text:
    James Edward DILLARD v. STATE of Arkansas
    CR 76-140
    543 S.W. 2d 925
    Opinion delivered December 13, 1976 (Division I)

      Lee Ward, for appellant.

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

Appellant James E. Dillard was found guilty of the crimes of inciting to riot, attempting to escape from custody of an officer while he was under lawful restraint, and assault and battery upon the person of;the officer. He asserts multiple grounds for reversal, divided into classes under three stated points for reversal. We find reversible error in certain of the grounds argued under the point relating to refusal of, and failure to give, certain instructions. We will forego discussion of any of these numerous grounds, except for those which constituted reversible error and those which will likely arise on retrial.

We find reversible error in the trial judge’s refusal to give appellant’s requested instructions Nos. 6, 7 and 8. Each of these instructions would have advised the jury of the elements of one of the three offenses with which appellant was charged and that it would have to find appellant guilty of each element of that offense, beyond a reasonable doubt, before it could find him guilty of that offense. Appellant objected to the court’s failure to give these instructions because the jury had not otherwise been instructed that each of the elements of the offense covered must be proved beyond a reasonable doubt before appellant could be found guilty of that offense.

The jury was only instructed that “ [t]he defendant is presumed to be innocent until proven guilty, and if upon the whole case you have a reasonable doubt of the defendant’s guilt, you will acquit him” and “[t]he burden of proof, as you have been instructed, is on the State to make out or establish its case to your satisfaction, beyond a reasonable doubt.” Those instructions are correct, as far as they go. Even though the court had defined the elements of each of the offenses, nothing in the instructions given could possibly be construed as requiring that each element of each such offense must be proven beyond a reasonable doubt. In this respect the proffered instructions were proper even though it is not necessary that the state prove each fact or circumstance beyond a reasonable doubt, but it is required that the state so prove each material element of each crime charged. State v. Green, 126 Vt. 311, 228 A. 2d 792 (1967); Spear v. U.S., 142 CCA 67, 228 F. 485 (8 Cir. ED. Ark., 1915), cert. den. 246 U.S. 667, 38 S. Ct. 335, 62 L. Ed. 929; State v. Ottley, 147 Iowa 329, 126 N.W. 334 (1910); State v. Kimes, 145 Iowa 346, 124 N.W. 164 (1910). See also, Heard v. U.S., 142 CCA 85, 228 F. 503 (8 Cir. ED. Ark., 1915); State v. Long, 30 Del. 397, 108 A. 36 (1919). Cf. Ferrell v. State, 165 Ark. 541, 265 S.W. 62. The failure to give instructions similar to those requested by appellant is reversible error unless the matter is fully covered by other instructions. McAfee v. U.S., 105 F. 2d 21 (D.C. Cir. 1939). Instructions going no further than those given here have been held deficient when an objection is based upon the failure of the court to instruct the jury that it must find the appellant guilty of each element of the offense charged beyond a reasonable doubt or that the state bears the burden of proving each element of the offense beyond a reasonable doubt. See Heard v. U.S., supra; Spear v. U.S., supra; State v. Ottley, supra; State v. Kimes, supra. The Court of Appeals of the District of Columbia spoke lucidly upon the matter in McAfee. Speaking through Justice Stephens, it said:

*** The purpose of such an instruction is to impress upon the mind of the triers of fact the proposition that guilt depends upon demonstration beyond a reasonable doubt of the existence of each of the several elements which, as a matter of law, constitute the crime charged, rather than upon some vague general notion that the defendant did some sort of wrongful act. Such an instruction is to be contrasted with those which tell a jury that they may not convict if they have a reasonable doubt “upon the whole evidence” or that they may convict if “upon the whole evidence” they are convinced beyond a reasonable doubt of guilt. The charge actually given to the jury in the instant case belongs to the latter type of instructions. ***

Apparently, we have not reversed any judgment on account of failure of the trial court to give such an instruction but we have tacitly recognized the necessity for so instructing the jury. In Humphrey v. State, 168 Ark. 163, 269 S.W. 988, we held that the court correctly charged the jury that:

If any fact in the case or any element necessary to constitute the crime has been established to your satisfaction beyond a reasonable doubt by either direct or circumstantial evidence, or by both kinds, then such fact or element has been sufficiently proved, and if the jury believe beyond a reasonable doubt from either or both direct and circumstantial evidence that the defendant is guilty, it is your duty to so find.

In Jones v. State, 159 Ark. 215, 251 S.W. 690, we held that it was reversible error to refuse a request to charge a jury that the intent to kill must be proven beyond a reasonable doubt when the charge is assault with intent to kill.

Since no instruction given, or any combination of them, adequately stated the state’s burden or the findings requisite to a conviction, the judgment must be reversed.

Appellant complains of the court’s failure to give other instructions. By his requested instruction No. 1, he sought to have the jury instructed that, if he did not know or have reasonable grounds to believe that Galen Hutcheson (who arrested appellant) was, at the time of apprehending appellant, a duly authorized law officer, appellant violated no law in using whatever force was necessary to break away from him and run into the nearby woods. The instruction requested was certainly not in keeping with the spirit of our Per Curiam order entered April 19, 1965, adopting Arkansas Model Jury Instructions, in that it is not wholly impartial and free from argument. Certainly, it would be desirable to eliminate references to running into the nearby woods. The instruction as to the permissible amount of force probably should have been qualified. Even though one has the right to resist an illegal arrest, the force that may be used is limited to that reasonably necessary. Jett v. State, 151 Ark. 439, 236 S.W. 621. See also, Baxter v. State, 225 Ark. 239, 281 S.W. 2d 931. The circuit judge refused to give it on the basis that the facts did not justify doing so. We find no error, because of appellant’s own testimony. He “presumed” that Hutcheson was an officer at the time Hutcheson got out of an automobile occupied by the Sheriff of Clay County, whom appellant knew, and Deputy Sheriff Stow, whom appellant recognized, and called appellant over to the automobile where the arrest was made. This testimony certainly eliminated any question of fact as to appellant’s having reasonable grounds to believe that Hutcheson was an officer of the law.

Appellant also requested an alternative instruction that an officer making an arrest must inform the person about to be arrested of the intention to arrest him and the offense for which he is being arrested. Appellant included in his requested instruction a prefatory statement that he had undertaken to show that, at the time of the arrest, he did not know that Hutcheson was a law officer and that Hutcheson did not tell appellant he was being arrested. Appellant’s objection to the court’s failure to give this instruction is based solely on the ground that Hutcheson’s official capacity was not made known to appellant. Because of the introductory language and appellant’s own testimony, it was not error to refuse the instruction over the objection made by appellant.

Dillard testified that Hutcheson never advised him that he was under arrest. There is contradictory testimony by Hutcheson that he did in fact advise appellant that he was under arrest for inciting a riot. Nevertheless, there was a disputed question of fact on this point. In Minton v. State, 198 Ark. 875, 131 S.W. 2d 948, we said:

The law of this subject is correctly stated in the chapter on Arrest in 6 CJS, p. 602 [now 6A CJS § 48], as follows:
“It is, ordinarily, incumbent on an officer, seeking to make an arrest without a warrant, to inform the accused of his authority or official character, of his intention to arrest him, and of the offense for which he is being arrested, otherwise the person whose arrest is sought is under no duty to submit; although circumstances surrounding the arrest may, in a proper case, dispense with one or more of these requirements. In accordance with this exception to the rule, an officer need not inform a person who is committing an offense in his presence, or who is pursued immediately after the offense, of the cause of his arrest; and, where an officer is met with a demonstration of force at the outset, he need not go through the formality of informing the person of his intention to arrest him or of the cause of his arrest.”

It is true that the statute, Ark. Stat. Ann. § 43-416 (Repl. 1964), does not apply when the offense is committed in the presence of the officer. Minton v. State, supra; Bookout v. Hanshaw, 235 Ark. 924, 363 S.W. 2d 125. But, in this case the principal issue was whether the appellant had committed any offense. In such a case, a proper instruction would qualify the recitation of the statute by stating when it is, and when it is not, applicable. We do not agree with the trial court’s holding that merely instructing the jury that it must find that appellant was lawfully taken into custody covered the requests made by appellant, because neither a lawful arrest nor lawful custody was defined for the jury.

We might well agree with appellant that the attitude, demeanor and acts of the officers, both before and after his being arrested, may be relevant to the issues on the charge of attempting to escape while in lawful custody or to the weight to be accorded the testimony of the officers. This would not justify, however, his requested instruction advising the jury relative to his right to the assistance of counsel and his privilege against self-incrimination. No custodial statement was offered in evidence and no contention is made that appellant was not properly advised of his constitutional rights prior to any custodial interrogation.

We find no reversible error in the circuit judge’s refusal of a request that he instruct the jury that Arkansas law requires that one arrested without a warrant be forthwith taken before a magistrate for the fixing of bail or discharge and that admission to bail is an order from a competent court or magistrate that defendant be discharged from custody on bail. The instruction offered begins with a recitation of proof the appellant “has undertaken to develop” and is argumentative in form. It was also abstract. The provisions of Ark. Stat. Ann. §§ 43-601 — 43-603 (Repl. 1964) have always been held directory, not mandatory. Appellant was not seeking freedom from pretrial incarceration, having been admitted to bail. He went to trial on a plea of not guilty, without raising any questions about pretrial procedures. We note that appellant’s objection to the denial of this request is that the time passing between his arrest and the formal filing of the charges against him was pertinent to the jury’s consideration of the weight to be given to the testimony of the officers. Even if this is so, under the factual situation of this case, the instruction would not have so advised the jury, therefore, was not required.

There would have been no error in the giving of an instruction requested by appellant emphasizing the fact that the three charges upon which appellant was tried were separate and that, on each charge the state had the burden of proving defendant’s guilt beyond a reasonable doubt and that it might find him to be not guilty on any charge and guilty on others if it found that one or more offenses were not so proved and one or more were proved as required by law. Even though it seems to us that the instructions given covered the matter, the giving of this instruction, or one similar to it, in a case where multiple charges are tried jointly, is advisable.

Appellant requested an instruction that it is incumbent upon a law enforcement officer dressed in plain clothes without any official badge or insignia worn in plain sight to inform the person arrested that he is an officer of the law and to show his credentials and that any plain clothes officer failing to take these precautions acts at his own peril. This instruction might well have been proper if the officer was on trial on criminal charges growing out of the arrest or in a civil action between the officer and the person arrested, but there was no error in refusing it in this case. It must be recalled that at the time of the arrest, appellant “presumed” that Hutcheson was an officer of the law.

So much for requested jury instructions. We now pass to allegations that the circuit court deprived appellant of a fair and impartial trial by undue restriction of his cross-examination and by the words and actions of the trial judge in ruling on admissibility of evidence. At the outset, we will say that we have reviewed all appellant’s contentions about the trial court’s remarks and find no reversible error.

In considering arguments that appellant’s right of cross-examination was unduly restricted it must be kept in mind that the trial judge is vested with some discretion in the limitation of the scope and extent of cross-examination. Nelson v. State, 257 Ark. 1, 513 S.W. 2d 496; Baldwin v. State, 119 Ark. 518, 178 S.W. 409. See also, Tullis v. State, 162 Ark. 116, 257 S.W. 380. Such examination may be restricted to matters that are material and relevant, either to the issues of the case or to the credibility of a witness or the weight to be accorded his testimony. Baldwin v. State, supra; Pleasant v. State, 15 Ark. 624; Atkins v. State, 16 Ark. 568; Self v. Dye, 257 Ark. 360, 516 S.W. 2d 397; Murchison v. State, 153 Ark. 300, 240 S.W. 402; Kelley v. State, 133 Ark. 261, 202 S.W. 49. See also, Tullis v. State, supra; Williams v. State, 258 Ark. 207, 523 S.W. 2d 377; Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225. A witness should not be allowed to state his impressions, conelusions, inferences, supposition or understanding unless his answer is equivalent to a statement of the fact asked for. Darrough v. State, 252 Ark. 198, 478 S.W. 2d 50; Covey v. State, 232 Ark. 79, 334 S.W. 2d 648; Self v. Dye, supra. See also, Vaughn v. State, 252 Ark. 260, 478 S.W. 2d 759; Clift v. State, 155 Ark. 37, 243 S.W. 955; Decker v. State, 85 Ark. 64, 107 S.W. 182. Questions on cross-examination should not be conjectural, speculative or argumentative. Watson v. State, 257 Ark. 876, 521 S.W. 2d 205; Self v. Dye, supra; Fort v. State, 52 Ark. 180, 11 S.W. 959, 20 Am. St. Rep. 163.

Appellant’s first complaint about undue restriction of cross-examination relates to questions of Hutcheson about appellant’s belief or reason to believe that Hutcheson was a police officer after Hutcheson, who had been bearded, attired in blue jeans, a green T-shirt and suede cowboy boots, had attempted to pass himself off as a Missouri visitor at the Blue Grass Festival near Piggott, where the incidents in question occurred. The questions were argumentative and called for the witness to state a conclusion as to appellant’s belief. Answers, of course, would necessarily be speculative. See Darrough v. State, supra. This line of examination was pursued even after the witness stated that, judging from appellant’s actions, the defendant did not believe the witness’s disguise. Appellant also complains about the sustaining of an objection to the form of a question, but the court immediately granted appellant’s attorney permission to rephrase the question. It does not appear that appellant attempted to do so.

After Hutcheson had stated that he didn’t know whether people some 15 feet distant from him and appellant could have heard what Hutcheson had said, the court sustained the state’s objection to a question whether the witness had a reasonable knowledge of how far away normal people heard. The judge ruled that the witness might testify as to the circumstances. The question tended to be argumentative and called for an opinion not based upon what the witness had observed. See Fort v. State, supra.

During the testimony of Randy Brookman, also a narcotics investigator for the Arkansas State Police, who accompanied Hutcheson to the Blue Grass Festival, appellant’s attorney questioned the witness about his practices with reference to smoking marijuana, or appearing to do so, while attempting to infiltrate a culture suspected of trafficking in drugs. He then asked if the witness did not occasionally pull a “joint” out of his pocket and offer it to a youngster. After the witness denied having done this, the prosecuting attorney objected and asked that the court instruct the jury that this line of inquiry was limited to purposes of credibility. When appellant’s attorney insisted that the testimony was not offered on the question of credibility alone, but for the purpose of showing his method of operation, the court sustained the prosecuting attorney’s objection. See Murchison v. State, supra. Appellant, however, now argues that his attorney should have been permitted to ask this type of question to point up possible prejudices, improper motives and lack of credibility of the witness. He did not pursue the matter for those purposes in the trial court.

Appellant also complains that he was not permitted to ask Hutcheson how long it was after the episode that resulted in appellant’s arrest that the witness was served with a summons as a defendant in a damage suit by appellant. When objection was made, the court held an in camera hearing during which it was stipulated that the information on which appellant was being tried was filed on July 22, 1975, more than five weeks after the arrest. Appellant’s counsel said that the purpose of the examination was to show that the filing of criminal charges was motivated by the fact that summons in a civil suit against Hutcheson and other officers had been served upon the witness and others before the information was filed. He stated that he wanted to argue to the jury that it was reasonable to suspect that criminal charges would never have been filed if the civil suit had not first been filed. The record discloses that appellant had been released on bail on these charges before the information was filed by the prosecuting attorney and the circuit judge ruled that, for the purposes of the objection, the officer had probable cause to make an arrest. The objection was sustained as to the examination for the limited reasons stated by appellant’s attorney, but the judge ruled that the testimony would be admitted for the purpose of testing the credibility of the witness or determining the weight to be given his testimony, with an admonition to the jury that it was permitted for no other purpose. The judge stated that the attorney would be permitted to repeat the question for these purposes only. The jury was instructed to disregard any reference to a pending civil suit and the question was not repeated.

When Sheriff Cloyce Pierce was being cross-examined, he was asked what undercover men normally did when they had been recognized. An objection was sustained insofar as normal procedure was concerned. See Murchison v. State, supra. Appellant now argues that he had every reason to believe that the undercover agents in this case violated instructions to withdraw after they had been recognized as narcotics officers. No foundation had ever been laid for this, because it had not been shown that this officer was familiar with normal procedures under these circumstances.

Deputy Sheriff Stow, after testifying that neither he nor Sheriff Pierce had ever seen Hutcheson before he climbed into the back seat of the sheriff’s car, was asked if it would not be customary for an experienced law officer to demand identification from some plain clothes man claiming to be an officer. The trial judge interrupted the answer to state that, “We are not concerned here with what is customary.” See Murchison v. State, supra. Appellant’s objection to the ruling was that whether this officer followed normal procedure was pertinent for the jury’s consideration in weighing the testimony of the witness.

During the cross-examination of Deputy Sheriff Stow, the witness started to state his personal feelings about a knife being carried by appellant when the prosecuting attorney’s objection was sustained on the basis that the attempted answer was an assumption. The judge stated that the witness might testify to facts observed, but that conclusions to be drawn from them were for the jury.

We find no abuse of discretion in the trial judge’s rulings on cross-examination of the state’s witnesses by his attorney. We will not reverse the trial court on such rulings unless there is a clear abuse of discretion. Bartley v. State, 210 Ark. 1061, 199 S.W. 2d 965; Clift v. State, supra.

Appellant also argues that there were four instances in which the trial court erred to his prejudice by rulings which deprived him of pertinent and relevant evidence which was favorable to him. In one instance appellant made no objection to the court’s voluntary ruling that a witness for appellant was stating conclusions and opinions and admonishing her to state facts as to appellant’s appearance. She had said that when appellant was brought out of a wooded area into which he had fled, he couldn’t have walked on his own. See Nelson v. State, supra. In another instance the judge overruled an objection to the prosecuting attorney’s asking a defendant’s witness, “You knew the pigs were there, didn’t you?” There had been a great deal of testimony in the case in which the officers had been referred to as “pigs.” There had been no objections to these references. We find no error.

On the other hand, we think that the trial judge did exclude admissible testimony. There had been testimony by an officer that Dillard had refused to give his name and had made threats and remarks derogatory to the officers when he was being interrogated by the officers in the sheriff’s office after having been taken to jail. Dillard had testified that, during a 20 or 25 minute “session” in the sheriff’s office, he had been physically abused by the officers and that he didn’t answer when he was asked his name. He testified that, before leaving the jail, when he was being taken to the sheriff’s office, a city police officer had said to him, “You’re Pat Mouton, aren’t you?”, but that he did not respond. The court sustained an objection to this testimony as hearsay, but we do not agree. The testimony was not offered to show the truth of the remark, but to show that it was made. The error was probably harmless, but, nevertheless the action was erroneous.

The trial judge also excluded certain testimony of Steve Parker, who was arrested for drunkenness after Dillard’s arrest and transported to the jail along with Dillard. He would have testified that Hutcheson had tightened the handcuffs on Dillard after Dillard had said they were tight enough; that Dillard’s request to telephone either his mother or his attorney was refused; that Dillard was taken downstairs and after about 40 minutes was returned to the jail, gasping and bearing welts and red spots over his whole torso. Appellant contended that the conduct of the officers following Dillard’s arrest and during his incarceration was a proper element for the jury’s consideration in determining the weight to be given their testimony. In view of the nature of the charges, Dillard’s version of his encounters with Hutcheson, and the obvious efforts of his counsel to show that the officer acted maliciously in the arrest of Dillard, the conduct of the officers after the arrest was the proper subject of inquiry. Parker’s testimony tended to corroborate that of appellant and should have been admitted.

For the errors indicated, the judgment is reversed and the cause remanded.

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

      The statement in Edgin v. Talley, 169 Ark. 662, 276 S.W. 591, that even though the person arrested might have believed that he was being illegally arrested, it was his duty to have submitted to the officers, is much too broad and comprehensive and Coats v. State, 101 Ark. 51, 141 S.W. 197, cited as authority for the statement, does not support it.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    August SYNOGROUND v. STATE of Arkansas
    CR 76-162
    543 S.W. 2d 935
    Opinion delivered December 13, 1976 (Division I)

      Floyd G. Rogers, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was convicted of attempted burglary on jury trial. His several points for reversal are combined under two arguments: that circumstances surrounding appellant’s pretrial identification by a witness for the state were so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification and that evidence of other crimes was improperly admitted.

The pretrial identification was made by James Uselton. Evidence submitted at a pretrial hearing on appellant’s motion to suppress the identification revealed:

On August 19, 1975, in Barling, Arkansas, at approximately 9:30 p.m., as James Uselton was walking home from his mother’s house he heard a noise that he described as glass breaking. He then saw a person run from behind the Medi-Sav Drug Store. He called a local police officer, Dale Lairamore, who investigated the area and later discovered that an air conditioning vent had been pried loose from the drug store. Lairamore testified that it was dark when the incident happened. Uselton described the suspect as a male wearing black or dark clothing, with medium-length, or collar-length hair. Lairamore had seen Synoground seated on a bench about a hundred yards from the drug store after the incident was reported, and had a good look at him and ascertained his identity.

After the appellant was arrested, charged, and had retained counsel, Lairamore went to the home of Uselton and showed him pictures of five subjects. Uselton was standing beside Lairamore’s police car when he examined these photographs. Four of them showed both front and profile views of male faces. The other showed only a front view of a male face. The picture of the accused was in color and bore the numbers 8 22 75. The others were black and white and bore the numbers 11 27 73, 8 29 73, 2 15 74 and 4 14 73. Lairamore testified that Uselton looked through the pictures several times and said, “Well, it’s kinda hard to tell” because all he saw that night was the side of the person. Lairamore stated that he then told Uselton to look at the part that shows the side view and to imagine “the person as he was dressed that night;” that Uselton then covered part of the picture with his hand and went through them a couple of times. He stated that Uselton told him that one of the photographs was “kind of close” but another looked more like the man he saw, and the hair was about the same. The latter was the photo of the appellant. It took about five or six minutes for Uselton to pick out the appellant’s picture. Lairamore testified that the pictures were not arranged in any particular order and that he did not say or do anything that would indicate which picture represented the suspect.

Uselton testified at the hearing that when the incident happened that it was “about dark,” and the street lights were on and he only got a glimpse of the subject, seeing only a part of one side of his face. He further testified that when he looked at the photographs that Lairamore told him to remember about the black pants and shirt. He covered the profile views in the photographs so that little beside the hair was showing. He stated that he looked through the pictures, and that they did not help him much in looking at the face, but he identified the “guy with blond hair with a white shirt, ” that there were no other pictures that looked like the subject he saw that night. The prosecuting attorney asked, “Do you know this gentleman sitting here at the defense table, the one in the middle?” Uselton answered, “No, sir, I sure don’t.” The prosecuting attorney then asked, “You don’t ever recall seeing him before?” “No, sir, I don’t.” “Do you recall a Preliminary Hearing which you testified in before?” “He was blond, blond hair.” Uselton insisted that the person he saw that night had blond hair and said that he made his identification of the picture by the light blond hair, but admitted that the person at the defense table, who was identified for the record as the appellant, did not have blond hair. The witness identified correctly the photograph he had previously picked out and stated that it looked like the appellant and that the person in the picture did not have blond hair, but again stated that he saw a blond-haired subject that night. Uselton recalled having identified someone at a preliminary hearing, but said that this person had blond hair.

Uselton stated that he identified the picture as being of the man he saw on August 19 only by placing his hand over a portion of the profile view so that he could see only the portion of the head from the eyes on back, and that the identification was made primarily by looking at the hair and the side of the face. He said that he did not see any other pictures that resembled the man he saw on August 19.

On redirect examination Uselton suddenly remembered that as he waited for Lairamore to investigate, that the man in black clothes had “came back around . . . and that’s when I, when I seen his whole face then .. . He dropped something. He bent over and I still noticed the blond hair, he had light blond hair.” In spite of this, he said he had difficulty in identifying any photograph until he covered the profile view in the manner he had described. He did not identify a frontal view.

Uselton testified that he had only gone through the eighth grade and could not remember when he moved from Barling to Ft. Smith. The motion to suppress was denied. When testifying at the trial, which was three days later, Uselton insisted that the man he saw running out of the alley had hair that was blondish brown, brown, and dark. The motion was again made and denied at the trial on the merits, after Uselton had testified.

The unreliability of eyewitness identifications has often been noted. See Note 6, U.S. v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) where the following authorities are cited: Borchard, Convicting the Innocent; Frank & Frank, Not Guilty; Wall, Eye-Witness Identification in Criminal Cases (1965); 3 Wigmore, Evidence § 786a 3d Ed. (1940); Rolph, Personal Identity; Cross, Criminal Investigation 47-54 (Jackson Ed. 1962); Williams, Proof of Guilt 83-98 (1955); Wills, Circumstantial Evidence 192-205 (7th Ed. 1937); Wigmore, The Science of Judicial Proof §§ 250-253 (3d Ed. 1937). This factor was of prime importance in the Supreme Court decision that an accused has a constitutional right to the assistance of counsel at a lineup identification. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The Supreme Court declined to extend the right to counsel to photographic showups, U.S. v. Ash, 413 U.S. 300, 93 S. Ct. 2568, 37 L. Ed. 2d 619 (1973) but did recognize that pretrial identification procedures could be so suggestive as to create a substantial possibility of irreparable misidentification. Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); Simmons v. U.S., 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).

Normally the reliability of eyewitness identification of a defendant is a question for the jury. But, when the procedures leading to the identification are so defective as to undermine its reliability, the identification is inadmissible as a matter of law. “[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. U.S., supra; Foster v. California, 394 U.S. 440, 22 L. Ed. 2d 402, 89 S. Ct. 1127 (1968). In addition, we have held that identity cannot ordinarily be established by evidence of an extrajudicial identification as original evidence. Trimble v. State, 227 Ark. 867, 302 S.W. 2d 83. To determine whether such an error had occurred we view the totality of the circumstances. Simmons v. U.S., supra; Foster v. California, supra; Stovall v. Denno, supra.

Other than the dissimilarities between the photographs already noted there was no direct evidence that the witness was influenced by any suspicious pretrial procedures. However, the witness’s confusion as to the color of the hair of the accused at the time the crime was allegedly committed, his statements that he didn’t know the defendant (in the room where the in camera hearing was held) and had never seen him before, together with his complete failure at the hearing to state that it was the defendant who ran out from between the buildings, casts a thick cloud of doubt over the identification and the procedure relating to the identification of appellant as the would-be robber. At the hearing, it was demonstrated that all the witness identified was the hair, which, considering variation in color, might have been a wig. The conclusion that Uselton’s courtroom identification was suggested only by viewing a color photograph bearing a current date and by the developments at the suppression hearing seems inescapable, when considered along with the grave uncertainty about Uselton’s ability to otherwise identify appellant. An identification as patently unreliable as this one should have been suppressed because of the substantial possibility of irreparable misidentification. King v. State, 253 Ark. 614, 487 S.W. 2d 596; West v. State, 255 Ark. 668, 501 S.W. 2d 771.

Appellant’s second argument will likely arise on retrial therefore must be considered. At the trial Jeanne Teague testified that she had dated the appellant and had lived with him for a while. The prosecuting attorney asked her why she terminated the relationship. She answered, “He was shooting drugs and I —.” The defense thereupon moved for a mistrial. The motion was denied. When the prosecutor continued that line of questioning the witness stated that appellant was taking amphetamines. Defense objections were overruled.

Evidence of other crimes is properly excluded because Anglo-American notions of fair play require that a defendant be convicted for the offense charged, not because he had done other illegal acts. But evidence of other crimes is not always excluded.

“If other conduct on the part of the accused is independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible, with a proper cautionary instruction by the court.” Alford v. State, 223 Ark. 330, 266 S.W. 2d 804.

The defendant was convicted of attempted burglary. This crime is defined in Ark. Stat. Ann. § 41-1007 as “[t]he unlawful attempt to break or enter a house, tenement, railroad car, automobile, airplane or any other building . . . by day or night, with the intent to commit any felony or larceny ...” The intent to commit any felony or larceny is an element of this crime. It is incumbent on the state to present evidence of this intent, although a larcenous intent may be inferred under certain circumstances, Scates v. State, 244 Ark. 333, 424 S.W. 2d 876. See, Graham v. State, 224 Ark. 25, 271 S.W. 2d 614; Pope v. State, 216 Ark. 314, 225 S.W. 2d 8.

The Alford case is the only authority cited by the defendant to support his position. That case was reversed, not because the evidence of the other crime was not relevant, but because the evidence was not needed by the state as the facts in that case were developed. The court explained:

“Thus our cases very plainly support the common-sense conclusion that proof of other offenses is competent when it actually sheds light on the defendant’s intent; otherwise it must be excluded. In the case at bar it seems to us idle to contend that there was any real question about Alford’s intent, concerning which the jury needed further enlightenment.”

Jeanne Teague’s testimony that appellant had a taste for controlled drugs, obtainable at a drug store, is relevant to the issue of the accused’s intent to commit larceny. Pope v. State, supra.

Furthermore, the state also had a right to prove that the accused had a motive for committing the crime, whether this proof of motive discloses the commission of other crimes or not, at least if the evidence is so closely connected with the main issue that it tends to prove the crime charged. Pope v. State, supra. See also, People v. Durso, 40 Ill. 2d 242, 239 N.E. 2d 842, (1968); Grubb v. State, 551 P. 2d 289 (Okla. Cr., 1976). In the Illinois case evidence of other crimes involving possession, sale and use of narcotics was admitted to prove the motive for murder — that the murder was punishment for shorting on drug profits. In the Oklahoma case evidence that the accused had escaped from the penitentiary was admitted to prove motive for concealing stolen property, a birth certificate and Social Security card — to be used for the purpose of concealing his own identity.

The judgment of this court is that the case be remanded for a new trial at which the identification of the defendant by James Uselton be excluded from evidence.

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


author: Frank Holt, Justice.

text:
    TEETER MOTOR COMPANY, Inc. v. FIRST NATIONAL BANK of Hot Springs
    76-185
    543 S.W. 2d 938
    Opinion delivered December 13, 1976 (Division II)

      Bryant & Spears Law Offices, for appellant.

      Wootton, Land & Matthews, for appellee.
   Frank Holt, Justice.

By the terms of a Financing and Security Agreement, appellee agreed to advance funds to appellant for the floor-planning of new and used cars to be sold by appellant. About two years later, after appellant had encountered financial difficulties, appellee took possession of appellant’s automobile stock pursuant to their agreement and liquidated it. Appellee then filed suit for a deficiency judgment for the balance of the debt owed by appellant. From the chancellor’s decree in favor of appellee comes this appeal.

Appellant first “contends that the Agreement for disposal of collateral should have been held invalid .by the Trial Court and the Appellee required to give notice [ten days] as provided by Paragraph 13 of the Financing and Security Agreement.” Appellant signed the disposal of collateral agreement about nine days after repossession of the cars by appellee. This after default agreement waived all notice of the terms, times, and places of sale of the repossessed automobiles. Our Uniform Commercial Code clearly contemplates that a debtor can, as here, waive notification of the sale of collateral following a default. Ark. Stat. Ann. § 85-1-102 (3) (Add. 1961); Ark. Stat. Ann. § 85-9-501 (1) (3) (Supp. 1975); and Ark. Stat. Ann. § 85-9-504 (3) (Supp. 1975). Such an agreement, reached after default, as here, can result in a quick and efficient disposal of collateral for the benefit of the parties.

Neither can we agree with appellant’s further argument that Teeter, owner of Teeter Motor Company, was coerced into signing the supplemental agreement, which it first refused to do. The asserted coercion of Teeter occurred when the appellee bank officials told him that it would be necessary to sign the agreement or the sheriff would be forced to serve the necessary papers on the Teeters. Teeter felt that litigation “would likely drive her [Mrs. Teeter] crazy and put her in a state of shock.” Therefore, the Teeters signed the agreement. Of course, the statement was merely an assertion of a fact; i.e., that legal proceedings would be initiated if Teeter refused to sign the agreement. Appellee was within its legal rights to inform Teeter of its possible course of action. Further, there was a nine day period between the repossession of the automobiles and the Teeters’ written agreement as to the method of the sale of the collateral. Teeter, a business man, had sufficient time to consult with an attorney as to whether he should or should not sign the agreement. We agree with the chancellor that Teeter’s testimony is not “anywhere near sufficient to show that he was coerced, forced, or fraud or misrepresentation practiced on him.”

Appellant argues that appellee failed to give notice before the repossession of the automobiles. Appellant does not point out any provision of the agreement between the parties which required notice of repossession nor does appellant cite any authority that notice of intention to repossess must be given* § 85-9-503 provides:

Unless otherwise agreed, a secured party has on default the right to take possession of the collateral. In taking possession, a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.

Appellant had knowledge of its default through continued negotiations between Mr. Teeter and the appellee bank concerning Teeter’s financial difficulties. There is ample evidence that appellant was in default. In fact, Teeter, who owned the motor company, acknowledged default in the after default agreement.

Appellant also argues that Teeter protested the repossession by appellee and, therefore, the repossession was a trespass and a breach of the peace in violation of § 85-9-503. Therefore, the subsequent sale of the automobiles was invalid. We cannot agree. As discussed, appellant waived notice of the sale of the cars by the after default agreement for disposal of the collateral. Further, the financing agreement between the parties states:

The bank may, so far as borrower can give authorization therefore, enter upon any premises on which the collateral may be situated and remove the same therefrom.

This is authorized by § 85-9-503. The repossession took place when bank employees went to Teeter’s lot and informed him that they were taking possession of his stock. Teeter stated: “Well, I wish you wouldn’t but I’m not going to do anything to stop you.” When asked if the cars were repossessed peacefully, Teeter responded that he offered no resistance and “I stayed out of their way.” A bank employee testified that Teeter stated: “it was a burden lifted from my shoulders” when appellee took the automobiles. It appears that Teeter himself assisted in starting the cars when they were removed from his premises. There is no evidence of force or intimidation by the appellee. We agree with the chancellor that the repossession here, in conformity with both statutory authority and the contractual provision, did not constitute a breach of the peace.

Appellant next contends that the repossession of appellant’s stock was a violation of “federal [14th Amendment] and state [Ark. Const., Art. 2 § 21 (1874)] constitutional rights.” Teeter argues that § 85-9-503, which provides for repossession of collateral, is unconstitutional. Enactment of a “self-help” statute, which authorizes the actions taken by the secured party, as here, is not such significant state involvement as to constitute action taken under color of state law and creates no cause of action under Federal Civil Rights Acts. Nichols v. Tower Grove Bank, 497 F. 2d 404 (8th Cir. 1974); Nowlin v. Professional Auto Sales, Inc., 496 F. 2d 16 (8th Cir. 1974). Further, the procedure challenged here involved actions between individuals arising out of the express written agreement of these parties. See Adams v. Southern California First National Bank, 492 F. 2d 324 (9th Cir. 1973). In the case at bar, we hold the statute is clear and unambiguous and the rights guaranteed by the Federal 14th Amendment and Art. 2, § 21 of our State Constitution were not violated by the appellee’s repossession.

Appellant’s final point is that “the trial court erred in not holding that the repossession and sale of appellant’s vehicles by the appellee were in violation of the Uniform Commercial Code of Arkansas and that appellee should be barred from taking a deficiency judgment against the defendant.” Appellant argues that since the repossession and agreement for disposal of collateral were invalid, any deficiency judgment is barred. We cannot agree. As indicated, the appellant was in default, the appellee rightfully took possession of the collateral under their financing agreement and then sold the collateral pursuant to a valid after default agreement approved by the Teeter corporation and by the Teeters individually. Further, there was ample evidence of compliance with § 85-9-504 (3) which states “every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.”

There was ample evidence that Teeter had knowledge of the location of the lot where the repossessed cars were being sold, contacted and sent some prospective buyers to the lot, was notified of the time and place of auctions, and attended same. The cars were offered first at retail sale and not sold until appellee was satisfied with the adequacy of the price. Only after efforts had been made to dispose of the collateral at retail were the automobiles sold at wholesale or at auction. None of the cars were sold until after the agreement for disposal of collateral was signed by the Teeters.

§ 85-9-504 (2) provides for a deficiency judgment:

If the security interest secures an indebtedness, the secured party must account to the debtor for any surplus, and, unless otherwise agreed, the debtor is liable for any deficiency. . . .

Appellant’s and appellee’s after default agreement for disposal of collateral expressly provided:

Nothing contained herein shall be construed to release Darrell M. Teeter or Huberta Teeter, or Teeter Motor Company, from their personal liability herein should sale of the collateral and reserve account be insufficient to extinguish the Floor Plan debt, and endorsed liability owed to Secured Party by Debtor.

The decree is affirmed.

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


author: Elsijane T. Roy, Justice.

text:
    David Boon NORRIS v. MILLER COUNTY CHANCERY COURT.
    76-87
    543 S.W. 2d 946
    Opinion delivered December 13, 1976 (Division II)

      Thomas G. Montgomery, for petitioner.

      Damon Young, for respondent.
   Elsijane T. Roy, Justice.

A decree of divorce involving Sandra Jean Norris and the petitioner herein, David Boon Norris, was entered May 31, 1974, in the Chancery Court of Miller County.

On March 16, 1976, the respondent herein entered its order finding petitioner, David Boon Norris, in contempt of said court. Petitioner was never served with a copy of this order or the previously filed petition to show cause why he should not be* held in contempt. Both were served upon the attorney who had represented petitioner in the earlier divorce action and whose services were terminated over a year prior to the contempt proceeding.

On April 1, 1976, this Court issued its writ of certiorari for the record in this cause so that the chancery court proceedings might be reviewed.

Ark. Stat. Ann. § 27-362(b) (Supp. 1975) provides as follows:

In cases involving divorce, child custody, child support, or other cases wherein the court has continuing jurisdiction, the attorney of record shall be considered as such for the purpose of subsection (a) herein, only until such time of the entry of a final decree. In such cases wherein the court has continuing jurisdiction, it shall be insufficient to show that the service was obtained upon the attorney of record after the date of entry of the final decree. In such cases, service may be obtained by mailing a copy of the petition by certified mail, return receipt requested, to the address of the other party, or if no address be known, then to the last known address of the said party. (Italics supplied.)

Respondent has filed no brief in the cause, but a letter has been received by the Clerk of the Supreme Court from the attorney for Sandra Jean Norris stating that the issue herein is moot because by agreement of the parties and later proceedings petitioner “has been afforded all relief requested.” Of course the letter is not a part of the record and cannot be considered by this Court.

Obviously the provisions of Ark. Stat. Ann. § 27-362(b) were not complied with, and the order of March 16, 1976, finding petitioner in contempt of court is invalid.

Temporary writ made permanent.

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


text:
    Bettina B. IWERSON, Individually and as Duly Appointed Personal Representative of the Estate of Frank Beals v. Nicholas DUSHEK et al
    76-93
    543 S.W. 2d 942
    Opinion delivered December 13, 1976 (Division II)

      John C. Schaller, San Jose, Cal., and Charles N. Williams, for appellant.

      Paul Jackson, for appellees.
   Elsijane T. Roy, Justice.

Appellees, relatives of Ida D. Beals, brought this action against appellant Bettina B. Iwerson (daughter of Frank Beals) for the purpose of compelling specific performance of an alleged oral contract between Ida D. Beals and Frank Beals to make joint and mutual wills. The action also prayed that Mrs. Iwerson be constituted a trustee of certain assets which appellees would have received had the terms of the wills been consummated. From a decree in favor of appellees Mrs. Iwerson brings this appeal.

On November 20, 1962, Frank Beals and Ida B. Beals executed joint and mutual wills in one document, creating a testamentary plan in favor of the surviving testator as a life tenant with remainders in the heirs at law of both testators. The pertinent provision of the wills reads as follows:

3rd. All the rest and residue of my estate, real personal and mixed, wherever situate, I give, devise and bequeath to my spouse, for life with full power to use, invest, reinvest, manage, control any part or parts thereof for the care, maintenance, comfort, convenience, recreation and pleasure of said spouse; and to execute all necessary quittances and assurances pertaining thereto; and at death of said spouse, all remainder in said estate to the following persons to the extent shown, to wit: (a) To Mrs. Bettina B. Iwerson (daughter of Frank L. Beals) if living; and if deceased, in equal parts of her nearest next of kin, per stirpes; one half (1/2); (b) To Nicholas Duchek (brother to Ida D. Beals) one fourth, (1/4); (c) To the surviving children (or heirs,per stirpes) of Rosemary Mabbott (sister to Ida D. Beals), and this date including Susan, Lynn, Jill, Ann, James and Michael; one fourth (1/4).

Frank and Ida were married May 1, 1941, and lived together until Ida’s death on May 13, 1972. No children were born of their marriage. Appellant is Frank’s daughter by a previous marriage,

Frank Beals, although some 30 years older than his wife, survived her and qualified as executor of her estate. He served as such executor until his death on August 31, 1972. On May 17, 1972, (four days after Ida’s death) Frank executed a holographic will, leaving his entire estate to appellant. On August 22, 1972, he executed a declaration of trust, conveying the assets of Ida Beals’ estate to himself as trustee for the exclusive use and benefit of himself and appellant, for maintenance in their accustomed manner of living and/or for any other purposes the trustee believes to be in the best interest of the said beneficiaries. Attached to the trust document as Schedule A was a list of assets substantially in excess of $300,000 in market value. By amendment to the trust on August 29, appellant was designated as sole beneficiary to the exclusion of Ida Beals’ relatives.

At her father’s request appellant came from California to Eureka Springs on May 2, 1972, to take care of him. However, she gave no money or property to her father for the beneficences awarded her under the trust and his holographic will. While Frank Beals was alive she received a home in Eureka Springs from him together with $20,000 to pay the mortgage thereon and other gifts of furniture and personal property. These assets were not made a part of Ida Beals’ estate, and the court specifically found that Mrs. Iwerson could retain this property.

In Janes, Excr. v. Rogers, 224 Ark. 116, 271 S.W. 2d 930 (1954), we held a contract for reciprocal wills need not be expressed in the wills, but may arise by implication from circumstances which make it clear that the parties had such wills in mind and that they both agreed to the terms of the testamentary disposition made therein.

Here the wills are not only reciprocal in terms, but both are contained in one document, executed by the testators contemporaneously and necessarily in identical terms. The document and the circumstances surrounding it indicate an agreement by Frank and Ida Beals concerning disposition of their properties. In fact the document is itself in the nature of a contract, being dated, signed by the parties and signatures witnessed by three persons.

The major part of the property was held in Ida’s name, who was 30 years younger than Frank. It is logical to assume that Frank thought he would die first and wanted to be sure his only daughter would receive the benefit of half of the joint estate after Ida’s death. Provision in the wills for all surviving kin of both testators is significant of the agreement and intentions of the testators at the time. The testimony also reflected that Frank and Ida acted jointly in almost everything.

The limited power of disposition under the joint wills reposed in Frank Beals the right to utilize the assets of the estate for his well-being subject to the limitations set out therein. It did not give him the right or power to convey by will or by trust the remainder of the estate to his daughter on his death, rather it contemplated an equitable division of the residue among the various heirs of both testators.

In Owen v. Dumas, 200 Ark. 601, 140 S.W. 2d 101 (1940), we dealt with a will containing a limited power of disposition. Owen held that under the will of the deceased, by which he gave all of his property to his wife in trust for herself and his children with power to sell when necessary for her support and maintenance, and/or for the maintenance and education of his minor children, the wife acquired a life estate only and that she had no power to sell the property except for the purposes mentioned in the will. See aiso other cases cited therein.

It is illogical to argue, as appellant did, that Frank’s actions in establishing the trust should be sustained as being for his use and “recreation and pleasure.” In Galloway v. Sewell, 162 Ark. 627, 258 S.W. 655 (1924), we held:

As a general rule the use of a thing does not mean the thing itself, but means that the user is to enjoy, hold, occupy, or have in some manner the benefit thereof. If the thing to be used is in the form or shape of real estate, the use thereof is its occupancy or cultivation, etc., or the rent which can be obtained for its use. If it is money or its equivalent, generally speaking, it is the interest which it will earn. (Citations omitted.)

The facts we have detailed here and others, upon which we need not elaborate, certainly indicate the preponderance of the evidence supports the chancellor’s finding “that the joint wills of Frank and Ida Beals were the result of a contract between them, and once Ida Beals died, Frank Beals could not in equity violate the agreement.” Accordingly we hold the trust invalid as exceeding the limited power of disposition under the wills.

We have considered the various arguments advanced by appellant for holding the trust valid and also the allegations made as to errors in the trial court proceedings; however, we find these contentions to be without merit.

Affirmed.

We agree. Harris, C.J., and George Rose Smith, Jones, Byrd and Holt, JJ.

APPENDIX

      A photocopy of the document is attached as an appendix to this opinion.

      In an unpublished opinion, Iwerson v. Mabbott, No. 75-241 (July 19, 1976), we affirmed the probate court in its decision that Frank Beals could not dispose of property passing to him under the residuary clause of the will of Ida Beals by a subsequent will leaving all the property to his daughter, Bettina Iwerson.

      The record reflects one reason most of the property was in Ida Beals’ name was because Frank Beals had transferred it to her to avoid paying a large sum of back alimony for which judgment against him had been secured in Illinois.


text:
    CITY OF FORT SMITH, Arkansas et al v. Doyle W. BATES and Bernice B. BATES
    76-192
    544 S.W. 2d 525
    Opinion delivered December 13, 1976 (In Banc)
    [Rehearing denied January 17, 1977.]

      Daily, West, Core & Coffman, for appellants.

      Hardin, Jesson & Dawson, for appellees.
   Elsijane T. Roy, Justice.

In November, 1973, appellees Doyle and Bernice Bates purchased certain real property from Mrs. Jamie Williamson. The property was adjacent to Wheeler Avenue in Fort Smith, Arkansas, on which a widening project had commenced several years prior to the purchase. Before beginning this work the City of Fort Smith (hereafter City) secured permission, after lengthy negotiations, from Mrs. Williamson to utilize an eleven foot strip of land across the front of her property for widening purposes in exchange for making certain improvements to the remaining property. The agreement between the parties is incorporated in the following letter to the City of Fort Smith:

l have enclosed the executed easement agreement as you requested in order that Wheeler Avenue can be expanded to four lanes. The easement has been signed however, subject to a reciprocal agreement by the City that the property be left clean, with utility taps at the front of the property on Wheeler Avenue. You have also agreed that there will be two curb cuts (location to be determined at a later date) with two driveways paved a minimum of 40 feet on the property. (Italics supplied.)
Sincerely,
/s/ JAMIE V. WILLIAMSON
Jamie V. Williamson
The City of Fort Smith acknowledges the above and will Incorporate this work as a part of the construction, for the Wheeler Avenue Widening Project.
/s/ WILLIAM E. HUEY, JR.
William E. Huey, Jr.

All of the improvements with the exception of the driveways had been completed at the time this action was filed. The City construed the agreement to require the construction of two 40-foot wide cuts in the curbs extending to the edge of the right of way and that it was not obligated to build the driveways on appellees’ property. Appellees thereafter filed this action in chancery court requesting that the City be required to construct the driveways or, álternatively, that compensation be granted in the amount of $2,-870. The court decreed that the City had entered into an agreement with appellees’ predecessor in title to build the two driveways 40 feet in length; that appellees had standing to enforce this agreement; that the City had ratified the actions of its employee, William Huey, in negotiating the agreement and was thereby estopped to deny its enforcement; and that appellees should be awarded compensation in the sum of $1,244.25 plus costs. Appellants thereafter perfected this appeal.

The first alleged error is the trial court’s action in admitting into evidence a copy of the assignment to appellees from their predecessor in title. The document, captioned “Assignment,” conveyed to appellees all rights of Mrs. Williamson pursuant to the agreement she entered into with the City. Appellants’ objection to its introduction was twofold; first, that appellees did not produce the original of the document and failed to properly explain its unavailability and, second, that the copy introduced did not contain the properly authenticated signature of Mrs. Williamson.

Don Smith, the real estate broker who helped negotiate the agreement between Mrs. Williamson and appellants, at the City’s request testified that the photocopy of the agreement was a true and correct reproduction of the original. Smith testified that after he secured the original instrument from Mrs. Williamson he gave it to appellees’ counsel, William Wright, who stated to the court that the original had disappeared and he was unable to locate it and he only had the copy.

Smith further testified he was familiar with Mrs. Williamson’s signature, having handled business for her for a number of years and having seen her signature on numerous documents. Since Smith was familiar with Mrs. Williamson’s signature his confirmation of its authenticity was sufficient. Davis v. Falls, 172 Ark. 314, 288 S.W. 723 (1926). It must follow that the chancellor acted correctly in admitting the document.

Appellants also contend error in the trial court’s construction of the agreement between appellants and Mrs. Williamson.

In construing the agreement the court evaluated the conflicting testimony of Don Smith and William Huey. Huey was an engineer and assistant director of planning who was handling the widening project for the City, and he testified he signed the agreement at the instruction of Cliff Keheley, City Administrator.

Smith testified the City was unable to get Mrs. Williamson to grant the easement and he assisted the City in securing it. When he and Mrs. Williamson worked out the agreement Smith submitted it to Huey. Then Huey added a paragraph reflecting the City’s acquiescence to the terms. It was Smith’s testimony that the agreement meant the City should construct two driveways 40 feet in depth upon appellees’ property; that this depth or length would go to the normal setback for buildings; and that he assumed the width would comply with zoning policy of the City. Although Huey’s testimony was in sharp conflict, the chancellor resolved the issue in favor of appellees.

In reviewing chancery appeals we affirm unless the chancellor’s holding is against the preponderance of the evidence. We also recognize that the chancellor is better situated to appraise witnesses and reconcile conflicts in testimony than the appellate court. Minton & Simpson v. McGowan, 256 Ark. 726, 510 S.W. 2d 272 (1974). Furthermore we'think the plain wording of the agreement clearly supports the decision of the chancellor. Under the facts here it is not necessary to answer in detail all the contentions of appellants on this issue but we find them without merit.

In other points the City argues that the agreement is ultra vires and/or void; and that the agreement is outside the scope of the authority of those agents of the City who actually negotiated it.

Appellant City contended it had no right to go upon private property to make improvements, relying inter alia upon Article 12, § 5 of the Arkansas Constitution which provides:

No county, city, town or other municipal corporation shall become a stockholder in any company, association or corporation; or obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual.

This section of our Constitution was not meant to apply as a limitation on the ability of the municipal corporation to acquire private property for a public purpose in exchange for fair and equitable consideration. See 63 C.J.S. Municipal Corporations § 957. Here the City agreed to construct the improvements in lieu of cash consideration for the easement acquired.

We also note the action taken by the City in other instances is contrary to its argument on this issue. On a number of the tracts, in connection with acquiring the right of way, the City allowed its contractor to go on the tracts for regrading and paving of driveways on private properties and allowed Administrator Keheley to negotiate grants for cash consideration from one dollar to several thousand dollars. To allow the City to avoid the duties assumed under the agreement by alleging that its agents had no authority to so act would result in injustice to appellees.

From the above facts it appears that Huey and Keheley acted with at least implied authority from the City, but even if we concluded that authority was absent this does not preclude appellees from recovery. In Day v. City of Malvern, 195 Ark. 804, 114 S.W. 2d 459 (1938), a case factually similar to the instant appeal, we held that:

... a contract illegally entered into or entered into without authority by agents or officers of a municipal corporation, may be ratified and rendered binding upon the municipal corporation by affirmative action on its part, or some negative action, which of itself would amount to an approval of the contract. * * *

The City accepted the property, utilized it and carried out most of the terms of the agreement. In fact, the City did not until several years later question the provision concerning the driveways. This action certainly constituted ratification under our decisions, and appellants accordingly are estopped from denying the terms of the agreement. However, in order to avoid the application of the doctrine of ratification, appellants contend the doctrine itself must have been specifically pled. Because the word “ratification” was not used in appellees’ original or amended complaint, it is argued it should not have been invoked by the trial court. Although the exact word “ratification” was not used in the pleadings, the facts necessary to invoke the doctrine (agency, acceptance and retention of the benefits and knowledge of the contract) were well pled, and appellants had sufficient notice of appellees’ position to allow presentation of any testimony through necessary to controvert the doctrine of ratification.

Appellants also complain about the measure of damages but we find the chancellor properly applied the standard established in Day, supra. As to other arguments for reversal urged by appellants we likewise find them to be without merit.

Accordingly the decree of the chancellor is affirmed.


author: PER CURIAM

text:
    In the Matter of Uniform Rules For Circuit and Chancery Courts
    December 13, 1976
   PER CURIAM

The following is adopted as Rule 17 of the Uniform Rules for Circuit and Chancery Courts:

Sec. 1. Whenever possible the necessity for election of special judges should be avoided by utilizing exchanges of circuits pursuant to Art. 7, § 22 of the Constitution of Arkansas and Ark. Stat. Ann. § 22-340 (Repl. 1962) or by assignment of a judge by the Chief of the Judicial Department pursuant to Ark. Stat. Ann. § 22-142 (Supp. 1975). The procedures set out in the succeeding sections of this rule shall be utilized only where no exchange of circuits and no assignment of a judge has been made.

Sec. 2. If it becomes necessary to elect a special judge of any circuit or chancery court in any county, notice shall be given to the practicing attorneys in that county by the clerk of the court in the most practical manner under the circumstances. Notice may be given by posting notice in a public place in the courthouse where the court is held or by telephone. The clerk may use both methods of giving notice to assure that as many attorneys as possible receive notice of the election. Personal notice must be given to all attorneys who have indicated to the clerk, in writing, that they desire personal notice when an election is to be held.

Sec. 3. Whenever the judge of a circuit court shall fail to attend on the first day of a term of court, or the office is vacant on that day, the attorneys shall meet at 10:00 a.m. on the second day of the term in the courtroom where the court is held, to elect a special judge. Whenever a judge of a chancery court shall fail to attend on any day scheduled for the holding of that court according to the annual court calender prescribed by Ark. Stat. Ann. § 22-406.2 (Supp. 1976), and whenever the judge of a circuit court shall fail to attend on any day scheduled for the holding of that court after the first day of the term, the attorneys shall meet at 10:00 a.m. in the courtroom where said court is held to elect a special judge. The attorneys present in the courtroom shall elect one of their number as special judge. The election shall be conducted by the clerk of the court, who will accept nominations from the attorneys present. The election shall be by secret ballot. The attorney receiving a majority of the votes cast shall be declared elected as special judge of the court. He shall immediately be sworn in by the clerk and shall immediately thereafter enter upon the duties of the office.

Sec. 4. No attorney shall be elected special judge who is not an attorney regularly engaged in the practice oflaw in the State of Arkansas and duly licensed in this state to do so, and who is not a resident possessed of the qualifications required of an elector of this state, whether registered to vote or not. An attorney not qualified to serve as special judge shall not be permitted to vote in apy election held under this rule.

Sec. 5. The authority of a special circuit judge elected after the commencement of a term shall extend only to those cases which, at the time of his election, are pending in the court over which he is to preside.

Sec. 6. In a circuit court, a special judge shall serve until the end of the term during which he was elected or until the regular judge appears. If the regular judge does not appear prior to or at the beginning of a new term of the court, and there has not been an exchange of circuits or assignment of another judge by the Chief of the Judicial Department, another special judge shall be elected pursuant to this rule. In a chancery court, the special judge elected shall serve until the regular judge appears or until the Governor appoints a judge pursuant to Ark. Stat. Ann. §§ 22-437 and 22-438 (Repl. 1962) and the appointee has taken office.

Sec. 7. Where there is a vacancy in the office of circuit or chancery judge by reason of death of the judge, either at the time of the election of the special judge, or during the time the special judge would otherwise serve, the special judge elected under this rule or the judge assigned by the Chief Justice shall continue to serve as such until the Governor makes an appointment to fill the vacancy and the appointee has taken office.

Sec. 8. For purposes of this rule, each division of a court in a county shall be considered to be a separate court.

Byrd, J., dissents because he challenges the court’s authority to promulgate the rule.


author: George Rose Smith, Justice.

text:
    Clance Sidney ALEXANDER v. STATE of Arkansas
    CR 76-133
    545 S.W. 2d 606
    Opinion delivered December 20, 1976 (In Banc)
    [Rehearing denied February 7, 1977.]

      W. Palma Rainey, of Rubens, Rubens & Rainey, for appellant.

      Jim Guy Tucker, Atty. Gen., by -.Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This capital felony case has not yet been tried. Two preliminary motions were filed, one asking that W. Palma Rainey be allowed to withdraw as appointed counsel and the other that all prosecuting attorneys, circuit judges, and circuit clerks be summoned to testify concerning the death penalty. The trial court denied both motions, its order reciting that the rulings are final for the purpose of appellate review or, alternatively, that the defendant should be allowed an interlocutory appeal.

Inasmuch as the case is still pending below, the appeal must be dismissed for want of a final judgment, a point which this court itself raises. H.E. McConnell & Son v. Sadle, 248 Ark. 1182, 455 S.W. 2d 880 (1970). The trial court’s attempt to enlarge our jurisdiction must fail, because the limitation of our jurisdiction to the review of final judgments and decrees is statutory. Ark. Stat. Ann. § 27-2101 (Supp. 1975).

Appeal dismissed.


text:
    Earl Allen WOODALL v. STATE of Arkansas
    CR 76-163
    543 S.W. 2d 957
    Opinion delivered December 20, 1976 (Division I)

      McArthur & Johnson, for appellant.

      Jim Guy Tucker, Attyi. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, tried without a jury, was found guilty of carrying a pistol illegally and was sentenced to a fine of $100 and to 30 days in jail. He argues three points for reversal.

First, the appellant questions the validity of the arrest that led to the discovery of the weapon. Two State police officers were aware, through the law enforcement agencies’ computer system, that the Pulaski County sheriff’s office had a warrant from South Carolina charging Woodall with assault and battery with intent to kill. That offense is a felony, although the warrant did not so indicate. South Carolina Code, § 16-93.1 (Cum. Supp. 1975). In connection with a narcotics investigation the officers were following a truck occupied by two men. When that vehicle stopped for a traffic light in Little Rock, one of the officers recognized Woodall. Officer Brookman alighted, went to the truck, identified himself as an officer, and placed Woodall under arrest. The officer saw a box of ammunition in Woodall’s lap. When Woodall reached for a pistol in a holster under his armpit, the officer disarmed him. This prosecution resulted from that encounter.

The arrest was lawful. A police officer’s knowledge of the existence of an out-of-state warrant can furnish probable cause for an arrest, even though the officer does not have the warrant with him. Whiteley v. Warden, 401 U.S. 560 (1971); Stallings v. Splain, 253 U.S. 339 (1920); Berigan v. State, 2 Md. App. 666, 236 A. 2d 743 (1968). Moreover, probable cause is to be evaluated on the basis of the collective information of the police. Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458 (1969). Hence the trial judge was justified by the evidence in finding that the arrest was valid. It may also be noted that the principles just mentioned have been embodied in Rule 4.1 (d) of our new Rules of Criminal Procedure (1976), though they were not yet in force when this arrest occurred and of course could not have retrospectively validated the arrest had it been unlawful when made.

Secondly, we hold that the gun was properly admitted in evidence. Officer Brookman testified that the gun was in his custody until it was introduced in evidence at a preliminary hearing, after which it was in the court’s custody. Officer Brookman said that he could identify the weapon just by looking at it. If there was a slight defect in the chain of custody, that was merely a circumstance to be considered by the trial judge. Bedell v. State, 260 Ark. 401, 541 S.W. 2d 297 (1976). Furthermore, the officer could have testified about Woodall’s possession of the gun even if it had not been in the courtroom. Scott v. State, 251 Ark. 918, 475 S.W. 2d 699 (1972).

Thirdly, it is argued that Woodall was entitled to carry the gun, because he was on a journey. Ark. Stat. Ann. § 41-4501 (Repl. 1964). Whether a person was on a journey may be a question of fact. Collins v. State, 183 Ark. 425, 36 S.W. 2d 75 (1931). That is the situation here. Woodall testified that when he was arrested he was going from North Little Rock to his parents’ house in Little Rock, hardly such a perilous journey as to necessitate his being armed with a pistol.

Affirmed.

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


text:
    Sylvia WOODS v. Jerry A. WOODS, Welby Larry WOODS, Terry Wade Woods and Lois F. HUTCHISON
    76-73
    543 S.W. 2d 952
    Opinion delivered December 20, 1976 (Division I)

      Johnson, Calhoon & Lewis, Ltd., by: Fletcher C. Lewis, for appellant.

      Joe N. Peacock, for appellees.
   John A. Fogleman, Justice.

Appellant was the widow of Welby Earl Woods who was also survived by appellees Jerry A. Woods, Welby Larry Woods, Terry Wade Woods and Lois F. Hutchinson, children of a previous marriage. He left a testamentary document which was admitted to probate as his last will and testament. This will was executed April 2, 1968, prior to appellant’s marriage to the testator. His four children were the only devisees and legatees. After her husband died, appellant executed an agreement which provided, in substance, that she relinquished her right of dower and homestead, acknowledged that she was not entitled to any interest in the farming operation conducted by appellee Jerry Woods, and received certain real property and an equal share with each of appellees in other property of her deceased husband. This appeal was taken from a decree of the chancery court refusing to cancel and void her agreement in a suit brought by her seeking that relief. We find no reversible error and affirm.

Appellant first contends that the chancery court was without jurisdiction in the matter, because the probate court was vested with exclusive jurisdiction by virtue of Ark. Stat. Ann. § 62-3201 et seq (Supp. 1975). Appellant says that under the terms of this section she was a “beneficiary” because she was entitled to take an interest in her husband’s real and personal property by intestate succession. She further contends that the agreement into which she entered was a “disclaimer” as defined by the statute, i.e., a written instrument which unequivocally declines, refuses, releases or renounces an interest which would otherwise be received by her (as a beneficiary) signed, witnessed and acknowledged by her in the manner required by the statute.

The agreement involved was a written instrument signed by the parties in which it was agreed that it was the intention of all parties that the wishes of Welby Earl Woods be carried out; that appellant have the use of the home of decedent and his real property as long as she lived in the home; that Jerry A. Woods should pay to her one-fourth of the real property rent as long as appellant lived on the property and remained unmarried; that appellant should release and relinquish all right of dower and homestead or statutory allowance in the property of her husband and would not contest his will; and that the residue of his estate, after payment of his debts and expenses, should be equally divided among the parties to the agreement (i.e., appellant and appellees). The agreement contained a statement that the decedent had no interest in the farming operations of Jerry A. Woods and that decedent had relinquished any interest he may have had in farming machinery, equipment and the farming operation on January 1, 1968.

The sections of the act (Act 457 of 1973) relied upon by appellant are Ark. Stat. Ann. §§ 62-3201, 3203 (Supp. 1975) which read:

62-3201. Disclaimer of property and property interests - Definitions. As used in this Act [§§ 62-3201 - 63-3212], these terms shall have the following meanings ascribed to them:
(a) Beneficiary. The term “beneficiary” shall mean and include any person entitled (but for a disclaimer) to take an interest by intestate succession; by devise; by legacy or bequest; by succession to a disclaimed interest by Will, intestate succession, or through the exercise or nonexercise of the testamentary power of appointment, by virtue of a renunciation and election to take against a Will; as beneficiary of a testamentary trust; pursuant to the exercise or non-exercise of a testamentary power of appointment; as donee of a power of appointment created by a testamentary instrument; or in any other manner under a testamentary interest.
(b) interest. The term “interest” shall mean and include the whole of any property, real or personal, legal or equitable, or any fractional part thereof, share or particular portion or specific assets thereof, or any estate in any such property or power to appoint, consume, apply or expend property, or any other right, power, privilege, or immunity relating thereto.
(c) Disclaimer. The term “disclaimer” shall mean a written instrument which unequivocally declines, refuses, releases or renounces an interest which would otherwise be received by a beneficiary, and which defines the nature and extent of the interest disclaimed, and which must be signed, witnessed and acknowledged by the beneficiary in the manner hereinafter provided.
62-3203. Filing and notice. - (a) A disclaimer shall become effective when filed in the Probate Court for the county in which the estate of the person by whom the interest was created, or from whom it would have been received, is, or has been administered, or, if not Probate administration has been commenced, then in the Probate Court of the county in which the decedent was a resident at the date of his death.
(b) A copy of the disclaimer shall be delivered or mailed to the representative, trustee, or other person having legal title to, or possession of, the property in which the interest disclaimed exists, and no such representative, trustee or person shall be liable for any distribution or other disposition otherwise proper and which was made without actual notice of the disclaimer.

Appellant argues that the provision that a disclaimer shall become effective when filed in the probate court vests that court with exclusive jurisdiction in regard to matters concerning the validity of a disclaimer under the act. But we find nothing in the act, or in the words appellant relies upon which suggests to us that the General Assembly intended to vest in the probate court any jurisdiction, either exclusive or concurrent, to cancel an instrument. On the other hand, cancellation of instruments for fraud or undue influence in their procurement (as alleged here) has always been a matter for the exercise of chancery jurisdiction, perhaps exclusively. Furthermore, appellant herself invoked the jurisdiction of the chancery court, seeking relief which that court had the power to grant, so she is in no position to complain.

Appellant next contends that the chancery court erred in not invalidating the agreement for the reason that it was not filed with the probate court in the time and manner prescribed by Ark. Stat. Ann. §§ 62-3202, 3203 (Supp. 1975) and was not filed before a written waiver of the right to disclaim and a conveyance of property was entered into by appellant. Section 62-3202 requires that a disclaimer be filed after the creation of the interest disclaimed but within nine months after the date of death of the person from whom it would have been received. As will appear above, the disclaimer becomes effective upon its filing in the proper court. It is not shown that the instrument executed by appellant was filed in the probate court within nine months of her husband’s death. Appellant says that it is ineffective for that reason. Although the agreement may contain a disclaimer and might fall into that category for the basic purposes of the statute in question, it is more extensive, because there is an agreement among the widow and heirs of the decedent governing the distribution of his estate and eliminating a potential contest of the will. It seems clear to us that our statute governing disclaimers was never intended to supersede the common law family settlement agreement. To accomplish that purpose, the intention to do so must have been manifestly clear from the words of the act itself. It was not.

A disclaimer may be accomplished by means other than that prescribed by the act in question, because it clearly provides that it does not abridge the right of any person, apart from its terms, under any existing or future statute or rule of law, to disclaim any interest, or to assign, convey, replace, renounce or otherwise dispose of any interest. Furthermore, the language of § 62-3202 (a), which states that a beneficiary may disclaim an interest in the manner provided in the act, does not indicate that a disclaimer may be accomplished only in the manner provided in the act. There was clearly no legislative intention to make this method of disclaimer exclusive. We simply cannot find any intention to render ineffective a family settlement agreement which is not in compliance with the act in question.

Appellant also argues that her agreement was invalidated by her filing a written waiver of her right to disclaim and by her entering into a contract for the sale of an undivided one-hundreth interest in a 40-acre tract of land and in all personal property that she had a claim or title to, or right in, under the homestead statute, statute for widow’s allowance, or statute allowing a taking against the will. No consideration was paid, but the purchaser agreed to pay the value arrived at by an independent appraiser. She relies on Ark. Stat. Ann. § 62-3206 which provides that a contract to convey real property or contract to assign or transfer personal property or a written waiver of the beneficiary’s right to disclaim before the expiration of the period in which a beneficiary may lawfully disclaim shall bar the right to disclaim with respect to that property or interest. Of course, we find nothing to indicate that the statutory provisions relating to contracts are designed to protect anyone other than the purchaser, who is not a party to this action. The provision does nothing more than bar the withdrawal of a waiver. The statute does not, as appellant seems to indicate, relate to the filing of a disclaimer. It does operate to bar disclaimer following a waiver executed before the expiration of the period in which a beneficiary may lawfully disclaim. Regardless of the effect of the act, the subsequent acts of appellant could not invalidate a properly executed family settlement agreement.

Appellant somehow concludes that her agreement with appellees on the day after the decedent’s funeral to equally divide SI 4,000, which was buried in ajar, among the five is invalid because of a conflict with the statute. She argues that the $14,000 should become a part of her husband’s estate because the division was a transfer prior to the expiration of the period during which a beneficiary may disclaim. We are unable to follow this reasoning, because it appears to us that the agreement would be protected against a disclaimer by appellant. Whatever the effect may be, we find the act to be without effect on the transactions between appellant and appellees.

Appellant finally argues that appellees used undue influence to induce her to enter into the agreement and breached a confidential and fiduciary relationship with her, knowing full well that she was unaware and uninformed of her legal rights and the extent of her husband’s estate. The chancellor held that the preponderance of the evidence favored the finding that there was no fraud or imposition or overreaching by misplaced confidence practiced upon appellant either in the verbal agreement between the parties on June 14, when it was partially consummated, or on June 19, when it was reduced to writing. We are unable to say that the findings of the chancellor were clearly against the preponderance of the evidence, in spite of the fact that appellees elected to avail themselves of the services of the scrivener of the agreement as a trial advocate rather than as a witness, although it seems that he might have shed considerable light on the transaction. The chancellor did modify the agreement to enable appellant to receive her share of the profits from her husband’s lands, without living on it and without remaining unmarried, on the ground of mutual mistake in including these requirements in the agreement.

The relationship between appellant and her stepchildren was something less than cordial. It was highly unlikely that they could unduly influence her actions or that she suddenly had a confidence in them which had not previously existed. Her own daughter stated that she did not have a good relationship with them. This daughter came and stayed with her mother at least part of every day and sometimes at night after her stepfather’s death, and was present when her mother left home to go sign the agreement. She said that her mother was very nervous at the time and had not slept for several weeks. When this daughter suggested to appellant that someone accompany her when she went to sign the agreement, the mother declined, saying that they had agreed and that she would rather not have the witness or any of her brothers interfere.

Appellant’s husband died on June 12, 1974. Appellant testified that he was buried on a Friday and that appellee Terry Wade Woods and his wife stayed with her right after her husband’s death until the Saturday after the funeral. On Friday morning (June 14), prior to the funeral, but after the parties had paid the bill, she and appellees dug up $14,000 which had been buried near the corner of a shop building. This was split five ways so that appellant and each of the appellees received an equal share. She testified that when she signed the agreement she was unable to read, was upset, and was ignorant of the meaning of the terms “dower,” “homestead” and “statutory allowance” contained in the agreement. She says, without explanation, that she thought she had to do what appellees told her to do and that they told her not to bring anyone with her when the agreement was signed at the office of the lawyer who drew it. Prior to the trip to the lawyer’s office, she said there had been a conversation at her home among all the parties to the agreement, during which there was a division of money and a payment by one of the sons of $100 to each of the others, including her, for a Honda and another took her husband’s guns. She said appellees agreed that she should have “a lifetime dowry,” which is what she said her husband had said that she should have and that he had advised her to get a lawyer if appellees didn’t give it to her. She said she thought they were trying to be nice to her.

Appellant testified that after the agreement was signed she began having problems with the son who was farming the Woods land, and decided to contest the agreement when these problems arose; but that these problems were not the reason she made the decision. She said that she had been to a few lawyers during her lifetime, and that she had, on one occasion had one personal injury suit and another of some type. She disliked lawsuits. She talked to no lawyer prior to or at the time of the signing of the agreement other than the one who drew it. She had been aware of the existence of her husband’s will since 1968, and recalled her husband reading some of it to her subsequent to 1968.

Appellee Jerry Woods was appointed administrator. He testified that he saw appellant every day for several days after his father’s death and that she appeared to be normal and did not appear to be upset at any time. He said that after the funeral the whole family went “home” and discussed settlement of his father’s estate for more than two hours and arrived at the terms of the agreement. A part of the agreement was that appellees’ present attorney would prepare the document. This was signed at the attorney’s office on June 19, 1974. Jerry Woods said that all the family was present and that they related the terms of the agreement to the lawyer, who caused it to be typed by his secretary and gave each one a copy. He stated that each of them read it and that the attorney either read or stated appellant’s rights fb her. According to him, he did not know what her rights were until the parties were in the lawyer’s office. He recalled appellant’s saying that she knew that she was entitled to “possibly a third or a half,” at least, he said, more than she would get under the agreement.

Appellee Larry Woods testified that he suggested the lawyer’s name and, when he asked her if it would be satisfactory for him to prepare the agreement, she answered in the affirmative and said that this lawyer had helped her in a lawsuit. It was his recollection that appellant said that she could have gotten one-third of everything when she expressed her satisfaction just outside the lawyer’s office as she was leaving it. He also believed that the lawyer told her what her rights would be. He was sure that the words “dower,” “homestead,” and “statutory allowances” were mentioned. He corroborated Jerry’s testimony about the agreement at the informal family gathering before the written agreement was prepared.

Terry Woods testified that the family meeting to work things out was suggested by appellant. He thought that the lawyer told appellant that she was entitled to one-third. He said that, as she was coming out of the lawyer’s office, she expressed her satisfaction with the agreement and that he heard of no problems until three or four months later.

All the appellees who testified said that appellant did not appear to be upset at the time of the discussion when the terms of the agreement were arrived at or at the lawyer’s office when it was formalized and signed. It should also be noted that appellees contended that the buried money had been given to them by their father and that appellant was entitled to no part of it. Although we think their proof of gift failed, it is clear that their position could easily have caused litigation.

We deem no further recitation of testimony to be necessary. Comparison of the facts with those in other cases would be of little value. So much depended upon the credibility of the witnesses that we must defer to the judgment of the chancellor on that score. When we do, we cannot say that his findings were clearly against the preponderance of the evidence, which we would have to do to reverse the decree.

Appellant also argues that the chancellor erred in excluding the inventory filed by Jerry Woods, as administrator. The Chancellor refused to admit it, finding that it was not in conflict with the testimony of the witness. We find no reversible error on this point.

The decree is affirmed.

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

      In this respect this case differs from Hilburn v. First State Bank, 259 Ark. 569, 535 S.W. 2d 810, in that the court in which appellant here sought relief was not without power to grant the relief sought.