text:
    Wallace D. HURLEY, Jr. v. Nancy B. HURLEY
    73-33
    498 S.W. 2d 887
    Opinion delivered September 17, 1973

      Gaughan, Laney, Barnes, Roberts ir Harrell, for appellant.
    No brief for appellee.
   John A. Fogleman, Justice.

Appellant contends the chancery court erred in refusing to reduce his alimony payments on the basis of changed circumstances. He relies principally upon the fact that, since he and appellee were divorced, she has obtained employment from which she earns substantial income. We are unable to say the chancellor’s holding was clearly against the preponderance of the evidence.

There is little dispute about the basic facts. The parties entered into a separation agreement on August 10, 1971, about three weeks after appellee filed suit for divorce against appellant. Under its terms, appellant was to pay appellee $750 per month — $375 as alimony and $125 for the support of each of the three minor children of the parties, who were to be in her custody. There was also a provision for a trust fund to be established and maintained by appellant for the purpose of providing a college education for the children. Appellee wás required to maintain a homeowner’s insurance policy on the family residence, which went to her under the agreement, and on any other residence she might buy or rent for occupancy by her and the three children. The agreement encompassed a complete division of property. It contained the statement that it was to be merged in any ultimate divorce decree and not to create a separate cause of action.

Decree of divorce was entered September 14, 1971. In it, the court approved the agreement between the parties, except for deletion, by agreement of the parties, of a requirement that appellee sell the family dwelling house and that appellant lend her $100 per month until it was sold. It recited that the provisions pertaining to alimony were merged in the decree and did not create a separate cause of action. The petition for modification was filed July 17, 1972. In it, appellant alleged that the alimony payments were based upon the understanding that appellee would not be employed, that her expenses had decreased and that there had been a change in appellant’s employment.

Appellant testified that his salary at Hurley Company, Inc., and Hurley Press was $18,000 at the time of 'the agreement, had been, raised to $18,500 and would be increased .to $19,000 on August 7, 1972. He owns only 2% of the stock in Hurley Company, in which his parents are majority stockholders. He has borrowed $2,200 for the payment of debts. He related Mrs. Hurley was not working and had stated to him that she had no plans to work at the time the agreement was being negotiated. He also said a clause in a proposed agreement between the parties providing for reduction of alimony whenever appellee went to work was stricken at her request. He stated he had been unable to make the required monthly payment of $100 into the trust fund for education of his children. He also said he had resigned as president and chief executive officer of the Hurley Company on September 3, 1971, and was off the payroll for three weeks. He was then re-employed under the same salary agreement, except for the elimination of a 2% bonus. Other fringe benefits are unchanged. Mr. Hurley would not say his resignation was voluntary, but said he felt that he had been fired, even though neither his father nor the company board of directors requested the resignation. Although appellant called his father, who was both his predecessor and successor as president of the company, as a witness, the abstract of the senior Hurley’s testimony sheds no light whatever on this subject.

Mrs. Hurley was employed as a school teacher by the Camden school system in 1971-2 at a salary of $6,300 to be increased to $6,950 for 1972-3. She neither signed a contract nor discussed her employment with any school employee prior to the signing of the separation agreement. According to her, she reached an agreement with the superintendent of schools on August 20, which was formalized into a contract approved by the school board on September 9, 1971. She will be required to attend summer school for two years.

At the time of the hearing, appellee had contracted to pay $26,000 for a smaller house for herself and the children. She expected to use the $8,000 to be realized as proceeds of the sale of her equity in the existing residence for a down payment and to effect a reduction in monthly home mortgage payments by approximately $42 per month. She said she is diabetic and that her health insurance excludes, for one year, expenses attributable to this condition. Mrs. Hurley gave estimates of total monthly expenses for herself and the three children total-ling $1,095, which she said would provide no better standard of living than they enjoyed before the divorce. Her estimate of expenses did not include any costs of entertainment or vacations, automobile license, school books or supplies. She said her total monthly income from salary, alimony and child support totalled $1,110. While she admitted having saved $1,800, she stated she would have to use substantial amounts of this for additional taxes, insurance and closing costs attendant upon the sale of one house and the purchase of another, and her anticipated purchase of an automobile to replace the 1968 Ford she had.

It is noted that both appellant’s resignation and appellee’s contract for employment preceded the entry of the divorce decree which approved the agreement between the parties. It is also noted that one of the children of the parties was 17 years of age at the time of the hearing (August 1, 1972) and a senior in high school, who would enter college in the fall of 1973. The agreement provides that while he is attending college appellant will have the obligation of supporting him, and child support payments will be reduced by $125 per month.

It was admitted that the requirement that appellee attend summer school will not be a continuing one and that the expense of kindergarten for the youngest child would soon be terminated and orthodontal expenses for another materially reduced. These reduced costs would affect the estimates made by appellee to some extent. Still, even though some of the items exceed the bare necessities of life, appellant has not successfully contradicted appel-lee’s assertion that these estimated costs are essential to maintaining the standard of living the family had enjoyed before the divorce. In all considerations such as these the manner and style of living to which a wife and children have become accustomed is a significant factor. Riegler v. Riegler, 246 Ark. 434, 438 S.W. 2d 468. While it may be that appellee’s estimates should now be reduced by something over $100 because of items to have been eliminated, neither the trial court nor this court can be blind to the ever-increasing cost of living, or the fact that, as children grow older, their necessary expenses seem to increase. Furthermore, it seems that estimated expenses of $54 per month for clothing and $35 per month for Christmas, birthdays, additional clothing and shoes for four people, considering their station in life, is conservative. Since the wife’s added income has not made her self-sustaining, aside from the family burdens she must bear, the chancellor was justified in finding the evidence of changed circumstances insufficient. See Davis v. Davis, 241 Ark. 171, 406 S.W. 2d 704.

While the wife’s securing employment can be an appropriate basis for reduction of alimony payments, it does not mandate that result. The burden was on the husband to show that the change in circumstances justified the reduction. Riegler v. Riegler, supra. We cannot say he did so by a preponderance of the evidence so clear that we can say the chancellor erred. Appellant complains of his debt and the loss of his potential 2% bonus. The chancellor would have been justified in attributing both the loss and a substantial part of the debt to an abortive voluntary attempt on the part of appellant to change employment and residence. Changes arising from personal decisions and choices within the control of the husband cannot be urged as a change in circumstances to justify reduction of alimony. Grant v. Grant, 223 Ark. 757, 268 S.W. 2d 617.

Appellant complains that the wife received an extremely liberal share of his property, in addition to allowances for alimony and child support amounting to almost 60% of his income. He also points out that her “take home” pay from salary, alimony and child support is nearly twice as much as his own. He overlooks the fact that he was only supporting himself out of the income he retains and that appellee was supporting herself and three children. The liberality of the original allowances cannot afford grounds for modification. See Lively v. Lively, 222 Ark. 501, 261 S.W. 2d 409.

Since we find no basis for reversing the chancellor’s findings as to changed circumstances, we pretermit any discussion of an issue raised in appellee’s pleadings in the trial court, i.e., that the amount of alimony is based upon a separate contractual agreement, not subject to modification by the court.

The decree is affirmed.

      The transcript actually recites this amount as $19,500, but appellant asserts that this is a typographical error and the correct amount is that stated above. .


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    FIREMAN’S FUND INSURANCE CO. et al v. Mallie HILL & LIBERTY MUTUAL INSURANCE CO.
    73-74
    498 S.W. 2d 865
    Opinion delivered September 17, 1973

      Riddick Riffel, for appellants.

      Penix ¿r Penix, by: Bill Penix, for appellees.
   J. Fred Jones, Justice.

The question before the Commission in this compensation case, was which of two insurance carriers is liable for temporary total disability from January 5, 1971, to February 18, 1972, and permanent partial disability in the amount of 50% to the body as a whole awarded to Mallie Hill as a result of a ruptured disc sustained in the course of her employment by Frolic Footwear.

Fireman’s Fund Insurance Co. was the compensation carrier for Frolic until January 1, 1970, at which time Liberty Mutual Insurance Co. became the compensation carrier. The compensability and amount of the award are not questioned. The specific question is whether the disability from a ruptured disc suffered by Mrs. Hill resulted from injury sustained prior, or subsequent, to January 1, 1970. The Compensation Commission found that it resulted from injuries sustained subsequent to January 1, 1970, and made the award against Liberty Mutual. On appeal by Liberty Mutual the circuit court found that the Commission had ignored the evidence of injury sustained in 1969 and the court failed to find any substantial evidence that the ruptured disc and resulting disability were caused by injury subsequent to January 1, 1970. The circuit court reversed the award of the Commission and remanded with directions to make the award against Fireman’s Fund. The circuit court judgment recites in part as follows:

“According to the record herein the claimant sustained injuries to her back November 5, 1969, while pulling a rack of shoes.
Subsequent to that date claimant has suffered severe back injuries aggravating her condition, including but not limited to her injuries in lifting boxes in August, 1970, and pulling the racks in December, 1970, all of which ultimately required surgery in 1971 to correct.
*ir ■jv
The Court finds that the claimant’s injuries primarily began with the back injury on November 5, 1969, and that the injuries of 1970, as well as the other injuries, were in aggravation of the 1969 injury; that there was no substantial evidence to support the Referee or Commission in ignoring the injury of November, 1969, and accepting in lieu thereof an injury of a later date; that disability should begin with the 1969 injury.”

On appeal to this court Fireman’s Fund contends that there was substantial evidence to sustain the award of the Commission and the circuit court erred in holding otherwise.

Both sides recognize the well-established rule that an award of the Workmen’s Compensation Commission has the same force and feffect as a jury verdict and must be affirmed on appeal if there is any substantial evidence to support it. The question on appeal is not what decision the circuit court or this court would have reached on trial de novo; nor is the question on appeal whether there is substantial evidence to sustain a different award than the one made. The question on appeal is whether there is any substantial evidence to sustain the decision or award the Compensation Commission did make. In Sneed v. Colson Corp., 254 Ark. 1048, 497 S.W. 2d 673, we said:

“On appeal to die circuit court and to this court the only question for determination is whether or not there was any substantial evidence to sustain the Commission’s finding and we, of course, in examining the evidence for such determination, must view it together with all reasonable inferences deducible therefrom, in the light most favorable to the Commission’s finding the same as in a jury verdict. Northwestern Nat’l Ins. Co. v. Weast, 253 Ark. 710, 488 S.W. 2d 322; Warwick Electronics v. Devazier, 253 Ark. 1100, 490 S.W. 2d 792.”

We agree with the circuit court’s finding of facts contained in the record as above set out, but we disagree with the conclusion reached by the circuit court. The record in this case is made up> from two separate hearings before the Referee. At the first hearing on December 17,1971, Mrs. Hill testified that she went to work at Frolic Footwear in October, 1968, and had no physical defects or disability at that time. She testified that she sustained an injury to her back on the night of November 4, 1969, when a shoe rack almost tipped over on her. She said she went to the nurse immediately] reported her injury and then called Dr. Modelevsky who prescribed pain pills and requested her to come to the office the next morning if she felt no better. She said she did return to Dr. Mode-levsky on November 5 and was given muscle relaxants and pain pills and was told sbe had pulled a ligament in her back. She said she was hospitálized at that time for pneumonia; was also treated for her back injury and was released to return to work on December 8, 1969. She said she did return to work on December 9 and as she was going up an incline at the Frolic plant, she slipped and fell on the ramp, skinned both knees and again hurt her back but lost no work because of these injuries. She said she continued to work the remainder of 1969 “off and «on” and then testified as follows:

“Q. Explain why you only worked off and on.
A. Well my back was hurting so bad, pushing and pulling those racks and some of them you couldn’t hardly pull — you had to have two people to help— I would pull those racks and it would just tear me in two — I would have to take off a few nights and then maybe I would lay around and get to feeling better and I would return to work — Dr. Modelevsky would tell me I could go back to work and I would do it again for a while and the same thing would happen again.”

Mrs. Hill testified that on February 3, 1970, she sustained a hernia and testified as follows:

“Q. When did you after that reinjure your back?
A. I reinjured my back January, 1971, and though I am sorry I am getting too far ahead of myself — I reinjured my back in August of ‘70 — I lifted a box of shoes up over my head and my hernia came out again and my back was still just killing me and I re-entered the hospital at that time — I had hernia surgery — was also taken back to surgery for more treatment on my back.”

Mrs. Hill testified that following her operation for hernia she returned to work about November 2, 1970, she then testified as follows:

“Q. Did you reinjure yourself again on December 22nd, 1970?
A. Yes, sir.
Q. Tell how you injured yourself at that time.
A. At that particular time I was pushing — pulling the rack just like I said and these racks were hard to push and pull and it yanked my back and I was rein-jured in my back again.”

Mrs. Hill testified that on January 5, 1971, she reentered the hospital and underwent surgery for a blocked intestine and also received treatment for her back. She said that after her January, 1971, hospitalization she has not returned to work. She said that Dr. Modelevsky referred her to Dr. Mahon in January, 1971, at which time she was having back pain and numbness in her leg and foot. She said that after conservative treatment failed to relieve her condition, Dr. Mahon referred her to Dr. Cunningham at St. Bernard’s Hospital, who in turn referred her to a neurosurgeon in Memphis. She said the neurosurgeon referred her back to Dr. Mahon who performed a myelogram on July 12, 1971, and later performed surgery for a ruptured disc on July 22, 1971. She testified that she has been unable to work since she last worked for Frolic Footwear January 5, 1971.

At the second hearing on March 10, 1972, Mrs. Hill testified substantially as she did at the first hearing. She said she reported her back injuries to the first-aid nurse, Mrs. Collins, and to her supervisor.

Mrs. Joan Collins, the first-aid nurse at Frolic, testified from her records that on November 4, 1969, Mrs. Hill was sick and didn’t come to work; that on November 5 she came to work and after 5 o’clock reported that she was sick. She said Mrs. Hill advised her that Dr. Modelevsky said she had pneumonia. She said she took Mrs. Hill’s temperature and sent her home and at no time did Mrs. Hill ever report or complain to her of any injury involving her back.

Mr. Leonard Lee, foreman at the Frolic plant, testified that he does not recall Mrs. Hill ever reporting a back injury to him. He said, however, that he has about 60 women under his supervision and that if he listened to all of their complaints, he would do nothing else.

As already set out and as found by the circuit court, there is ample evidence that Mrs. Hill did receive a series of injuries to her back in 1970 following the initial injury in November 1969. There is no question that Mrs. Hill was finally forced to cease work about January 5, 1971, because of the condition in her back, and there is no question that that disability resulted from the effects of a ruptured disc.

Turning now to the medical evidence in this case, Dr. A. C. Modelevsky, apparently the staff physician for the employer Frolic, rendered a report on August 8, 1971, stating that he first saw Mrs. Hill on November 5, 1969, at which time she gave a history of feeling something pop in her back when she was pulling a loaded shoe rack with a broken wheel. He said she was admitted to the hospital the following day where she remained for 13 days; that she was treated for viral pneumonia and back sprain. Dr. Modelevsky then reports as follows:

“AP & lateral views of the lumbo sacral spine showed a satisfactory alignment of the vertebrae. The joint spaces were reported as intact and there was nothing seen to suggest an old or recent fracture, congenital defect or significant arthritic changes. She was seen again at the office on 11/24/69, still complaining of low back pain, numbness and stated that ‘toes feel like they were frozen.’ She was seen again at my office on 12/1/69, feeling much better and returned to work on 12/8/69. * * *
On 2/3/70, while at work felt a sharp pain in rt. groin and had a recurrence of a previous rt. inguinal hernia — this was reduced in the Emergency Room at the hospital and after resting a couple of days, was able to return to her work. On 8/28/70, she again hurt her side and was admitted to the hospital on 8/30/70 for repair of the rt. inguinal hernia — this was done on 8/31/70. She stayed in the hospital until 9/5/70. She was seen in my office on the following days 9/14/70, 9/21/70, 9/28/70, 10/5/70 account of her back ache —she was treated with rest, and various muscle relaxants. She returned to work on 11/2/70.”

Dr. Modelevsky then reported unrelated intestinal surgery and liver complications suffered by Mrs. Hill, all of which he described as a rather “stormy course.” He said, however, that she recovered and was able to be discharged on 2/10/71. He then stated:

“Since that time, she has not been able to do any of her work on account of her back pain — she was seen in consultation by Dr. Larry Mahon and Dr. Craig Grant, a neurosurgeon. She recently had disc surgery —I had not seen her since her last admission to the hospital.”

Under date of July 22, 1971, Dr. Larry E. Mahon, an orthopedic surgeon, reported that he first saw Mrs. Hill on April IB, 1971. Dr. Mahon reported a history of occupational back injury occurring in August, 1970. It would appear from the history, as related by Dr. Mahon, that Mrs. Hill confused the 1969 accident when the shoe rack tipped over as testified by her, with the accident in which she sustained her hernia in 1970. In any event, Dr. Mahon reported that Mrs. Hill’s primary complaint was of low back pain and pain in the right leg with paresthesia and weakness in the right leg. He then reported as follows:

“PHYSICAL EXAMINATION found her to be a well developed, small white female; alert, cooperative, in no acute distress. Gait pattern was within normal limits. Examination of her back found there to be tenderness about the lumbosacral area with 50% limitation of motion in all planes. There was noted to be a positive straight leg raising test bilaterally, more marked on the right side. Neurological examination found there to be a sensory deficit corresponding to the L-4, 5 nerve root dermatone on the right side. There was also depression of the right ankle jerk.
I subsequently admitted her to the hospital on 4/28/71, did a myelogram which was equivocal. She was treated conservatively and discharged improved on 5/6/71.1 saw her again on 6/21/71, stating that she was again having severe pain in her back and pain in the leg. Her examination was slightly improved. I recommended more aggressive exercise for her back and recommended she remain off from work. I saw her again on 7/12/71, still complaining of numbness in the right leg, pain in the lowback. Her examination was significant in that she had numbness, still, in the right leg in the L-4, 5 dermatone pattern, however, she also had some aspect of bizarre numbness as well. The straight leg raising was still positive on the right side.
I readmitted her to the hospital and did a repeat lumbar myelogram on 7121171, which this time showed a definite defect at L-4, 5 on the right side. I plan on doing a laminectomy on her in the morning and will send you an additional report when she is discharged from the hospital.” (Óur emphasis).

Liberty Mutual earnestly contends that this case is on all fours with the case of St. Paul Ins. Co. v. Liberty Mutual Ins. Co., 250 Ark. 209, 464 S.W. 2d 566, but that case is clearly distinguishable on the evidence of subsequent injury. In the St. Paul case the claimant-employee was injured when he fell from a tractor in November, 1968. Within two weeks following the November injury, the claimant’s right leg and foot started going to sleep and the condition got progressively worse until surgery was required on April 6, 1969. Liberty Mutual was the insurance carrier until January 1, 1969, when St. Paul became the insurance carrier. Compensation was awarded equally against both carriers by the Commission and we reversed because there was no substantial evidence to support the Commission’s finding that St. Paul was liable.

The only evidence in that case of any injury at all except the November, 1968, injury was elicited from the claimant in a discovery deposition when he was asked if, he had received any other injury, and to which he replied:

“ ‘Well, at one time I noticed my back hurt me more. I was moving some — you know, my legs and things was bothering me more. I was moving some steel and of course, I was doing some lifting and I noticed it. * * * It was my leg more or less, my back didn’t hurt so much it just — I don’t know how to explain it, just my legs.’ ”

The record in the St. Paul case then reflects the following:

“ ‘Q. Did you have any specific instance when you were lifting something that you felt—
A. Like I say, when I was lifting that steel that time why I noticed it was hurting me more. I was stiff, you know for awhile.
Q. Did you feel any popping in your back or anything like that?
A. No sir, I didn’t, no.’ ”

The claimant in St. Paul then testified that following the accident in November, 1968, his right foot and leg started going to sleep and it just got progressively worse until finally he had to go to the doctor. He testified that his condition was gradually getting worse up until he moved some steel and it seemed like it hurt worse after he moved some steel. He said he did not know whether moving the steel or just time made his condition worse. He said he knew that he just got worse. He said that from the date of his accident and the onset of his symptoms his condition just got worse as every day went on.

Disability is the primary compensable element in a compensation case and the compensability is not questioned in the case at bar. We agree with the circuit court that according to the record in this case, Mrs. Hill suffered several (if not severe) back injuries which aggravated her condition following her initial injury on November 5, 1969. Mrs. Hill continued to work “off and on” until January 5, 1971, when she was forced to quit work because of her back.

Following her initial injury in 1969 x-rays were negative and Mrs. Hill was treated for “back sprain” by Dr. Modelevsky. Following her subsequent injuries in 1970 and 1971 myelogram findings on 4/28/71 were equivical and on July 21, 1971, a subsequent myelo-gram examination revealed a definite defect. We are of the opinion there was substantial evidence from which the Commission could have found that Mrs. Hill’s ruptured disc and related disability actually occurred as a result of one or all of the back injuries sustáined by her subsequent to 1969.

The judgment of the circuit court is reversed and this cause is remanded with directions to affirm the award of the Commission.

Reversed and remanded.


author: J. Fred Jones, Justice. George Rose Smith, Justice,

text:
    Noah SIMMONS v. STATE of Arkansas
    CR 73-94
    498 S.W. 2d 870
    Opinion delivered September 17, 1973

      Harold L. Hall, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Noah Simmons was convicted of grand larceny and sentenced to 21 years in the penitentiary with 11 years suspended. On appeal to this court, he contends that the evidence was only circumstantial and was insufficient to sustain his conviction. The appellant relies on a rule announced in a number of our decisions that:

“Where circumstantial evidence alone is relied upon to establish the guilt of one charged with crime, such evidence must exclude every other reasonable hypothesis than that of the guilt of the accused.” Logi v. State, 153 Ark. 317, 240 S.W. 400.

See also Duckworth v. State, 83 Ark. 192, 103 S.W. 601; Ayers v. State, 247 Ark. 174, 444 S.W. 2d 695; Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458.

The appellant contends that the facts and circumstances shown must be absolutely inconsistent with any other rational theory and cites Walker v. State, 174 Ark. 1180, 298 S.W. 20. In Reed v. State, 97 Ark. 156, 133 S.W. 604, we said:

“But mere circumstances of suspicion are not sufficient upon which to base the conviction for a crime, which must be established by substantial evidence to the exclusion of a reasonable doubt.”

In Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822, we said:

“On appeal, in criminal cases, as in others, the evidence must be viewed in the light most favorable to the appellee, and the judgment affirmed if there is any substantial evidence to support the jury’s verdict. Murphy v. State, 248 Ark. 794, 454 S.W. 2d 302; Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72. A conviction may be had on circumstantial evidence alone if there was substantial evidence to go to the jury because the law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of the fact may be inferred. Lancaster v. State, 204 Ark. 176, 161 S.W. 2d 201. In light of the foregoing rules we state the evidence which we find sufficient to make a jury question.”

This court, in criminal cases on appeal, views a jury verdict, or a decision of the trial judge sitting as a jury, in the light most favorable to the appellee. We only determine whether there was substantial evidence to support the verdict and, if there is, we must affirm. McCray v. State, 254 Ark. 601, 494 S.W. 2d 708; Crow v. State, 248 Ark. 1051, 455 S.W. 2d 89. We do not attempt to weigh the evidence, for that is the function of the jury, or the trial judge sitting as a jury, who is in a position to evaluate the testimony of witnesses as they testify from the witness stand.

Now turning to the facts in the case at bar, Simmons was convicted of taking money from a cash register at a Penney store. Lela Smith, a customer in the Penney store, testified that she was standing near the cash register involved and heard the bell on the cash register ring. She said she looked immediately toward the cash register; saw Simmons standing sidewise beside the register, and saw some money in his hand as he left the cash register. She said that one of the clerks called for Simmons to halt, but that he continued to leave the store and walked out the door. She described Simmons as wearing a yellow, or gold, colored shirt, having an “Afro” hair style, and walking with a limp. This witness also testified that Simmons later came to her house; admitted to her that he had committed the crime and requested her not to testify against him in court as his attorney had advised that her testimony would likely convict him. On cross-examination this witness testified that she did not actually see Simmons take anything out of the cash register and that she did not see what he did with the money he had in his hand, but she did see him leave the store.

Georgia Hixon testified that she was employed at the Penney store and was busily engaged at the back of the store when she heard the bell on a cash register ring. She said she immediately looked toward the cash register and saw Simmons standing by it. She said as Simmons left the cash register, she walked toward him and told him to stop but that he just walked out of the store. She said that Simmons had on a yellow, or gold, colored shirt and walked with a limp, and that she saw no one else in the store dressed in that manner or limp when they walked.

Charles Smith, testified that he was employed at the Penney store on the day in question; that Mrs. Hixon called over to him and advised him that somebody had tapped the cash register till, and that it was a young man in a yellow shirt. He said he immediately went outside and overtook Simmons. He said Simmons was the only person he saw who had on a yellow, or gold, shirt. He said he told Simmons what Mrs. Hixon had said and that Simmons told him another young man had gotten the money; that he, Simmons, saw the other man going out the door and that he had on a yellow shirt. He testified that Simmons told him the other individual who had taken the money from the cash register threw it behind the watch counter. On cross-examination Mr. Smith said that the only reason he stopped Simmons was that he was the only one on the street who had on a yellow shirt.

Mr. Carl Brooks, another'Penney employee, testified that he followed Mr. Smith outside the store and met Smith and Simmons returning to the store. He said he overheard Simmons say that the person he saw run out of the store threw the money behind the jewelry counter. He said he found approximately $60 in wadded up bills behind the jewelry counter, and that the cash register was short the amount of money found.

Simmons testified in his own defense; he said that as he was walking out of the Penney store on the day in question, someone ran past him and threw some money on the floor behind the jewelry counter. He said he kne\y what was going on because he was familiar with crime himself. He said he just kept on walking and that when Mr. Smith overtook him and asked him to return to the store, he agreed to do so because he knew what Mr. Smith was talking about; that he knew he had nothing to hide, so he just told Mr. Smith where the money was. He said he told Smith “Yeah, I saw the dude. He threw the money over there.” Simmons denied that he took any money from the cash register. He said he was over by the door when he heard a woman “holler” for someone to stop, but that he took no heed because she was not referring to him. He denied telling Mrs. Smith that he was guilty but said he told her he would be found guilty if she testified against him.

Dwight Sims, a witness called by the defense, testified that he was in the vicinity of the Penney store on the day in question and saw Simmons that day. He said he also saw another man come out of the Penney store wearing a gold colored shirt. On cross-examination he testified that he had never seen Simmons before the incident happened, and that the other man he saw come out of the store wearing a gold colored shirt, ran down the street away from the store.

Kenneth Profit also testified as a' witness for Simmons. He said he was standing in front of the Penney store waiting for a bus on the day in question. He said that a “dude” came out of the Penney store running fast; that he was wearing a yellow shirt and he saw him run down the street. He said he did not know Simmons.

It is difficult to imagine a stronger case of circumstantial evidence than is presented by the record in this case. Certainly there is substantial evidence to sustain the conviction, so the judgment of the trial court is affirmed.

Affirmed.

George Rose Smith, J., concurs.

George Rose Smith, Justice,

concurring. As the majority opinion indicates, in past criminal cases we have approved instructions telling the jury that when the State relies upon circumstantial evidence only, its proof must exclude every reasonable hypothesis except that of the defendant’s guilt. The Attorney General now suggests that we should change that rule, in harmony with the doctrine approved in Holland v. United States, 348 U.S. 121 (1954), and hold that the usual instruction upon reasonable doubt covers the ground and makes the special circumstantial evidence instruction unnecessary. The suggestion may very well have merit; compare our treatment of the unavoidable accident instruction in civil cases. Houston v. Adams, 239 Ark. 346, 389 S.W. 2d 872 (1965). We need not explore the question here, since the judgment is being affirmed, but I think it appropriate to mention in this concurring opinion the possibility that our rule may be re-examined in some proper case in the future.


author: Conley Byrd, Justice.

text:
    Willie Mat SIMS v. STATE of Arkansas
    CR 73-58
    499 S.W. 2d 54
    Opinion delivered September 17, 1973
    [Rehearing denied October 15, 1973.]

      Eugene Hunt, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   Conley Byrd, Justice.

To reverse a ten year conviction for manufacturing and growing marijuana in violation of the Controlled Substance Act, (Acts 1971, No. 590 as amended by Acts 1972, No. 68), appellant Willie Mat Sims contends:

"I. The lower court committed error by allowing the sheriff of Arkansas County and Kenneth R. McKee, supervisor of the narcotics section of the Arkansas State Police to testify as an expert witness when these individuals had not been qualified and in fact were incapable of being qualified as such.
II. The court erred in allowing numerous items of evidence to be introduced without the chain of custody being established.
III. Defense counsel at trial failed to adequately represent the appellant in that:
A. Defense counsel failed to request a jury instruction regarding the appellant’s failure to take the witness stand in his o ra behalf;
B. Defense counsel was generally ineffective in his overall representation of the appellant herein.”

The record shows that Gene Garrison, Sheriff of Arkansas County, had twelve years experience as a law enforcement officer and that as such he had attended a school on narcotics. On May 5, 1972, while searching some woods for a liquor still, he observed the appellant leaving the area. Later in the day, after appellant had departed, he found some marijuana plants. The plants were being grown and cultivated within some wire baskets to prevent the rabbits from eating the plants.

Mr. Garrison kept the plants under surveilance until October 17, 1972. During that time he made some plaster casts of some boot prints made in the field after a rain. On October 17th, Sheriff Garrison obtained a search warrant to search appellant’s home. As a result of that search Sheriff Garrison found several packages of marijuana and some marijuana seed stored as if to be used for the next year’s planting. The sheriff also found that appellant’s boots matched the plaster prints he had taken near the plants earlier in the year.

Appellant signed a confession in which he admitted that he grew the marijuana plants found and the marijuana plants at two other locations.

Sheriff Garrison identified each exhibit taken from appellant’s home and testified that appellant described some of the Marijuana packets taken as selling for five dollars.

Deputy Sheriff Leroy Broadway testified that appellant said: "... after we had talked to him — he said we outsmarted him and if you was going to dance you had to pay the fiddler.”

Kenneth R. McKee, supervisor over the narcotics section of the Arkansas State Police testified that he had been dealing with marijuana violators since 1955. He then identified the plants grown and taken from appellant’s home as marijuana.

POINT I. We find no merit in the contention that the court erred in permitting Sheriff Garrison and Kenneth R. McKee to qualify as expert witnesses to identify marijuana. In the first place there was no objection to their testimony on that basis. Furthermore, their experience would qualify them to identify marijuana by sight and smell. See Miller v. State, 168 Tex. Crim. 570, 330 S.W. 2d 466 (1959), and State v. Franco, 76 Utah 202, 289 P. 100 (1950). In the last mentioned case the court said:

“Objections were made to the testimony of the officers that the stuff contained in the sack and in the cans was marijuana on the ground that the witnesses were not qualified to state what the substance was. The rulings on these objections are assigned as error. In view of the testimony of the officers showing the experience they had in searching for and obtaining marijuana, the court did not err in permitting them to testify. The marijuana seized was introduced in evidence, and is shown to be not an extract or preparation which may be difficult or impossible of characterization without chemical analysis, but the dried leaves, stems, and seeds of the plant. One reasonably familiar with the plant should be able to identify it by its appearance. However, the state very properly did not rest its case as to the character of the drug upon the officers’ testimony. The sack and cans were taken to the state chemist who examined and analyzed their contents, and testified that it was marijuana.”

POINT II. Sheriff Garrison identified each item of evidence introduced that came from the search of appellant’s home. The other evidence he identified as being a picture or replica of that which he had personally observed. Furthermore, the objection now made was not raised in the trial court. Such objections cannot be raised for the first time on appeal.

POINT III. Appellant here contends that his trial counsel failed to adequately represent him. Some of the matters of which he complains involve trial strategy such as asking or not asking for an instruction on a defendant’s failure to take the witness stand in his own behalf. Other contentions are that counsel permitted the sheriff to identify the substances as marijuana without qualifying him as an expert or without requiring a chemical analysis. We find no merit to these contentions. Not only did Sheriff Garrison observe the growth and cultivation of the marijuana plants and make plaster casts of foot prints fitting appellant’s boots but appellant signed a confession admitting that he was growing marijuana. Under those circumstances there is not a lot of help a lawyer can give to a defendant except to ask for mercy on the penalty to be imposed.

Affirmed.


text:
    Earnest Dean MURPHY v. STATE of Arkansas
    CR 73-63
    498 S.W. 2d 884
    Opinion delivered September 17, 1973

      Harold L. Hall, Public Defender, by: Garner L. Taylor Jr., Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellant.
   Conley Byrd, Justice.

To reverse his conviction for first degree murder allegedly committed in the perpetration of a robbery, appellant Earnest Dean Murphy contends:

“I. The trial court erred in permitting the State to introduce that portion of the defendant’s statement which implicated him as a participant in another crime.
II. The trial court erred in permitting the sons of the deceased to testify, and in failing to strike their testimony and admonish the jury to disregard it.
III. The trial court erred in failing to direct a verdict for the defendant.-
IV. There is no substantial evidence to support the verdict.”

The record shows that appellant and several other young people, while swimming at Horseshoe Lake in Pulaski County, met David Hardwick, the deceased, who had run out of gas in his pickup truck. One of the members of the swimming party took Hardwick to get some gas. Thereafter, Hardwick, appellant and a co-defendant returned to the lake where they drank some intoxicants. While there appellant' admits that he struck Hardwick; that he took Hardwick’s money, his billfold and truck; and that he threw Hardwick’s body into the lake. After taking the truck to Hughes, Arkansas, appellant and his co-defendant returned and disposed of the truck by running it into the Arkansas River. Thereafter they took a motorcycle and returned to Hughes where they were apprehended.

Testimony on behalf of the State showed that the decedent’s body had a one by one half inch abrasion under the right eye and a blood alcohol content of 0.27% by volume. The Assistant State Medical Examiner stated that death was caused by drowning. When the body was found floating in the lake, the right front pocket in decedent’s trousers was turned inside out and his wallet was missing. Decedent’s pickup truck was later found in the Arkansas River.

POINT .1. Appellant here contends that the trial court committed error in permitting the State to introduce that portion of his confession that implicated him in the crimes of grand larceny and the possession of stolen property.

The confession after stating the events that occurred at the lake, narrated how appellant and his co-défendant took the truck to Hughes and returned on a Tuesday and disposed of the truck to get rid of it. The confession then stated:

“. . . Tuesday night we and looked for a motorcycle to leave on because it would be better on gas and Betty knew a guy that had one that he had stole and redid everything on it and we took it and went back to Hughes the same night. . . .”

Most authorities concede that the action of an accused in fleeing from the scene of a crime is a circumstance to be considered with other evidence in determining probable guilt, Rowe v. State, 224 Ark. 671, 275 S.W. 2d 887 (1955). In connection therewith evidence as to the.conduct of the accused during the period of his flight including any criminal conduct constituting an inseparable part of the flight such as obtaining money or transportation is generally held admissible. See State v. Ross, 92 Ohio App. 29, 108 N.E. 2d 77 (1952), and State v. Martin, 175 Kan. 373, 265 P. 2d 297 (1953). Furthermore, evidence of flight after the commission of a crime is generally admissible even though it does not occur immediately after the crime, Commonwealth v. Liebowitz, 143 Pa. Super. 75, 17 A. 2d 719 (1941). Neither does the fact that the evidence is cumulative prevent its admissibility, Smith v. State, 216 Ark. 1, 223 S.W. 2d 1011 (1949). Consequently we find this contention without merit.

POINT II. We find no merit in appellant’s contention that the trial court failed to strike the testimony of decedent’s sons.

One son testified: that he last saw his father on Saturday Sept. 9th; that his father had money on him at that time; that his father carried a wallet in his pocket and drove a 64 Chevy pickup truck; and that his father carried his money in his billfold and in his right front pocket. He also identified the body found floating in the lake as his father. The other testified that he last saw his father on Saturday. The court otherwise sustained all objections to the remainder of the testimony on the ground of incompetency or because of leading questions.

The annotator in 67 A.L.R. 2d 731 points out that under the general rule, evidence that the victim of a homicide was survived by a wife or children is irrelevant and inadmissible in a homicidal prosecution unless it is material to the determination of the guilt or innocence of the accused. The same annotator points out that mere receipt of such evidence does not in itself constitute reversible error.

The evidence elicited from the one son and attempted to be elicited from the other son with reference to where decedent carried his money was certainly material to the issue of whether a robbery had occurred under the circumstances. The State at that stage of the proceeding was obligated to corroborate the robbery admitted in appellant’s extra-judicial confession. See Ark. Stat. Ann. § 43-2115 (Repl. 1964).

POINTS III & IV. Appellant here contends that the trial court should have directed a verdict and that the evidence is insufficient to support a felony murder conviction. In support of his arguments appellant relies upon Bell v. State, 177 Ark. 1034, 9 S.W. 2d 238 (1928), and Williams v. State, 239 Ark. 1109, 396 S.W. 2d 834 (1965).

In the Bell case there was no corroboration of an extra-judicial confession. The Williams case requires proof of the perpetration of the crime alleged in the felony murder prosecution.

Appellant here not only made an extra-judicial confession but testified in his own behalf. While on the witness stand he admitted that he was with decedent at the lake, that he hit the deceased, took his wallet, money aind truck and then threw him into the lake. In addition the State proved: that appellant was seen with the decedent at the lake near the time of his death; that decedent’s wallet> money and vehicle had been removed; and that the wallet and vehicle were found where appellant said they would be found. Furthermore, the Deputy State Medical Examiner, after noting an abrasion under the right eye, testified that decedent died from drowning.

When the evidence is viewed in the light most favorable to the jury verdict, we find substantial evidence to support the conviction. See Reeves v. State, 222 Ark. 77, 257 S.W. 2d 278 (1953).

Affirmed.


text:
    Jerry Lyle CALDWELL v. STATE of Arkansas
    CR 73-65
    498 S.W. 2d 858
    Opinion delivered September 17, 1973
    [Rehearing denied October 8, 1973.]

      Louis W. Rostech, for appellant.

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

Appellant Jerry Lyle Caldwell for reversal of his convictions of burglary and grand larceny contends that the evidence was insufficient and that, assuming the sufficiency of the evidence, there was insufficient proof of value to sustain a grand larceny conviction. We find no merit in either contention.

The proof, stated in the light most favorable to the trial court’s finding, shows that appellant was doing business in Little Rock as Caldwell Safe & Lock Company and as such had an employee by the name of James Collins. Collins generally rodé home from work with appellant, unless he spen) the night at appellant’s home. Both Collins and appellant testified that they had been at appellant’s home until 11:00 p.m. on November 20, 1970, when appellant left to take Collins home. Appellant’s wife had retired for the night before they left home. While in route from appellant’s home in Little Rock located at 2607 Johnson Street, to Collins’ home at 2119 Perry Street, appellant testified that he remembered he had left something cooking on the stove and that he stopped at a phone booth near the Thriftway Food Store located at 7000 Asher Avenue, to call his wife. While making the phone call he heard Collins pop the door to the store and saw him come back with the head to the safe located therein. He says that he asked him “what he thought he was doing taking the safe, because I knew Bob pretty well and I took him out and dumped it out in . . . the pond.” In his confession he stated:

“On Thursday or Friday night approx. Nov. 19 or 20, 1970, between 12:00 midnight and 1:00 a.m. myself 8c Jimmy Collins went to the Thriftway food store at 7000 Asher Ave. I was driving a 1966 Mustang and parked by the phone booth at the Deep Rock Service Station across from the store. I went into the phone booth & Jimmy left the car & took a Jimmy Bar & popped the front door open. Jimmy Collins carried shavings from a Mosler safe, with him into the store because the shavings if analyzed would match the shavings or metal from the safe in the grocery store. The safe was locked and Jimmy opened the safe with the combination. Jimmy was with me when I changed the combination & he had the combination. Jimmy got the safe open 8c there was no money in the safe. Jimmy come out of the store 8c brought the safe top with him 8c left the metal shavings near the safe. He got in the car 8c I drove to Rodney Parham 8c Reservoir Road where Jimmy got out and threw the safe top into a pond of water on the west side of Reservoir Road. Then we drove off 8c went home. Jimmy stayed with me that night 8c worked for me at the store.”

Mrs. Robert Davis testified that she and her husband owned the Thriftway Supermarket at 7000 Asher Avenue and that they in connection with their business used the services of Caldwell Safe 8c Lock Company. After the break-in appellant was called to replace the safe head, and while there he was sympathetic with them and told them that most robberies like that were inside jobs. Mrs. Davis testified that the value of the safe head would be over $100.

James Collins stated he and appellant went from work to appellant’s home where they had some drinks. He had with him a paper bag containing some safe cuttings and a long screw driver which he intended to use in burglarizing the Thriftway Supermarket. His intentions were to go home, borrow his step-dad’s car and come back and do the job, but when appellant stopped to make the call he went on and did it. When asked if there was any prior plan or agreement between him and appellant to participate, he answered:

“Well, there wasn’t a plan or an agreement. I asked him what he thought about doing it and he said that I better not do it.”

The testimony of the officers was to the effect that divers were unable to find the safe head in the pond pointed out to them. While appellant contends that he was only taking Collins home when he stopped to phone his wife, the fact remains that, notwithstanding his prior conversations relative to the burglary, he conveniently stopped near the Thriftway Supermarket, transported Collins to an alleged disposal area, and then returned to appellant’s home to spend the night. Furthermore, he conversed with Mrs. Davis about the burglary the next day but neglected to mention Collins’ conduct. We find the evidence sufficient to support appellant’s conviction as a principal.

The owner’s testimony as to value was sufficient to support the grand larceny charge. See Polk v. State, 252 Ark. 320, 478 S.W. 2d 738 (1972).

Affirmed.


author: Frank Holt, Justice. John A. Fogleman, Justice,

text:
    Jay Randall WOLFS v. STATE of Arkansas
    CR 73-72
    498 S.W. 2d 878
    Opinion delivered September 17, 1973

      Murphy, Carlisle ir Taylor, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of the crime of assault with intent to kill. His punishment was assessed at 19 years in the penitentiary and from a judgment on that verdict comes this appeal. Appellant first contends for reversal that the court erred in its failure to grant appellant’s motion for a continuance. We cannot agree.

Ark. Stat. Ann. § 43-1705 (Repl. 1964) provides that defendant must show “sufficient cause” to' secure a continuance. Appellant acknowledges that in interpreting this statute the rule is well established in our state that a motion for continuance is addressed to the sound discretion of the trial court and we do not reverse bn appeál absent the showing of abuse of discretion. Scates and Blaylock v. State, 244 Ark. 333, 424 S.W. 2d 876 (1968) and Nowlin v. State, 252 Ark. 870, 481 S.W. 2d 320 (1972). Furthermore, the burden is upon the appellant to demonstrate abuse of discretion. Perez v. State, 236 Ark. 921, 370 S.W. 2d 613 (1963). Therefore, in the instant case, appellant must demonstrate such prejudice resulting from the denial of his motion for continuance as to result in ineffective representation.

A few days after the commission of the alleged offense, the appellant, along with a co-defendant, was arraigned at which time the public defender was appointed as counsel to represent them and a trial date was set approximately three weeks later. On trial date the court permitted the public defender to withdraw as counsel for appellant because there was a conflict of interest inasmuch as the public defender would be representing a witness for the prosecution, appellant’s co-defendant who testified for the state. The trial court immediately appointed present counsel to defend appellant. When the trial began 1 1/2 days later, appellant’s counsel made an oral motion for a continuance based upon the statement that even though he had investigated the case as thoroughly as possible, the case should be continued "due to the number of witnesses the state will call (approximately ten witnesses) and because of the necessity of talking with the defendant and talking with witnesses for the defendant;” that it was impossible to talk with all witnesses before the trial and it would be “practically impossible to defend” the appellant properly; that it had come to counsel’s attention “last night that this defendant has had psychiatric problems in the past and that in order to develop a possible defense of mental deficiency” it would be necessary to have a thorough psychiatric examination; that the defendant’s relatives had not been contacted and “last night” appellant’s father had called appointed counsel; that appellant’s father was en route and “it is believed the father can give vital information in regard to defendant’s background and in regard to matters necessary to properly defend this person;” and that non-resident character witnesses could be contacted.

In reply to the court’s inquiry, appellant’s counsel acknowledged that the public defender’s office had furnished him the results of the investigation of the case, consisting of a narrative report of three of the state’s nine witnesses. It was determined that some of these witnesses would testify with respect to the circumstances surrounding the arrest and items of evidence. One of appellant’s two newly appointed counsel stated that "one major witness we have not talked to,” other than a firearm expert, is the prosecuting witness who had been out-of-town. It was then determined that the prosecuting witness was present in the court room and available for interrogation. Upon the court’s further inquiry, appellant’s counsel stated that a local psychiatrist was scheduled to examine the appellant that very morning. Further that his examination would require 5 1/2 hours and another two or three hours for an evaluation. The court then remarked that he would permit the appellant’s attorneys to talk to the witnesses, examine the evidence and “let you have Dr. Finch (local psychiatrist) examine him” and that if Dr. Finch found the appellant psychotic, “I’ll send him to the state hospital now and that ends it, but if he says he isn’t, I don’t know of any reason we can’t go to trial.” Thereupon, late that morning the court impaneled the jury and recessed until 9 a.m. the next morning, which afforded the appellant additional time for trial preparation.

The next day the state’s prosecuting witness, whom the court had made available to appellant, testified that in the late hours of the night, as he was driving his truck on a local highway, a car approached him and someone fired through his windshield; that in a few minutes this car turned around and as it came alongside his truck the occupant of the rear seat leaned out the window and fired a shot through the door on the driver’s side. A short time later appellant’s co-defendant, testifying for the state, admitted that he was the driver of the car and they had engaged in a shooting spree late that night, consisting of shooting out street lights, and appellant had fired the two shots from their vehicle at the truck driver. The appellant, testifying in his own behalf, admitted the escapade, except he expressly denied that he shot at an notorist. The state and the defense stipulated as to he testimony of the firearm expert' and the other witnesses merely testified as to the circumstances of the arrest. Appellant’s grandfather attended the trial and testified that in Arizona where he lived the appellant had enjoyed a good reputation as a resident there.

The local psychiatrist testified that he had conducted his examination and concluded his evaluation. He found appellant to be “fairly normal psychiatrically” although somewhat irresponsible, impulsive and adolescent. “[A]l-though the patient is twenty-one years of age, I would feel that he is still going through adolescent behavior.” “[N]o evidence of psychosis at the present time.” “[N]o evidence of organic brain disease at the present time.” His evaluation was based entirely upon his examination of the appellant. The record does not reflect there were any medical records in existence with reference to appellant’s asserted mental deficiency and neither did the defendant testify that he had suffered in the past from any mental problems. It was not indicated by Dr. Finch, appellant’s own witness, that he needed additional time or information in order to adequately evaluate the appellant’s mental condition.

It appears that only one subpoena was issued for a witness at appellant’s request. This individual could not be located and we cannot understand from the record what would be the nature of the testimony of this witness as no proffer of proof was made. Another local witness who appeared at appellant’s request was not used inasmuch as counsel and appellant were of the view that he would be of no assistance as a character witness. We note that appellant had testified that he was convicted of a felony in another state for the sale of dangerous drugs and, locally, he was convicted of disorderly conduct and twice for public drunkenness.

Our rule, as stated supra, is that the granting or refusing of a continuance is within the sound discretion of the trial court and the burden is upon the appellant to demonstrate abuse of discretion in accordance with the general rule. In Chambers v. Maroney, 399 U.S. 42 (1970), the court observed: ,

But we are not disposed to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel or to hold that, whenever a habeas corpus petition alleges a belated ap^ pointment, an evidentiary hearing must be held to determiné whether the defendant has been denied his constitutional right to counsel.

We are of the same view.

In several of our recent Arkansas cases dealing with eve of trial appointment or retention of counsel, we have upheld a denial of a motion for continuance. In Brown v. State, 252 Ark. 846, 481 S.W. 2d 366 (1972), we held there was no prejudice demonstrated where the motion for continuance was denied when the defendant himself changed counsel five days prior to trial. In Gathright v. State, 245 Ark. 840, 435 S.W. 2d 433 (1968), we approved a denial of a continuance where new counsel was employed seven days prior to trial; and in Ebsen v. State, 249 Ark. 477, 459 S.W. 2d 548 (1970), we found no abuse of discretion in denying a continuance where counsel was retained three days prior to trial after previous counsel withdrew due to defendant’s refusal to pay him. In Therman v. State, 205 Ark. 376, 168 S.W. 2d 833 (1943), we found no abuse of discretion in a refusal of a motion for a continuance where the defendant’s counsel did not show up the day of the trial and another attorney was appointed and the trial was delayed only three hours. In that case, the defendant knew for several days his counsel would not show up and all witnesses were present in the court room.

However, the appellant makes the argument that in those cases continuances were given previously, or change of counsel was the voluntary act of the defendant, or defendant knew of the impending withdrawal. Therefore, they can be distinguished from the case gt bar inasmuch as the change of counsel was unconnected with defendant’s conduct.

We are of the view from the totality of the circumstances that the appellant has not met the required burden of showing that he was prejudiced by late appointment of present counsel. When the trial began, 1 1/2 days after appointment, the court was recessed until the next day giving appellant’s counsel additional time for trial preparation. The public defender had made available to present counsel results of his investigation. The “major” witnesses in the case were the prosecuting witness and the firearms expert. The testimony of the firearm expert was given by stipulation. The court made available to the appellant’s counsel the prosecuting witness for questioning as well as all other witnesses. A sufficient time was given for a mental examination by a psychiatrist of appellant’s own choice. At trial the next day, after this extension of time, appellant’s counsel did not deem it necessary to renew his motion for a continuance nor add any additional basis for a continuance.

Significantly, during the time the jury was deliberating, the trial court made an extended inquiry of appellant and his counsel as to whether either of them had any complaint with reference to the trial. Neither expressed any complaint. The appellant stated that he was “satisfied” with the presentation of his case and that his counsel had interviewed him for two days with reference to his case. His counsel stated that he had seen appellant during this time for a “total of at least 8 to 12 hours.” Appellant acknowledged that they had answered all his questions and had tried to get all the witnesses he desired. “I don’t have any complaints. They did the best they could, with what they had.” Counsel had treated him as a gentleman and researched and answered any questions that he had. He agreed that his counsel’s decision was correct not to use a character witness he had asked them to call.

We agree as in Chambers v. Maroney, supra, that our courts should always make an early appointment of counsel in indigent cases and further we cannot formulate “a per se rule” or standard which would require a reversal of every conviction as a result of a tardy or late appointment. Although the case at bar has given us much concern, however, in considering all the circumstances of the late appointment of counsel, we cannot say that the appellant has met the burden of demonstrating that the court abused its discretionary authority. We will, of course, continue to closely scrutinize the entire proceedings whenever the issue of late appointment of counsel is presented.

Appellant next contends for reversal that the court erred in permitting the prosecuting witness to testify about his position in the truck at the time the second shot was fired through the door on the driver’s side inasmuch as his testimony was “so inflamatory as to materially prejudice appellant’s rights at the time.” We agree with the trial court that the prosecuting witness certainly could testify as to where he was sitting and where he would normally be sitting. The appellant favors us with no citation to support his contention. Certainly the prosecuting witness should be allowed to state what his sitting position as a driver was under normal driving conditions and as to his position to avoid bodily injury at the time he was fired upon the second time. We cannot understand how this testimony could be said to be inflamatory or conclusionary so as to materially prejudice appellant’s rights.

Affirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. Although I am well aware of the problems of circuit judges in maintaining docket currency and affording a speedy trial in criminal cases, I reluctantly concur in the result reached in this case. My reluctance is attributable to my recognition of the problems encountered by appointed counsel in affording effective assistance, in the limited preparation time afforded here, to one charged with such a grave offense based on such inexplicable conduct. I am forced to agree, however, that prejudice in this case is not so obvious that we can say there has been such a manifest abuse of the broad discretion vested in the circuit judge in the matter of continuances to relieve appellant of any showing of prejudice. It is only because appellant failed to properly demonstrate prejudice that I concur.

The principal arguments advanced on behalf of appellant in this respect are:

1. When the case was called for trial, one and one-half days after the appointment, appointed counsel had been unable to interview any of the witnesses for the prosecution and had been provided only a narrative report of interviews of three witnesses (unidentified in the record) by the public defender, who apparently quickly (and appropriately) abandoned the investigation when a conflict of interest appeared.
2.Physical evidence pertinent to the state’s case was not made available for examination by newly appointed counsel until the day the case was set for trial.
5. Inadequate opportunity for medical examination, in view of the bizarre conduct alleged and a history of prior psychiatric problems experienced by appellant.
4. Character witnesses from Tucson, Arizona, where appellant had lived until three months prior to the alleged offense, could not reach Fayetteville in time to testify.

Appellant concedes that the burden of showing abuse of discretion lay upon him. He has failed to show:

1. The names of witnesses not interviewed by appointed counsel and the testimony or information which could have been elicited from them.
2. The content and inadequacy of the public defender’s narrative report furnished his counsel.
3. The inadequacy of appointed counsel’s examination of the physical evidence and the revelations which examination would have afforded.
4. The history of his psychiatric problems.
5. The names of character witnesses who would have come to Fayetteville and testimony which would have been given by them.

The above list of omissions is intended to be illustrative and not exhaustive.

In Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500, we held there was no abuse of discretion in the denial of a continuance to a defendant in a criminal case, where the movant failed to file any affidavit or to produce evidence showing the facts to be proved by an absent witness, the affiant’s belief in their truth, the materiality of the anticipated testimony, and due diligence on the part of the defendant [as required by Ark. Stat. Ann. §§ 27-1403, 43-1706 (Repl. 1964)] or that there was any probability that absent witnesses would be available. The failure to file such an affidavit is a critical factor, to say the least, in appellate review of the trial court’s action in denying a continuance. Thacker v. State, supra; Leach v. State, 229 Ark. 802, 318 S.W. 2d 617. The failure to file such an affidavit, where the motion is based upon absence of witnesses, has been held fatal to an appellant who seeks reversal on that basis. Carter v. State, 196 Ark. 746, 119 S.W. 2d 913. While other grounds for the motion are not required to be so shown, reliance was here placed entirely upon counsel’s conclusional statements. It is extremely difficult to assess the prejudice to the defendant in the absence of such a showing.

Lest it be said that appellant’s appointed counsel were unable to produce supporting evidence for the motion for continuance in the limited time available, I point out that they were not thereby foreclosed. Even though a motion for new trial is no longer a requisite for appellate review, it is still a permissible procedure. Ark. Stat. Ann. § 43-2704 (Supp. 1971). A trial court may grant a new trial when the defendant’s substantial rights have been prejudiced by a verdict, if the court is of the opinion that the defendant has not received a fair and impartial trial. Ark. Stat. Ann. § 43-2203 (Repl. 1964). The circuit court’s refusal to grant a continuance would have been a proper ground tor such a motion, if it had been made to appear that there was an abuse of discretion or manifest denial of justice. See Figeroa v. State, 244 Ark. 457, 425 S.W. 2d 516; Jones v. State, 205 Ark. 806, 171 S.W. 2d 298; French v. State, 205 Ark. 386, 168 S.W. 2d 829; 58 Am. Jur. 2d 325, New Trial, § 117. On making such a motion, appellant would have been afforded an opportunity to tender evidence to show prejudice, if it was impossible to do so at the time of his motion for continuance. See Tyson v. State, 196 Ark. 1179, 120 S.W. 2d 29; Gross v. State, 242 Ark. 142, 412 S.W. 2d 279; Cooper v. State, 215 Ark. 732, 223 S.W. 2d 507; Pinson v. State, 210 Ark. 56, 194 S.W. 2d 190; 58 Am. Jur. 2d 422, New Trial, § 204.

Since appellant failed to avail himself of his opportunities to make a showing of prejudice and to afford the trial judge a chance to review his action denying a continuance in the light of evidence not before the court at the time it was denied, I concur.

Although there is no fundamental difference in the basic reason for my reaching the same result arrived at through the reasoning of the majority opinion, I feel compelled to state my approach to the question because I cannot subscribe to that portion of the majority opinion which seems to find insulation against appellant’s complaint about the denial of his motion for continuance in his and his attorneys’ responses to the circuit judge’s interrogation that he had no complaint about the trial. Statements that the appellant was satisfied with his attorneys’ presentation of his case, their efforts to obtain attendance of all the witnesses he desired and their consultation with, and advice to, him are a far cry from an admission that counsel could not have been better prepared if given more time for investigation and his case put in a better light if other evidence, not available at the time of trial, had been presented, particularly when appellant’s responses are qualified by saying that "they (cóunsel) did the best they could with what they had.”

For the reasons I have stated, I would affirm the judgment.


author: Carleton Harris, Chief Justice.

text:
    John McMAHAN et al v. The BOARD OF TRUSTEES of the UNIVERSITY OF ARKANSAS ET AL
    73-55
    499 S.W. 2d 56
    Opinion delivered September 24, 1973

      John T. Lavey, for appellants.

      Ray Trammell and Jim Guy Tucker, Atty. Gen., by: Lewis Smith, Asst. Atty. Gen., for appellees.
   Carleton Harris, Chief Justice.

This litigation involves an effort by appellants to obtain the names of those persons' who were given complimentary tickets' for all football games participated in by the University of Arkansas, in this State, during the Fall periods of 1969, 1970 and 1971; also, the number of complimentary tickets received by each of those persons. Suit was instituted in the Pulaski Circuit Court seeking to mandamus the Board of Trustees of the University to furnish this information. It might be here stated that other information relative to complimentary tickets was sought in the complaint, but all information has been furnished except the names of the recipients of complimentary tickets. The trial court, after hearing evidence, held that the lists of persons receiving complimentary football tickets to the games played in this State during the years 1969, 1970 and 1971 “are not public records as contemplated by those statutes [Freedom of Information Act], not being by law required to be kept and, further, plaintiffs making no showing of any legitimate personal interest in themselves or the class they represent or legitimate public interest ■being served in said items being made available to them for copying and inspection, that the petition filed herein be dismissed.” From this judgment, appellants bring this appeal. For reversal, it is asserted that the trial court erred in dismissing the petition. A second point is asserted, viz., that the trial court erred in refusing to enforce a request for Subpoenas Duces Tecum.

Appellees set out seven points, i.e., seven reasons, why the judgment of the trial court should be sustained; while more than one appear to contain merit, there is no need to discuss them in this opinion since we are of the view that point “C’V in itself, precludes appellants from prevailing, i.e., the Freedom of Information statute is inapplicable to the lists in issue.

Appellants’ entire position is based upon Act 93 of 1967 (Ark. Stat. Ann. § 12-2801 — 07 [Repl. 1968]), and they argue that, under its provisions, they are entitled to the information sought. Appellants first refer to the “preamble” of the act, but the reference actually is to a portion of the title, as supporting their position. This contention need not be discussed for we have said many times that the title of an act is in no sense controlling, and is only properly considered if the act itself is ambiguous. In Roscoe v. Water and Sewer Improvement District No. 1, 216 Ark. 109, 224 S.W. 2d 556, we said:

“The title of an Act is in no sense controlling, and, like a preamble, or emergency clause, it may be looked to for the purpose of ascertaining a meaning not fully expressed in the Act proper, yet — as we have so often said — where there is doubt as to the legislative intent, due either to ambiguous phrases or a suggested word omission, and where the missing word can be appropriately supplied by determining from the title, preamble, or other collateral phrases just what the lawmakers intended to accomplish, it is then proper to consider any or all of these collateral aids.”

Since we find no ambiguity, there is no reason to consider the preamble, or the tide.

Pertinent portions of § 12-2803 and 2804 provide as follows:

‘“Public records’ are records made, maintained or kept by any public or governmental body, board, bureau, commission or agency of the State or any political subdivision of the State, or organization, corporation or agency, supported in whole or in part by public funds, or expending public funds. ***
“12-2804. Except as otherwise specifically provided by laws now in effect, or laws hereafter specifically enacted to provide otherwise, all state, county, township, municipal and school district records which by law are required to be kept and maintained [our emphasis] shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.”

Webster’s New International Dictionary defines public record as “A record required by law to be made and kept; a record made by a public officer in the course of Iris legal duty to make it; a record filed in a public office and open to public inspection.”

This definition is the general definition of a public record, but, of course, statutory requirements are paramount. It is here contended that the statutory definition of public records makes the records sought subject to public inspection, but if the language of § 12-2803 at first blush lends itself to this construction, such an interpretation quickly vanishes upon reading § 12-2804. Of course, a statute must be read in its entirety to reach a proper interpretation.

In McCaa Chevrolet Company v. Bounds, Admr., 207 Ark. 1043, 183 S.W. 2d 932, we said:

“In ascertaining the intention of the legislature recourse may be had to the entire act under consideration. ‘The different parts of a statute reflect light upon each other . . . Hence, a statute should be construed in its entirety, and as a whole.’ 50 Am Jur. 350. ‘The intention of the lawmaker is to be deduced from a view of every material part of the statute’.” [Citing numerous cases].

It is at once apparent from even a cursory reading of § 12-2804 that the records which the General Assembly had in mind are those mentioned in the italicized phrase “which by law are required to be kept and maintained.” The Freedom of Information Act does not itself provide that any particular records shall be kept; it only provides that records which are required by some statute (other than the Freedom of Information Act) to be made and kept, shall be open to public inspection. There is no semblance of ambiguity in this provision and whether the statute be construed narrowly or broadly, the italicized phrase can only mean one thing, viz., that the Freedom of Information Act, as far as inspection of records is concerned, applies only to those records which by statute are required to be kept and maintained. Appellant has cited no statute, nor do we know of any, that requires the University of Arkansas, or its Athletic Department, to keep and maintain a record of complimentary tickets given, either the number of same, or the names of the persons receiving them. It is true that such a record is kept and appellants argue that the act permits public inspection of any record which is maintained or kept by any public or governmental body, board, bureau, commission or agency of the State. In other words, it is contended that any time such a State agency keeps a record, though not required by law, it immediately becomes subject to the provisions of the Freedom of Information Act. It is apparent, from what has been said, that we do not agree with this position. Of course, the athletic accounts, including the number of complimentary tickets given, and the lists of names, are available to the auditors, both for an interior audit by the University, and for the State Legislative Audit Division, but this does not mean that the lists are a public record, and the fact that an agency may have confidential records is recognized by statute. Ark. Stat. Ann. § 13-1505 (Repl. 1968) sub-section (D) provides in part:

“The Legislative Auditor shall have access at all times to all of the books, accounts, reports, confidential or otherwise [our emphasis], vouchers, or other records of information in any state office, department, board, bureau, or institution of this state. Nothing in this section shall be so construed as authorizing or permitting the publication of information now or hereafter prohibited by law.”

According to the testimony, the lists of numbers of complimentary tickets, and the lists of names, are compiled primarily because of the contracts that the University has with other institutions covering the games played in Arkansas during a particular season. It appears that, according to most of the exhibits offered, the total gate, after deductions of expenses (including officials’ fees, travel expenses, and complimentary tickets), was split between Arkansas and the Southwest Conference team being played. As an example, Mr. George Cole of the Athletic Department at the University, testified:

“When we sign a contract with Texas University or TCU they state in the contract that they’re playing Arkansas; that they would want, I’ll use an arbitrary figure, they would [want] five hundred dollars worth of complimentary tickets. Then, when they make their report they deduct that. Now then, we deduct five hundred dollars worth from our complimentary tickets and if we give more than that we have to pay Texas half of the price of that ticket for any over five hundred dollars. That’s in the contract.”

Fred S. Vorsanger, Vice-President for Business Affairs and Secretary to the Board of Trustees, testified that the lists were made to be used, if requested, as a part of the settlement with the opposing team; that the other school would be primarily interested in numbers (of complimentary tickets) but that the names of the recipients of the tickets were kept in case that school wanted to confirm the numbers.

As previously stated, appellants have obtained all information sought except the names of the ticket holders. For instance, an exhibit was offered showing the disposition of football tickets for games played in Arkansas during the Fall of 1970, reflecting as follows:

SOLD TO: PER CENT “ DISPOSITION OF TICKETS TOTAL OF TOTAL

78.26% Public 237,313

1.94 General Admission (High 5,896

School, Miscellaneous)

Faculty and Staff 8,829 C5 c4

Students 31,154 o

Complimentary 8,146 <£> c4

Opponents 11,971 go

100% TOTAL TICKETS SOLD AND COMPLIMENTARY TICKETS 303,309

COMPLIMENTARY TICKETS BY GROUP:

“A” Men 487 6.39%

Board of Trustees 448 5.40

Faculty and Staff 1,898 23.20

Legislators 1,892 23.21

Miscellaneous 337 4.10

Newspaper JO bo o o o oo

Radio Stations bo o o r^ . — i

State Officials > oo o cq oo cq

Team O oo o cq oo oo

8,146 100% TOTAL COMPLIMENTARY TICKETS BY GROUP

$1,347,461.71” RECEIPTS

For the reasons herein stated, and without discussing further defenses advanced by appellees, we hold that appellants are not entitled, under the statute (Freedom of Information Act), to the information sought.

As to the second point for reversal, we find no merit. Appellants sought to have Subpoenas Duces Tecurn served on Cole and Vorsanger requiring them to appear with all rules and regulations pertaining “to the physical and financial accounting for football tickets” for the years heretofore mentioned. It is difficult to determine from the record just what action was taken by the trial court. An order had been signed directing the mentioned individuals to bring such records, but appellants say that the court sustained objection to the subpoenas being issued, and refused to order appellees to produce the rules and regulations described in the subpoenas. At any rate, discussion of this point would be academic since the testimony reflects that there are no such written rules and regulations.

Affirmed.

George Rose Smith, J., not participating.

      “Trial court should be affirmed on its dismissal of appellants’ petition.
      A. Jurisdiction is lacking because this is a suit against the state prohibited by Article 5, Section 20, Arkansas Constitution.
      B. Discretionary authority regarding these lists is constitutionally protected by Amendment 33, Arkansas Constitution.
      C. In the alternative, the Freedom of Information statute is inapplicable to the lists in issue.
      D. Plaintiffs made no showing of necessary interest to compel production of the lists.
      E. An action in nature of mandamus cannot be used to enforce alleged rights which are non-existent under Act 93 of 1967.
      F. Scope of judicial review of administrative action is limited.
      G. Appellants failed to sustain the burden of proof.”

      Perhaps, in view of the holding herein, it might be well to state that this category, “State Officials”, does not include Supreme Court Justices, who are not recipients of complimentary tickets.

      The record reflects that the court stated:
      "I very reluctantly signed those two orders. I left or let my reluctance be known to counsel for petitioner. I had no earthly idea what he wanted insofar as rules and regulations. If you have a little booklet that you call rules and regulations, bring it. I am going to deny your request at this time. They can produce it, that is, your witnesses. You can develop the facts in your inquiry; don’t go into it right now.”


author: George Rose Smith, Justice.

text:
    Philip PETRUS et al v. ARKANSAS IRRIGATION Company
    73-60
    499 S.W. 2d 60
    Opinion delivered September 24, 1973

      Macom, Moorhead ir Green, and Chas. A. Walls Jr., for appellants.

      John D. Thweatt and James M. Thweatt, for appel-lee.
   George Rose Smith, Justice.

For some 30 years the plaintiff-appellee, Arkansas Irrigation Company, has maintained a 6,000 acre reservoir in Prairie county, known as Peckerwood Lake. The company uses water from the reservoir in its own farming operations and sells water to neighboring rice farmers. The company does not own the entire bed of the lake in fee simple, but it does have flowage rights upon lands lying below 207 feet mean sea level.

The appellants, Philip and Joseph Petrus, are brothers whose farm lands are partly subject to the irrigation company’s flowage easements. In the fall of 1961 the Petrus brothers constructed levees to enclose about 20 acres of their land that was subject to the appellee’s flowage rights. The Petruses also installed a pump with an intake below the 207-foot line, enabling them to withdraw water from the reservoir. Whether the Petruses had a valid contract authorizing them to enclose the 20 acres and install the pump is the principal question in this case.

In 1964, the appellee brought this suit to require the Petrus brothers to remove the levees and the pump, to recover compensation for the Petruses’ use of the land within the levees for the growing of crops, and to recover compensation for water pumped by the Petruses from the reservoir. The taking of testimony was not completed until 1969; the Petruses’ attorney, J. B. Reed, died after the case had been submitted to the chancellor for decision. This appeal is from a decree in favor of the plaintiff upon all three causes of action asserted in the complaint. The appellants’ present attorneys did not participate in the trial proceedings.

According to the Petrus brothers’ testimony, they installed the levees and the pump under an oral contract with Dale Wiley; who was the appellee’s general manager for 18 years before his death in 1962. The precise terms of the asserted oral agreement are not in the record, because the chancellor sustained the appellee’s objection to that testimony. Although the appellants contend that the terms of the contract were admissible, there was no proffer of proof when the appellee’s objection was sustained. We are left to assume that the agreement simply authorized the Petruses to enclose and occupy the 20-acre tract and to pump water from the reservoir.

The irrigation company’s position all along has been that its manager, Wiley, had neither actual nor apparent authority to enter into the asserted agreement with thp Petrus brothers. Familiar basic rules governing the authority of a corporate manager are discussed by Fletcher in his Cyclopedia of the Law of Private Corporations (1969 rev.). In Section 667 the author states, the fundamental principle that such a manager has implied or apparent authority to make contracts “falling within the scope of the ordinary and usual business of the company.” Such an agent, however, has no authority to sell the company’s real estate, unless specially empowered to do so. § 687. Fletcher adds fhat it is a well-known rule that the manager of a corporation cannot give away its property. §689.

Applying the foregoing rules to the case at bar, we are of the opinion that the chancellor was right in concluding that Wiley did not have actual or apparent authority to make the asserted contract with the Petruses. Roger Crowe, the president of the corporation, testified that Wiley did not have that authority. The company’s first manager, Fricke, and its present manager, Downing, both testified that they would not have executed a contract for a period in excess of a year. There is no contrary testimqny with respect to Wiley’s actual authority.

With respect to Wiley’s apparent authority the record is equally favorable to the appellee. The irrigation company’s standard form of contract appears to have been a one-year contract for the sale of water from Peckerwood Lake. Wiley unquestionably had the power to execute those agreements; for, in Fletcher’s words, they fell within the ordinary and usual business of the company. There is no proof,. however, that Wiley ever entered into a contract remotely similar to that now asserted by the appellants. There was proof that Wiley employed the witness Hahn to clear 100 acres, but such an undertaking would be within the company’s ordinary business of impounding water. There was also testimony that Hahn discussed a $15,000 contract with Crowe, who said that Wiley had full authority to enter into it. There is,' however, no proof or proffer of proof of the terms of that contract, which may have been a routine one.

It is clear that the agreement now relied upon by the Petruses was not within the ordinary and usual scope of the irrigation company’s business. The Petruses testified that they were to have a perpetual right to occupy the 20-acre enclosure. We infer that they were also to have a perpetual right to pump water from the reservoir. There is no suggestion that the Petruses were to make any monetary payment for those valuable rights. Instead, the company’s inducement for making the agreement seems to have been some rather nebulous benefit from the accelerated drainage that would result from the construction of the levees. The appellee’s testimony indicates that such an acceleration was not really beneficial and could have been attained by the company itself at an expense of not more than $1,000. It is of course quite obvious that if the irrigation company made a practice of entering extensively into similar agreements by which the bed of its reservoir was released to others in perpetuity, with no financial return to the company, it would eventually be out of business.

We conclude that Wiley had neither actual nor apparent authority to make the contract. We need not discuss at length the appellants’ contention that the company ratified the contract by “inaction and silence.” Crowe testified that as soon as he noticed the Petruses’ enclosure, which was then complete or nearly so, he told them that Wiley did not have the authority to permit the encroachment and that it would have to be removed. The appellee took no affirmative action that could be regarded as a ratification of the agreement. It did fail to bring suit for more than two years, but during that delay there was no disadvantageous change of position on the part of the Petruses. A ratification might be found if it were shown that the irrigation company was knowingly receiving substantial benefits during the period of its inaction, as in Southern Elec. Corp. v. Ashley-Chicot Elec. Co-op, 220 Ark. 940, 251 S.W. 2d 815 (1952), but, as we have indicated, the weight of the evidence does not establish the appellee’s receipt of such benefits.

Two other points for reversal are argued. First, the chancellor, in addition to ordering the removal of the encroachments, awarded the appellee $4,450 as the fair rental value of the 20 acres during the appellants’ occupancy. The appellants are right in stating that the record contains no evidence fixing the rental value of the land. That part of the decree must be reversed.

Secondly, there is also no proof to support an award of $13,294.98 for the appellants’ consumption of water. That award was to be calculated at a specified percentage of the market value of the rice and soy beans grown on the lands that were watered. The market value and sale price of the crops were not proved, but the deficiency cannot be charged to the appellee. At the beginning of the trial the parties stipulated that the market value and sale price would “be submitted by the Defendants and become a part of the record.” Had Mr. Reed, the appellants’ trial attorney, lived, he would unquestionably have recognized his duty to complete the record. Unfortunately Mr. Reed died, and the appellants’ present attorneys, in taking the appeal, simply designated the entire record. In view of that designation there was no reason for the appellee’s counsel to be aware( of the deficiency until they received a copy of the appellants’ printed abstract and brief. Since the omitted proof was not available in the files of the trial court, the appellee could not have had it sent up pursuant 1 to a writ issued by this court. Ark. Stat. Ann. §§ 27-2129.1 and -2129.2 (Repl. 1962). We see no objection to counsel’s decision to explain the matter in their brief. In the circumstances justice requires that the cause be remanded so that the missing testimony may be supplied and a supplementary decree be entered.

Affirmed in part, reversed in part, and remanded.

Harris, C.J., not participating.