author: Frank Holt, Justice.

text:
    James C. WRIGHT v. STATE of Arkansas
    CR 80-90
    603 S.W. 2d 408
    Supreme Court of Arkansas
    Opinion delivered September 2, 1980

      E. Alvin Schay, State Appellate Defender, by: Jack Kearney, Deputy Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of first degree escape in violation of Ark. Stat. Ann. § 41-2810 (Repl. 1977) and, as a habitual criminal, received a sentence of fifteen years’ imprisonment. Nine months previously, he was convicted of aggravated robbery. We affirmed. Wright v. State, 267 Ark. 264, 590 S.W. 2d 15 (1979).

Appellant first asserts that the trial court erred in denying his motion for commitment to the state hospital for a mental examination based on his insanity plea. He cites Ark. Stat. Ann. § 41-605 (Repl. 1977) as being mandatory that he be examined there. He overlooks, however, that portion of the statute which provides an alternative; i.e., the court is empowered to direct that the defendant be examined by a psychiatrist at a local regional mental health center or the court may appoint at least one qualified psychiatrist to make an examination and report on the defendant’s mental condition. Appellant, at his request shortly after the alleged offense, was examined by a psychiatrist from a local mental health center pursuant to the court’s order. Thus, it clearly appears there was compliance with the statutory requirement as to a mental examination. Further, the record shows that 4 days prior to the trial, the court authorized, as requested by appellant, that he be seen again by the same psychiatrist. Although the court specifically stated that if appellant encountered any problems, he was to advise the court, it appears that appellant did not avail himself of the additional authorized examination.

Even so, appellant argues that no report was submitted as a result of his examination and, therefore, there was noncompliance with the statute. According to the examining psychiatrist, the report had been misplaced. The issue of a nonexistent report appears to be raised for the first time on appeal and, therefore, we do not consider it. Houston v. State, 266 Ark. 257, 582 S.W. 2d 958 (1979); see also Bell v. State, 269 Ark. 85, 598 S.W. 2d 738 (1980).

Neither can we agree with appellant’s argument that he was denied his constitutional right to a speedy trial. Appellant asserts that since he was not tried within 9 months, citing Rule 28.1(a) of the Arkansas Rules of Criminal Procedure, he is entitled to an absolute discharge. We have recently held that the accused who is committed to prison on another offense, as here, has the “right to be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding such periods of necessary delay as are authorized in Rule 28.3. See Rule 28.1 (b).” Matthews v. State, 268 Ark. 484, 598 S.W. 2d 58 (1980); Wade v. State, 264 Ark. 320, 571 S.W. 2d 231 (1978). The terms of the Boone County Circuit Court begin on the third Monday in March and the third Monday in September. Ark. Stat. Ann. § 22-310 (Repl. 1962). The term in which a defendant is charged is not counted in computing the terms. The expiration of full terms is required. Matthews v. State, supra. and Wade v. State, supra. The first full term after appellant’s arrest on November 10 was the term commencing in March, 1979, and the second was that commencing in September, 1979- Therefore appellant’s trial, being in October, 1979, was well within the statutory limit.

Even so, we still consider whether appellant’s trial meets the constitutional requirements for a speedy trial as enunciated in Barker v. Wingo, 407 U.S. 514 (1972). In Curan v. State, 260 Ark. 461, 541 S.W. 2d 923 (1976), we recognized the Wingo factors to be considered: the length of delay, the reason for delay, the defendant’s assertion of his right and any prejudice to the defendant from the delay. Approximately 11 months had elapsed from the date of appellant’s arrest on the escape charge and 9 months from the date of appellant’s trial and conviction on the robbery charge. We do not consider the delay as being unreasonable considering the numerous pretrial motions made by the defendant, the fact he was tried in the interim on the robbery charge, and appellant’s nonassertion of his right to a speedy trial until apprximately a week before his trial. A delay in bringing appellant to trial is not per se prejudicial to him. Barker v. Wingo, supra. No prejudice has been shown, and we hold the appellant was not denied his constitutional right to a speedy trial.

Appellant next contends that the trial court failed to conduct a hearing on his competency, as required by Ark. Stat. Ann. § 41-605 and 41-606 (Repl. 1977). The court did hold a hearing 3 days before trial to determine appellant’s competency to stand trial and assist his counsel. The court inquired as to what evidence appellant wanted to present at the hearing as to his competency. Defense counsel’s first statement to the court, after reminding the court of the outstanding motion, was that appellant “does have a psychiatric history and I would like to put some evidence on — Mr. Wright’s [appellant’s] testimony — as to that and ask for a ruling by the Court.” Appellant testified. It appears appellant made no request for the local psychiatrist, who had previously examined him, to testify at the competency hearing; nor was there any objection to the absence of that psychiatrist’s report based on his previous examination. After the hearing, the court ruled the appellant was competent to stand trial, observing that the court had had two hearings which, to some extent, developed the evidence regarding appellant’s competency. The court also said that it had observed the defendant and referred to the transcript bearing on appellant’s competency at his robbery trial, at which the court had presided, 9 months previously. It appears there was no objection. In the circumstances, appellant has not demonstrated any prejudicial error in the conduct of the competency hearing here.

Neither do we agree that the court erred in refusing appellant’s motion to compel attendance of numerous witnesses to support his defense of insanity and in denying appellant’s motion for a deposition and other written materials. This argument was presented and rejected in Wright v. State, supra, on many of the items asserted here. Again, we find no abuse of discretion by the court’s ruling.

We have considered appellant’s motion to file a pro se brief to supplement the brief and reply brief filed by his attorney. This motion is denied inasmuch as it was not timely filed. Further, we find no merit in his contentions.

Affirmed.


source: Caselaw Access Project

author: Richard L. Mays, Justice.

license: Public Domain

text:
    William Leslie BOONE v. STATE of Arkansas
    CR 80-117
    603 S.W. 2d 410
    Supreme Court of Arkansas
    Opinion delivered September 2, 1980

      E. Alvin Schay, State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   Richard L. Mays, Justice.

Appellant, William Leslie Boone, appeals from a judgment revoking his suspended sentence, contending that his revocation hearing was not timely held and that proper credit was not given for the time he had Spent in jail. We affirm the judgment with the modification that appellant be given credit for 114 days against his five year sentence.

In 1978, after incarceration for 114 days, appellant pleaded guilty to a charge of false imprisonment and received a suspended sentence of five years. On July 17, 1979, appellant was arrested upon charges of second degree forgery (later reduced to criminal impersonation) and third degree escape. He pleaded guilty to the escape charge on July 19, 1979 and to the reduced charge of criminal impersonation on September 11, 1979, and received 90 day sentences to be served concurrently. While appellant was serving the 90 day sentence, the prosecuting attorney filed a petition for revocation of his five year suspended sentence, and a bench warrant was issued on August 10, 1979, for appellant’s arrest. Although the bench warrant was never served, a revocation hearing was held on October 26, 1979 in which appellant’s five year suspended sentence was revoked.

First, appellant contends that his revocation hearing was not held within 60 days of his arrest as required by statute. See Ark. Star. Ann. § 41-1209 (2) (Repl. 1977). Since appellant was already incarcerated on August 10, 1979, when the warrant of arrest on the revocation petition was issued, he contends that the 60-day time limit for his revocation hearing should begin to run from that date since he was “constructively under arrest.” Notwithstanding appellant’s theory of “constructive arrest,” we have consistently held that the statutory 60-day limitation for a revocation hearing begins to run from a defendant’s arrest for violation of the terms of suspension, not from his arrest for other charges. Walker v. Srtate, 262 Ark. 215, 555 S.W. 2d 228 (1977); Blake v. State, 262 Ark. 301, 556 S.W. 2d 427 (1977); Lincoln v. State, 262 Ark. 511, 558 S.W. 2d 146 (1977). Since the purpose of the limitation period is to assure that a defendant is not detained in jail for an unreasonable time awaiting his revocation hearing, the limitation loses its meaning when he is already serving time on another charge.

Second, appellant contends that he was entitled to credit on his five year sentence for the period of incarceration in 1978 which preceded his guilty plea to false imprisonment and for time spent in 1979 serving his sentence for criminal impersonation. Our statute requires that a defendant held in custody for conduct that results in a sentence to imprisonment be given credit for the time spent in custody against his sentence. Ark. Stat. Ann. § 41-904 (Repl. 1977). Jail time credit is, therefore, appropriate when a defendant’s pretrial incarceration is due to his inability to make bail, but is inappropriate for time served in connection with wholly unrelated charges based on conduct other than for which the defendant is ultimately sentenced. See Walker v. State, 263 Ark. 485, 565 S.W. 2d 605 (1978). Although we agree — and the state concedes — appellant should have received credit on his revoked suspended sentence for the 114 days he spent in custody awaiting trial on the 1978 charge that resulted in the five year suspended sentence, appellant is not entitled to credit for jail time spent for the crime underlying the revocation of the suspended sentence.

Affirmed as modified.


author: Ernie E. Wright, Chief Judge.

text:
    HALSTEAD INDUSTRIES and EMPLOYERS INSURANCE OF WAUSAU v. Tommie Lee JONES and AMERICAN MUTUAL LIABILITY COMPANY
    CA 80-125
    603 S.W. 2d 456
    Court of Appeals of Arkansas
    Opinion delivered September 3, 1980

      Kay & Donovan, for appellant.

      Sam Boyce, for appellee, Jones.

      Penix, Penix & Mixon, for appellee, American Mutual.
   Ernie E. Wright, Chief Judge.

This is an appeal by Halstead Industries, the employer and its insurance carrier, Employers Insurance of Wausau, from a judgment of the circuit court affirming a total and permanent disability award by the Workers’ Compensation Commission in favor of appellee Tommie Lee .Jones and finding the disability resulted from the claimant’s October, 1976 injury.

The claimant suffered a compensable back injury in the course of his employment with Halstead Industries when he fell on October 14, 1976. He was referred to a local physician, Dr. Young, and returned to work in about ten days. He worked regularly thereafter until January 3, 1977, when he missed three days work, and except for one day thereafter he worked regularly until February 17, 1977, when fee experienced at work an onset of severe back pain extending down into his legs and he was unable to continue working. The pain in lairs back and legs persisted and he was unable thereafter to resume work.

Appellant Wausau was the insurance carrier until December 1, 1976, when appellee American Mutual Liability assumed coverage for the employer. Wausau paid benefits after the October, 1976 injury, but denied liability for any unpaid benefits.

Claimant was born in July, 1917, and completed the third grade in school. He worked 33 years at common labor helping to drill rice wells and worked for appellant Halstead Industries some 9 years. He is unable to read and write other than to sign his name. He fell and injured his back at work on October 14, 1976. Dr. Young’s report reflects the opinion claimant had a compression fracture of the vertebra or a ruptured lumbar disc. He was treated conservatively and returned to work some ten days later. He was later referred to Dr. Robertson, a Memphis neurosurgeon, who saw appellant on January 28, 1977. Dr. Robertson’s reports show claimant complained of experiencing pain while working and the pain was made worse by twisting, lifting, bending or coughing. He was fitted with a low back support and put on medication. Dr. Robertson thought he was suffering from a lumbar sacral strain. Dr. Robertson saw claimant again on February 18, 1977, and found he had slight back spasms with tenderness at L-5. He was still wearing his back support and the doctor prescribed further medication. Claimant was again seen by Dr. Young on March 21, 1977, for severe leg pain, and at that time he was able to walk only with a cane. The evidence shows claimant was having no problem with his back or legs prior to the October, 1976 injury, and that he is now unable to do the normal work about his home and yard. He testified Dr. Robertson suggested he have back surgery but he didn’t feel he wanted it.

The claimant was seen by Dr. Joe K. Lester, an orthopedic surgeon of North Little Rock in April, 1977, and his report included the following:

'*** At the time of this examination, he came in complaining of back pain with extension into the sciatic course of both lower extremities. *** / ' / 1
Physical examinations reveals a 59-year old male with orthopedic examination limited to the low back' and lower extremities. *** ■ '
Mr. Jones sustained a lifting injury in the course of his gainful employment. His clinical course has been consistent with lumbar disc injury. X-ray studies show marked degenerative disc disease obviously pre-dating for a long time the accident in which he was involved. It is felt that this man probably reached maximum physical improvement at or about the time he was advised to have surgery by the physician in Memphis in the absence of surgery. This examiner certainly doesn’t concur at the age of 59 that he is too old for surgery as personally we have operated people well into their 70’s with a fair degree of success. It is felt that he does have 15% impairment of the body as a whole. With this degree of physical impairment and the extent of his degenerative disc changes, he is limited to the type of gainful employment he can attempt.

The Commission affirmed the decision of the administrative law judge which found claimant totally and permanently disabled and determined the appellant Wausau was solely liable for benefits due claimant. The opinion affirmed by the Commission referred to the pain experienced by claimant on February 17, 1977, as a re-injury or aggravation of an injury. On appeal the circuit court remanded the case to the Workers’ Compensation Commission for clarification of its findings. The Commission thereafter isued a further opinion containing the following:

For the purposes of the Courts directive, we note the . oversight of conflicting terms found in the Administrative Law Judge’s Opinion which left the impression that the claimant, on February 17, 1977, suffered either a re-injury or aggravation of his previous injury of October 14, 1976. Further, although we affirmed, in its entirety, the Award set out in the Administrative Law Judge’s April 14, 1978, opinion, we felt that the February 17, 1977, incident is appropriately described as a recurrence of the pre-existing condition which resulted from the acknowledged compensable injury of October 14, 1976. In accordance with existing Arkansas case law, we were further of the opinion that there was no basis, in fact, for apportionment of liability between the carriers and that the entire liability should be borne by Respondent Carrier No. 1, Employer Insurance of Wausau.

After the modified findings of the Commission were made the circuit court affirmed the modified findings and award of the Commission.

Appellants first argue the Commission erred in finding Employers Insurance of Wausau liable for the claim in its entirety.

In support of this point appellants argue claimant sustained a new injury in February, 1977, after Wausau was no longer the insurance carrier, and that it is not liable for benefits payable because of the new injury. Appellants point out the modified findings by the Commission were made without any additional evidence being submitted, and that the findings are in conflict with the findings of the administrative law judge which the Commission had previously adopted. Appellants further point out the original award was inconsistent with the original findings.

The Clarification of Opinion issued by the Commission, after remand for clarification of findings, makes it clear the Commission found claimant suffered a recurrence of his preexisting condition arising out of his October 14, 1976 injury. The opinion reaffirmed its prior conclusion the entire liability should be borne by Wausau.

The issue on appeal before this court is whether there is substantial evidence to support the award of the Commission, and both the circuit court and this court must view the evidence in the light most favorable to the findings of the Commission. While there are conflicts in the evidence, it is the province of the Commission to weigh the evidence, and after a careful review of the record we conclude there is substantial evidence to support the findings and award of the Commission. Mass Merchandisers, et al v. Harp, 259 Ark. 830, 536 SW 2d 729 (1976).

When the symptoms of a back injury persist and culminate in a second disability without the intervention of a new injury the second disability is properly classified as a recurrence of the first injury, and the insurance carrier at the time of the original remains liable. Burks, Inc. v. Blanchard, 259 Ark. 76, 531 SW 2d 465 (1976).

Appellants further argue the finding that claimant’s injury of October 14, 1976, resulted in total permanent disability is not supported by substantial evidence.

The evidence shows claimant can walk only with a cane and is unable to do ordinary work about his home. Dr. Lester’s report evaluates claimant’s physical impairment as 15 percent to the body as a whole. When his physical impairment is considered together with his age, lack of education and wage loss factor, we conclude there is substantial evidence to support the award of total permanent disability. Glass v. Edens, 233 Ark. 786, 346 SW 2d 685 (1961).

Affirmed.

Penix, ]., not participating.


text:
    Gaylon Hardy BREEDEN v. STATE of Arkansas
    CA CR 80-19
    603 S.W. 2d 459
    Court of Appeals of Arkansas
    Opinion delivered September 3, 1980

      Guy H. Jones, Phil Stratton, Guy Jones, Jr. and Casey Jones for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Chief Judge.

The appellant Gaylon Hardy Breeden was charged by information in the Faulkner Circuit Court with second degree battery for violation of Ark. Stat. Ann. § 41-1602 (Repl. 1977) by feloniously causing physical injury to a law enforcement officer, Ronnie Joe Fowlkes, with the purpose of preventing him from acting in the line of duty. A jury trial resulted in his conviction for the lesser included offense of third degree battery, a Class A misdemeanor under § 41-1603, and a nine months jail sentence was imposed.

He appeals from the judgment asserting for reversal four points which are hereinafter separately discussed.

First, appellant contends various remarks of the trial court were prejudicial to him.

Early in the trial during cross examination of the prosecuting witness Fowlkes, city marshal of the town of Enola, defense counsel inquired whether he had requested the sheriff to make him a deputy. The court sustained the objection to the question after defense counsel stated the purpose of the question was to test the witness’ credibility. Defense counsel moved for a hearing in chambers to make a record as to the court’s ruling. The court and attorneys proceeded to chambers where statements were made by the attorneys and trial judge as follows:

MR. JONES: That many questions expected to be made by counsel for defendant in this cause will go solely to the credibility of this witness, and upon beginning this line of questioning the trial judge instructed the counsel for defendant that the questions regarding and going solely to the credibility of this witness would not be permitted.
THE COURT: That’s not the truth. That comes under the heading of a goddamn lie. That’s not what I said at all.
MR. COURTWAY: Judge, it’s my understanding of the Court that the objection I made was only to Senator Jones making references to prior attempts of Mr. Fowlkes to be made a deputy sheriff of Faulkner County.
THE COURT: You’ve gotten your answer out of the witness; don’t belabor it. The witness answered your question.
MR. JONES: It was my absolute understanding — I made the remark to the Court, “these questions go solely to the credibility of the witness,” and the Court sustained the objection.
THE COURT: I did. You asked the man if he made application and he said no.
MR. JONES: I thought he said he may have.
THE COURT: All right. You’ve got your answer.
MR. JONES: But I was going into other fields of credibility, and it’s my understanding the Court said no.
THE COURT: You know better than that. I don’t believe a thing you’re telling me right now. I know you can attack the credibility of a witness, and you know you can attack the credibility of a witness.
MR. JONES: But in this case I thought the statement had been made I couldn’t go into the questions.
THE COURT: I don’t believe you thought that. You can attack the credibility of a witness. I’m going to pass on each one as they come.
MR. JONES: I think, Judge, the record should show that I withdraw any part of this motion — all and any part of it.
THE COURT: You’re going to withdraw it?
MR. JONES: Yes, sir.
THE COURT: All right.

We conclude the trial court was correct in sustaining the objection to the question. The question did not involve an issue in the case and the subject had not been raised in the testimony in chief. Therefore, the credibility of the witness could not be attacked by an inquiry into an irrelevant area. Although the remarks occurred outside the presence of the jury and it is not shown that appellant was prejudiced, we make it clear that even though the trial judge was correct in his ruling, the intemperate remarks made by the trial judge to counsel for appellant were highly inappropriate and have no proper place in a judicial proceeding.

Appellant argues certain other comments made by the trial judge to counsel for appellant in the presence of the jury were prejudicial. While defense counsel was examining a defense witness, Robert Hardin, he inquired when the witness had talked to the prosecuting attorney about the case and upon the witness answering, “Yesterday,” defense counsel inquired when he had talked to the prosecuting witness Fowlkes about the case. The witness answered, “Yesterday evening”, and stated they talked about how the fight started and went. Defense counsel then inquired whether Fowlkes agreed with the witness’ version of the incident out of which the charges arose. Upon the witness answering that some of it did; and some didn’t, the following occurred:

THE COURT: I’m going to stop you right there, Mr. Jones. I’m going to admonish the jury that any good attorney is going to discuss with witnesses on both sides of the case before it’s heard what their testimony is likely to be in the courtroom.

I feel like an effort is being made here to use the normal practices of an attorney to make it appear as if something improper is going on and it is not. And I’m going to tell you, Mr. Jones, to get off that particular topic.
MR. JONES: Judge, what about the prosecuting witness? Are you including him in the attorney relationship?
THE COURT: I assume that the State of Arkansas must deal through a prosecuting witness on the commission of any crime or the alleged commission of a crime.
MR. JONES: So you do not — your order is that I refrain from going into any contacts Mr. Fowlkes may have made with witnesses.
THE COURT: If, in fact, there is something pertinent to the issue at hand, you may bring it out.
MR. JONES: Judge, the only way I can is through these witnesses.
THE COURT: The fact that the other side has talked to your witness, Mr. Jones, is standard procedure getting ready for the trial of the case. Now I want that understood. It’s improper for us to go into it at trial time, and I want to get onto something that’s pertinent to this case.
MR. JONES: I must, out of duty to my client, I will have to save my exceptions to the ruling of the Court about discussions with witnesses and what was said by others than counsel.

Unquestionably the trial judge has authority to exercise reasonable control over the trial to the end that it proceed efficiently and in keeping with the law and ends of justice. However, such control must not be exercised in such manner as to express an opinion concerning a fact in the presence of the jury. Article 7 §23, of our constitution prohibits a judge from charging a jury with regard to matters of fact. The comment of the judge in the presence of the jury, “I feel like an effort is being made here to use the normal practices of an attorney to make it appear as if something improper is going on and it is not, and I’m going to tell you, Mr. Jones, to get off that particular topic,” constituted an expression of the trial judge of his personal opinion relating to factual matters and the motives of defense counsel in asking certain questions. We do not suggest that it is erroneous for the trial judge to inform or instruct the jury that the law does not prohibit attorneys from talking to witnesses on the opposing side nor prohibit witnesses on opposing sides from talking to each other prior to trial. The error here requiring reversal is the trial judge expressing his personal opinion in such a way as to constitute a comment on the facts and on the motives of defense counsel. Dunfee et al v. State, 242 Ark. 210, 412 SW 2d 614 (1967); Walker v. State, 253 Ark. 676, 488 SW 2d 40 (1972).

Appellant next contends for reversal the court erred in overruling appellant’s objection to the prosecuting witness remaining in the courtroom during the trial after he had testified and after the court had placed all witnesses under the rule pursuant to motion by the state.

Rule 615 of the Uniform rules of Evidence reads as follows:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

As pointed out in Chambers v. State, 264 Ark. 279, 571 SW 2d 79 (1978), the rule uses the word “shall” in requiring the exclusion of witnesses from the courtroom at the request of a party and must be construed as mandatory. The rule makes an exception as to a person whose presence is shown by a party to be essential to the prosecution of his cause. There was no assertion or showing by the state the prosecuting witness was essential to the prosecution of its case. The prosecuting attorney only commented, “Your Honor, we are entitled to have the prosecuting witness.”

The Attorney General states in his brief, “The appellee does not question that the prosecuting witness should have been excluded under the rule.” However, appellee argues the prosecuting witness was the first witness, all other witnesses were then excluded from the courtroom, the witness heard no evidence that could have influenced his testimony, and the error was harmless. In oral argument appellant contends it was unfair and prejudicial to allow the young witnesses for appellant who were residents of the community where the prosecuting witness is the city marshal to be confronted by the officer while testifying, and that his presence may well have affected their testimony.

The established rule is that error is presumed to be prejudicial unless it is affirmatively shown otherwise. We are unable to say appellant under the circumstances was not prejudiced by the presence of the prosecuting witness in the courtroom, and therefore reverse. Chapman v. State, 257 Ark. 415, 516 SW 2d 598 (1974).

Appellant contends the court erred in overruling the appellant’s motion to dismiss on the grounds of double jeopardy and collateral estoppel.

The argument is based on the circumstances that appellant had been convicted in municipal court of aggravated assault, a misdemeanor, upon State Trooper Vickers, under Ark. Stat. Ann. §41-1603. The conviction in municipal court arose out of an occurrence on the same date as the alleged assault upon Officer Fowlkes, but at another place. Appellant’s contentions are grounded primarily on the fact that Officer Fowlkes had testified in the municipal court case as to the condition and actions of the appellant in the earlier incident involving Fowlkes.

After carefully examining the record we conclude it does not support appellant’s contention the trial in the circuit court placed appellant upon trial for the same conduct for which he was tried in municipal court. He was convicted in municipal court for a battery against State Trooper Vickers. The trial in circuit court was for an alleged assault upon Officer Fowlkes at an earlier time and a different place. In King v. State, 262 Ark. 342, 557 SW 2d 386 (1977), the court stated the rule as follows:

It is well settled that the test, as to whether offenses constitute a continuing offense, is whether the individual acts are prohibited or the course of action which they constitute. If the former, as here, then each action is punishable separately.

It is clear from the record the alleged assault upon Officer Fowlkes would be an act punishable separately and independently of any subsequent assault upon Officer Vickers at a different place.

Finally, appellant contends the court erred in failing to give appellant’s requested instruction number 1, AMCI 2804, which concerns the burden upon the state to prove beyond a reasonable doubt the appellant knowingly employed physical force against a law enforcement officer engaged in the performance of his duties. AMCI 2804 is an appropriate instruction to be given incident to a prosecution for violation of Ark. Stat. Ann. §41-2804, Interference with a Law Enforcement Officer. Appellant was not charged with violation of §2804 nor was he convicted of that offense. Appellee’s brief shows the court properly instructed the jury as to the burden of proof and elements required before the jury could convict under §41-1602, battery in the second degree, and lesser included charges. The jury found the appellant guilty only of battery in the third degree which does not require as an element any offense against a law enforcement officer. We find no error in the refusal of the court to give appellant’s requested instruction.

Reversed and remanded.


author: Steele Hays, Judge.

text:
    Warren BRADFORD v. ARKANSAS STATE HOSPITAL and ARKANSAS WORKERS’ COMPENSATION COMMISSION
    CA 80-48
    603 S.W. 2d 896
    Court of Appeals of Arkansas
    Opinion delivered September 3, 1980

      Paul D. Capps oí Thurman & Capps, Ltd., for appellant.

      H. Oscar Hirby, for appellees.
   Steele Hays, Judge.

Appellant seeks to reopen a joint petition settlement of a Workers’ Compensation claim entered into many years ago. The Commission, in a divided opinion, agreed with the Administrative Law Judge that the Commission did not have jurisdiction to reopen the claim. The Commission was affirmed by the Circuit Court and the case is before us on appeal. We, too, affirm the Administrative Law Judge, the Commission and the Circuit Court.

Claimant experienced a heart attack on February 21, 1966, while employed by the Arkansas State Hospital. In June, a claim was filed with the Workers’ Compensation Commission asserting that claimant’s attack was brought on by his work. A joint petition was filed, presumably in November, 1966, alleging that the parties had agreed to a compromise, the claimant to receive $11,390.00, attorney’s fees and “reasonable future medical expenses.” The joint petition in the record is undated, unverified, and bears only the signature of the claimant. Spaces for the signature of claimant’s attorney, respondent’s attorney, and a notary public are left blank. There is confusion as to the claim number in that the original claim bears one number, a different number is typed on the joint petition and order and yet a third number is underlined in pen or pencil on both.

On November 7, 1966, an order of a Referee of the Workers’ Compensation Commission was filed, reciting that the parties were seeking approval of their joint petition on the basis of $11,390.00 to the claimant, $1,501.84 to his attorney, and $621.84 itemized among the hospital, physician and pharmacist. The order stated that claimant had testified at a hearing on November 4, that he understood the settlement was final and the claim “closed forever” and further reciting that the Commission would have no jurisdiction over claimant’s injury after payment of the stated sums. Nine and one-half years later, on May 24, 1976, an Administrative Law Judge order appears in the record, stating that the claimant sought to have the earlier joint petition order set aside because the settlement intended that the employer pay future medical expenses, whereas the joint petition order failed to so provide. No petition, motion or other pleading accompanies the order, so the method by which the claimant moved to vacate the order is not revealed to us. The order states that the claimant testified before the Administrative Law Judge that he would not have entered into the settlement but for payment of future medical expenses; he further testified that “shortly after” the 1966 hearing he submitted medical bills to his employer and payment was refused.

Referring to claimant’s contention that a fraud was perpetrated in connection with the joint petition settlement, the Administrative Law Judge stated that “even if’ fraud had occurred the claimant had waived any recourse by waiting nine and one-half years after becoming aware of the refusal of his employer to pay medical bills. The Administrative Law Judge concluded that the Commission did not have jurisdiction to set aside the joint petition order.

Claimant appealed to the Commission which affirmed the Administrative Law Judge. The Commission acknowledged the discrepancy between the joint petition and the order respecting future medical bills, pointing out, however, that under the law, a joint petition settlement must be final in all respects, which the claimant and his attorney knew, or should have known. The Commission also noted that inasmuch as the order excluded future medical bills, the Commission concluded that claimant and his attorney had agreed to the terms of the order. The Commission found that a copy of the joint petition order had been immediately furnished to claimant and his attorney and concluded that proper procedures of the Commission had been followed in the joint petition settlement and that jurisdiction over the case had been lost. We fully agree with the findings and conclusions of the Commission, as did the Circuit Court.

The Arkansas Workers’ Compensation Act provides for joint petitions in Section 19 (1), Ark. Stat. Ann. § 81-1319 (1947):

Section 19 (1), Joint Petition: Upon petition filed by the employer or carrier and the injured employee, requesting that a final settlement be had between the parties, the Commission shall hear the petition and take such testimony and make such investigations as may be necessary to determine whether a final settlement should be had. If the Commission decides it is for the best interests of the claimant that a final award be made, it may order such an award that shall be final as to the rights of all parties to said petition, and thereafter the Commission shall not have jurisdiction over any claim for the same injury or any results arising from same. If the Commission shall deny the petition, such denial shall be without prejudice to either party. No appeal shall lie from an order or award allowing or denying a joint petition. (Emphasis supplied.)

The Arkansas Supreme Court has not addressed directly whether a joint petition order may be vacated if fraud is present, and inasmuch as the claimant has not argued that point on appeal, we regard the issue as abandoned. W. Shanhouse & Sons v. Sims, 224 Ark. 86, 272 S.W. 2d 268 (1954).

When fraud is removed as a consideration in this appeal, the only elements remaining are claimant’s contention that he would not have entered into the settlement had he known that future medical expenses would not have been paid and .the unexplained anomaly between the joint petition and the joint petition order.

The first element may be readily disposed of. Whatever the claimant may have understood at the onset regarding future medical expenses even up to the point he (alone) signed the joint petition, it is thoroughly appropriate to conclude that he learned no later than the hearing on November 4 that if he wanted the $11,390.00 and other benefits, he could not, under the law, enter into a settlement that left future medical expenses open. We think the Commission’s finding that the claimant understood this and agreed to it is fully justified and reasonably inferable from the record when considered in its entirety. The Commission noted that copies of the order were immediately furnished to claimant and his attorney and any doubts which claimant may have harbored concerning the finality of the settlement are amply cured in the face of an inordinate delay of well over nine years, notwithstanding his awareness that payment of medical bills had been refused by his employer.

Unfortunately, the discrepancies between the joint petition and the joint petition ordered respecting future medical payments is not so easily resolved. However, a number of observations are relevant and in the final analysis the same reasoning as above undermines the claimant’s argument on this point as well as the former. The confusion as to the several numbers ascribed to this claim, but more importantly the absence of other signatures and verification, nourish a sizeable doubt that the joint petition in the record was in actuality the one presented to the Referee. We consider it most unlikely that the Referee would have accepted, and acted upon, an undated, unsigned and unverified “joint petition,” which would fail to meet the requirements of Section 19 as well as the rules of the Commission in such matters. Whether a proper joint petition was submitted to the Referee or, whether the matter was simply dealt with by sworn testimony at the hearing itself must remain a matter of conjecture, as the lapse of time has destroyed the possibility of a solution. It is significant that the loss occasioned by the lapse of time rests with the claimant. It is enough, we feel, that the Commission found that the proper procedures had been followed in 1966 and that the claimant knew the settlement to be final in all respects. The Commission is in a better position than we to determine whether its normal operating procedures are followed and we are left to consider only that evidence which is most favorable to the Commission’s findings and to view, weigh and interpret it in the light most favorable to those findings. Barksdale Lumber Company v. McAnally, 262 Ark. 379, 557 S.W. 2d 868 (197.7). Indeed, we are required to give the strongest probative force possible in favor of the Commission’s action. Holland v. Malvern Sand and Gravel Company, 237 Ark. 635, 374 S.W. 2d 822 (1964).

The. claimant relies heavily on Hartz Seed Company v. Thomas, 253 Ark. 176, 485 S.W. 2d 200 (1972), holding that the Commission did not lose jurisdiction where it failed to conduct a hearing on the joint petition order actually entered. In Hartz, an Administrative Law Judge took a joint petition under advisement, presumably to weigh the best interests of the claimant against the proposed settlement. While the matter was in this posture, a second joint petition was filed increasing the award to the claimant by the sum of $1,705.00. The opinion states that “An amendment having the effect of increasing the indicated payment was then made with the approval of the carrier, but without notice to the claimant.” The facts of the case reflect that no hearing was conducted other than the one previously referred to and the Supreme Court properly affirmed an order of the Circuit Court holding that the Commission did not lose jurisdiction where no hearing was held on the joint petition settlement as finally concluded. Thus, Hartz stands for the rule that the requirement of a hearing is mandatory in order for jurisdiction to be lost. It is notable that in the case before us it is undisputed that a hearing was conducted and that the claimant was present and testified. Additionally, it is notable that in Hartz the claimant acted in a timely manner to challenge the failure to conduct a hearing.

It does not follow from the decision in the Hartz case that a claimant may enter into a joint petition settlement, have the use and benefit of over $16,000.00 over many years and then set aside such a settlement upon the dubious allegation that he didn’t understand it to be final. We think Cook v. Brown, 246 Ark. 11, 436 S.W. 2d 482 (1969), more nearly governs the case before us. In Cook, the claimant was injured in August of 1965. In September, 1966, claimant, his employer and the carrier petitioned for approval of a lump sum settlement of $2,329-95 based on a 15% permanent, partial disability, which was approved by joint petition order. Xess than a year later, the claimant sought to reopen the claim, contending that his disability had increased to 30% and that he was incapable of understanding the joint petition and thought his claim would remain open. The Supreme Court affirmed an order of the Commission that it was without jurisdiction to reopen the case:

No statute similar to §81-1319 (1) from any jurisdiction has been called to our attention. We do find an Illinois statute which is comparable. Smith-Hurd Ann. St. Ch. 47-48, §156, par. (h), precludes review by the commission of any lump sum award or settlement contract approved by it. That statute has been held to estop review by the commission of such a settlement even for alleged fraud. Michelson v. Industrial Commission, 31 N.E. 2d 940 (1941). A somewhat similar statute in Oklahoma has been likewise interpreted. Gibbins v. Indian Electric Cooperative, 219 P. 2d 634 (1950); Indian Territory Illuminating Oil Co. v. Ray, 5 P. 2d 383 (1931). In both jurisdictions the claimants were referred to the courts for relief. We cite those cases only to show that other jurisdictions are extremely cautious about giving to their commissions the power to review their own joint and final awards. Their reasoning is to the effect that the statutes are so clear that to hold otherwise would be to legislate by judicial pronouncement.
Our statute is unambiguous. It is fortified by the wording of Ark. Stat. Ann. §81-1326 (Repl. I960). That section provides for the modification of awards generally; however, it specifically excepts from its provisions those awards made under §81-1319 (1).
We hold that neither the statute nor any inherent powers of the commission, considering the state of claimant’s pleadings, would justify its reopening of the joint settlement.

Conceding entirely that one avowed and worthwhile objective of Section 19 (1) is to protect the claimant in joint petition settlements, it should be noted that there is another objective of Section 19, also to be valued, and that is the achieving of finality where the parties have reached a fair compromise — hence, the proviso that the Commission will have no further jurisdiction. In the case before us, the claimant was well and ably represented and, by all indications, well served by the compromise itself. To hold that the Commission could recover jurisdiction nearly ten years after a settlement not even alleged to be unfair, on so slender a ground as here advanced, would, we believe, be a patent injustice.

Affirmed.


text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. Jerry TUGGLE and POWELL BROS. FARMS, INC.
    CA 80-84
    603 S.W. 2d 452
    Court of Appeals of Arkansas
    Opinion delivered September 3, 1980

      Samuel N. Bird of Williamson, Ball & Bird, for appellant.

      Bill R. Holloway of Holloway & Haddock, for appellees.

      Jerry E. Mazzanti of Drew & Mazzanti, for appellee Powell Bros. Farms, Inc.
   Steele Hays, Judge.

This is a workers’ compensation case. Claimant, Jerry Tuggle, was an airplane pilot and was employed by Powell Brothers Farms, Inc., to fly an airplane over rice fields for the purpose of frightening off blackbirds. Powell Brothers Farms, Inc. carried workers’ compensation insurance on its farming operation.

On August 28, 1976, the plane crashed and claimant sustained an injury to his back. A claim was made for Workers’ Compensation benefits which the carrier denied on the basis that claimant was not an employee but an independent contractor. The carrier also denied that claimant was carried under the insurance policy, contending that coverage extended only to “farms, field crops and drivers.”

The Administrative Law Judge found that claimant was an employee of Powell Brothers Farms, Inc., that he was injured in the scope of his employment and that the employers’ workers’ compensation policy with the carrier did cover the claimant. The full Commission and Circuit Court affirmed the decision of the Administrative Law Judge. Respondent now brings this appeal.

The first point for reversal is that there is no substantial evidence to support the finding of the Workers’ Compensation Commission that claimant suffered a compensable injury within the scope of his employment with Powell Brothers Farms. We believe that the case of Purdy’s Flower Shop v. Livingston, 262 Ark. 575, 559 S.W. 2d 24 (1977) is dispositive of the issue. In Purdy, supra, the question on appeal was whether there was any substantial evidence to support the Commission’s finding that appellee Livingston was an employee of appellant Purdy when he was injured in a fall from a ladder. Livingston had been employed by Purdy to clean the carpets in the flower shop. Purdy furnished the equipment and supplies for the shampooing and instructed him on the mixing procedures. He was paid “by the hour.” When Livingston was injured, he was on a ladder hanging a wire for appellant.

In affirming a decision by the Commission that appellant was an employee, the Arkansas Supreme Court outlines factors to be considered in determining whether an employer-employee relationship exists: (1) the right to terminate Livingston’s employment before the job was finished; (2) the amount of compensation being calculated on a time basis; (3) which party furnished materials and equipment; (4) and the employer’s ability to exercise some degree of control of the manner of doing the work.

In the case at bar, the fact that Powell Brothers Farms, Inc., furnished the airplane, that it had the right to terminate the services of Jerry Tuggle at will, and that Jerry Tuggle was hired for wages were indicative of an employer-employee relationship. Purdy’s Flower Shop, supra; Feazell v. Summers, 218 Ark. 136, 234 S.W. 2d 765 (1950). In determining the relationship between the employer and employee, the Workers’ Compensation Act is to be given a liberal construction in favor of employee and any doubts are to be resolved in his favor. Feazell v. Summers, supra. In reviewing a decision of the Workers’ Compensation Commission, an appellate court must consider only that evidence which is most favorable to the Commission’s findings. If there is any substantial evidence to support its decision, it must be affirmed. Barksdale Lumber Company v. McAnally, 262 Ark. 379, 557 S.W. 2d 868 (1977). We find substantial evidence to support the Commission’s finding that appellee was an employee rather than an independent contractor at the time of the injury and, therefore, must affirm on this point.

Appellant’s second point is that there is no substantial evidence that the employer had a workers’ compensation policy covering claimant at the time of the accident. Appellant argues that the policy coverage is limited by its own terms: “farms, field crops and drivers.” Appellant cites People’s Protective Life Insurance Company v. Smith, 257 Ark. 76, 514 S.W. 2d 400 (1974) for the rule that the doctrine of waiver and estoppel cannot be used against an insurer to extend the coverage of a policy, irrespective of the fact that the carrier had knowledge that Powell Brothers Farm had airplanes flying to scare blackbirds.

On the other hand, appellee, Jerry Tuggle, cites Section 38(c) of the Arkansas Workers’ Compensation Act. Section 38(c) states:

No policy of insurance shall be issued against liability under this Act unless such policy covers the entire liability of the employer as to the business or businesses identified in the policy.

Claimant argues that rice farming is a complex operation, part of which requires keeping blackbirds out of the fields, and that appellant knew the nature of appellee’s farming operation.

We believe the language of Section 38(c) is deliberately broad and is intended to cover the employer’s “entire liability” to his employees where the employer has taken out a workers’ compensation insurance policy. Larson, Workers’ Compensation, Section 92.20, states:

The distinctive feature of compensation insurance is that, although it arises from a contract between the employer and the carrier, it creates a sort of insured status in the employee which comes to have virtually an independent existence. . .
The only situation in which the insurance would be defeated for all purposes by act of the employer is that in which the insurance is void ab initio, rather than voidable; this would occur if the employer attempted to insure against an accident that had already occurred, by pre-dating the insurance and fraudulently concealing the known existence of an accident within the period so covered.

We believe the insurance coverage provided by the employer, Powell Brothers Farms, was, at best, voidable. When appellee became an employee for Powell Brothers, the employer had a workers’ compensation policy in effect which covered “farm, field crops and drivers.” Appellee, Jerry Tuggle, was a farm employee, hired specifically for the purpose of keeping blackbirds out of the rice fields. We find substantial evidence in the record to support the finding of the commission that the employer had a policy of workers’ compensation in effect at the time of the injury which covered the claimant.

Finally, appellant contends that the Workers’ Compensation Commission lacks jurisdiction over the controversy between respondents, Southern Farm Bureau Casualty Insurance Company and Powell Brothers, Inc. Appellant cites one case for this point, American Casualty Company v. Hambleton, 233 Ark. 944, 349 S.W. 2d 664 (1961). Its brief states the relevant facts of this case succintly:

In American Casualty Company v. Hambleton, 233 Ark. 944 (1961), the carrier had issued a renewal workman’s compensation policy which eliminated certain coverage that had been provided under its predecessor policy, but notice of the reduction in coverage had not been communicated to the employer. Following the death of her husband in a work-related accident, Mrs. Hambleton filed suit in the St. Francis County Chancery Court against the carrier to reform the policy to include the previously deleted coverage. The carrier argued that the chancery court lacked jurisdiction since, under Arkansas Workers’ Compensation Law, the Workers’ Compensation Commission is the proper forum for the adjudication of worker’s compensation claims. The court disagreed, stating:
“While it is true this is an action under the Workman’s Compensation Law of the State of Arkansas, and that the Workman’s Compensation Commission is the proper forum for the adjudication of workman’s compensation, this action is primarily an action for the reformation of a policy of insurance and no action before the Workman’s Compensation Commission could be maintained until that object has been attained. We hold that the administratrix is the proper party to bring this action and the chancery court is the proper forum.”

However, we believe that this case can be distinguished in that this dispute arose in Chancery Court where the plaintiffs were seeking reformation of the policy. In the instant case, the case arose in the Workers’ Compensation Commission. The issues decided by the Commission were whether: (1) there was a policy in force at the time of the injury, (2) were all employees covered if such a policy was in force, and (3) was appellee, Jerry Tuggle, an employee; Ark. Stat. Ann. § 81-1324 states:

In any proceeding for the enforcement of a claim for compensation, the following prima facie presumption exists:
(1) That the Commission has jurisdiction.

Appellee, Powell Brothers Farms, Inc., also cites some helpful information from Larsons, Section 92.40:

The general rule appears to be that, when it is ancillary to the determination of the employees rights, the compensation commission has authority to pass upon a question relating to the insurance policy, including fraud in procurement, mistake of the parties, reformation of the policy, cancellation, existence or validity of an insurance contract, coverage of the policy at the time of injury, and construction of extent of coverage. This is, of course, in harmony with the conception of compensation insurance as being something more than an independent contractual matter between insurer and insured.

In the case of Campbell v. Waggoner, 235 Ark. 374, 360 S.W. 2d 124 (1962), Larry Benafield, a minor, was injured while under the employ of appellant-petitioner. Suit was filed in Circuit Court by Charles Benafield in his own right and for his son, Larry, against petitioner to recover damages for said injuries. Petitioner filed a motion for summary judgment and a dismissal of the complaint on the basis that the Workers’ Compensation Commission had exclusive jurisdiction of any claim arising out of the injury. The Circuit Court denied the motion, and appellant petitioned for a writ of prohibition which the Arkansas Supreme Court granted, stating that the Workers’ Compensation Commission had exclusive jurisdiction to try Benafield’s claim against petitioner for injuries caused while working as his employee.

It is also the rule in Arkansas that jurisdiction of the commission over the employer also gave it jurisdiction over the insurance carrier. Andrews v. Gross & James Tie Company, 214 Ark. 210, 216 S.W. 2d 386 (1948).

We hold that the Workers’ Compensation Commission had jurisdiction over the .issues it ruled upon, namely, whether there was a workers’ compensation policy in force at the time of the injury and whether appellee, Jerry Tuggle, was an employee.

The judgment of the Circuit Court is affirmed.


author: James H. Pilkinton, Judge.

text:
    TERMINAL VAN AND STORAGE, EMPLOYER CNA INSURANCE COMPANY, Insurance Carrier v. Aubrey Lee HACKLER, Employee
    CA 80-182
    603 S.W. 2d 893
    Court of Appeals of Arkansas
    Opinion delivered September 3, 1980

      Wright, Lindsey & Jennings, for appellant.

      Alan J. Nussbaum and J. R. Nash, for appellee.
   James H. Pilkinton, Judge.

This case involves a workers’ compensation claim for additional benefits. Aubrey Lee Hackier sustained injuries on February 3, 1969, while employed by Terminal Van and Storage Company. The basic facts are not in dispute. After her 1969 injury, Mrs. Hackier was paid benefits until April, 1971, and was assigned a 10% permanent partial disability rating. Subsequently claimant was treated by Dr. H. Austin Grimes as well as being examined and evaluated by Dr. Frank Padberg. Her last appointment with Dr. Grimes was on September 26, 1972. No further action was taken by Mrs. Hackier until the filing of a claim for additional benefits which resulted in this litigation.

On December 6, 1976, Mrs. Hackier filed a claim for additional benefits for injuries sustained on February 3, 1969-Appellants controverted further payments on the ground that the claim is barred by Ark. Stat. Ann. §81-1318(b) [Repl. 1976J.

In an opinion dated April 10, 1978, the Arkansas Workers’ Compensation Commission found the claim for additional benefits was barred by the statute of limitations, but Mrs. Hackier was awarded those medical expenses related to the injury not specifically barred by Ark. Stat. Ann. §81-1318(b) [hereinafter Section 18(b)].

On December 6, 1979, the Circuit Court of Pulaski County reversed and remanded the case to the Commission with directions to consider the claim on its merits. This appeal comes from that decision. Appellant contends that the Circuit Court erred in ruling that appellee’s claim for additional benefits was not barred by Section 18(b), which creates a specific limitation period for filing claims involving additional compensation under the Act. That section reads, in pertinent part, as follows:

Additional Compensation. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one (1) year from the date of the last payment of compensation, or two (2) years from the date of injury, whichever is greater.

There is a second sentence in the section which exempts from the statute of limitations “. . . claims for replacement of medicine, crutches, artificial limbs, and other apparatus permanently or indefinitely required as a result of a compensable injury. . .” Appellants do not question that part of the determination by the Commission which calls for payment of replacement medicine and drugs associated with the original injury.

The language of the section is clear and unambiguous. A claim for additional compensation is barred if it is not filed with the Commission within either the one-year or two-year limitation periods. This claim was filed on December 6, 1976, which was more than seven years after the injury and over four and one-half years after the last payment of compensation. Appellee contends that the claim was not properly dismissed in accordance with Rule 13 of the Workers’ Compensation Commission. In making this . argument the appellee relies upon Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W. 2d 562 (1969). As pointed out by both the administrative law judge and the Commission, the Rule 13 notice requirement is entirely irrelevant. Appellant’s contention is predicated solely upon the application of the statute of limitations and, for that reason, Dura Craft Boats, Inc. v. Daugherty, supra, is not in point. Although in the first paragraph of Dura Craft the Arkansas Supreme Court makes passing mention of Section 18(b), a careful reading of this decision reveals that it deals solely with the requirements for a Rule 13 dismissal. The key issue there was whether the claimant had been given adequate notice prior to dismissal. The fact situation presented in Dura Craft is clearly distinguishable from the facts in the case before us. The crucial distinction lies in the fact, that in Dura Craft, claimant was paid no additional compensation after the filing of the initial claim while, in the case before us, appellee was paid additional medical benefits after her initial filing.

Appellee also argues that Mrs. Hackler has been continuously taking medication for pain since the accident, hence, the statute of limitations has never run for the required one year. The cases cited in support of this position are Mohawk Rubber Company v. Thompson, 265 Ark. 16, 576 S.W. 2d 216 (1979) and Heflin v. Pepsi Cola Bottling Co., 244 Ark. 195, 424 S.W. 2d 365 (1968). These cases are not in point. Neither deals with the question presented here. Mrs. Hackler claims to have received medicine throughout the years, but she admits that she did not file a claim therefor until December 9, 1976. Thus the filing of that claim was nearly eight years after the injury and four and one-half years after the last payment of compensation. The claim for additional compensation is barred since it was not filed with the Commission within one year of the last payment of compensation or two years from the date of injury. Phillips v. Bray, 234 Ark. 190, 351 S.W. 2d 147 (1961). In Phillips the court was faced with physicians’ bills which were not submitted for payment within the statutory period; whereas, in the case at bar the unsubmitted bills were those for prescribed medication. The application of the statute of limitations is clear.

As already noted, the second sentence of Section 18(b) provides an exemption to those benefits which are barred by the statute of limitations. The statute does not run against, among other things, replacement medicine; therefore, as the Commission found, Mrs. Hackler can still receive replacement for medicine and drugs if she can establish a connection to the original injury. Nevertheless, payment for replacement medicine does not revive a claim for additional benefits once the statute has run against other types of compensation. Mohawk Rubber Company v. Thompson, supra, deals with replacement of corrective shoes rather than replacement medicine and the court said:

The Commission recognized that the fiirnishing of such shoes would not revive a claim already barred, but the Commission held that the running of the statute had been interrupted as to a claim for additional compensation.

Alred v. Jackson Atlantic, Inc., 268 Ark. 695, 595 S.W. 2d 249 (Ark. App. 1980), offers no support for appellee’s position. In that case not only were drugs purchased by claimant through the years, but claims for reimbursement were constantly made within the statutory period. Thus in Aired, the statute of limitations never ran long enough to present a bar. The issue there was whether the furnishing of medicine constitutes “payment of compensation” within the meaning of Section 18(b). This court determined that drug payments did constitute “payment of compensation”, and, accordingly, held that claims therefore .interrupted the running of the statute. However, in the case now before us, it is undisputed that Mrs. Hackler did not file any claims for compensation for several years between 1973 and December 9, 1976. Her belated claims for other forms of compensation are, therefore, absolutely barred. While claims for replacement medicine may toll the running of the statute of limitations, such claims cannot revive once the statute has run against other forms of compensation.

The decision of the Circuit Court is reversed and the case remanded with directions to reinstate the decision of the Arkansas Workers’ Compensation Commission.


author: Marian F. Penix, Judge.

text:
    SOUTHSIDE WATER ASSOCIATION, INC. v. John HARGAN d/b/a HARGAN CONSTRUCTION COMPANY
    CA 80-67
    630 S.W. 2d 466
    Court of Appeals of Arkansas
    Opinion delivered September 3, 1980

      H. David Blair, for appellant.

      James A. McLarty for appellee.
   Marian F. Penix, Judge.

Both parties were defendants in a lawsuit filed by Alva Bechdoldt, a water customer of appellant Southside Water Association, Inc. John Hargan, appellee, was working on the extension of a water system pursuant to a contract awarded to him by Southside. The extension work caused a substantial increase in water pressure which caused a valve to pop from Alva Bechdoldt’s hot water heater. This accident resulted in personal injuries to Ms. Bechdoldt. She alleged in her complaint that both appellant and appellee were jointly and severally liable for negligence. The appellant answered Bechdoldt’s complaint and cross-claimed against appellee seeking indemnity under its contract with appellee. The parties agreed the Court would decide the indemnity issue after the jury verdict on the personal injury claim. The trial court denied the appellant’s claim for indemnity against appellee Hargan. The Water Association appeals.

The indemnity provision of the contract provided:

15. Responsibility of Contractor, Protection of Work, Persons and Property
C. The Contractor shall fully indemnify the Owner, the Engineers, and the representatives ©f each, and hold them harmless against all liability, claims, judgments and demands for damages arising from injury to any person whomsoever, including death, and including, but not limited to employees of the Contractor, all subcontractors, and their employees, and which injury, death or damage may in any way arise out of the prosecution of the work hereunder by the Contractor or subcontractors, and without regard to negligence on the part of anyone whomsoever.

The personal injury case was submitted to the jury on interrogatories.

Interrogatory No. 1: Do you find appellee (Hargan Construction Company) to have been guilty of negligence?
Answer. No.
Interrogatory No. 2: Do you find appellant (Southside Water Association, Inc) was guilty of negligence?
Answer: Yes.

Southside Water Association alleges the Court erred in refusing to allow Southside’s claim for contractual indemnity against Hargan Construction Company. We must look to the contract to determine if the damages to Ms. Bechdoldt “in any way arise out of’ Hargan’s work under the contract, and if so, if Hargan agreed to be responsible for such damages.

Southside’s Contract provided for a line item bid on each item of work contained on the Contract. Southside elected to withhold from the contract some items which would be needed, i.e., the purchase and installation of pressure-reducing valves for those users who would be located in areas of high pressure. The contract did not include furnishing or installing pressure regulators.

Southside’s manager, Andrew Duchanoy, testified high pressure caused the Bechdoldt accident. When asked what could have been done to prevent the high water pressure from causing the accident he replied the only thing that could have been done was to put a pressure regulator on the meter. When asked if the contract called for Hargan to put in pressure regulators, Duchanoy answered that the contract did not call for such. He further testified Mr. Graham, a consulting engineer, had informed the Water Board the new construction by Hargan would cause high and low pressures. He also testified it became the Water Association’s responsibility to furnish a regulator for Ms. Bechdoldt’s line between her meter and her house. He stated Hargan’s responsibility ended at the customer’s meter.

Hargan argues, with merit, Southside’s appeal ignores the contractual defined as “work to be performed by the contractor or subcontractor including labor and/or materials.” . Hargan further argues the duty to provide or install pressure regulators is not contained within Hargan’s contract. Hence, the injury could not have arisen due to the prosecution of work under the contract.

However, under the broad terms of this contract “. . . which injury or damage may in any way arise out of the prosecution of the work hereunder. . .”, the evidence leaves little doubt that the occurrence was in fact caused by the work done under the contract. The increase in pressure caused the valve to pop which in turn directly caused the injury. The work done by the Appellant, Hargan, caused the increase in the water pressure. The high pressure was the result of the “prosecution of the work”. The failure of the Water Association to buy and install a pressure reducing valve was negligence but under this contract is. of no importance. The broad sweeping language of the indemnity contract, clearly and unequivocally states Hargan will not be relieved of liability by the negligence of anyone. The 1970 case of Pickens Bond Construction Co. v. North Little Rock Electric Co., 249 Ark. 389, 459 S.W. 2d 549 states the Arkansas position as originally expressed by Justice Brown in Hardeman v. Hass Co., 246 Ark. 559, 439 S.W. 2d 281 (1969):

The precise question: is whether this indemnity provision obligates the subcontractor to indemnify the prime contractor for damages arising out of the negligence of the prime contractor which was the proximate caüse of Turpin’s injuries. The intention of Hass to so obligate itself must be expressed in clear and unequivocal terms and to the extent that no other meaning can be ascribed. 41 Am. Jur 2d, Indemnity §15. Where an injury is caused by the sole negligence of the indemnitee many courts in interpreting the indemnity contract predicate their intepretation on the theory that such a liability would be unusual and harsh; consequently, the courts endeavor to relieve the indemnitor of liability to the negligent indemnitee. 175 A.L.R., p. 32, §18. [Emphasis supplied].

The language of this indemnity contract is very clear and unequivocal.

In reviewing the record and reading the terms of the contract, we find the injury to Mrs. Bechdoldt to have been a direct result of the “prosecution of work” by Hargan. Consequently, Hargan must now indemnify the Water Association for the injury to Ms. Bechdoldt.

Reversed and remanded for proceedings not inconsistent with this opinion.


author:
Marian F. Penix, Judge.
      David Newbern, Judge,

text:
    Troy EUTON v. STATE of Arkansas
    CA CR 80-17
    603 S.W. 2d 468
    Court of Appeals of Arkansas
    Opinion delivered September 3, 1980

      McArthur & Lassiter, P.A., by: William C. McArthur, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   Marian F. Penix, Judge.

Euton appeals from a jury conviction which sentenced him to three years imprisonment in the Arkansas Department of Correction.

Euton was charged by information with delivery of marijuana in violation of Ark. State. Ann. §82-2617. The information alleged that on or about June 8, 1978, Euton did unlawfully and feloniously sell and deliver 0.6 grams of marijuana, a Schedule VI controlled substance, to Officer Bill Gage at the Post Office in Tumbling Shoals, Cleburne County, Arkansas. A trial by jury ended in his conviction and three year sentence.

I

Euton contends the trial court erred in allowing the State to elicit testimony concerning the properties of hashish.

Officer Gage, upon the Prosecuting Attorney’s questioning, opined that a gram of hashish would service six to eight people’s requirements for the drug. The appellant’s attorney objected alleging such testimony was improper and irrelevant because the drug involved in the information charge was marijuana, not hashish. Euton contends the testimony should have been excluded under Rules 402 and 403 of the Uniform Rules of Evidence. He further contends the only possible reason for eliciting testimony concerning hashish was to confuse or mislead the jury about the substance of the charge. Euton contends the Court’s admission of the testimony into evidence was prejudicial error.

Officer Gage testified he was working in an undercover capacity in Cleburne County with a man named Mitchell. Mitchell told Gage Euton had some “hash” for sale. Gage further said Euton represented to him the substance he sold to Gage in June 1978 was hashish. The transaction involved a substance not eventually charged, but one Gage thought he was purchasing. Gage sent what he thought to be hashish to the State Crime lab where it was determined to be marijuana. Euton was subsequently charged with delivery of marijuana.

In Dail v. State, 255 Ark. 836, 502 S.W. 2d 456 (1973), appellant was convicted of selling marijuana. The undercover agent testified that at the time he purchased the marijuana from the appellant, the appellant mentioned in addition to marijuana he also had some cocaine and hashish. There the Court held the statement admissible because it was part of the res gestae or facts and circumstances surrounding the sale of the marijuana. In the instant case the agent’s testimony regarding what he had been led to believe he was buying was not improper. It was part of the transaction. Young v. State, 269 Ark. 12, 598 S.W. 2d 74 (1980); Price v. State, 267 Ark. 527, 599 S.W. 2d 394 (Ark. App. 1980), affirmed 268 Ark. 535, 597 S.W. 2d 598 (1980).

The appellant alleges Gage did not qualify as an expert in drugs and therefore he should not have been allowed to testify in the expert witness category. Appellant did not object to Officer Gage’s testimony as to his experience, hence it is improper for this Court to consider it for the first time on appeal. Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888 (1978); French v. State, 260 Ark. 473, 541 S.W. 2d 680 (1976). Further, an undercover narcotics officer can be found competent to state his opinion regarding the substance he purchased. See Milburn v. State, 262 Ark. 267, at 269, 555 S.W. 2d 946 (1977). Officer Gage, acting in an undercover capacity, and through prior experience, thought he was buying hashish, and in fact thought it was in sufficient quantity to have an effect on six to eight persons. He testified to the nature of the transaction. This type testimony is admissible.

A chemist from the State Crime Lab testified that hashish is concentrated THC, which is the hallucinogenic drug in marijuana. No objection was raised as to the introduction of the concentrated quality of hashish either at the time Gage testified nor at the time the State chemist testified. We find no error in the admssion of Gage’s testimony concerning the properties of hashish.

II

Euton alleges error in the Court’s instruction to the jury and in its handling of the jury’s improper verdict.

The Court instructed the jury and the jury was provided with a form containing a finding of guilt on a charge of delivery of marijuana, on a charge of possession of marijuana, and a finding of not guilty. The jury returned the form which was marked guilty of delivery with a two year prison sentence given and guilty of possession with a one year sentence affixed. Whereupon the Court, realizing the jury had misunderstood the original instruction, called the counsel to the bench and stated:

I think what I need to do is give it back to them and read them those instructions again, and make it clear that it has to be one or the other. And I don’t think I could adlib it and be better than what the instructions are.
All right, would you have a seat. I think this is my fault, because I should have made it clearer than what these — these instructions that we use have to be worded a certain way because that is the way that the Supreme Court has said that each one of them needs to be; but what I should have told you is that on this it would be one or the other, either delivery of marijuana or possession or not guilty. And so I will ask you to go back out and just return one of those two, but let me make sure that I have worded this right so that you will understand or so that you will know which one it is that you need to return.
All right, first, the defendant is charged with delivering marijuana. To sustain this charge the State must prove beyond a reasonable doubt that the defendant knowingly or purposely transferred marijuana to another person in exchange for money or anything of value. Included in this charge is the lesser offense of possession of marijuana. You may find the defendant guilty of one of these or acquit him outright. If you have a reasonable doubt as to which offense he may be guilty of, you may find him guilty only of the lesser offense. If you have a reasonable doubt as to the defendant’s guilt of all offenses, then you must find him not guilty.

Euton alleges this was error in that the Court improperly modified and clarified its instruction verbally rather than by writing.

First of all, Euton did not abstract the instructions and the verdict form. Supreme Court Rule 11(f) requires an abstract of the material parts of the record as are necessary to an understanding of all the questions presented to this Court for a decision. In Ellis v. State, 267 Ark. 690, 590 S.W. 2d 309 (Ark. App. 1979), we held we would not consider an assignment of error concerning instructions absent an abstract of the instructions given.

However the State has abstracted the pertinent instructions. Euton did not object to the procedure used by the Court at the time the jury’s first verdict was recognized as a mistake, nor did he object to the trial court’s reiteration of the instructions before sending the jury back to correct its error. But, even if Euton had made his specific objections known to the Court, we find no error in the procedure followed by the Court. The Court made explanatory remarks to the jury as to why this verdict was incorrect and then re-read the original instructions. The remarks of the Court merely prefaced its reiteration of the original instructions. We find no error.

Affirmed.

Newbern, J., concurs.

David Newbern, Judge,

concurring. I disagree with the majority’s characterization of the testimony of Gage with respect to the properties and powers of hashish as being part of the res gestae. In Young v. State, 269 Ark. 12, 598 S.W. 2d 74 (1980); Dail v. State, 255 Ark. 836, 502 S.W. 2d 456 (1973); and Price v. State, 267 Ark. 527, 599 S.W. 2d 394 (Ark. App. 1980), aff'd, 268 Ark. 535, 597 S.W. 2d 598 (1980), cited by the majority, we and the supreme court dealt with the problem of evidence concerning “other offenses” received in connection with evidence of the offense charged. In those cases we and the supreme court were concerned with out-of-court statements made by witnesses. The statements referred to “other offenses” having some relationship to the offenses charged. In this case we are concerned with testimony of an officer on the witness stand not with respect to out-of-court statements of other offenses but testimony of the officer’s knowledge of the effect of hashish. That has nothing to do with res gestae, and the citations are thus inapposite. It also has nothing to do with the charge of selling marijuana.

The appellant objected at the outset of this testimony on the basis of irrelevancy. The objection was sustained, albeit on the basis that the judge did not think the officer knew what the substance in question was. The court thus did not seem to be responding to the irrelevancy contention. The prosecutor immediately thereafter asked the following question:

Q. Okay. Assume for the purposes of this question that the amount of the substance that was bought from the defendant, if it had been hash of that amount, how many people would have got high on that amount, in your opinion?

From that point on the colloquy among the court, the prosecutor, and the appellant’s attorney dealt with the qualifications of Gage as an expert and presence of lack of a foundation for his expressing an opinion with respect to the effects of hashish. The appellant’s objection based on the irrelevancy of the officer’s testimony was not renewed, and thus the statement as to the effect of the hashish was admitted.

This evidence was irrelevant, and it was highly prejudicial. The appellant was on trial for selling marijuana, not hashish. My only reason for this reluctant concurrence is the failure of the appellant to object or to renew his objection when the evidence was taken. My only reason for writing this concurring opinion is that I would not want it thought that this court found an officer’s opinion testimony of the prowess of hashish to be part of the res gestae. His opinion was certainly not part of “the transaction.’’


author: George Howard, Jr., Judge. Steele Hays, Judge,

text:
    MASSEY FERGUSON, INC. and SENTRY INSURANCE COMPANY v. R. T. FLENOY
    CA 80-191
    603 S.W. 2d 463
    Court of Appeals of Arkansas
    Opinion delivered September 3, 1980

      Penix, Penix & Mixon, for appellants.

      Daggett, Daggett & Van Dover, by: Jesse B. Daggett, for appellee.
   George Howard, Jr., Judge.

The issue tendered for resolution is whether the holding of the Workers’ Compensation Commission that claimant’s stroke was precipitated by a compensable back injury is supported by substantial evidence.

Claimant, 54 year old male, who has a third grade education, sustained a back injury in the course of his employment and his physician fixed his disability, to the body as a whole as a consequence of this injury, at 15% which is not challenged by appellants.

While hospitalized, claimant was scheduled to undergo a myelogram test. Approximately two hours prior to the scheduled test, claimant suffered a stroke which rendered him totally disabled.

The Worlers’ Compensation Commission found:

“The fact that the stroke occurred only two hours prior to the scheduled procedure while claimant was emotional, under severe stress and apprehension, creates a strong inference that a causal relationship exists between the hospitalization caused by the injury and the stroke.”

The Commission held that compensation “shall be paid for continued total disability as distinguished from ‘permanent total disability’ since there is not sufficient proof of permanency of claimant’s condition.”

Appellants argue that the claimant has the burden of establishing a causal connection between his stroke and his employment; that the medical evidence contained in this record falls short of the burden required of claimant to show causation; that a mere coincidence or a possibility of a causal connection between the compensable injury and claimant’s disabling stroke cannot be equated with causation. Further, appellants contend that the medical evidence dictates a finding in behalf of the appellants.

We do not agree with the appellants and accordingly, we affirm the Commission.

On appellate review, the evidece in a workers’ compensation proceeding must be viewed in the light most favorable to the findings of the Commission. Littlejohn v. Earle Industries, 239 Ark. 439, 389 S.E. 2d 898 (1965); Townsend Paneling, Inc., et al., v. Butler, 247 Ark. 818, 448 S.W. 2d 347 (1969). Indeed, the findings of the Commission have the same binding force and effect as a verdict of a jury and are treated in the same fashion, on appellate review, as a jury’s verdict. Wilson v. United Auto Workers International Union, et al., 246 Ark. 1158, 441 S.W. 2d 475 (1969). Moreover, the question for the appellate court is not whether the evidence would have supported findings contrary to the ones made by the Commission, but whether the evidence supports the findings made. Reynolds Mining Co. v. Raper, 245 Ark. 749, 434 S.W. 2d 304 (1968).

On July 10, 1978, Dr. Jerry L. Worrell, claimant’s physician, advised claimant’s attorney by letter:

“. . . I do feel that the above captioned patient’s stroke which occured in the Baptist Flospital was a result of hypertensive vascular disease which had been diagnosed some four weeks prior to his coming in the hospital. I also feel medically that the hypertensive vascular disease predisposed this patient to arteriosclerosis, and since the patient had no symptoms with the hypertension we cannot say how long this had been present. I certainly feel that medically that people with arteriosclerosis of the cerebral blood vessels can and do have strokes when placed under unusual stressful situations. Certainly in this patient from his history he was extremely nervous, tense and apprehensive about a necessary procedure prior to his having surgery for his back. Certainly the anxiety and fear along with the apprehension very well contributed to the stroke occurring in the hospital prior to his having a myelogram. I should also mention in this report that patients experiencing severe pain as a result of a ruptured disc may very well have a stroke as a result of the severe pain associated with his back injury.”

However, on October 19, 1978, in reply to appellant’s attorney’s request for claimant’s physician to state specifically and unequivocally that the scheduled myelogram caused claimant’s stroke, Dr. Worrell stated:

“. . ,[T]his patient’s hypertension did exist for at least one month prior to surgery and perhaps longer than this time since he had no symptoms at the time he was seen by his local physician. It is certainly a matter of conjecture as to whether or not anxiety in this patient would have precipitated a stroke prior to a myelogram. We have been asked to state specifically and unequivocally that the myelogram caused the stroke, and I had stated to Mr. Flenoy that this could not be done since the patient obviously had cerebral arteriosclerosis prior to the myelogram.
“I do realize all this information does hinge on the fact that the patient will or will not receive workmen’s compensation, and I understand he is totally disabled due to the stroke.
“I do feel that the review board for workmen’s compensation can appreciate our not being able to give you a specific answer as to whether the anxiety over a myelogram could produce or could not produce a stroke.”

We do not perceive an absolute difference between Dr. Worrell’s communication of July 10, 1978, and July 19, 1978, that would reduce his medical testimony to an uncertainty or an ambiguity and deprive it of any probative value.

Dr. Worrell’s report of July 10, 1978, emphasized:

“Certainly the anxiety and fear along with the apprehension very well contributed to the stroke occurring in the hospital prior to his having a myelogram. / should also mention in this report that patients experiencing severe pain as a result of a ruptured disc may very well have a stroke as a result of the severe pain associated with his back injury.” (Emphasis added)

While the medical report of July 19, 1978, stated: “It is certainly a matter of conjecture as to whether or not anxiety in this patient would have precipitated a stroke prior to a myelogram. We have been asked to state specifically and unequivocally that the myelogram caused the stroke . . Dr. Worrell did not retreat from his observation that a patient experiencing a ruptured disc may very well have a stroke as a result of the severe pain associated with his back injury.

It is not the responsibility of an appellate court either to weigh or determine the credibility of the medical testimony. If the medical testimony is conflicting, the resolution of the conflict becomes a question of fact for the Commission. Dena Construction Company v. Herndon, 264 Ark. 791, 575 S.W. 2d 155 (1979); Barksdale Lumber Company v. McAnally, 262 Ark. 379, 557 S.W. 2d 868 (1977); Gordon v. J. A. Hadley Construction Company, 256 Ark. 577, 509 S.W. 2d 287 (1974).

We hold that there is substantial evidence to support the decision of the Commission. Appellee is awarded the statutory attorney’s fee of $250.00 for services rendered in connection with this appeal.

Affirmed.

Penix, J., not participating.

Hays, J., dissenting.

Steele Hays, Judge,

dissenting. If substantial evidence supporting a causal relationship between claimant’s stroke and his employment is to be found, it must be found in the medical opinion of Doctor Worrell or not at all. If that is so, as appears to be generally conceded by the arguments, then I am unable to say that this award is supported by substantial evidence. Doctor Worrell’s report of July 10, 1978, might, possibly meet the test (giving it all the strongest probative weight and favorable inferences that the many decisions in point require) were it not for his later and more definitive comments on October 19, 1978, the pertinent parts of which are quoted in the majority opinion. The basic premise of the second opinion is that whether the stroke was the result of claimant’s anxiety over an impending myelogram was “certainly a matter of conjecture”. This can hardly be called substantial evidence and, therefore, I would reverse. Fagan Electric Company v. Green, 228 Ark 477, 308 SW 2d 810 (1958); Potlatch Forests Inc. v. Smith, 237 Ark. 468, 374 SW 2d 166 (1964).


author: David Newbern, Judge. Per Curiam.

text:
    Toni NEEDHAM v. STATE of Arkansas
    CA CR 80-26
    _ S.W. 2d _
    Court of Appeals of Arkansas
    Opinion delivered September 3, 1980
    Supplemental Opinion on Petition for Rehearing delivered October 1, 1980

      E. Alvin Schay, State Appellate Public Defender, by: Deborah Davies Cross, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Feivell, Asst. Atty. Gen., for appellee.
   David Newbern, Judge.

The only question presented by this appeal is whether the decision of the court in revoking the appellant’s probation was clearly against the preponderance of the evidence. The parties seem to agree upon the evidentiary standard which must be met for revocation. Their disagreement is with respect to whether the evidence before us meets that standard. We find that it does and thus we affirm.

The appellant was placed on probation on October 29, 1979, as a result of having been accused of six counts of “obtaining a controlled substance by fraud.” In each of the counts the substance described was a drug called Talwin. The probation was for a period of three years conditioned upon the good behavior of the appellant and the payment of a fine.

The state petitioned to revoke the appellant’s probation, alleging that on November 7, 1979, she again committed the offense of obtaining a controlled substance by fraud by altering a prescription for Talwin, increasing the number of tablets and number of refills specified on the pescription, and passing it to a pharmacy. The appellant admitted, at the revocation hearing, that she had given the prescription in question to the pharmacist. She claimed, however, that she had legitimately obtained the prescription for the use of her daughter, and she claimed that her husband had altered the prescription without her knowledge. There is no doubt the prescription was issued by a physician who testified he had made it for a “small amount” of ten pills for the use of the appellant’s daughter whom he had treated for a urinary infection. The prescription as he issued it provided for no refills. As it appeared when it was given to the pharmacist, it provided for 40 pills and two refills.

The appellant testified she had left the prescription at her home prior to having it filled, and that not only had her husband had an opportunity to make the alteration but that he had admitted to her that he had done it. However, the appellant’s husband, after asserting his right not to incriminate himself in response to some questions he was asked at the hearing, ultimately testified he had never seen the prescription in question.

The standard for review is not in doubt. In Pearson v. State, 262 Ark. 513, 558 S.W. 2d 149 (1977), our Supreme Court made it clear we should require the appellant to show the court’s finding was clearly against the preponderance of the evidence. See, Ark. Stat. Ann., §41-1208 (Repl. 1977). The appellant, as noted earlier, seems to concede that this is the standard we must apply, however, she cites cases, e.g., Smith v. State, 264 Ark. 874, 575 S.W. 2d 677 (1979); Ayers v. State, 247 Ark. 174, 444 S.W. 2d 695 (1969), dealing with the amount of circumstantial evidence necessary to support a finding of guilt.

Despite our unwillingness to be persuaded by the appellant’s citations, we must seriously consider her claim that the evidence presented in this case was not sufficient for revocation. We find the trial court thoughtfully reviewed the evidence before him. His serious review of the appellant’s evidence and factual theory was demonstrated by his remarks in which he said he regretted having to revoke the appellant’s probation and that, if the appellant could somehow prove that her husband had altered the prescription rather than she, she would be able to do so before she had to be incarcerated. Although the evidence was circumstantial, the court’s decision was not clearly against the preponderance of the evidence.

Affirmed.

Supplemental opinion on Petition for Rehearing October 1, 1980

Per Curiam.

Rehearing is granted and the case remanded to the trial court to hear a motion based upon newly discovered evidence. In the event no such motion is made in the trial court within twenty days from the date of this supplemental opinion, the revocation of probation is affirmed in accordance with our opinion in this case of September 3, 1980.


author: George Rose Smith, Justice.

text:
    Roy HOKE v. STATE of Arkansas
    CR 80-2
    603 S.W. 2d 412
    Supreme Court of Arkansas
    Opinion delivered September 8, 1980

      Gibson & Gibson, P.A., by: Robert B. Gibson, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Bums, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

At a trial on May 4, 1979, a jury found Hoke guilty of manslaughter. According to the court reporter’s transcript of the proceedings, the foreman of the jury, in announcing the verdict of guilty, stated that the punishment was fixed at imprisonment in the Department of Correction for five years and a fine of $5,000. The court orally sentenced the defendant in the same language, mentioned his right of appeal, and permitted him to remain on the same bond. Notice of appeal was filed on May 31.

The written judgment was signed, nunc pro tunc, on August 24, 1979, and entered of record. The defendant contended below by a motion to vacate, the contends here, that the judgment is void and he is entitled to an absolute discharge because the judgment was not entered within the 30 days specified in Criminal Procedure Rule 36.4 (1976). The rule is obviously not mandatory, not only because it specifies that the sentencing and judgment “may” be postponed for not more than 30 days, but also because the nunc pro tunc entry of judgments actually rendered earlier has long been the practice in Arkansas. It cannot have been the intent of the rule to permit a convicted felon to escape punishment altogether merely because the judgment was not reduced to writing within 30 days.

The defendant also argues that his punishment should be only a $5,000 fine, because the jury foreman signed a form of verdict fixing the punishment as five years’ imprisonment “and/or” a $5,000 fine. Such a verdict form should not be used by the circuit courts, as we have pointed out. Shelton v. State, 261 Ark. 816, 552 S.W. 2d 216 (1977). Chapter 61 of AMI Criminal (1979) contains verdict forms conforming to the holding in Shelton. Here the possible ambiguity was harmless, because the foreman announced the verdict correctly, and the court imposed the correct sentence. Moreover, this case was tried after July 3, 1978; so supposed error in the verdict form cannot be raised for the first time in this court, as the appellant seeks to do. Goodwin v. State, 263 Ark. 856, 568 S.W. 2d 3 (1978).

Affirmed.