author: Elsíjane T. Roy, Justice.

text:
    John SHARRON v. STATE of Arkansas
    CR 76-213
    556 S.W. 2d 438
    Opinion delivered October 17, 1977
    (Division I)

      C. W. Knauts, for appellant.

      Bill Clinton, Atty. Gen., by: Robert J. Govar, Asst. Atty. Gen., for appellee.
   Elsíjane T. Roy, Justice.

John Sharron appeals from a conviction of grand larceny and the nine-year sentence imposed.

Appellant Sharron had been hired by Dr. E. J. Cruse, the prosecuting witness, to paint some barns on his farm. Dr. Cruse testified that appellant took a Farmall tractor from his farm without his permission. Appellant testified he first offered to buy the tractor but Dr. Cruse told him it had not been run for years and to take it. Appellant was under the impression the tractor had been given to him.

Appellant first contends the State sought to prejudice him by repeatedly asking improper questions which tended to show appellant to be a swindler and scoundrel.

Our cases support the view that error caused by the admission of improper evidence is generally cured by sustaining an objection thereto, followed by an admonition to the jury to disregard it. See Milam v. State, 253 Ark. 651, 488 S.W. 2d 16 (1972), and Thompson v. State, 249 Ark. 36, 458 S.W. 2d 40 (1970). Where, however, counsel follows a continuous course of conduct in which incompetent questions are repeatedly asked with the knowledge that they are improper, the prejudice resulting therefrom may be so great that an admonition to the jury is insufficient. 109 A.L.R. 1089 (1937). Offering improper evidence, or asking improper questions, as ground for new trial or reversal, states inter alia:

* * * Much of this misconduct has consisted of knowingly asking improper questions. In many cases the attorney complained of has persistently pursued a wholly unjustified and prejudicial course of interrogation, notwithstanding objections made and sustained, clearly calling to his attention, if such a thing could be deemed necessary, that the questions asked were without any plausible legal foundation. Reversals' have frequently been granted in cases of that extreme character.
Improper questions may be prejudicial in various ways, including the following: They may plainly convey information excluded by the rules of evidence; may hint at the existence of a significant though inadmissible facts, with or without a suggestion as to their exact nature; may, by the assumptions therein contained, and notwithstanding the answers being prevented, impress upon the jury, by a mere show of proof, matters which are not admissible in evidence and which perhaps could not be proved, as inferred, even if opportunity were afforded; and may, by reason of the objections made, emphasize the facts suggested more effectively than might be done by answers admitted without objection.

The record reflects that the State on numerous occasions sought to place irrelevant testimony before thejury and when a timely objection was interposed, the question would then be withdrawn. This occurred at least six times, and, in addition, the court sustained objections to at least eight improper questions. The testimony of Mrs. Joan Cruse, wife of the prosecuting witness, illustrates one example of this procedure.

We also note the testimony of four of the State’s witnesses, A. F. Ennison, Frank Bragg, Thelma Pickney and Elbert Callahan. Each of these witnesses had previous business transactions with appellant. The following transpired during the direct examination of Witness Callahan:

Q. During that time I ask you whether or not you paid him [John Sharron] to do any work over there around the camper factory?
A. Well, I made some advances on a contract, yes.
Q. Did he perform what he was supposed to do for the money?
A. No, sir.
Q. Did he keep putting you off and telling you he would
BY MR. HUDSON:
Objection, Your Honor.
BY MR. BLANKENSHIP:
I withdraw it. I have nothing further.

The State questioned the other three of these witnesses concerning acts of wrongdoing or possible thefts committed by appellant not connected with this charge. During the course of the State’s examination of these four witnesses a number of appellant’s objections on the ground of irrelevancy were sustained. When the last of the four had concluded his testimony a conference occurred at the bench. Thereafter the jury was instructed to disregard the testimony of these four witnesses.

However, we are convinced that appellant’s trial was tainted by such irrelevant and prejudicial testimony that no admonition to the jury could completely remove it.

We also agree with the contention that the trial court permitted the State to engage in improper cross-examination of appellant. The State sought to adduce evidence of other criminal activity by appellant in order to impeach his credibility as a witness.

The State did not ask appellant if he had previously been convicted of a crime or if he had committed any act of larceny. Instead, appellant was asked, inter alia, if he had “beaten” Mrs. Pickney out of a trailer, if he had “beaten” Glen Lawson out of an ice cream machine and if he had “cheat [ed] ” the camper factory at Black Rock out of a riding lawnmower, all of which appellant denied. Other questions propounded by the State to appellant were couched in words sufficient to convey to the jury that appellant engaged in shady business transactions and cheated others out of money and other property. Appellant was asked several times if he mixed gasoline with the paint that he used on various jobs, a practice which appellant continuously denied.

It is impermissible to introduce testimony of suspicious circumstances and nothing more which may indicate guilt when attempting to introduce evidence of the commission of other crimes. See Sims v. State, 252 Ark. 147, 477 S.W. 2d 825 (1972).

Although the prosecution has wide latitude in cross-examining witnesses and may employ every legal means to impeach their credibility, we find here the questioning exceeded proper bounds.

It is also contended that appellant should have been permitted more extensive cross-examination of Dr. Cruse. Dr. Cruse testified the tractor was worth between $700 and $800 at the time it was taken and was kept in “A-l condition” by his mechanic. Appellant, however, testified that the tractor had not been run for a long time, that it was junk and that he spent a considerable sum of his own money in fixing it up before selling it for $200. In cross-examining Dr. Cruse, appellant attempted to establish whether a mechanic had maintained the tractor while it was in Dr. Cruse’s possession, but the cross-examination was cut short.

The statute under which appellant was tried provides the stolen property must be worth $35 or more in order to support a conviction of grand larceny. Ark. Stat. Ann. § 41-3907 (Since repealed). The value of $35 or more must be> proved beyond a reasonable doubt. Courtney v. State, 252 Ark. 620, 480 S.W. 2d 351 (1972). If the tractor was not in shape and had not been repaired by Dr. Cruse’s mechanic, and, in fact, was not running, appellant had a right to attempt to bring this out on cross-examination since a jury might have concluded that the tractor had little or no valud whatsoever. On retrial appellant should be allowed to develop this point more fully.

. Appellant’s last contention is that the cross-examination of his wife, Janet Sharron, was improper. We find it unnecessary to discuss this issue since it is not likely to arise on retrial.

Reversed and remanded.

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

       PROSECUTING ATTORNEY:
      Q, When you got back to the house; by the way, talking about this other painting, what kind of job did you get out of it?
      A. About the worst I ever saw.
      BY MR. HUDSON:
      Objection, that has no bearing on the matter.
      MR. BLANKENSHIP:
      I withdraw that.

       Q. Did you ever get around to paying Mr. Ennison for the pump parts that you got from him?
      BY MR. HUDSON:
      Objection, that has nothing to do with this case.
      BY MR. BLANKENSHIP:
      I will withdraw that question.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    ARKANSAS-MISSOURI POWER COMPANY v. John Franklin SAIN III, Sharyl Sain DAVIS, Randy Kendal SAIN, Rhonda SAIN Jones, and Doris M. SMITH
    77-141
    556 S.W. 2d 441
    Opinion delivered October 17, 1977
    (Division I)

      Ponder & Lingo, for appellant.

      Penix, Z°lper & Mixon, for appellees.
   Darrell Hickman, Justice.

This is the appeal of a right of way condemnation case from the Lawrence County Circuit Court. The appellant; Arkansas-Missouri Power Company, condemned seven acres through a farm owned by the appellees, John Franklin Sain III, and others, for the purpose of obtaining an easement for a transmission line. A jury trial resulted in a verdict for the appellees for $10,000.00.

The appellant alleges three errors on appeal: the court refused to strike the testimony of the expert witness of the appellees; there was no substantial evidence as to the before and after value of the land; and, the verdict was influenced by improper and unsubstantiated testimony.

The landowner appellees in this case offered three forms of evidence as to the damages to the seven acres: first, one of the landowners testified that the land was worth about $40,-000 to $50,000 less with the power line across the farm; second, an expert witness was called and testified that the difference between the value of the farm before and after the condemnation was $27,197.00; and, third, the appellees offered testimony that the transmission lines caused an extra expense for aerial application of fertilizer and poison, and was a disadvantage to farming because of its existence.

The landowner’s opinion testimony, as we have said many times, on the value of his property is admissible and competent evidence. Housing Authority of Searcy v. Angel, 239 Ark. 224, 388 S.W. 2d 394 (1965).

The expert’s opinion testimony, however, was not competent evidence and should have been stricken. The expert on cross-examination admitted that he could not think of a single instance where a transmission line had any effect on the market value of the property. Therefore, his testimony that the damages amounted to some $27,000 did not have a sound and reasonable basis. Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S.W. 2d 436 (1963).

The landowner appellees called a crop duster who testified that he had used chemicals on this land for two years and that as a result of the transmission lines it cost about $ 180 to $200 more per year to treat the land. There was also evidence offered that showed it was inconvenient for farm machinery to work around the transmission poles. We find that this evidence was competent to show that the landowners in this case suffered an economic disadvantage, and a diminishing efficiency in farming the land, as a result of the transmission lines. See Arkansas Louisiana Gas Co. v. McGaughey Bros. Inc., 250 Ark. 1083, 468 S.W. 2d 754 (1971). This does not mean that this inconvenience or economic loss is a measure of damages; but, it may be considered by the jury in reaching their verdict.

Several expert witnesses for the appellant power company gave opinion testimony that the land had been damaged to a maximum of $3,650.00. One witness testified that the amount was $3,150.00.

The appellant has asked us to reverse and remand this case or, in the alternative, to order a remittitur of $5,275.00. We feel a remittitur would be a fair disposition of the case. There was nothing wrong in the landowners’ expert witness’ evaluation of the property before the taking. He gave a value of $675 an acre for the 357 acre farm, adding to that the value of improvements. He did not assign a separate value of the seven acres, but there is no indication that these lands were worth more or less than his average figure. Therefore, on that basis, the seven acres would have a value of $4,725.00. If appellee will accept a remittitur of $5,275.00 within seventeen days, the $10,000 judgment will be modified accordingly, and, as modified, the judgment is affirmed. Otherwise, it will be reversed and remanded.

Affirmed as modified.

We agree. George Rose Smith, Fogleman and Roy, JJ.


author: Georue Rose Smith, Justice.

text:
    Winfred MOSER v. STATE of Arkansas
    CR 77-96
    557 S.W. 2d 385
    Opinion delivered October 24, 1977
    (Division II)
    [Rehearing denied December 5, 1977.]

      Howell, Price, Howell & Barron, for appellant.

      Bill Clinton, Atty. Gen., by: Robert J. Govar, Asst. Atty. Gen., for appellee.
   Georue Rose Smith, Justice.

The appellant was charged by information with possession of marihuana with intent to deliver and by indictment with three counts of delivery of marihuana. The cases were consolidated for trial. The jury found Moser guilty upon all four charges and assessed the maximum penalty, 10 years’ imprisonment and a $15,000 fine, upon each offense. This appeal is from a judgment upon the verdict, the terms of imprisonment having been made to run consecutively. Five points for reversal are argued, but in view of the necessity for a new trial only three of the points require discussion.

First, the marihuana in question was not introduced in evidence and had not been available for chemical analysis, because the purchaser either smoked it or resold it. The appellant argues, with respect to the one charge of possession with intent to deliver, that the users should not have been permitted, as lay witnesses, to testify that the substance which they smoked was marihuana.

This argument is not well taken. The witnesses testified in effect that Moser had represented the substance he sold to be marihuana, that they had smoked marihuana hundreds of times, that they were familiar with its appearance, its smell, its taste, and its effect, that they smoked what was bought from Moser, and that it was marihuana. Under our decisions, this lay testimony was competent evidence. Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913 (1971); Hunter v. State, 180 Ark. 613, 22 S.W. 2d 40 (1929); Burris v. State, 172 Ark. 609, 290 S.W. 66 (1927). Indeed, if that were not the rule, the State could never obtain a conviction in a drug or liquor case if the contraband had been consumed or had otherwise become unavailable before it could be chemically analyzed.

Second, Moser is right in arguing that the State failed to prove the three counts of delivery of marihuana. Here the State’s only witness evidently surprised the prosecution by testifying that what he bought from Moser did not look like marihuana, did not smell like marihuana, and had no effect when he smoked it. He said he did not know what it was and could not say that it was marihuana. The court was in error in submitting those three counts to the jury.

Third, it is argued that the defendant’s instructions five and six, enumerating the elements which the State had to prove, should have been given. Neither party has abstracted the court’s instruction upon this point; so, in the absence of other error, we would- not reverse the judgment for this reason alone, as we cannot say that the matter was not adequately covered by the court’s instruction. The proffered instructions appear to be correct statements of the law, however, and should be given upon a retrial if not covered by another instruction.

The judgment must be reversed with respect to the three counts of delivery. As to the fourth count, charging possession with intent to deliver, we certainly cannot say that the jury was not adversely influenced by the erroneous submission of the other three counts. To the contrary, the imposition of the maximum penalty upon every count indicates that the error did have a prejudicial effect as to all four charges. The cause will therefore be remanded for a new trial upon all four counts.

Reversed and remanded.

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


author: George Rose Smith, Justice.

text:
    Lyndale WALKER v. STATE of Arkansas
    CR 77-143
    556 S.W. 2d 655
    Opinion delivered October 24, 1977
    (Division I)

      James E. Davis, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Upon being convicted of the felonies of burglary and theft of property the appellant was given concurrent sentences of 15 and 5 years’ imprisonment. He argues seven points for reversal.

First, there is no merit in the argument that Walker was subjected to double jeopardy and denied a speedy trial. At the first trial of the case an incident occurred during a recess that led Walker’s attorney to ask for a mistrial. The State did not resist the motion. After the mistrial had been granted and the jury had been discharged, Walker himself asked that a mistrial not be declared. Of course, it was then too late for that request to be granted, as the jury had been discharged; so the court denied Walker’s request.

The court’s action was plainly proper, for in a matter of this kind the defendant must be bound by his attorney’s judgment with regard to the motion for a mistrial. That the State acquiesced in the motion confirms the correctness of defense counsel’s position. Hence there was neither double jeopardy nor a denial of a speedy trial, for. the time ran anew after the declaration of a mistrial. Rule 28.2 (c), Rules of Criminal Procedure (1976). It is conceded that the case was retried within the time allowed by Rule 28.1 (a).

Second, the proof is amply sufficient to support the convictions. A grocery store was burglarized. The sheriff promptly responded to a call to investigate. As he neared the scene he saw and recognized Walker and his codefendant in a car that left the highway and entered a dirt road that went through the woods to a deer camp and on past it to a highway. The sheriff followed the car for a short distance and then turned back to pursue his investigation. He quickly obtained a list of the stolen property and went to the far end of the dirt road in an effort to head off the two men.

Owing to a rain during the night, tracks on the road were readily visible. As the sheriff drove down the road from the far end he reached a point at which fresh tracks showed that a car had stopped and turned around. Footprints showed that someone had alighted from each side of that car. Nearby the sheriff found a concealed sack containing much of the property that had been stolen from the grocery store. There is other evidence indicating Walker’s guilt. The State’s proof was more than sufficient to establish a prima facie case.

Third, the court did not err in not instructing the jury with respect to the lesser included offense of theft of property worth not more than $100. In view of the undisputed proof that property worth from $320 to $800 was taken in the burglary, there was no rational basis for a verdict acquitting Walker of the greater offense and convicting him of the lesser offense. Consequently, the court was not obligated to submit the lesser offense. Ark. Stat. Ann. § 41-105 (3) (Crim. Code 1976). Furthermore, there was actually no clear-cut request that such an instruction be given, nor any proffer of a correct instruction stating the theory of the defense.

Fourth, there was likewise no error in the court’s refusal to instruct the jury with regard to the range of punishment if the jury did not find that Walker had two or more previous convictions. Not only was there no timely request for such an instruction, but the State introduced proof of five previous cpnvictions, at least two of which were admitted by the defendant. Thus there was no basis for a jury finding that Walker had not been previously convicted two or more times.

Fifth, the remaining three arguments do not have enough apparent merit to warrant discussion. As to point 5, there was no request for the instruction that the appellant now says should have been given. As to points 6 and 7, the pertinent parts of the record have not been abstracted, and the facts mentioned in the brief fall decidedly short of indicating that there was prejudicial error with regard to either point.

Affirmed.

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


author:
John A. Fooeeman, Justice.
      John A. Fogleman, Justice.

text:
    Ula T. NEWBERRY v. STATE of Arkansas
    CR 77-161
    557 S.W. 2d 864
    Opinion delivered October 24, 1977
    (Division II)
    [Supplemental Opinion on Denial of Rehearing December 12, 1977.]

      Adams, Covington & Tomes, by: J. Scott Covington, for appellant.

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

This appeal was taken from the order of the circuit court denying appellant’s motion for new trial. We find no abuse of discretion and affirm the trial court’s order.

The motion for new trial was based upon the sole ground that the prosecuting attorney failed to disclose information in his “possession” which would have greatly assisted the defendant in preparing a defense. No specific allegations of fact were contained in the motion, but an affidavit atached to the motion was made a part of the motion. The gist of the affidavit by Gary Fultz was that he was an eyewitness to events leading up to an altercation outside Dale Ladd’s house trailer between appellant Newberry and one Dewey Middleton out of which arose one of the charges of first degree assault and second degree battery on which appellant was found guilty, and was subpoenaed by the state as a witness, but not called to testify; that this altercation took place outside of the trailer; and that Linda Durland, a witness on behalf of the state, could not have seen what took place, because she had gone into the bathroom of the trailer with him, when appellant, after having struck Ladd with his fists, invited Ladd outside. Fultz also stated that no one inside the trailer could have observed what went on outside. Middleton had testified that he had been struck by Newberry when he was trying to take a rifle away from Newberry. Linda Durland had not testified that she had seen the alleged assault and battery on Middleton. Other witnesses on behalf of the state had said that Middleton was struck by Newberry, after the latter had come back inside the trailer.

As to the charge of first degree assault and second degree battery on Dale Ladd, of which appellant was also found guilty, the principal conflict between the affidavit of Fultz and the testimony of the witnesses was that appellant used his fists, not the butt of his rifle, in striking Ladd inside the trailer.

Although appellant argues that Fultz would have corroborated appellant’s own story that he struck Middleton in self-defense when he was trying to quiet the disturbance from a drinking party in the trailer, in our view, the affidavit of Fultz disclosed slight potential support for Newberry’s version. It could only be concluded from the Fultz affidavit that those inside the trailer could not have seen any assault on Middleton. To say the least, even Fultz made appellant the aggressor as to Ladd while they were inside the trailer.

Appellant contends that the prosecuting attorney’s action violated Rule 17.1 (d), Arkansas Rules of Criminal Procedure. That subdivision requires the prosecuting attorney, upon discovering material or information within his knowledge, possession or control which tends to negate a defendant’s guilt or reduce his punishment to promptly disclose that information to defense counsel. This rule is an extension of the mandate of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). See Commentary to Article V, Arkansas Rules of Criminal Procedure.

The only statutory ground on which the court could have granted a motion for new trial on the facts relied upon by appellant was the discovery of important evidence in his favor by appellant after the verdict. Ark. Stat. Ann. § 43-2203 (Repl. 1964). The rule relied upon by appellant does not expand the grounds for a new trial or change the rules governing either the trial court action or appellate review.

We have heretofore recognized the analogy between a motion for a new trial based on suppression of evidence and one based on newly discovered evidence and the applicability of rules governing the latter to both. Murchison v. State, 249 Ark. 861, 462 S.W. 2d 853. Critical to the inquiry are the diligence of the defendant in discovering the testimony and the probable effect of the testimony at the trial. Murchison v. State, supra. It is quite true that Rule 17.1 (d) had not been adopted at the time of our decision in Murchison, but we did consider DR 7-103b of the Code of Professional Responsibility, which had been adopted by this court and which imposes the same responsibility upon a prosecuting attorney as that imposed by the rule in very similar language. There we said that we must view all the circumstances and determine whether the violation of such a rule has, alone or in conjunction with other factors, so effectively deprived an accused of a fair trial as to violate due process of law.

Assuming that the prosecuting attorney did know that Fultz would testify exactly as he stated he would in his affidavit, the matter of granting or denying a new trial lies within the sound judicial discretion of the trial judge whose action will be reversed only upon a clear showing of abuse of that discretion or manifest prejudice to the defendant. Harvey v. State, 261 Ark. 47, 545 S.W. 2d 913. Newly discovered evidence is one of the least favored grounds for a new trial. Gross v. State, 242 Ark. 142, 412 S.W. 2d 279.

The record discloses that the list of witnesses to be subpoenaed by the state was supplied to defense counsel by the prosecuting attorney approximately one year prior to the trial. It included the name of Fultz. It is also clear that Fultz was subpoenaed and was present at the time of the trial. Linder these circumstances we cannot say that the court abused its discretion in denying a new trial on the grounds alleged, particularly in view of the fact that we are unable to say that the testimony of Fultz would have had a material impact on the result of the trial. We cannot say that the action taken under these circumstances constituted any violation of the requirements of due process of law.

Appellant also belatedly complains in his reply brief that the trial court abused its discretion in denying him a hearing on his motion on his attorney’s oral statement that one of the prosecuting witnesses was present and would change his testimony, without stating in what respects. No written motion was filed on this ground. Recanting testimony is treated as newly discovered evidence and its exceeding unreliability, especially where it involves a confession of perjury, has been recognized. Clayton v. State, 186 Ark. 713, 55 S.W. 2d 88. In this instance, there was 'sufficient testimony to sustain the conviction without the testimony of either Ladd or Middleton and the trial judge heard and observed all the witnesses at the trial. In such circumstances, we cannot say that there was any abuse of the trial court’s discretion. See Puterbaugh v. State, 217 Ark. 686, 232 S.W. 2d 984; Roath v. State, 185 Ark. 1039, 50 S.W. 2d 985; Brown v. State, 143 Ark. 523, 222 S.W. 377. At any rate, on the record here, we find no abuse of discretion in this regard.

Since we find no abuse of the trial court’s discretion, the judgment is affirmed.

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

Supplemental Opinion on Denial of Rehearing delivered December 12, 1977

John A. Fogleman, Justice.

On petition for rehearing, appellant points out that he did argue in his original brief that it was a grave abuse of discretion for the trial court to refuse to allow David Dale Ladd, who was present at the hearing on the motion for new trial and allegedly wanting to recant his testimony at the trial, to testify before the motion was denied. We erroneously stated that appellant belatedly complained of this in his reply brief. We might well have disposed of this contention on the basis that assignments of error unsupported by convincing argument or authority, will not be considered unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606; Hazen v. City of Booneville, 260 Ark. 871, 545 S.W. 2d 614; Arnold v. Arnold, 261 Ark. 734, 553 S.W. 2d 251.

We preferred, however, to pass upon the question raised. We still find no abuse of discretion where no written motion for new trial was filed on this basis and where the only suggestion that any reliance was placed on this ground in the trial court was in appellant’s attorney’s remark at the conclusion of his opening statement at the hearing on the motion that “Mr. Ladd, who testified in the case, I understand today, will in substance change his testimony concerning what occurred.” Rule 36.22, Arkansas Rules of Criminal Procedure requires that a motion for new trial be filed and include a statement that the movant believes the action to be meritorious and that it is not offered for the purpose of delay. No such motion was filed. Ark. Stat. Ann. § 43-2203 (Repl. 1964) setting out the grounds for new trial remains unaffected by the Rules of Criminal Procedure. Rule 36.22 incorporates a part of Ark. Stat. Ann. § 43-2704 (Supp. 1975), but it does not eliminate the requirement of that statute that a motion for new trial must be served upon a representative of the prosecuting attorney. Obviously, the prosecuting attorney could have had no opportunity to prepare to resist a ¡notion based upon recantation by Ladd. We still do not know in what respects appellant contends that Ladd would change his testimony.

In view of these circumstances and the view taken of recanting testimony as newly discovered evidence, it would be impossible for this court to hold that the trial court acted in abuse of its discretion.

Other grounds for rehearing are also without merit. Appellant complains that we misinterpreted Murchison v. State, 249 Ark. 861, 462 S.W. 2d 853. He overlooks, however, the fact that we cited Murchison for the proposition that we analogize a motion for new trial on suppression of evidence with one on newly discovered evidence and apply rules governing the latter to the former. We did say that diligence of the moving party was critical to the inquiry. We have held that due diligence is an essential. Philyaw v. State, 224 Ark. 859, 277 S.W. 2d 484, cert. den. 349 U.S. 967, 75 S. Ct. 901, 99 L. Ed. 1288. Denial of motions for new trial have been held not to be an abuse of discretion where the movant has not used reasonable diligence to discover the evidence before trial. Gross v. State, 242 Ark. 142, 412 S.W. 2d 279; Stevenson v. State, 236 Ark. 847, 370 S.W. 2d 445. In Pate v. State, 206 Ark. 693, 177 S.W. 2d 933, a new trial was sought on the ground of newly discovered evidence on the allegation that a witness subpoenaed as a witness for the state, but not put on the witness stand, would have given material testimony in behalf of the defendant had he been called as a witness. We held that denial of a new trial was not error, because no reason was shown for the defendant’s failure to discover the witness’s knowledge of the altercation which was the basis of the prosecution on a charge of maiming.

The very purpose of requiring the state to disclose the names of witnesses is to permit a defendant to acquaint himself with the facts known by the witness and their probable testimony. Appellant had more than a year within which to do this. He is in no position to charge an abuse of discretion on the part of the trial court without having shown any effort on his part to discover the testimony of Fultz. See also, Lind v. State, 137 Ark. 92, 207 S.W. 47.

The petition for rehearing is denied.

Byrd and Howard, JJ., not participating.


author: Frank Holt, Justice.

text:
    Tollie WILSON v. STATE of Arkansas
    CR 77-98
    556 S.W. 2d 657
    Opinion delivered October 24, 1977
    (Division II)

      McArthur & Johnson, P.A., for appellant.

      Bill Clinton, Atty. Gen., by: Robert J. Govar, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was tried before the court, found guilty of robbery and sentenced to three years’ imprisonment. He contends that the evidence was insufficient inasmuch as the record fails to establish that he was resisting apprehension when he applied physical force against the arresting officer. Ark. Grim. Code § 41-2103 (1976) reads: “A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.” Appellant admits there was physical force within the meaning of § 41-2103 but argues that since he was already arrested before any force was employed by him, § 41-2103 is inapplicable because he was not resisting apprehension immediately after the alleged theft.

The concepts of arrest and apprehension are used interchangeably “when employed in connection with the taking of a person into custody.” 6A C.J.S. Arrests § 2. Black’s Law Dictionary, 140 (4th ed. 1951) defines arrest as “[t]he apprehending or detaining of the person in order to be forthcoming to answer an alleged or suspected crime.” Apprehension is defined there (p. 130) as “[t]he seizure, taking, or arrest of a person on a criminal charge.” Also the concepts of arrest and apprehension have been judicially defined. In Patterson v. United States, 192 F. 2d 631 (5th Cir. 1951), cert. den. 343 U.S. 951 (1951), arrest was defined as “ ‘the apprehension or detention of the person of another in order that he may be forthcoming to answer for an alleged or supposed crime.’ ” To the same effect is 5 Am. Jur. 2d § 3. Apprehension was defined as “ ‘the capture or arrest of a person on a criminal charge’ ” in State v. Martin, 89 Kan. 678, 131 P. 1190 (1913). Immediate is defined by Black’s Law Dictionary 884 as “a reasonable time in view of particular facts and circumstances of case under consideration.”

Here the evidence, viewed in the light most favorable to the state, showed that an officer observed appellant conceal a roast in his clothing and clear the check-out line without paying for it when he paid for other items. The officer then approached appellant, told him he was under arrest and advised him that he would have to come with him to the office in the store. On the way appellant broke loose from the officer’s restraint. In the ensuing fight, appellant was subdued and handcuffed. The officer suffered an injured back and a broken sternum. The evidence is amply sufficient to establish the elements of robbery as that offense is defined by § 41-2103; i.e., a theft and the employment of force immediately after the theft to resist apprehension or arrest.

Appellant next contends that the trial court erred in admitting evidence of a grocery cash register receipt. Appellant argues that the foundation was insufficient to show that the ticket or receipt was appellant’s. The officer testified that “[a]lso [in] picking up the groceries that he had purchased, I recovered the receipt showing the things that he had purchased. ” He verified “ [t]hat was the only receipt that was found there, and it checked with the items in the sack. ” The grocery receipt totaled $5.01. Appellant later testified that the total cost of his purchases “ranged to about six-something, five or six-something.” There was ample foundation for the admission of the grocery receipt as evidence.

Affirmed.

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


text:
    Everett Lawrence KING v. STATE of Arkansas
    CR 77-130
    557 S.W. 2d 386
    Opinion delivered October 24, 1977
    (Division II)
    [Rehearing denied December 5, 1977.]

      John Barry Baker, Public Defender, by: Joe B. Reed, Dep. Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of theft by receiving and his punishment was assessed at ten years’ imprisonment. Appellant contends that the trial court erred in denying his motion to suppress evidence secured by a warrantless search. He asserts the search was unreasonable under the Federal Fourth Amendment and Art. 2, § 15, Ark. Const. (1874). In denying the motion to suppress, the court ruled the search was conducted pursuant to a valid consent. Appellant argues that a search warrant should have been obtained. However, “[i]t is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Here as the owner and co-occupant of the premises, appellant’s mother-in-law had the authority to and gave her consent to the warrantless search of her premises. Therefore, a search warrant was not required. See also Robinson v. State, 256 Ark. 675, 509 S.W. 2d 808 (1974); Asher & Bradford v. City of Little Rock, 248 Ark. 96, 449 S.W. 2d 933 (1970); U.S. v. Matlock, 415 U.S. 169 (1973); and Ark. Rules of Crim. Proc., Rule 11.2 (c) (1976).

Even so, appellant contends that the state failed to prove that the consent of appellant’s mother-in-law was voluntarily given because of the coercive nature of the confrontation. The voluntariness of consent to a search is a question of fact to be determined from the totality of the circumstances and the burden is on the state to prove that consent was voluntarily given by clear and positive proof. Harvey v. State, 261 Ark. 47, 545 S.W. 2d 913 (1977); and White v. State, 261 Ark. 24, 545 S.W. 2d 641 (1977). Here two nonuniformed law enforcement officers appeared at Mrs. Griggs’ home at night where she was alone. An officer conducting the search testified that, upon arrival at her residence, he identified himself and the other officer without displaying their guns or force, told her that they had reason to believe that there was a stolen television set in the house, and asked if they could come in to look for it. She testified that she knew one of the officers and was not intimidated by them. Further, they did not force themselves on her, were congenial and “very, very nice.” Her reaction to the officers’ request was that if the television set was stolen, she did not want it and she did not “have a bit of objection to them coming in, you know, and getting it.” Not only did Mrs. Griggs permit the officers to search her house, she voluntarily informed them that there were other items in the house, “some talkers [C.B. equipment} in the other room,” which might be subject to seizure. As was stated in Williams v. State, 237 Ark. 569, 375 S.W. 2d 375 (1964), where there is evidence, not only of waiver and consent, but also active participation in the search, as here, there is no merit to the contention that one’s right against unreasonable searches and seizures was violated. Clearly the evidence here is amply sufficient to support the trial court’s finding that the state sustained its burden of proving by clear and positive evidence that Mrs. Griggs’ consent was not the result of coercion.

Neither can we agree with appellant’s argument that his mother-in-law’s consent was procured through the officer’s friendship with her and, therefore, was involuntary. It appears Mrs. Griggs had not seen the officer but once since childhood and the officer made his purpose for being there known at the outset. Neither do we find merit in appellant’s contention that his mother-in-law’s inability to “read very good” vitiated her consent in view of the fact that the consent form was read and explained to Mrs. Griggs, who has an eighth grade education-

Appellant also questions whether or not Mrs. Griggs actually signed the consent form produced at the suppression hearing. She, herself, verified that her signature was authentic. However, she remembered signing the form in a different location than where her signature appeared. Both officers testified that her signature was in the same location as where she originally signed. This conflict in evidence was a question of fact for the court to resolve in determining the voluntariness of her consent.

Appellant next argues that his mother-in-law’s consent was not voluntary because the officers “x’d” out a portion of the form relating to her right to know that any evidence found might be used against her at trial. The officers testified that they deleted that portion because it was inapplicable to her since the seized property was not to be used against her. We perceive no resulting prejudice to the appellant.

Appellant further argues that even if the consent was voluntarily given, the state should be required to prove a knowing and intelligent waiver and since Mrs. Griggs was not told of her right to refuse consent to the search, the search was invalid. However, a knowing and intelligent consent is not required by our Federal Constitution. In Schneckloth v. Bustamonte, supra, the court said:

There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. Nothing either in the purpose behind requiring a ‘knowing’ and ‘intelligent’ waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures.

Rather, knowledge of the right to refuse consent is only a factor to be considered in determining the voluntariness of consent and the state is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. United States v. Watson, 423 U.S. 411 (1976); and Schneckloth v. Bustamonte, supra. Even so, appellant urges that since each state has the power to impose higher standards on searches and seizures under its own laws or constitution than are required by our Federal Constitution, we.should impose a greater standard than articulated in Schneckloth. In our view the Schneckloth standard of required proof in consent to search is adequate under the terms of our constitution. Art. 2, § 15, Ark. Const. (1874). Although it appears Mrs. Griggs was not verbally informed of her right to refuse consent, she signed a consent to search her premises and a waiver of her right to be free from unreasonable searches . and seizures. She acknowledged that the consent and waiver form was read to her, she understood and signed it.

Appellant also argues that the search was rendered invalid by the officers’ failure to give Mrs. Griggs a receipt listing the items seized as required by Rules of Crim. Proc., Rule 11.4 (1976). Here a copy of the consent form with a list of the items seized was given to appellant’s wife. In the circumstances we perceive no prejudice is demonstrated.

Appellant next asserts that the court erred in overruling his motion to dismiss the charge of theft by receiving against him on the basis of former jeopardy and collateral estoppel. Appellant had shortly before been convicted of burglary in Benton County. During that burglary a television set was stolen. Appellant moved to dismiss the charge of theft by receiving this television set on the basis that the charge was predicated upon the same facts, circumstances and criminal episode as the burglary charge. The court denied the motion on the ground that burglary, is a separate offense from theft by receiving. Appellant contends that his rights, under the federal and state double jeopardy clauses to be free from multiple punishments for the same offense, have been violated because there has only been on continuous and related criminal activity for which he has received two punishments. We disagree. It is true, as appellant asserts, that Ark. Crim. Code § 41-105 (3) (1976) prohibits conviction of more than one offense when the same uninterrupted conduct may establish more than one offense and the conduct constitutes an offense defined as a continuing course of conduct. However, Ark. Crim. Code § 41-2002 (1976) provides that a person commits burglary if he enters or remains unlawfully in an occupiable structure with the purpose of committing therein any offense punishable by imprisonment. The commentary to § 41-2002 states that such an act of unlawful entry is an independent and substantive offense with the result that cumulative penalties may be imposed for entering with intent to steal and for stealing. Theft by receiving is committed when one receives, retains or disposes of stolen property knowing or with good reason to know it was stolen. Ark. Crim. Code § 41-2206 (1) (1976). The commentary to §41-2206 (1) states the purposes of the statute are to allow a person to be convicted of theft by receiving without proof that he took the property himself or acquired it from the actual thief and, further, to dry up the market in stolen goods thereby discouraging theft. In light of the above, it is clear that the legislature intended the offenses to be separate and to authorize multiple punishments.

It is well settled that the test, as to whether offenses constitute a continuing offense, is whether the individual acts are prohibited or the course of action which they constitute. If the former, as here, then each act is punishable separately. Britt v. State, 261 Ark. 488, 549 S.W. 2d 84 (1977). to the same effect are Polk v. State, 252 Ark. 320, 478 S.W. 2d 738 (1972); and Whitted v. State, 187 Ark. 285, 59 S.W. 2d 597 (1933). Further, in Decker v. State, 251 Ark. 28, 471 S.W. 2d 343 (1971), we stated that the test of double jeopardy is not whether a defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense, and where two statutes are intended to suppress different evils, conviction under one will not preclude prosecution of the other.

Appellant further argues that he cannot be convicted of both crimes because theft by receiving constitutes an included offense of burglary and § 41-105 (1) (a), as defined by § 41-105 (2) (a), all of the elements of the lesser offense must be contained in the greater offense — the greater containing certain elements not contained in the lesser. Gaskin v. State, 244 Ark. 541, 426 S.W. 2d 407 (1968). Here the offense of burglary clearly does not contain all the elements of theft by receiving and § 41-105 (2) (a) is inapplicable.

Additionally, appellant argues that theft by receiving is an included offense of burglary under § 41-105 (2) (b) because the burglary constituted an attempt to commit theft by receiving. The commentary to § 41-2002 states that by hypothesis every burglary is an attempt to commit some other crime, but the purposes of making it a separate offense were to cover the distinctive situation for which they were devised; i.e., invasion of premises under circumstances likely to pose a threat to the safety of persons, and to separate this concept from other concepts such as attempt. Since theft by receiving is not in the same generic class as burglary, § 41-105 (2) (c) is inapplicable to make it an included offense.

Appellant also contends that Ark. Grim. Code § 41-107 (1976) bars his conviction of theft by receiving. However, § 41-107 is not applicable where the two offenses require different proof of facts and the law defining each offense is intended to prevent a substantially different evil. Here appellant’s conviction for theft by receiving was not based upon his entry into an occupiable structure, but upon his possession of stolen property in a different county two days after the burglary, a distinct and separate evil. For the reasons previously discussed, § 41-107 is inapplicable.

As to appellant’s incidental argument that he was entitled to a continuance, we deem it sufficient to say that he has not demonstrated the court abused his discretion

Affirmed.

We agree: George Rose Smith, Fogleman, Roy and Hickman, JJ.


author: Elsijane T. Roy, Justice.

text:
    Vicki N. LEWIS v. Wanda PEARSON
    77-137
    556 S.W. 2d 661
    Opinion delivered October 24, 1977
    (Division I)

      Haskins, Eubanks & Wilson, by: Gary L. Eubanks, for appellant.

      Friday, Eldredge & Clark, by: William H. Sutton, for appellee.
   Elsijane T. Roy, Justice.

This action arises out of an automobile accident which occurred in Little Rock, on May 14, 1975. The jury returned a verdict for appellant in the sum of $1,849.23. Appeal was taken from the trial court’s failure to grant appellant’s motion for a new trial.

The first allegation of error is that the trial court erred in failing to grant appellant’s motion to quash the jury panel. Specifically appellant contended that because she was black and appellee was white she could not get a fair trial since no black jurors were serving on the jury trying the case. We find no merit in this contention.

Appellant introduced no evidence of any systematic and purposeful exclusion. See Fields v. State, 255 Ark. 540, 502 S.W. 2d 480 (1973). The United States Supreme Court held in Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972), a defendant’s challenge to a jury panel for racial reasons will not be sustained “merely because no members of his race are on the jury, . . . .”

Apodaca, supra, also holds that there is no requirement of proportionate representation on the jury panel.

In the course of his opening statement counsel for appellee stated that appellant had not lost any wages as a result of the accident. Appellant contends the trial court erred in failing to grant a mistrial because of this remark. Appellant’s position is that appellee was trying to get matters before the jury which he could not properly introduce at the trial, i.e., a collateral source of income, independent of the tort-feasor, which compensated appellant despite her inability to work.

Counsel for appellee merely repeated in opening statement what had been stated by appellant on deposition, to wit: that she had lost no wages as a result of the accident. No reference was made to any source of compensation available to appellant. Neither counsel nor the court prior to trial was apprised of the fact that appellant was seeking to protect an area of alleged collateral source benefits.

We find the record indicates sufficient basis for counsel to have, made the remark. Furthermore, the burden is upon appellant to demonstrate that the trial court erred in failing to grant a mistrial as a result of counsel’s opening statement. Control of such matters lies largely within the discretion of the trial judge, whose action will not be reversed in the absence of an abuse of that discretion. St. Louis, I.M. & S. Ry. Co. v. Earle, 103 Ark. 356, 146 S.W. 520 (1912); Coca Cola Bottling Co. v. Jordan, 186 Ark. 1006, 54 S.W. 2d 403 (1932). We find no abuse of discretion here.

Appellant’s next allegation of error is closely connected to the second. It is that the trial court erred in failing to give appellant’s requested instruction concerning the value of appellant’s lost working time. We find that the court properly refused this instruction due to failure of proof.

With regard to proof on the loss, 25A C.J.S. Damages § 162 (8) states:

A claim for loss of time or earnings must be supported by the evidence and can be allowed only in such amount as is so supported. A party asserting such claim must establish a reasonable probability that his injury brought about the loss, and must afford a basis for a reasonable estimate of the amount of such loss. ***

The only evidence before the jury was that appellant had been hospitalized and was employed at an annual salary. This was not sufficient to warrant an instruction to the jury on the issue of lost earnings. No evidence was introduced or proffer of proof made as to number of days lost or the per day value of lost working time until after both sides, had rested. Then appellant proffered additional testimony on the point of the previous motion for mistrial because of the alleged improper comment made during the opening statement by appellee’s attorney. Thus, the trial court properly refused the instruction.

Appellant also contends it was error to fail to grant appellant’s motion for a mistrial because of misconduct by the bailiff. An investigator for appellant testified that he overheard the bailiff make the following remark to one of the jurors: “Yes, most of them were black, it seems they all feel like the world owes them something.” At the hearing on the motion for a mistrial the bailiff denied making the remark. However, the juror involved was then called to testify, and he stated the remark was made but it did not influence his deliberations.

In Putro v. Baker, 147 Mont. 139, 410 P. 2d 717 (1966), the trial court questioned the jurors and asked if a certain article had any effect on their judgment, and all denied that it did. The trial court then denied the motion for a new trial. The appellate court held that the new trial should have been granted and that the trial court had acted improperly in asking the jurors whether or not the article had any influence upon their decision. Such a holding is also required in the case at bar by the Arkansas Uniform Rules of Evidence, Rule 606(b) (1976).

Because of the close relationship between the bailiff and the court itself any action on the part of the bailiff concerning the jury should be subject to close scrutiny by the court. See Brody v. Boutin, 95 N.H. 103, 58 A. 2d 209 (1948).

We find the derogatory reference to black persons was such that the possibility of prejudice was so great that the entire deliberations were tainted.

Reversed and remanded.

We agree. George Rose Smith, Holt and Hickman, JJ.

       T'hree black jurors were initially on the panel but after voir dire they were struck by the use of peremptory challenges.

       The remark was made in connection with eviction notices which the bailiff also handled as part of his duties.


text:
    Ronnie FEARS v. STATE of Arkansas
    CR 77-114
    556 S.W. 2d 659
    Opinion delivered October 24, 1977
    (Division I)

      Adams, Covington & Tounes, by: Donald J. Adams, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellant Ronnie Fears was charged by information with two counts of possession of a controlled substance with intent to deliver, a violation of Ark. Stat. Ann. §§ 82-2601 et seq. (Repl. 1976). Trial by jury resulted in a verdict of guilty on both counts.

On April 9, 1976, appellant unlawfully sold two kinds of controlled substances to Gaylan Hutchison, an undercover agent for the Arkansas State Police, in the presence of police informant Steve Howerton. Both testified at the trial concerning the occurrence.

On appeal the first allegation of error is that the trial court erred in denying appellant’s motion for a mistrial, claiming that a series of prejudicial irregularities which occurred during the course of the proceedings precluded his receiving a fair trial.

The first alleged irregularity concerns the selection of the jury. At the beginning of trial and before the jury was selected appellant moved for a continuance. The grounds were that the panel from which the jury would be selected had overheard a case involving similar evidence as well as the guilty plea and sentencing of a defendant in another case involving a drug charge.

We find no merit in this contention since appellant has failed to affirmatively show that the jurors who had served in the other cases should be disqualified from serving in the present case because of bias and prejudice. Holland v. State, 260 Ark. 617, 542 S.W. 2d 761 (1976). “The presumption is, until the contrary appears, that they [the jury] were not disqualified by prejudice or otherwise.” Hall v. State, 125 Ark. 263, 188 S.W. 801 (1916). In Pickens v. State, 260 Ark. 633, 542 S.W. 2d 764 (1976), appellant, who was charged with selling a controlled substance, requested the dismissal of jurors who sat earlier on a similar case. This Court held it was not error to deny the request since the jurors were extensively voir dired and no prejudice was revealed.

In the instant case the jury had not been impaneled when appellant’s motion was made for a continuance on the ground the jury was prejudiced. Appellant had ample opportunity on voir dire to inquire into any bias, prejudice or influence that might have resulted from the jurors being present during the previous tria! and sentencing. We also note the voir dire of the jury is neither abstracted nor contained in the record. In short, appellant has presented absolutely no proof that any member of the jury was prejudiced or incompetent to serve in this trial.

Under this argument it is also contended that the State asked improper questions of two of its witnesses and made an improper statement during closing argument. In the first instance cited, Officer Hutchison was asked by the State whether he knew the effect of PCP on people who used it. Appellant’s objection to this question was sustained, and no request for an admonition was made. The second instance occurred when Witness Howerton was asked if he had ever seen appellant in possession of large quantities of drugs. This testimony was excluded and the jury admonished.

Ordinarily the error of admitting improper evidence is cured by sustaining an objection thereto followed by an admonition to the jury to disregard the improper evidence. Thompson v. State, 249 Ark. 36, 458 S.W. 2d 40 (1970). Where no request to admonish the jury is made, however, it is not error to fail to do so. See 23A C.J.S. Criminal Law, § 1066, p. 35. Therefore neither of these occurrences presents such an extraordinary situation as to warrant a mistrial.

Appellant also cites as improper and prejudicial the State’s reference to him as a drug “pusher” during closing argument. Appellant’s objection was sustained and the jury admonished to disregard the remark.

Previously we held a similar characterization not an unfair comment on the evidence where the record reflected that appellant was an active seller of marijuana. Hill v. State, 258 Ark. 164, 522 S.W. 2d 660 (1975). Furthermore, counsel may include in his argument to the jury matters of fact upon which there has been evidence presented. Appellant Fears freely admitted he sold the illegal drugs to Officer Hutchison as alleged. We do not find the remark made by the State was so prejudicial that any error committed could not be cured by the court’s admonition.

Neither do we find, as alleged by appellant, that the cumulative effect of the errors alleged was so extreme as to prejudicially vitiate the entire trial. In order to warrant the granting of a motion for a mistrial there must be substantially stronger evidence of a continuing course of misconduct throughout the entire proceeding.

Appellant’s final contention is that the trial court erred in failing to grant or require the State to grant immunity to defense witness Lisa Bryant. Her testimony was offered for the purpose of impeaching the character of Steve Howerton, a witness for the prosecution.

The granting of immunity is not a constitutional right but only one authorized by statute. Under Ark. Stat. Ann. § 28-533 (Supp. 1975) the granting of immunity is within the discretion of the prosecutor when in his judgment such a grant of immunity is necessary to the public interest. The purpose of immunity statutes is to aid the prosecution in apprehending criminals by inducing witnesses to testify for the State. See 22 C.J.S., Criminal Law § 46(1).

The testimony of Lisa Bryant was not offered to prove appellant’s guilt or innocence but as a collateral attack on Howerton’s credibility. To have granted her immunity would defeat the purpose of the statutory provisions.

Affirmed.

We agree. George Rose Smith, Fogleman and Holt, JJ

       The drugs were later found to be PCP, which is defined as a Schedule 3 controlled substance, and lonamin capsules containing phendramine, defined as a Schedule 4 controlled substance.


text:
    Bobby PETTIGREW v. STATE of Arkansas
    CR 77-157
    556 S.W. 2d 880
    Opinion delivered October 31, 1977
    (Division I)

      Floyd G. Rogers, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

On January 16, 1977, Pettigrew and two others were jointly charged with the commission of armed robbery on the preceding day. On March 28 Pettigrew and his retained attorney, Bill Haworth, appeared in open court and entered a negotiated plea of guilty. The court, before accepting the plea, fully informed Pettigrew of his rights. In response to questions by the court Pettigrew stated that no one had used any force or mistreatment to compel his plea of guilty and that he was satisfied with the services of his attorney. The court accepted the plea of guilty and entered the recommended sentence — 20 years’ imprisonment with 11 Vi years suspended. The court allowed Pettigrew to remain at liberty on bond until May 1, to terminate his affairs.

In the latter part of April Pettigrew employed his present counsel and filed a motion to withdraw his plea of guilty, on the ground that his first attorney had told him that if Pettigrew did not plead guilty the attorney “would walk out on him.” At a hearing upon the motion Pettigrew testified on direct examination only that when he pleaded guilty he did not know that his first attorney had been “defrocked from a judgeship in Oklahoma.” On cross-examination Pettigrew admitted that on the morning of his plea his attorney had told him several times, in the presence of the prosecuting attorney, that it was strictly up to him whether he pleaded guilty or went to trial. Pettigrew testified, however, that after that his attorney said that he would walk out on him if he didn’t plead guilty. The trial judge refused to set aside the plea.

The Rules of Criminal Procedure permit the court to allow the withdrawal of a plea of guilty if necessary to correct a “manifest injustice.” Rule 26.1 (1976). Here the only pertinent ground for withdrawal that might be asserted under that Rule is that the plea of guilty was entered involuntarily. The trial judge, who had the advantage of observing Pettigrew as he testified, was not required to accept his repudiation of his earlier statements that he had not been mistreated and was satisfied with the services of his attorney, furthermore, a plea of guilty is not to be lightly disclaimed a few days later, as Pettigrew attempted to do. We adhere to the views expressed in Stone v. State, 254 Ark. 566, 494 S.W. 2d 715 (1973), where, as here, the defendant sought to repudiate his original statement that his plea was voluntary:

Pleas of guilty — especially negotiated ones <— are designed to avoid the necessity of a trial, with advantages both to the State and to the defendant. It is essential that such pleas have some measure of stability.

We are not convinced in this case that the withdrawal of the plea is necessary to correct a manifest injustice.

Affirmed.

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


text:
    BECHTEL CORP. and INDUSTRIAL INDEMNITY CORP. v. Nancy C. WINTHER, Widow
    77-209
    556 S.W. 2d 882
    Opinion delivered October 31, 1977
    (Division II)

      Smith, Williams, Friday, Eldredge & Clark, by: Frederick S. Ursery, for appellants.

      Me Math, Leatherman & Woods, P.A., by: Phillip H. McMath, for appellee.
   Frank Holt, Justice.

The Workmen’s Compensation Commission found that appellee’s claim was compensable under the “special hazards” exception to the “going and coming” rule and awarded death benefits to her as a widow. Appellants contend that the Commission erred, as a matter of law, in so finding and, therefore, the circuit court’s judgment affirming the Commission should be reversed. We do not agree since there is substantial evidence to support the Commission’s finding.

The essential facts are not in dispute. The appellee’s decedent was an employee of appellant Bechtel Corp. on January 15, 1974, when he left his home in Fort Smith to drive eighty miles to his work. He did not report that day and two days later was found in Lake Dardanelle in his submerged automobile a few feet from a causeway, which cuts across the lake and leads to one of the two entrances to the site of his employment. The causeway is a county road which is graveled with no guard rails or shoulders. The automobile had left the causeway at a curve approximately one quarter mile from the back entrance. On the morning of the accident, there was a low hanging fog resulting in poor visibility. This public road was used daily by some two to three hundred Bechtel employees going to and from work. The deceased routinely used the back entrance to the premises thereby shortening his travel time by eight to ten minutes.

In Frank Lyon Co. v. Oates, 225 Ark. 682, 284 S.W. 2d 637 (1955), we recognized there were numerous exceptions to the “going and coming” rule. The “special hazards” exception is generally accepted, in some degree, by the majority of jurisdictions. 1 Larson, Workmen’s Compensation Law, § 15.13 states:

The commonest ground of extension is that the off-premises point at which the injury occurred lies on the only route, or at least on the normal route, which employees must traverse to reach the plant, and that therefore the special hazards of that route become the hazards of the employment.

Appellants cite Beckerman v. Owosso Mfg. Co., 233 Ark. 973, 350 S.W. 2d 321 (1961), as controlling here. We do not agree since the “close proximity” exception to the “going and coming” rule and not the “special hazards” exception was utilized there in denying compensation.

§ 15-13, supra, lists two components that are necessary before the “special hazards” exception can apply:

Note that the exception to the premises rule here involved contains two components. The first is the presence of a special hazard at the particular off-premises point. The second is the close association of the access route with the premises, so far as going and coming are concerned.

Here the Commission found that the road, at the off-premises point, constituted a special hazard and it appears this finding is not disputed. Appellant argues the second requirement, close association of the access road to the premises, was not met because the accident occurred one quarter mile away from the work premises and, therefore, was too far removed from the plant to warrant application of the exception,

Larson rejects the idea that close association to the work premises is to be measured by mere distance, although he does .recognize the confusion in application created by the overlap of the “close proximity” and “special hazards” exceptions. At § 15.15 Larson explains the exception to the premises rule:

[I]t is not proximity, or reasonable distance, or even the identifying of surrounding areas with the premises; it is simply that, when a court has satisfied itself that there is a distinct ‘arising out of’ causal connection between the conditions under which the claimant must approach and leave the premises and the occurrence of the injury, it may hold that the course of employment extends as far as those conditions extend.

Therefore, the criteria for applying the exception is not sheer distance or proximity as appellants contend, but rather the causal connection between the injury and the employment.

Nor is the exception always inapplicable due to the existence of an alternate route. § 15.13 reads:

If an alternate route is available, and if it is substantially more remote or more inconvenient, the special hazard exception to the premises rule will usually be applied.

See also Johannsen v. Action Const. Co., 119 N.W. 2d 826 (Minn. 1963). The “special hazard” exception may be applied when the off-premises route, while not the exclusive means of access, is the “usual” or “regularly used” route. Daly v. Edwards Engineering Corp., 257 A. 2d 730 (N.J. 1969); Naranja Rock Co. v. Dawal Farms, 74 So. 2d 282 (Fla. 1954); and Procaccino v. E. Horton & Sons, 111 A. 594 (Conn. 1920).

Here the Commission made factual findings that a “special hazard” existed at the scene of the accident on the access road, the route regularly used by the deceased and two to three hundred other workers, and there was a causal connection between his death and employment since the deceased, by reason of his employment, was exposed to the hazardous road condition to an abnormal degree. “On appeal, if there is any substantial evidence to sustain the findings and award of the Workmen’s Compensation Commission, the Supreme Court will affirm.” Burks Inc. v. Blanchard, 259 Ark. 77, 531 S.W. 2d 465 (1976). Here the evidence was amply substantial to support the Commission’s factual finding of the existence of the “special hazard” exception to the “going and coming” rule and accordingly the Commission did not err, as a matter of law, in finding the claim compensable. The circuit court’s judgment is affirmed.

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


text:
    Raymond Lee HAMILTON v. STATE of Arkansas
    CR 77-136
    556 S.W. 2d 884
    Opinion delivered October 31, 1977
    (Division I)

      Don Langston, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

On the evening of August 16, 1976, a Fort Smith liquor store was robbed and an investigating police officer seriously wounded by being shot in the face when attempting to question a suspect. After trial by jury Appellant Raymond Lee Hamilton was found guilty of the offenses of aggravated robbery and attempted capital murder. Sentences on the respective charges were imposed at 40 years’ imprisonment and a fine of $10,000 and life imprisonment and a fine of $15,000, the sentences to be served consecutively.

For reversal appellant first contends it was error for the trial court to deny his motion to suppress his confession since it was the product of an allegedly illegal detention and arrest without probable cause.

Appellant primarily relies on Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969), and Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975), cases in which questioned evidence was suppressed. However, both of these cases concerned illegal arrests and detentions which were not based on probable cause. In Davis, prior to his arrest petitioner was held in jail overnight during which time he was fingerprinted and given a lie detector test, all without being afforded assistance of counsel. The State made no claim that Davis voluntarily accompanied the police to the station or willingly submitted to fingerprinting.

This Court in Loomis v. State, 261 Ark. 803, 551 S.W. 2d 546 (1977), considered an allegation similar to appellant’s and found that evidence of Loomis’s fingerprints did not need to be suppressed since they were taken during the investigatory stage of proceedings. The evidence that “Loomis voluntarily accompanied the police officers to the police department and voluntarily submitted to the taking of his fingerprints [was] uncontradicted.” Since Loomis had become the primary focus of the investigation at that time, the Davis case was found to be distinguishable.

Many of the factors present in Loomis, supra, are also found in this case. In both good descriptions of the suspects were given to the police officers. Here, after the liquor store was robbed the clerk, Gerald Thron, described the assailant as being a black male, probably 21-22 years old, 6’l"to 6’3" tall, 165-175 pounds, wearing a light blue shirt and blue jeans, chrome reflector sunglasses and a blue short-billed cap.

During the investigation the police interviewed a number of subjects, 35 of whom were interviewed at the police station. During the course of investigation the officers received information from a reliable informant whose prior information had led to convictions that appellant was a prime suspect. Based on this information a police officer contacted appellant’s parents on August 17 and asked if they would have him come in for an interview, whereupon appellant voluntarily appeared at the station next day and was apprised of what the police wanted to discuss. A statement was taken and appellant indicated he would be willing to take a polygraph test. Appellant was told he could go and that the police would get in touch with him if they needed him further._

On August 22, the police once again contacted appellant through his parents and requested an interview. When appellant voluntarily came to the police station the next day he was informed that he could refuse to talk. A second statement was taken at that time.

The police continued to hear from the reliable informant that appellant was a likely suspect, and around noon on September 8 appellant was asked again if he would be willing to take a polygraph test. He answered in the affirmative and stated that he wanted to “hurry up and get this mess over with.” After appellant had been read his rights and signed a waiver, the test was administered. Because some of the answers indicated deceptive reactions appellant was asked to take the test two more times, which he agreed to do. Appellant was advised that he did not have to take the test if he did not wish to do so.

When the third test was completed Officer Bettis, the polygraph examiner, asked appellant if he wanted to tell him about it, whereupon appellant confessed. Hamilton was then asked if he would repeat the story, and, after agreeing to do so, he was again advised of his rights and he related his confession once more. It was taken down by a stenographer. Two other police officers were called back in while the statement was being typed. Appellant was again read his rights and signed another waiver.

In his confession appellant stated he had robbed the liquor store, shot Officer Willis a few moments later and fabricated an alibi involving his friend James Hughes.

Viewing these circumstances in their totality we find the record amply supports the conclusion that appellant was not illegally detained at the time he confessed to the crime. When the polygraph tests were given, culminating in appellant’s confession, he had become the prime focus of the investigation and had been read the Miranda warnings several times. Therefore, we find no error in the admission of his confession at the trial._

Appellant’s second contention is that the trial court erred in either refusing to dismiss the robbery charge or declare a mistrial because the State relied upon perjured testimony to identify him as the culprit.

Gerald Thron, the store clerk, testified that during the investigation he viewed line-ups on two different occasions but that he was unable to positively identify anyone as the robber. Appellant attempted to impeach Thron by trying to show that he told two attorneys that he (Thron) had identified the robber in the second line-up but the police had released the suspect. The two attorneys were later called by appellant and testified Thron had so advised them. There was no evidence that appellant participated in any line-up or other identification procedure.

We have reviewed Thron’s testimony and find that he stated he was not exactly sure what he had told the two men; that he may have stated that he thought he could identify one of the men in the line-up but that he was not positive. It is undisputed that after viewing the second line-up Thron marked a form indicating he did not recognize anyone as the robber.

We do not view Thron’s testimony as being in direct conflict with that of the two attorneys, nor do we find that it amounts to perjury. At most, it indicates that prior inconsistent statements were made by this witness going to his credibility. Credibility of a witness is a matter with the province of the jury; they may accept or reject any or all of a witness’s testimony. Brown v. State, 231 Ark. 363, 329 S.W. 2d 521 (1959).

Furthermore, contrary to appellant’s contention, there is no indication that the prosecutor was aware of Thron’s conversation with the two attorneys until it was elicited during cross-examination. United States ex rel Washington v. Vincent, 525 F. 2d 262 (2d Cir. 1975), relied upon by appellant, states that it is the “knowing use by a state prosecutor of perjured testimony” that ordinarily results in a deprivation of fundamental due process. The record certainly does not indicate any “knowing use” of perjured testimony.

Appellant next alleges error in the denial by the trial court of his motion for a directed verdict on the charge of attempted capital murder. It is contended that there was no substantial evidence of premeditation and deliberation in the shooting of Officer Willis. We find no merit in this point.

Ark. Crim. Code § 41-1501 (l)(b) (1976) reads in pertinent part:

(1) A person commits capital murder if:
* * *
(b) with the premeditated and deliberated purpose of causing the death of any law enforcement officer, . . . when such person is acting in line of duty, he causes the death of any person; or
* * *
In relevant part Ark. Crim. Code § 41-701 (1976) reads:
(1) A person attempts to commit an offense if he:
(a) Purposely engages in conduct that would constitute an offense if the attendant circumstances were as he believes them to be; or
# * #

Premeditation and deliberation are elements of criminal activity which are rarely capable of proof by concrete, demonstrative evidence. In Ulmer v. State, 253 Ark. 106, 484 S.W. 2d 691 (1972), we stated that:

* * * Premeditation and deliberation may be inferred from the circumstances of the case, such as the character of the weapon used and the manner in which it was used, the nature of the wounds inflicted, the conduct of the accused and the like. (Citing cases.)

The ultimate disposition of this issue is for the jury after considering all the circumstances of the case.

Appellant in his confession stated he was running up Seventh Street to “P” Street when Officer Willis pulled up in his police car and said “Come here son or something like that.” Appellant further stated: “As I walked back to the car I had my gun in my hand with my hat covering it. The gun was cocked. As I snatched the hat off of the gun it went off.” Carolyn Jackson witnessed the incident and testified that she saw a person walk up to approximately three feet from the officer, heard a shot and saw the individual run away and Willis’s automobile crash. Willis had been shot in the face.

The evidence was sufficient to support the jury’s finding that appellant acted with the requisite state of mind in shooting Officer Willis to sustain a conviction of attempted capital murder.

We do find merit in appellant’s fourth contention concerning his request for an instruction on the lesser included offense of robbery. Appellant was charged with aggravated robbery as defined in Ark. Crim. Code § 41-2102 (1976) because it was alleged that he employed a firearm in the perpetration of the robbery. The trial court refused to give appellant’s Requested Instruction Number A which defined the lesser included offense of robbery as defined in Ark. Crim. Code § 41-2103 (1976).

The testimony was in conflict as to whether appellant was armed. Gerald Thron testified appellant employed a firearm, but Ben Barker, a defense witness, testified that he came into the store as the robber was leaving and that he did not see a firearm but only the assailant carrying a paper bag.

In Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972), this Court recognized its duty to zealously protect the right of an accused to have the jury instructed on a lesser included offense. We stated:

* * * We have consistently held that a trial court commits reversible error when it refuses to give a correct instruction defining a lesser included offense and its punishment when there is testimony on which the defendant might be found guilty of the lesser rather than the greater offense. (Citing cases.) * * *

It was the prerogative of the jury to evaluate the conflicting evidence and resolve the issue here. See Milburn v. State, 260 Ark. 553, 542 S.W. 2d 490 (1976).

Appellant’s final allegation is that it was error for the trial court to give Instruction No. 6 on attempted capital murder and refuse to give appellant’s modified instructions on that issue.

Instruction No. 6 reads as follows:

The defendant is charged with committing the crime of Attempted Capital Murder.
As defined by the Arkansas Statutes a man is guilty of Capital Murder if he with the premeditated and deliberate purpose of causing the death of any law enforcement officer, when such a person is acting in the line of duty, he causes the death of any person. Premeditation as used in these instructions means thought of beforehand. Deliberation means weighing in the mind the consequences of the course of conduct, as distinguished from acting upon a sudden impulse without the exercise of the reasoning powers. The premeditation and deliberation to do murder may be formulated in the assailant’s mind upon the instant. It does not have to exist in the mind any appreciable length of time. All that is necessary is for it to exist when the assailant commits the act. The premeditation and deliberation defined in these instructions may be inferred from the circumstances of the case. A person attempts to commit an offense if he purposely engages in conduct that would constitute an offense if the attendant circumstances were as he believes them to be. “Conduct” means an act or omission and its accompanying mental state. A person acts “purposely” with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.

We find no merit in this contention. The definitions included in the instruction regarding “conduct” and acting “purposely” were taken from Ark. Crim. Code § 41-201 and 41-203 (1976), respectively. Furthermore the wording of the instruction encompassed the language of the criminal activity involved as contemplated in Ark. Crim. Code § 41-1501 (1)(b) and 41-701(l)(a), supra. Premeditation and deliberation may permissibly be inferred from the circumstances of the particular case. Ulmer v. State, supra.

The Court’s instruction correctly and adequately covered the issue. Appellant’s proffered instructions were not correct statements of the law and were properly refused by the court.

For error made in not submitting the lesser included offense to the jury we accordingly reduce the sentence imposed on the charge of aggravated robbery from 40 years to 16 years, and the fine remains the same.

Affirmed as modified.

We agree. George Rose Smith and Holt and Hickman, JJ-

       All police interviews with appellant were prior to his arrest or forcible detention.

       In Loomis, supra, the police interviewed 177 possible suspects, and 55 of these were interviewed at the police station, but no illegal dragnet was found.

       The machine however was not immediately available so appellant left to check on a job and voluntarily returned at 1:20 p.m. to take the test.

       Ark. Crim. Code § 41-105(3) (1976) provides:
      The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
      Here the testimony warranted the giving of the instruction on the lesser included offense.


text:
    EMERSON ELECTRIC COMPANY v. Frank WHITE
    77-295
    557 S.W. 2d 189
    Opinion delivered November 7, 1977
    (Division I)

      Cathey, Godwin & Hamilton, for appellant.

      Frierson, Walker, Snellgrove & Laser, for appellee.
   George Rose Smith, Justice.

The workmen’s compensation commission (1) approved, retroactively, the claimant White’s request that he be permitted to change physicians and (2) found that White’s total temporary disability had commenced on April 1, 1975. The circuit court upheld the commission. The self-insured employer questions both the commission’s findings.

On the first point, the statute provides that the commission may order a change of physicians when, “in its discretion,” such change is deemed “necessary or desirable.” Ark. Stat. Ann. § 81-1311 (Repl. 1976). We have recognized the commission’s discretionary authority to approve such changes retroactively with respect to the employer’s liability for fees and expenses incurred after the change. Southwestern Bell Tel. Co. v. Brown, 256 Ark. 54, 505 S.W. 2d 207 (1974); Caldwell v. Vestal, 237 Ark. 142, 371 S.W. 2d 836 (1963). In Southwestern Bell, as here, the claimant’s petition for a change of physicians had not actually been approved when additional medical expenses were incurred by the claimant. We agreed with the referee’s observation that a claimant cannot be expected merely to wait patiently for relief from his symptoms while the wheels of justice turn.

Here the claimant, through his attorney, first suggested the need for a change of physicians in August of 1974. A hearing on that request was finally held on September 16, 1975. The administrative law judge’s approval of the requested change, by reason of delays not attributable to him, was not announced until April 1976. In the meantime White had undergone apparently successful surgery, performed by Dr. Lester, the surgeon of White’s own choice, for the fusion of the affected vertebrae in White’s back.

The employer argues that reimbursement for the attendant expenses should be denied, because Dr. Feild, a Memphis neurosurgeon who was selected by the employer and treated White for some time, should have been offered the opportunity to perform the operation. The administrative law judge and the commission both rejected that contention.

We find no abuse of discretion in the retroactive approval of the change. There is no question about the qualifications of either doctor to perform the operation. There is no question about Dr. Lester’s fees. The claimant had been angered by Dr. Feild, partly because Dr. Feild had released him to go back to full-time work when White, in his own opinion, was still not able to work. As late as August 6, 1975, Dr. Feild wrote to the employer that “many of [the claimant’s] symptoms and complaints are referable to chronic anxiety and I think much of his pain is.” Yet a myelogram performed by Dr. Lester only 18 days later indicated objectively that the fusion was advisable. White testified at the hearing in September that he had no confidence in Dr. Feild and would not let him do the suggested operation. In the circumstances we cannot say the commission abused its discretion in finding that the change of physicians was, in the language of the statute, “desirable.”

On the second point, however, we find no substantial evidence that White’s total temporary disability goes back quite as far as April 1, 1975 Until that date he had been drawing unemployment compensation benefits, indicating that he was employable. When those benefits were terminated on April 1, White applied to the appellant for reemployment, indicating he himself thought he could work. He was told that he had been fired. His own physician, Dr. Lester, wrote on September 9 that his patient’s earlier total temporary disability had ended long before the myelogram was performed on August 24.

On the other hand, the myelogram was unquestionably disabling for some weeks. The administrative law judge apparently first saw White at the hearing on September 16. At that time it was demonstrated that White walked quite slowly and with a waddling movement that is confirmed by the medical proof. We, of course, do not have the great advantage of having seen White as he attempted to move about. We find no testimony indicating any change in his condition between the date of the hearing in September and the date of the surgical operation in the following March. We can therefore sustain the existence of total temporary disability beginning on August 24, 1975, the date of the myelogram, but the proof does not support the commission’s finding of an earlier date.

With that modification the judgment is affirmed.

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