have supported a divorce decree only. Instead, service was had upon the Arkansas Secretary of State, pursuant to Act 119 of 1963 (noted in 18 Ark. L. Rev. 124 [1964]). Ark. Stat. Ann. § 27-339.1 (Supp. 1975). As we have said, the chancellor limited his jurisdiction to the cause of action for child support.

We are firmly convinced that the chancellor was mistaken in restricting the full sweep of Act 119. It provides that any cause of action arising out of acts done by an individual in Arkansas may be sued upon here although the defendant has left the state. The statute is not limited to tort actions. Mallory v. Edmondson, 257 Ark. 909, 521 S.W. 2d 215 (1975). To. the contrary, it specifies any cause of action arising out of acts done in this state. Thus if jurisdiction is lacking in this case, it must be because the long arm of the statute cannot constitutionally reach as far as it was plainly intended to reach.

There is no longer any such constitutional limitation upon a state’s jurisdiction in a case like this one. The basic test is whether the defendant’s contacts within the state were such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310 (1945). When the in-state conduct was tortious, jurisdiction is hardly ever open to question. The principles applicable to other conduct are well summarized in the Restatement, Second, Conflict of Laws, § 36 (1971), as follows:

A state is naturally interested in all acts done within its territory. A state will usually have judicial jurisdiction over an individual who does, or who causes to be done, in the state an act, even though it is not claimed to be tortious, as to causes of action arising from the act. This is true for the reason, among others, that a heavy burden may be imposed upon a local inhabitant if he is compelled to litigate without the state a claim based upon an act done within the state, whether the act is a tort, a breach of contract or something else. Whereas a state may exercise judicial jurisdiction over a nonresident individual who does a tortious act within its territory, there will be rare occasions when a state may not exercise judicial jurisdiction over the perpetrator of some other sort of act. Such jurisdiction will exist unless the state’s interest in, and relationship to, the actor and the act are so slight as to make the exercise of such jurisdiction unreasonable.
Whether an exercise of judicial jurisdiction on the basis of an act done, or caused to be done, in the state would be reasonable depends upon the facts of the case. The principal factors to be considered are the nature and quality of the act, the extent of the relationship of the state to the defendant and to the plaintiff and the degree of inconvenience which would result to the defendant by being forced to stand suit in the state on the particular cause of action.

We see no good reason for not recognizing Arkansas’s jurisdiction in this case. Arkansas was the Bunkers’ last matrimonial domicile. It is the place where Bunker’s asserted wrongful conduct created the cause of action for divorce and alimony. It has continued to be the residence of Mrs. Bunker and the children, where their living expenses must be paid. It is presumably the residence of the witnesses who will be called to testify. Finally, Bunker appears to have left this state voluntarily, creating the possibility of hardship if that conduct on his part deprives Mrs. Bunker of her right to bring her suit in Arkansas. Recent pertinent cases supporting our conclusion include Nickerson v. Nickerson, 25 Ariz. App. 251, 542 P. 2d 1131 (1975); Owens v. Superior Court of Los Angeles County, 52 Cal. 2d 822, 345 P. 2d 921 (1959); Scott v. Hall, 203 Kan. 331, 454 P. 2d 449 (1969); Mizner v. Mizner, Nev., 439 P. 2d 679 (1968).

With respect to the specific cause of action for child support, jurisdiction is expressly conferred by Act 297 of 1969, which applies to a father who, after having acquired a marital domicile in Arkansas, absents himself from the state and fails to support his dependent children here. Ark. Stat. Ann. § 34-2446 (Supp. 1975). For the reasons already stated, we agree with the chancellor in finding that statute to be valid.

Affirmed on direct appeal; reversed on cross appeal.

We agree. Harris, C.J., and Holt and Roy, JJ.


author: John A. Fogleman, Justice.

text:
    VENTURI, INC. v. Wallace ADKISSON
    77-66
    552 S.W. 2d 643
    Opinion delivered June 27, 1977
    (Division II)

      Shaver, Shaver & Smith, by: Tom B. Smith, for appellant.

      DeLoss McKnight, for appellee.
   John A. Fogleman, Justice.

This case involves the question whether evidence of well-established custom and usage was admissible in evidence in a case where the terms of an oral contract were in dispute. Appellant contended, and introduced evidence to show, that it contracted for appellee to excavate for a boot pit area for a rice dryer for Producers Rice Mill, Inc. at Wynne. According to the evidence introduced on behalf of appellant, defendant below, the contract called for payment at the rate of $2.50 per cubic yard. Appellee’s evidence showed the agreement was that the compensation was to be paid at that rate on a “loose yard basis.” The difference is that under appellant’s concept, the hole excavated would be measured and the compensation paid on the basis of the measured yardage. Under appellee’s version one-third of this amount would be added to the yardage determined by this measurement to obtain the loose yardage.

Appellant proffered evidence of a well-established and generally accepted custom and usage in the excavation and construction industry to pay for such excavation work on the basis of the measured yardage calculated from a cross-section of the excavation. Appellee was in the construction business off and on for eight years. Before entering into the contract, he consulted with an employee, who had been in the earth moving business for 50 years, 13 years of which were in the operation of his own business and 5 years in the employ of appellee. If there was a well-established general custom and usage in the business, appellee should certainly have been aware of it. See Connelly v. Parkes, 160 Ark. 496, 255 S.W. 22.

Of course, evidence of custom and usage would not be admissible to vary, contradict or defeat the terms of the contract. Jackson County Gin Co. v. McQuistion, 177 Ark. 60, 5 S.W. 2d 729; Ballon v. Jones, 167 Ark. 478, 268 S.W. 857; Burton v. Wilson, 135 Ark. 269, 205 S.W. 655; National Lumber & Creosoting Co. v. Mullins, 187 Ark. 270, 59 S.W. 2d 493. If custom and usage is uniform, reasonable and well established, it may govern the terms of a contract and be considered as a part of the contract, unless contradictory to its express terms. Taylor v. Union Sawmill Co., 105 Ark. 518, 152 S.W. 150; McCarthy v. McArthur, 69 Ark. 313, 63 S.W. 56; Paepcke-Leicht Lumber Co. v. Talley, 106 Ark. 400, 153 S.W. 833; Davis v. Martin Stave Co., 113 Ark. 325, 168 S.W. 553; Jackson County Gin Co. v. McQuistion, supra. The evidence offered would have been admissible as an aid to interpretation of the contract and the measuring of its terms if the jury should find that the contract was upon the terms as appellant’s witnesses expressed it, because that evidence was that the custom was of such widespread usage that it could be presumed that the contract was made with reference to it. Ben F. Levis, Inc. v. Collins, 215 Ark. 172, 219 S.W. 2d 762; Connelly v. Parkes, supra; McCarthy v. McArthur, supra; Davis v. Martin Stave Co., supra; Batton v. Jones, supra; Wilkes v. Stacy, 113 Ark. 556, 169 S.W. 796. See also, Sharpensteen v. Pearce, 219 Ark. 916, 245 S.W. 2d 385.

But the admissibility of this evidence in this case is not restricted to interpretation of the contract, if its terms were as appellant contends. The circuit judge ruled that it was inadmissible on the issue as to the terms of the contract. This was error. The evidence would not have been admissible if the issue was the existence or non-existence of a contract. Ft. Smith Refrigeration & Equipment Co. v. Ferguson, 217 Ark. 457, 230 S.W. 2d 943. Usage cannot make a contract where there is none. McCarthy v. McArthur, supra. But neither party contends that there was no contract. Instead, both maintain that there was a contract. The dispute is about its terms. The question is what the terms of the contract were on the matter of compensation to appellee. Where evidence on this subject is conflicting, evidence of custom and usage is admissible as bearing upon the probable truth of what was alleged on either side as having been the agreement of the parties. Shaver v. McKamey, 216 Ark. 211, 224 S.W. 2d 819; Ft. Smith Refrigeration & Equipment Co. v. Ferguson, supra. See also, Sharpensleen v. Pearce, supra.

In order that our holding be not mistakenly applied, we agree with the trial court that neither the custom and usage of appellant nor its practice under other contracts is admissible in this case, where there was no evidence that appellee had any knowledge of either when the transaction was entered into and it appears that there was no connection between any of the other transactions and that with appellee. Glidewell v. Arkhola Sand and Gravel Co., 212 Ark. 838, 208 S.W. 2d 4; Calhoun v. Ainsworth, 118 Ark. 316, 176 S.W. 316, LRA 1915 E 395; Forest Park Canning Co. v. Coler, 226 Ark. 64, 287 S.W. 2d 899.

A great deal of appellant’s argument rests upon various sections of the Uniform Commercial Code, Ark. Stat. Ann. §§ 85-1-101 et seq (Add. 1961; Supp. 1975). There is nothing in the text of the code to indicate any intention that it apply to the transaction between these parties. Afiy lingering doubt about the matter may be dispelled by reference to the title of Act 185 of 1961 adopting the code. It reads:

An Act to be known as .the Uniform Commercial Code, Relating to Certain Commercial Transactions in or Regarding Personal Property and Contracts and Other Documents Concerning Them, Including Sales, Commercial Paper, Bank Deposits and Collections, Letters of Credit, Bulk Transfers, Warehouse Receipts, Bills of Lading, Other Documents of Title, Investment Securities, and Secured Transactions, Including Certain Sales of Accounts, Chattel Paper, and Contract Rights: Providing for Public Notice to Third Parties in Certain Circumstances: Regulating Procedure, Evidence and Damages in Certain Court Actions Involving Such Transactions, Contracts or Documents: to Make Uniform the Law With Respect Thereto: and Repealing Inconsistent Legislation.

This contract does not fall into any category enumerated. Thus, provisions of this code do not govern admissibility of evidence in this case.

The trial court was not in error in denying appellant’s motion for a directed verdict. The instructions requested by appellant on the subject of usage of trade were erroneously refused for the same reason we find error in the exclusion of the evidence offered by appellant on the subject, even though its requested instruction no. 1 might have been more artfully drawn.

The judgment is reversed and the cause remanded.

We agree. Harris, C.J., and Byrd ami Hickman, JJ.