author: John A. Fogleman, Justice. Carleton Harris, Chief Justice,

text:
    Alvin TURNER v. STATE of Arkansas
    CR 75-2
    527 S.W. 2d 580
    Opinion delivered July 7, 1975
    [Rehearing denied September 2, 1975.]

      George Howard Jr, for appellant.

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

Appellant was found guilty of assault with intent to kill C. E. Faris, a marshal of Strong. The incidents on which the charge was based occurred on July 22, 1973. The trial was on June 12, 1974. On the eve of trial, appellant, a negro, filed a motion to quash the jury panel, the names on the master jury list, and the “names now contained in the jury box,” and to appoint a new jury commission. The first ground for the motion was that there had either been deliberate and systematic exclusion of negroes, systematic limitation of the number of negroes appointed as jury commissioners and called for jury duty or failure of the circuit judge and jury commissioners to acquaint themselves with negro citizens who are eligible for jury duty. Appellant also asserted in his motion that those who have been selected as jury commissioners and as jurors in the past are predominantly persons who are either self-employed, members of a profession or employed in a managerial capacity, or the wives of self-employed or professional people, resulting in economic discrimination in the jury selection process. Still another ground of the motion was that many persons who were called for jury duty have served previously or are members of the same family as persons who have previously served, in violation of due process and equal protection of the laws. Still another ground was alleged systematic exclusion of persons aged 18 to 21 years.

Of couse, appellant had the burden of proving the grounds alleged, or of facts which permit an inference of purposeful exclusion or limitation. Fields v. State, 255 Ark. 540, 502 S.W. 2d 480; Mosby v. State, 253 Ark. 904, 489 S.W. 2d 799; Williams v. State, 254 Ark. 799, 496 S.W. 2d 395. No burden of refuting the alleged discrimination injury selection rests upon the state until the defendant has established a prima facie case. Williams v. State, supra.*

In attempting to discharge his burden appellant relied upon a stipulation that, according to the 1970 census, there were in Union County 22,639 white persons and 7,592 black persons over the age of 18 years, so that blacks constitute 26% of that segment of the population; testimony of the president of the local chapter of the NAACP, who was also a charter member of the Fair Voter’s League, that he had participated in a concentrated campaign to get black people registered for voting purposes and that he estimated that 7,000 were registered in 1972, but that he had no records to indicate the number in either 1974 or any previous year; the testimony of the same witness that he visited the circuit courts in the county from time to time to observe the composition of juries and that he observed that certain elderly negroes were repeatedly called for jury duty; the testimony of an undertaker that he and one other black person were the only negroes on an eight-member jury commission which had served on February 9, 1971; testimony of a former president of the local chapter that certain black persons who had served as jury commissioners were 37, 39, 60 and 65 years of age; the testimony of a 55-year-old black resident of Strong that, while there were 600 black residents of that city out of a total population of 1,900, he only knew of one negro resident of Strong who had served as a juror and that he was between 35 and 40 years of age; the testimony of some of these witnesses that it was a matter of concern to him that he had never been called for jury service. There was no evidence as to the total number of registered voters in Union County. Specific evidence as to the number of black registered voters was also lacking. There was no evidence of the percentage of either the population or registrants to vote who were under 21 years of age. A list of the current jury panel showed that none were 30 or under. It w'as stipulated that five (or 13.5%) of the 37-member jury panel were members of the black race, that one of these five was excused by the court because of his age and a hearing problem and another was eligible to be excused because of his age. _

Appellant somehow analyzed the current jury panel list to arrive at the Conclusion that economic discrimination was shown because he finds 29 of 36 to be owners of business or occupying managerial status and the other 7 housewives, repairmen or unemployed. We are unable to tell how an electrician, a sales clerk, a saleslady, two teachers, a secretary, a retired grocer, an IBM processor, a “treater” for Lion Oil Company and others were classified by appellant.

The only evidence offered on behalf of the state other than the names of the jury commissioners serving in 1969, 1971, 1972 and 1973 was the record of the instructions given to the jury commissioners who selected the names put in the jury wheel from which the panel was drawn. In pertinent part, it read:

I wish to emphasize that you should select jurors from a fair cross section of this county, and you will not exclude or include any persons on account of race, color, religion, sex, national origin or economic status.

It must be noted that the state was considerably handicapped in this respect because the motion to quash the panel was not filed until the day the case was set for trial, in spite of the fact that the court’s written calender contained instructions that all motions were to be filed seven days prior to the trial date.

The trial judge, in overruling the motion to quash, found that it appeared that jurors had been selected at random, and that the commissioners had attempted to get a cross-section of jurors throughout the county and to comply with the law.

Of couse, showing that the composition of the particular jury panel does not correspond to the racial makeup of the community, when the panel is drawn by chance from a jury wheel made up from a list of names taken from voter registration lists by jury commissioners, appointed according to statute and properly instructed to select jurors from a representative cross section of the county without discrimination as to race, does not in and of itself make a prima facie case of racial discrimination. Murrah v. State, 253 Ark. 432, 486 S.W. 2d 897. Quite a different situation from that shown in Williams v. State, 254 Ark. 799, 496 S.W. 2d 395, exists where individuals selected for jury duty are selected from lists where races are not indicated, as is the case here. See Sheppard v. State, 239 Ark. 785, 394 S.W. 2d 624. It is necessary that more be shown to establish a prima facie case than was shown in Williams, but the evidence here does not approach the showing of discrimination in Williams. The evidence here, given its highest probative value, does not even cast a suspicion, and that would not be sufficient. Smith v. State, 240 Ark. 726, 401 S.W. 2d 749. Certainly there is no evidence that the jury commissioners, after having been appointed, relied upon their personal acquaintance and did not seek to familiarize themselves with the qualifications of eligible jurors of all races and stations in life. We find that appellant failed to make a prima facie case of discrimination in the selection of the jury panel from which the jury before which he was tried was selected.

We know nothing about the extent of voter registration of the age group which appellant says was not represented on his jury panel, so it is questionable that they are a cognizable or identifiable group or class entitled to a group-based protection against exclusion. United States v. Gast, 457 F. 2d 141 (7 Cir., 1972), cert den., 406 U.S. 969, 92 S. Ct. 2426, 32 L. Ed. 2d 668 (1972). See also United States v. Camara, 451 F. 2d 1122 (1 Cir., 1971). Whether such a group exists within a community is a question of fact. Hernandez v. Texas, 347 U.S. 475, 74 S. Ct. 667, 98 L. Ed. 866 (1954). We do not find that the evidence in this case is sufficient to constitute a prima facie case placing the burden on the state to overcome it. It is not necessary that every jury contain representatives of every economic, religious, social, political and geographical group in a county. It is necessary that it be shown by one attacking the jury panel that there has been systematic and intentional exclusion of any of these groups before the panel can be quashed on that account. Johnson v. State, 252 Ark. 1113, 482 S.W. 2d 600; Rogers v. State, 249 Ark. 117, 458 S.W. 2d 747.

Appellant made no effort to show systematic exclusion of jurors on the basis of wealth or income and his analysis of the panel from which the jury was drawn in his case did not constitute prima facie evidence of economic discrimination. See Kimble v. State, 246 Ark. 407, 438 S.W. 2d 705. As a matter of fact, we have no idea of the composition of the population of Union County as to owners, managers, employees, unemployed, retired persons or common laborers. The composition of the particular panel cannot well be, in and of itself, proof of the exclusion of any particular group or class. Fields v. State, 255 Ark. 540, 502 S.W. 2d 480. No effort was made to show that the jury commissioners deliberately excluded names of persons to be placed in the jury wheel for 1974 on the basis of race, age or economic status. Even though the jury wheel system was adopted as a better means of assurance that jury panels would approach the ideal of a cross section of the community, it is highly unlikely that any panel drawn from the jury wheel could possibly achieve a perfect mirror of the community’s percentages of population on the basis of race, sex, religious creed, educational status, economic standing, age grouping or any other basis on which the population may be broken down statistically. Johnson v. State, 252 Ark. 1113, 482 S.W. 2d 600. See also Morris v. State, 249 Ark. 1005, 462 S.W. wd 842.

It has been recognized that there must be room for some play in the joints of the jury selection process in order to accommodate the practical problems of judicial administration. See Hamling v. United States, 418 U.S. 81, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974). No defendant has a right to have jurors selected in a manner to assure him of a jury from his own ethnic group or occupation. Pointer v. State, 248 Ark. 710, 454 S.W. 2d 91.

When we view the evidence presented here in the light of Ark. Stat. Ann. § 39-201 et seq (Supp. 1973), the instructions given the jury commissioners and the presumption that public officials perform their duty properly, we cannot say that the trial court erred in holding that appellant had failed to meet his burden of proof.

We find no merit in appellant’s contention that the circuit court erred in denying his request to require the state to disclose information prior to trial. The first item mentioned by him is “information and facts relative to prospective jurors,” which he alleged to be in the possession of the prosecution. We do not deem this to be discoverable information under Ark. Stat. Ann. § 43-2011.1 - 43-2011.4 (Supp. 1974). Appellant made no specific allegation as to how this information would aid in his defense, except that it was essential to the intelligent exercise of his peremptory challenges. Neither this discovery statute nor the due process clause of the Fourteenth Amendment to the United States, Constitution, both of which are relied upon by appellant, mandates discovery of the prosecuting attorney’s work product in this respect. There is no indication that the appellant did not have all information available to the state about the master list or the identity of the names drawn for service as petit jurors at the session of court at which he was tried, except for such as might have been the result of the prosecuting attorney’s own investigation, or that appellant or his attorney could not have obtained the same information by investigation.

Appellant also contends that the court should have granted his motion to require the prosecuting attorney to disclose whatever information he might have, or acquire in the exercise of diligence, pertaining to the criminal record of C. E. Faris, the officer he was charged with assaulting. Assuming that this information was discoverable, it seems clear that appellant was not prejudiced. Faris testified oh cross-examination that he had been convicted of burglary and grand larceny in California. On redirect examination he said that his conviction had been reviewed some three years later under the penal code of California and the charges dismissed. He exhibited a document supporting his testimony. We find no abuse of discretion with regard to appellant’s motion for disclosure.

Appellant also contends that the court erred in permitting state witnesses to testify concerning a blood alcohol test of a specimen taken from appellant.

His first attack upon this evidence is based upon the fact that he was not on trial upon a charge of driving while under the influence of intoxicating liquors, saying that for this reason the testimony was irrelevant and immaterial. We do not agree. On a charge of assault, the condition of the accused as to intoxication is relevant as a part of the surrounding circumstances. Spillman v. State, 106 Tex. Cr. App. 455, 292 S.W. 891 (1927); State v. Lance, 149 N.C. 551, 63 S.E. 198 (1908); State v. Rowell, 75 S.C. 494, 56 S.E. 23 (1906). The condition of appellant in this respect is particularly pertinent in view of the testimony of the officer about what took place immediately preceding the shooting. See Williams v. State, 72 Ga. 180 (1883). It has long been the rule in this state that all that occurs at the time and place of a shooting which had any connection therewith is a part of the res gestae, being surrounding facts of the transaction explanatory of an act or showing a motive for acting. Bone v. State, 200 Ark. 592, 140 S.W. 2d 140. Circumstances so nearly related to the main fact under consideration as to illustrate its character and the state of mind, sentiment and disposition of the actor are parts of the res gestae, which embraces not only the actual facts of the transaction and the circumstances surrounding it, but also matters immediately antecedent to and having a direct causal connection with it, as well as acts immediately following it and so closely connected with it as to form in reality part of the occurrence. Scaife v. State, 207 Ark. 664, 182 S.W. 2d 679.

In considering the relevance of this evidence, it must also be remembered that appellant was asserting that he acted in self-defense. A critical issue was the reasonableness of his apprehension that he was in danger of losing his life or receiving great bodily injury. Nelson v. State, 249 Ark. 852, 462 S.W. 2d 452. In order tojustify the assault, it must have appeared that the circumstances were such as to excite the fears of a reasonable person. Smith v. State, 172 Ark. 156, 287 S.W. 1026. Appellant was not entitled to act upon his belief that he was in danger, unless it was an honest belief, arrived at without fault or carelessness on his part, and he must have acted with due circumspection. If his belief was imputable to his negligence, he was not excused, no matter how honest his belief might have been. Smith v. State, 59 Ark. 132, 26 S.W. 712, 43 Ann. St. Rep. 20. Clearly, the inquiry as to Turner’s state of intoxication was relevant for the jury’s consideration of these issues.

Appellant’s next objection was that the proper foundation had not been laid for introduction of the testimony because (1) the test was not made at the direction or request of a law enforcement officer, (2) the method employed for testing was not shown to have been approved by the Arkansas State Health Department, (3) the medical technologist was not shown to have had a permit issued by the State Department of Health, (4) it was not shown that appellant was advised that he could have an independent test made by a physician, nurse or medical technician, (5) it was not shown that the sample tested was in fact drawn from him, and (6) the state failed to show a continuous chain of custody of the blood specimen taken from him. He cites only Ark. Stat. Ann. § 75-1045 (Supp. 1973) and Jones v. Forrest City, 239 Ark. 211, 388 S.W. 2d 386 in support of his argument.

A short answer to this argument would be that the statute relied upon is limited in application by its own language to tests administered at the direction of a law enforcement officer having reasonable grounds to believe that the person whose blood is tested had been driving or in actual physical control of a motor vehicle upon the public highways. It simply prescribes the procedures to be followed in cases in which reliance is placed upon an accused motor vehicle operator’s implied consent as the basis for making the test. But this is not such a case.

Dr. John W. Harper administered to Faris, Phelps and Turner in the emergency room at the Warner Brown Hospital in El Dorado. After Dr. Harper related his observations of the wounds of Faris and Phelps, he was asked on direct examination if he had treated Turner on the same occasion. When he answered in the affirmative, he was asked if he ascertained if Turner had received a gunshot wound. When this question was answered in the affirmative, he was asked if he had a responsibility to report a gunshot wound. When the doctor acknowledged the responsibility, he was asked whether in this particular case the matter was brought to him by the police, he answered, “That was right. They were present.” He then explained his findings as to the gunshot wound of Turner and was asked if he ordered anything done in regard to blood tests. He answered, “Blood alcohol was ordered.” After objections were overruled, the following question was asked and answer given:

Q. Dr. Harper, in regards to any type of blood test, was anything ordered by you in that regard?

A. Blood alcohol was ordered, also a routine blood count and C.B.C. Anything that we routinely order was ordered also.

At no time did Dr. Harper suggest that the officers had either requested or directed that the test be made.

The sample was drawn by a registered nurse at the hospital upon Dr. Harper’s request. She placed it in a vacuum tube on which she wrote Turner’s name, the time, date, physician’s name and what was to be done with the blood. She made out a requisition and placed the sample in a refrigerator located in the laboratory. She testified that this was a special refrigerator in which there was a designated place for blood samples, and that she followed the normal procedure in this regard. There was no intimation in her testimony that anyone other than Dr. Harper had anything to do with the taking of the sample. Wayne Tubbs, a medical technologist came into possession of and analyzed a blood sample in a tube accompanied by a requisition slip with Turner’s name on it, the time and date taken and Mrs. Montgomery’s name. Tubbs never testified that anything appeared on this particular requisition other than the information above related. After having stated that the name of a deputy sheriff or trooper had to be on the requisition, the following questions were asked and answers given.

Q. So what you’re saying is that you had a vial of blood that came into your possession that had Alvin Turner’s name on it, the date the blood was drawn, and the person that drew the blood?

A. Right.

Q. Is that your testimony at this time?

A. Yes.

Q. All right, you did come into possession of that tube in that condition?

A. Correct, sir. Yes.

Q. Did you then perform a test on it?

A. Yes.

We take this testimony to establish that the test was administered on the orders and directions of the attending physician and not of the police officers. Tubbs found an alcoholic content in excess of that which Dr. Harper had testified would Indicate intoxication.

No objection was ever made on the basis of the violation of the physician-patient privilege. Since Dr. Harper did not act at the direction of, or by preearrangement with, any police officer, the taking of the sample did not constitute an unreasonable search and seizure. Walker v. State, 244 Ark. 1150, 429 S.W. 2d 121. Thus, the matter of appellant’s implied consent is wholly immaterial, and the admissibility of the evidence of the testing of the blood sample was in no way dependent upon Ark. Stat. Ann. § 74-1045.

It is clear that no right to due process of law or privilege against self-incrimination was violated. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). Consequently, the “chain of custody” argument is the only remaining objection to be considered. This case is easily distinguished from Jones v. Forrest City, 239 Ark. 211, 388 S.W. 2d 386, upon which appellant relies. The urine specimen was taken there by a police officer, not a registered nurse acting upon the request of a treating physician and following normal hospital procedures. The specimen was left by the police officer in Jones in a bathroom at the jail, not in a special refrigerator in accordance with normal hospital procedures. In Junes, the record did not reflect that the bottle containing the urine specimen was sealed. This case bears a much greater similarity to Munn v. State, 257 Ark. 1057, 521 S.W. 2d 535 (1975), where we held the chain of custody was adequately shown. There we recognized that possibility of access to a blood sample by others, where there was no evidence of tampering, would not render the result of a test inadmissible. This is in accord with the general rule and weight of authority in cases such as this, when there is little room for suspicion that the sample tested was not that of the defendant. See Ritter v. Tennessee, 3 Tenn. Cr. App. 372, 462 S.W. 2d 247 (1970); Patterson v. State, 224 Ga. 197, 160 S.E. 2d 815 (1968); Interstate Life & Accident Insurance Co. v. Whitlock, 112 Ga. App. 212, 144 S.E. 2d 532 (1965); State v. Ross, 130 Vt. 235, 290 A 2d 38 (1972); State v. Lafountain, 108 N.H. 219, 231 A 2d 635 (1967); State v. Fornier, 103 N.H. 152, 167 A 2d 56 (1960). This approach is totally in harmony with the rule followed by us in other cases where the chain of custody of samples tested has been attacked. See Fight v. State, 254 Ark. 927, 497 S.W. 2d 262. Although the trial court has some latitude of discretion in such matters, all that is required is that it be shown that there is a reasonable certainty that the specimen tested was that of the accused, at least when normal procedures are followed. We find no error here.

Appellant also asserts there was insufficient evidence to support the verdict in that: (1) since death did not follow the assault, intent to kill could not be presumed from the mere fact that a deadly weapon was used in the assault; and (2) the acts of appellant were in self-defense against an unwarranted assault by Faris; and (3) there was no proof that a bullet removed from Faris’ shoulder was discharged from appellant’s pistol.

When we view the evidence in the light most favorable to the state, as we must, we conclude that the evidence was sufficient. Appellant was stopped by Marshal Faris and Officer Charles Phelps because they observed him driving an automobile and crossing the yellow center line on the roadway. Officer Phelps knew that Turner’s driver’s license had been revoked or suspended. Faris asked Turner for his driver’s license and started writing a ticket for this offense when it was not presented, but noted that Turner mumbled his responses and detected the odor of alcohol about Turner. He then asked Turner how much he had to drink, and when he could not understand the response, advised Turner he would be taken to El Dorado for a test of alcohol on his breath. According to Faris, Turner said that he had to go get his wife and turned away, and when Faris put out his arm, apparently to stop Turner, Turner wheeled around and fired a weapon into Faris’ face, striking him on the chin and shoulder. At the time, according to Faris, he and Turner were standing face to face. The physician who treated Faris found a superficial wound to his chin and removed a bullet from his shoulder. During the encounter, Faris, Phelps and Turner all suffered gunshot wounds and there were lacerations and contusions on the back of Turner’s head.

Turner’s testimony conflicts with that of the officers. Turner admitted on cross-examination that he had been convicted of failure to register a still, failure to post a distiller’s bond, production of unlawful mash, driving while under the influence of intoxicating liquors (two or three times), drunkenness and disturbing the peace. It appears that the jury found that Turner’s credibility was poor and gave credence to the testimony in the light most favorable to the state. Certainly an intent to kill could be inferred if Turner wheeled around so that he was standing face to face w'ith Faris and fired his pistol so as to strike Faris on his chin. While it is true that intent to kill cannot be inferred from the mere use of a deadly weapon in an assault when death does not ensue, it is also true that the intent may be inferred from the manner in which the weapon is used and the nature, extent and location of any wounds inflicted. Murray v. State, 240 Ark. 34, 397 S.W. 2d 812.

The judgment is affirmed.

The Chief Justice and Byrd, J., dissent.

Carleton Harris, Chief Justice,

dissenting. 1 would reverse for the reason that I consider the trial court to have committed reversible error in permitting the testimony concernina; the blood alcohol test administered to appellant.

In my opinion, all blood tests which are the result of arrests occasioned by traffic violations must be administered as provided by Ark. Stat. Ann. § 75-1045 (Supp. 1973).

Turner was originally stopped by the officers while driving his vehicle because the officers observed him cross the center line. Upon being stopped, it developed that he did not have a driver’s license and Officer Faris started writing a ticket on that basis. When the officer, according to his testimony, detected an odor of alcohol on Turner, he asked appellant how much he had had to drink, but could not understand Turner’s response, and he then advised appellant that he (the officer) was going to take Turner to El Dorado for a breathalyzer test. The acts culminating in the charge here on appeal thereafter took place.

The statute is set out in the footnote and it will be observed that subsection (a) provides that the tests “shall be administered at the direction of a law enforcement officer” who has reason to believe that the person operating or in control of the vehicle is under the influence of intoxicating liquor. [My emphasis]. To me, this simply means that such tests must be administered at the direction of a law enforcement officer. The majority state that this was not done, but they also say that this statute, including the other provisions which are set out in the footnote, has no applicability unless the tests are administered at the direction of a police officer; in other words, since a police officer did not direct that the tests be administered, the statute does not apply. This, to me, is strange logic. Here, we have a statute which, in my view, commands that blood tests be administered at the direction of such officer, further setting out how the tests shall be administered, and bv whom — but the majority say that since the primary requirement of that very statute (direction of a police officer) was not complied with, none of the provisions apply. In brief, this is the basis of our disagreement, for I contend the statute provides that all tests administered which arise out of a violation of motor vehicle laws must be administered under the direction of a police officer, and if this is not done, the evidence is not admissible. The majority cite the case of Walker v. State, 244 Ark. 1150, 429 S.W. 2d 121, but I consider Walker as no authority whatsoever since that case was decided in 1968 and Act 106 of 1969 (§ 75-1045) was not even passed until the year following the Walker decision. Appellant objected that the proper foundation had not been laid for the introduction of the testimony because (1) the test was not made at the direction or request of a law enforcement officer, (2) the method employed for testing was not shown to have been approved by the Arkansas State Health Department, (3) the medical technologist was not shown to have had a permit issued by the State Department of Health, and (4) it was not shown that appellant was advised that he could have an independent test made by a physician, nurse or medical technician. It is apparent that I consider the objection to have been valid and it is my opinion that it should have been sustained. There is no dispute but that (2), (3) and (4) were not complied with.

While the above expresses my reason for dissenting, on the other hand, even taking the view of the majority, I still lean toward reversal for it is not entirely clear to me that Dr. Harper acted independently of the police in ordering the blood sample; of course, unless he acted independently, the taking of the sample constituted an unreasonable search and seizure. Though there is no direct statement that Dr. Harper acted at the direction of a police officer or deputy sheriff, it is clear that law enforcement officers were present when Turner was examined for injuries sustained, and I consider the testimony of Wayne Tubbs, a medical technologist, who testified that he received a sample of Tubbs’ blood and made the test, pertinent to the issue. As to the testimony of Tubbs, the record reflects:

“Q. All right, do you happen to have your report with you on it? Is that a copy of your report?
A. This is a copy of the report that we gave to the sheriffs department when they come and request a report as to our findings. [My emphasis]
Q. The information that was obtained on that report came from your personally?
A. It came from the slip that — the slip of paper that we get with the sample of blood which . . .
Q,. This slip of paper what you call a requisition slip?
A. Right.
Q. This is the thing that they tell what they want performed?
A. That’s right.
Q. All right.
A. The deputy sheriff has to request it for us to do it. Now their name or the trooper or the officer’s name has to be on there for us to do it. The report that you have is from that report.” [My emphasis]

Accordingly, it appears to me that the request for the blood test was made by the sheriff’s department and thus, even under the concept of the majority, the provisions of § 75-1045 apply.

Following the testimony of Tubbs, counsel for appellant stated:

“We would object for an additional reason because he has told us law enforcement has come into play now and he’s based on that request and the law provides that the law enforcement officer has a duty to notify him that he’s entitled to have an independent check.”

Counsel added that appellant was entitled to have another nurse or technician to make an analysis and not having been told that he had this right, the results of the test were inadmissible. This is in line with subsection (3) heretofore quoted, which clearly provides this right to one who is given the tests.

For the reasons herein set out, I would reverse the judgment and accordingly respectfully dissent.

Byrd, J., joins in this dissent.

       The significance of the absence of such evidence was pointed out in Rogers v. State, 249 Ark. 117, 458 S.W. 2d 747.

       This statute digested as Ark. Stat. Ann. § 39-201 et seq (Supp. 1973) appears to comply with federal constitutional standards. See Pointer v. State, 248 Ark. 710, 454 S.W. 2d 91; Carter v. Greene County, 396 U.S. 320, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970).

      '(a) Any person who operates a motor vehicle upon the public highways of this State shall be deemed to have given consent, subject to the provisions of subsection (c) of this section, to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this State while under the influence of intoxicating liquor. The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered and such agency shall be responsible for paving all expenses incurred in conducting such test. Provided, if the person tested requests that additional tests be made as authorized in paragraph (3) of subsection (c) of this section, the cost of such additional tests shall be borne by the person tested. Provided further if any person shall object to the taking of his blood for a test as authorized herein, the breath or urine of the person may be used to make the analysis. ***
      “(c) (1) Chemical analyses of the person’s blood, urine, breath or other bodily substance to be considered valid under the provisions of this section shall have been performed according to methods approved by the Arkansas State Board of Health.
      (2) When a person shall submit to a blood test at the request of a law-enforcement officer under the provisions of this Section, only a physician, a registered nurse or a registered laboratory technician or technologist may withdraw blood for the purpose of determining alcoholic content therein. This limitation shall not apply to the taking of breath or urine specimens. Provided, that no physician, registered nurse, or registered laboratory technician or technologist in this State who withdraws blood for the purpose of determining alcoholic content thereof at the request of a law enforcement officer under the provisions of this Section shall be held liable for violating tiny of the criminal laws of this State in connection therewith, nor shall any doctor, nurse or registered laboratory technician or technologist be held liable in tort for the withdrawal of such blood unless such persons are negligent in connection therewith, or unless the blood is taken over the objections of the suspect.
      (3) The person tested may have a physician, or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete (chemical) test or tests in addition to any administered at the direction of a police officer. The law enforcement officer shall advise such person of this right. The refusal or failure of a law enforcement officer to advise such person of this right and to permit the person to obtain such test or tests when such person desires to have such test or tests shall preclude the admission of evidence relating to the test or tests (taken) at the direction of a law enforcement officer.”


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Edward ETHRIDGE v. ALEXANDER BROWN AND ASSOCIATES
    75-66
    527 S.W. 2d 591
    Opinion delivered July 7, 1975
    [Rehearing denied September 2, 1975.]

      Dewey Moore Jr., for appellant.

      Howell, Price, Howell & Barron, for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case in which a most unusual situation is presented on appeal.

The appellant-claimant, Edward Ethridge, was 14 years of age in July, 1971, when he lost part of a finger by accidental injury while working on a cotton picking machine in the course of his employment. The record does not contain the initial claim filed on behalf of the claimant but the record indicated it was filed against “Alexander Brown Associates.” The style of the proceedings before the Commission was “Alexander Brown Associates, Uninsured Employer.” Apparently the notice of the claim and notice of hearing went to Alexander Brown, at least Mr. Brown appeared at the hearing and testified.

It appears that in 1964 Mr. Brown had formed a corporation designated “Alexander-Brown, Inc.” for the stated purposes of owning and leasing motor vehicles for transporting property as a common and contract carrier and to buy, sell and otherwise deal in gasoline and oil products, and to buy and sell barrels, tanks and pumps for the storage and distribution of such products, and to acquire land and buildings in connection therewith. It appears that Mr. Brown owned this corporation. It further appears that several months after the injury, a limited partnership was formed between Alexander-Brown, Inc. and a number of individuals, and that the partnership was designated “Alexander Brown & Associates.”

At the compensation hearing Alexander Brown & Associates was represented by counsel who contended that the partnership, Alexander Brown & Associates was not in existence at the time of the injury, and that the claimant was actually employed by “Alexander-Brown, Inc.” The appellant-employee testified and so did Mr. Brown. The appellant testified that Mr. Brown hired him through Mr. Brown’s son; that Mr. Brown directed his work on cotton picking machines and that Mr. Brown paid him his hourly wages. Mr. Brown testified that he purchased a number of used cotton picking machines and was having them disassembled, cleaned up, and the parts painted with the idea of leasing some of the machines and selling some of the parts, and using some of the parts to repair other machines.

The pertinent portions of the findings, conclusion and award of the Commission appear as follows:

“On or about July 29, 1971, the claimant was an employee of George Alexander Brown d/b/a Alexander-Brown, Inc.; Brown & Associates, Inc.; and George Alexander Brown, individually; and the claimant was earning at that time an average weekly wage of $58.00 per week which would entitle him to a compensation rate of $37.70 per week.
* * *
The first question to be decided herein is who exactly was the claimant’s employer. The claimant testified that he was working for Mr. George Alexander Brown and was working on a cotton picking machine owned either by Mr. Brown or Mr. Brown’s company. Mr. George Alexander Brown testified that he had hired the claimant and that the claimant was assisting with refurbishing work on the cotton pickers owned by Alexander-Brown, Inc., which company he owned. The claimant was confused as to the exact name of the company for which he was working and the testimony introduced certainly shows why this confusion existed. Mr. Brown apparently engages or engaged in several overlapping ventures and used different corporation and individual names almost interchangeably. The one constant feature herein is that Mr. Brown himself was in charge of all of these operations and he testified that he did hire the claimant to work on machinery owned by Alexander-Brown, Inc.
As to whether the respondent is a proper party herein, the record clearly shows that Alexander Brown Associates existed at the time of claimant’s injury, not as a legal entity, but rather as one of several terms used in reference to various business enterprises owned by Mr. Brown. The fact that Mr. Brown claimed to be a corporation and was not makes him nothing more than an individual with a fancy name. Therefore, when the claimant filed his claim against Alexander Brown and Associates, he. was, in effect, filing a claim against Alexander Brown, individually. (Our emphasis).
* * *
The respondent is hereby ordered to pay to the claimant temporary total disability benefits in the amount of $37.70 per week beginning on July 30, 1971 and running through September 6, 1971. Respondent is to receive credit for any such benefits heretofore paid and all benefits due not heretofore paid will be paid at one time.
Respondent is further ordered to pay to the claimant permanent partial disability benefits in the amount of $37.70 per week for a period of \1 Vi weeks beginning on October 15, 1972. All such benefits due, not heretofore paid, will be paid at one time.
Respondent is further ordered to pay all reasonable medical expenses incurred by the claimant as a result of this accidental injury to his finger up to the time of his final release from treatment by Dr. Thomas Rooney.
Pursuant to Section 10 (e) of the Arkansas Workmen’s Compensation Act, the respondent is ordered to pay double the compensation benefits awarded herein.
The respondent is further ordered to pay to claimant’s attorney, Mr. Dewey Moore, Jr., the maximum attorney’s fee based upon this entire award.”

Upon appeal to the circuit court, that court entered an order as follows:

“On this day comes on for hearing the appeal from the judgment of the Arkansas Workmen’s Compensation Commission rendered on April 10, 1974, and entered of record on that date, claimant Ethridge appearing by his attorney, Dewey Moore, and respondent appearing by his attorney, Dale Price; and from a review of the record compiled in the Workmen’s Compensation Commission and other matters and things before the Court, the Court finds:
That the entity designated as the respondent in the Commission hearing is not a legal entity against whom an award could be made and that this matter be remanded to the Workmen’s Compensation Commission for such further proceedings as it may deem appropriate. ”

On appeal to this court appellant Ethridge designated the point he relies on as follows:

“The findings of the Workmen’s Compensation Commission that Alexander Brown and Associates was, in fact, a proper party to the action and that George Alexander Brown is liable to appellant for the compensation benefits claimed is supported by a preponderance of the evidence, and the circuit court erred in not confirming the award.”

Perhaps the confusion in this case could have been avoided if the employer had complied with the record and report requirements of Ark. Stat. Ann. §§ 81-1333 and 81-1334 (Repl. 1960). Be that as it may, Ark. Stat. Ann. § 81-1325 (Repl. 1960) pertains to appellate review by the circuit courts in workmen’s compensation cases and subsection (b) reads in part as follows:

“Upon the appeal to the circuit court no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the Commission, within its powers, shall be conclusive and binding upon said court. The court shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the order or award, upon any of the following grounds, and no other:
1. That the Commission acted without or in excess of its powers.
2. That the order or award was procured by fraud.
3. That the facts found by the Commission do not support the order or award.
4. That there was not sufficient competent evidence in the record to warrant the making of the order or award.”

Ark. Stat. Ann. § 81-1318 (Repl. 1960) provides for the filing of claims with the Commission within the statutory periods therein set out, and § 81-1323 (a) provides as follows:

“Within ten [10] days after a claim for compensation has been filed, the Commission shall notify the employer and any other interested person of the filing of such claim.”

Subsection (b) of this section provides in part as follows:

“The Commission shall make or cause to be made such investigation as it considers necessary in respect to the claim, and upon application of any interested party or on its own motion, shall order a hearing thereof. If a hearing on such claim is ordered, the Commission shall give the claimant and other interested parties ten [ 101 days’ notice of such hearing served personally upon the claimant and other interested parties, or by registered mail.”

Apparently the Commission’s reference to the “respondent” in its findings and award was confusing to the circuit court. We are of the opinion, however, that the circuit court’s order of remand would be confusing to the Commission. The circuit court apparently was guided more by the style of the claim before the Commission than by the substance of the Commission’s findings.

Whether Mr. Brown appeared at the hearing in response to notice served personally or by registered mail makes no difference in this compensation case. It is perfectly clear from the record that Mr. Brown was before the Commission and testified. It is also clear that the Commission’s findings were based on substantial evidence. As we read and interpret the Commission’s findings, the Commission simply found that Mr. Brown was doing business as Alexander Brown & Associates at the time of the appellant’s injury, long before the limited partnership by that name was formed, and that Alexander Brown was the appellant’s employer and the actual respondent in the case.

The appellee does not question the finality of the circuit court order. As we interpret the order, it found as a matter of law the respondent was not a legal entity against whom the Compensation Commission could make an award. The claimant’s injury occurred in 1971. The record is silent as to the cause of delay in this case and we can see no good reason for additional delay in remanding the case to the Commission for restyling the claim or beginning all over again.

The judgment is reversed and this cause remanded to the circuit court with directions to affirm the Commission’s award against Alexander Brown.

Reversed and remanded.


author: Carl Creekmore, Special Justice. Carleton Harris, Chief Justice. John Ward, Special Justice,

text:
    William L. TEDFORD, Treasurer of Pulaski County; B. Frank MACKEY, County Judge of Pulaski County; C. B. ROTENBERRY, Comptroller of Pulaski County; Charles F. JACKSON, County Clerk of Pulaski County; L. E. TEDFORD, County Assessor of Pulaski County; Monroe LOVE, Sheriff of Pulaski County; Vernon NOAKES, County Collector of Pulaski County; and Roger McNAIR, Circuit Clerk of Pulaski County v. Roger MEARS and Robert (Bob) SCOTT
    74-237
    526 S.W. 2d 1
    Opinion delivered July 7, 1975

      Lee .1. Munson. Prosecuting Attorney, and Henry Ginger, Deputy Prosecuting Atty., for appellants.

      Cliff Jackson, for appellees and cross-appellants.
   Carl Creekmore, Special Justice.

This is a taxpayers action challenging the constitutionality of Acts 680, 280, 279, 321, 353 and 603 of the General Assembly of 1971, and Acts 610, 562, 691, 565, 517 and 568 of the General Assembly of 1973.

The Trial Court held the Acts unconstitutional, restrained further payment under their provisions, ordered accounting and restitution by three of the county officials and held Chancery Court to be without jurisdiction to require accounting and restitution by the other three officials. The county officials appealed and the taxpayers filed a cross appeal.

The challenged Acts are comprehensive legislation dealing with numerous county officials, including Pulaski County, providing for the allowance of expense accounts as set out in the respective Acts. The 1971 Acts provided an expense account of $4,800.00 per annum for two of the Pulaski County officials and $5,400.00 per annum for the remainder of the Pulaski County officials. The 1973 Acts were identical to the 1971 legislation except to the amount of money. The 1973 Acts provided an expense account of $5,400.00 per annum for the County Treasurer and $6,000.00 per annum for the other county officials of Pulaski County.

Appellee taxpayers filed this action alleging that all of the Acts were void as an effort to make an allowance to the various county officials of Pulaski County, thereby increasing their salaries in violation of Article 19, Section 23, of the Arkansas Constitution, which provides: “No officer of — any county — shall receive, directly or indirectly, for salary, fees and perquisites more than Five Thousand Dollars net profits per annum in par funds — ”.

The Acts provide that each of the named Pulaski County officials shall, in addition to his salary of $5,000.00 per annum, “be allowed an expense account not to exceed (the amount designated for each official) per annum, from which he shall be reimbursed for all reasonable and necessary expenditures incidental to the proper performance of the duties and operation of his office.”

The Trial Court made the following finding of fact with reference to the disbursement of the expense accounts provided by the respective acts:

“The defendants, L. E. Tedford, Vernon Noakes and William L. Tedford, filed monthly claims with the County Court, certifying that ‘the foregoing claim is just and correct, and that no part thereof has been paid previously, that the services charged for or materials furnished, as the case may be, were actually rendered, or furnished, and that the charge made therefor does not exceed the amount allowed by law . . .’ The defendants, B. Frank Mackey and C. B. Rotenberry, County Judge and Comptroller, respectively, approved and authorized the payment of these claims; the defendant, Charles F. Jackson, County Clerk, issued warrants on the county funds pursuant to said authorizations; and the defendant, William L. Tedford, County Treasurer, paid and honored these warrants out of county funds.
“The defendants, Monroe Love, Roger McNair, and Charles Jackson, filed no claims with the County Court requesting disbursement of county funds for ‘expenses’, nor do the county records reveal any approval or authorization from the County Court for the payment of ‘expenses’ of these three officials. Each of these defendants deducted his ‘expense’ check from the fees and emoluments received in his office, indicating these deductions on monthly emolument reports filed with the County Clerk. The county records indicate no documents signed by the County Court approving these monthly emolument reports, nor do the records reflect any County Court approval of the year-end settlements filed by these officials.”

The Trial Court found that the expense account money received by Monroe Love, Roger McNair and Charles Jackson was not reimbursement for any expenses incurred for the benefit of Pulaski County, Arkansas, and that the funds received under these acts amounted to compensation in violation of the constitution. The Trial Court made the further finding that:

“All the actual and necessary expenses of the office of each of the county officials are paid for by the County, and, in addition, each official received a monthly car allowance of from SI50.00 to S200.00 above and beyond his salary and his expense’ check.”

The points relied on for reversal by Appellants are:

1. The Trial Court erred in declaring the enumerated Acts unconstitutional as violating Article 19, Section 23 of the Constitution and enjoining the taking of expense allowances thereunder.

2. The Trial Court erred in requiring accounting and restitution by certain officials of expense allowances drawn.

Four alleged errors by the Court are asserted in the cross appeal. We find merit in Numbers One and Two.

We cannot agree with Appellants on either contention. Wé do not find the Acts challenged to be unconstitutional as adopted, but we do find all of them to be unconstitutional as applied and administered in Pulaski County.

In Laman v. Smith, 252 Ark. 290, 478 S.W. 2d 741, we held an ordinance providing for public relations expenses for the-Mayor and City Clerk, in addition to their salary, to be valid. But we held that they could not be paid one-twelfth each month of the amount appropriated, but were only entitled to reimbursement for expenses actually incurred.

In holding that the officers were entitled to reimbursement for public relations expenditures made up to the maximum amount of the appropriation, this Court said:

“This is, of course, entirely different from making a set allowance of funds to a public officer to be used at will.” And we emphasized this in the closing paragraph saying: “In accordance with what has been said, we hold the ordinance valid, reiterating, however, that the officers involved in this litigation are not entitled to one-twelftb each month of the total amount appropriated for public relations expenses, but are entitled only to reimbursement up to that amount for public relations expenses actually incurred.”

In Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279, which involved public relations expenses for certain state officers, we invalidated Section 3 of Act 399 of 1961, which provided:

“On the first day of each calendar month in each of the foregoing fiscal years, the Auditor of State shall issue a warrant drawn in favor of each of the officials named in Section 2 hereof in the amount of one-twelfth of the appropriation allocated to each such official, and the State Treasurer is hereby authorized and directed to pay said warrants from funds herein appropriated.”

In so doing, we said, “Section 3 would authorize monthly payments of public relations expenditures by (to) the state officers whether or not they had incurred such expenditures. Therefore, we conclude that Section 3 of Act 399 must be stricken.”

In Jones et al v. Mears et al, 256 Ark. 825, this Court upheld the constitutionality of an Act authorizing the members of the General Assembly to obtain reimbursement for actual, reasonable and necessary expenses incurred by the members in performing activities which were directly connected with, and incidental to, their official duties.

In that opinion, it was said, “However, this Court could countenance no claim which appeared to be a sham to evade the constitutional limitation on compensation.”

In these cases, this Court recognized the right of public officers to be reimbursed for actual, reasonable, and necessary expenses incurred in performing duties directly connected with, and incidental to, their official duties. But in so doing, the Court has not approved the payment of any funds in excess of the constitutional limitations which could go into the pockets of the recipient.

It is significant that each appellant admitted that federal income tax was deducted from the total of his salary and expenses combined, admitted that state income tax, social security and state retirement were deducted from the total salary and expenses combined, and admitted that the social security deductions and state retirement deductions were matched from Pulaski County funds.

Expense money provided by the Acts in question was received in advance and without any itemization or vouchers. The appellants were at liberty to expend the funds as they so desired without any actual accounting therefor.

Under the facts and circumstances in this case, we are compelled to the conclusion that the receiving of the “expense” money by each and all of the appellants constituted an illegal exaction under many decisions of this Court. An illegal exaction, under the terms of Article 16, Section 13 of our Constitution was defined in Mackey v. McDonald, 255 Ark. 978, as an exaction that either is not authorized by law or is contrary to lav*'. In the same case, at Page 982, this Court said:

“It seems that, under this section of the Constitution, equitable remedies are accorded the taxpayer to prevent misapplication of funds when the taxpayer may be required to replenish those funds if exhausted through the misapplication. Eddy v. Schuman, supra. (206 Ark. 849). It also seems clear that this constitutional provision is applicable in every case where taxpayers will bear the burden of replenishing funds exhausted by misapplication.” (Citing cases.)

The Court then said:

“The cited cases make it quite clear that a citizen and taxpayer may maintain a suit to prevent a misapplication of funds or to protect against unlawful official acts which could logically result in illegal exaction as well as to require reparation for that which has been done.” See Grooms v. Bartlett, 123 Ark. 255, 183 S.W. 282.

The record reflects that L. E. Tedford, William L. Ted-ford, and Vernon Noakes filed a claim each month, but without an itemized account as required by Section 17-704 of Ark. Stats. Anno., and obtained the routine approval by the County Court.

Considering all of the facts and circumstances peculiar to this case, we cannot agree with the Trial Court that in so doing, these three officials placed themselves beyond the jurisdiction of Chancery Court to require an accounting and restitution.

We hold that the Chancery Court has jurisdiction in this case to require an accounting and restitution by all of the county officers drawing funds under provisions of the invalidated acts. See Fuller v. State for Use and Benefit of Drainage District No. 3, Craighead County, 112 Ark. 91, 164 S.W. 770, and McCoy v. State for Use of Greene County, 190 Ark. 297, 79 S.W. 2d 94.

That part of the Decree holding Chancery Court to be without jurisdiction to require accounting and restitution by L. E. Tedford, William L. Tedford and Vernon Noakes is reversed and the cause is remanded with instructions to ascertain the amount of restitution to be made by each of these county officials. The Decree is otherwise affirmed.

Harris, C. J., dissents in part.

John Ward, Special Justice, dissents.

Fogleman and Holt, JJ., not participating.

Carleton Harris, Chief Justice.

Dissenting in Part. In my opinion, this Court is in error in reversing the Chancellor relative to his finding that the county officers who filed claims, which had been approved by the County Court, did not have to repay such funds. In its opinion, the Trial Court found that there was neither actual, nor “legal”, fraud; that accordingly, the Chancery Court has no jurisdiction to order repayment of funds approved as claims by the County Court, — nor does this Court make any finding of fraud. The Chancellor cited Arkansas Association of County Judges v. Greene, 232 Ark. 438, 338 S.W. 2d, 672. In that case, we stated:

“We agree with appellant that the Chancery Court had no jurisdiction to order repayment of claims already allowed. In the absence of fraud (and we think no fraud was shown here) the remedy was by appeal to the Circuit Court. See: Art. 7 § 33 Constitution, Ark. Stats. § 27-2001, and Jones v. Capers, 231 Ark. 870, 333 S.W. 2d 242.”

Of course, the above holding has been rendered many times. In Monroe v. Brown, 118 Ark. 524, 177 S.W. 40, we said:

“This court has in its decisions steadily adhered to the rule that a county court, in the allowance of claims against the county, acts judicially, and that its judgments are not open to collateral attack except for fraud or lack of jurisdiction. Jefferson County v. Hudson, 22 Ark. 595; State, Use Izard County v. Hinkle, 37 Ark. 532; Cope v. Collins, Admr., 37 Ark. 649; Lincoln County v. Simmons, 39 Ark. 485.”

Our most recent pronouncement on this subject was Cook v. Burchfield, Judge, handed down on June 16 of this year, where we reiterated our prior holdings that the Chancery Court had no jurisdiction, in the absence of fraud, to order repayment of claims already allowed by the County Court.

Accordingly, I would affirm the Chancellor’s findings and therefore respectfully dissent.

John Ward, Special Justice,

dissenting. I disagree with the majority holding that the Chancellor was correct in ordering restitution. There seems little question that the equity court has jurisdiction over illegal exactions, as defined in the majority opinion, both to enjoin payment thereof and to require reparation for that which has been done. But as pointed out in the decision of this court in the case of Mackey v. McDonald, 255 Ark. 978, 504 S.W. 2d 726, an illegal exaction may be found with or without a fraudulent intent. In that case, the court said:

“We agree with the Chancellor’s finding that no fraud or bad faith had been shown. The illegal exaction principle, however, is not confined to such cases, even though there may have been several occasions where these elements were the bases of finding that there had been illegal exactions. A good faith misapplication of funds in a manner or for a purpose not authorized by law constitutes an exaction from the taxpayers which is illegal even though not fraudulent.”

I believe our prior decisions have established that restitution should be treated differently in absence of a finding of fraud from those cases involving a positive finding thereof. In the case of Starnes v. Sadler, 237 Ark. 325, 372 S.W. 2d 585, it was decided that the conduct in question produced an illegal exaction, but upon the issue of restitution it was said:

“Concerning the prayer of appellants for an accounting by appellees of any funds unlawfully received by virtue of holding dual offices, there is nothing in the record to justify a finding that appellants have acted with any fraudulent intent, or that they have even appreciated the possibility of their holding illegal offices.”

Thereupon the court refused to order restitution.

In this cause the Chancellor specifically found there was no fraudulent conduct on the part of the county officers involved. That finding was not disturbed by this Court, and rightfully so. When the ingredient of fraud is involved, it cries out for reparation. But when it is absent, and when the conduct is carried out under color of statute, restitution should not be ordered. The logic behind such a view is that the opposite finding requires county officials, all of whom are untrained in the law and are not required to be lawyers, to make a judicial determination of the legality of a particular statute or administrative process. That is too heavy a burden.

For the reasons stated, I would affirm the decision of the Chancellor as to all points but that which ordered restitution.


author: Don M. Schnipper, Special Justice.

text:
    Anderson Gene DuBOIS v. STATE of Arkansas
    CR 74-163
    527 S.W. 2d 595
    Opinion delivered July 7, 1975
    [Rehearing denied September 2, 1975.]

      Elton .1. Rieres III, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   Don M. Schnipper, Special Justice.

Appellant, Anderson Gene DuBois, was charged with the offense of murder in the first degree for the shooting and killing of Mack Crawford Howell during the early hours of June 14, 1971 in West Memphis, Arkansas. Appellant was first tried and convicted of this charge in March, 1972 and sentenced to life imprisonment. On appeal to this Court that conviction was reversed and remanded for a new trial. See DuBois v. State, 254 Ark. 543, 494 S.W. 2d 700 (1973). Appellant was tried for the same offense in April, 1974 and was again convicted and sentenced to life imprisonment. It is from the second conviction and sentence that Appellant brings this appeal.

The facts of this particular criminal act have been reviewed and outlined by this Court on several previous occasions and an additional review would add nothing to this opinion. See DuBois v. State, Supra., and Austin v. State, 254 Ark. 496, 494 S.W. 2d 472 (1973). For this reason only the facts necessary for a review of Appellant’s contentions on appeal will be mentioned.

Appellant first contends that the trial court erred in accepting twenty-two affidavits offered into evidence by the State without requiring the State to produce its affiants for an opportunity of cross-examination as to their credibility.

Appellant complied with provisions of Ark. Stat. Ann. Sec. 43-1602 and filed his Motion for Change of Venue contending Appellant could not get a fair trial in Crittenden County, Arkansas. With the Motion were two affidavits of persons meeting the statutory requirements stating that the minds of Crittenden County inhabitants were prejudiced against Appellant and would presume him guilty because of newspaper articles, pictures and television coverage.

Appellant presented numerous newspaper articles and also put his two witnesses on the stand. The State countered Appellant’s position by presenting the affidavits of twenty-two (22) persons who also met the statutory qualifications but none of these persons were called on for testimony in open court. Appellant objected to the introduction of the State’s affidavits on the grounds that such procedure denied Appellant the right to cross-examine the affiants as to their credibility.

The cited statute makes no requirement that the necessary affiants be presented before the Court for oral examination, even though such is permissible.

It is a well established principle in this State that the burden is on the movant in a change of venue proceeding to make credible proof in support of the motion. Maxwell v. State, 236 Ark. 694, 370 S.W. 2d 113. Furthermore, a motion for a change of venue is addressed to the sound discretion of the trial court (Bailey v. State, 204 Ark. 376, 163 S.W. 2d 141) and unless the trial court has abused its discretion in overruling, a motion for a change of venue, the order is conclusive on appeal. Bryant v. State, 95 Ark. 239, 129 S.W. 295; Ford v. State, 98 Ark. 139, 135 S.W. 821; Adams v. State, 179 Ark. 1047, 20 S.W. 2d 130; Stout v. State, 247 Ark. 948, 448 S.W. 2d 636. There is a presumption that the persons who make affidavits in support of such a motion are credible until the contrary is shown. Surgeon v. State, 160 Ark. 112 (1923). It is also well established that after the required affidavits are submitted the only question for the determination of the Court is w'hether or not the affiants are credible persons. Surgeon v. State. Supra.

This Court does not deny that Appellant may well have met his statutory burden of proof on the change of venue issue. However, it is also clear that the State countered with a considerable number of affidavits and met Appellant’s proof in a very convincing manner. Considering this Court’s review authority and the latitude of discretion of the trial court, we do not feel it was essential that the trial court require the State to produce its affiants in person. We do, however, recognize the trial court’s authority to make this requirement if it feels such testimony is necessary and it has any doubt as to the credibility of the State’s affiants. Accordingly, we find no error by the trial court in this regard.

We are also inclined to comment on the newspaper articles submitted into evidence in support of Appellant’s motion. From this evidence it appears there were a number of articles referring to the beginning of the first trial and during those proceedings. These all appeared between February 29, 1972 and March 4, 1972, some two years before the second trial. Appellant’s other articles introduced into evidence were published in September, 1972 during the Jerry Austin trial with short references to Appellant, these being about one and one-half years before the second trial. The most recent news release introduced was dated May 21, 1973, almost one year after the first trial and eleven months before the second trial, and referred to the reversal of the Appellant’s first conviction, a matter we hardly feel would be prejudicial to Appellant.

Considering the publication dates of all the articles, we feel they were of little support to Appellant’s position due to their remoteness in time to the second trial. See Walker v. Bishop, 408 P. 2d 1378.

For these reasons we do not feel the trial court abused its discretion in overruling Appellant’s Motion for a Change of Venue or in failing to require the State to produce its twenty-two affiants for open court testimony and cross-examination.

Appellant next contends that the trial court erred in refusing to quash Appellant’s oral and written statements given while in the custody of the West Memphis Police Department. Specifically, Appellant claims such statements were made involuntarily.

It is undisputed that Appellant was arrested about 3:00 or 3:30 p.m. in Savannah, Tennessee on June 27, 1971, held in the county jail until West Memphis officers arrived there at 9:30 or 10:00 p.m., was transported to West Memphis, Arkansas, and arrived there about 12:00 or 12:15 a.m., June 28, 1971; after being advised of his constitutional rights from a Miranda form, gave a six page written statement between 12:24 a.m. and 4:00 a.m.; was allowed to sleep and eat breakfast; was again advised of his constitutional rights and again executed a waiver; gave an oral statement which was tape recorded about 10:00 a.m. These facts are established by the testimony of Appellant, two of the interrogating officers and the transcribed testimony of a third officer taken at the hearing before the first trial.

While we refer to the Appellant’s confession, in truth the Appellant confessed to nothing more than having traveled to West Memphis, Arkansas with Jerry and Linda Austin and G. W. Stewart; being with these people at the Austin house during the early hours of June 14, 1971; being in the front right-hand seat of an automobile driven by G. W. Stewart when Jerry Austin brought Mack Howell to the car and witnessing Jerry Austin shoot Mack Howell. In other words, this was not a confession of guilt, but an exculpatory statement on Appellant’s part.

For purpose of this appeal, however, .these statements must be treated as confessions in accordance with Miranda v. Arizona. 384 US 436, 16 Led 2d 694, 86 S. Ct. 1602, 10 ALR 3d 974.

Appellant moved that the statements be quashed and not allowed into evidence at the second trial and a Denno hearing was held by the trial court outside the presence of the jury and prior to the trial, in accordance with Ark. Stat. Ann. Sec. 43-2103. At the completion of this hearing the trial court ruled the statements to have been voluntarily made and allowed them to be presented to the jury by the State.

Since the landmark Miranda case, this Court has on many occasions been called upon to judge various circumstances and factors involved in the taking or giving of confessions or incriminating statements. As a result of these occasions a number of factors upon which to base this finding have been enunciated. While not necessarily all inclusive, the following is a listing of factors to be considered by the trial court in making this determination:

1. ' Age and intellectual strength or weakness of the Defendant;
2. Manner in which he is questioned;
3. Presence or absence of threats of harm, fear of punishment, inducements or hopes of reward;
4. Delay between advice of rights and giving of confession.

It is against these factors that we have examined the written and oral statements of this Appellant.

Appellant was 26 years old at the time of the 1974 trial and had completed 9 years of school and received a general education development diploma while in military service. While Appellant contends he had been drinking prior to his arrest the testimony of himself and officers of the West Memphis Police Department seem to make it clear that the handwritten statement was not taken until some nine hours after his arrest and transfer from Savannah, Tennessee to West Memphis, Arkansas and the oral statement somé ten hours after this arrest. These extended time periods and an examination of Appellant’s handwriting and responses to questions lead us only to conclude that he was not under such an influence of intoxicants so as to render either or both statements involuntary. Ail testimony, including that of Appellant, indicates the West Memphis Police Department officers read the Miranda rights form to Appellant before each statement and, therefore, there was no delay between the advice and the giving of each statement. On these points, we see nothing to indicate anything other than that the statements were voluntarily, intelligently, freely and intentionally given.

One of Appellant’s main contentions for reversal is that he was “cajoled” into making the statements placing him at the scene of the crime by one of the interrogating officers, Capt. Gaia, telling him that the only way he could clear himself would be to give a statement. This statement was contradicted. Furthermore, Appellant in the instant case acknowledged that he had been informed of the charge of first degree murder, had been informed of the Miranda rights, and we feel certain his statement was made with his own hope of exoneration and to place the commission of the criminal act on another person, rather than because of any inducement or hope of reward.

The remaining contention of Appellant to refute the State’s position of the voluntariness of the confessions is that while Appellant was told he was charged with first degree murder he was not told that even if he was not guilty of that criminal act he could well be guilty of being an accessory before the fact and could, under certain circumstances, be held and punished as the principal. Apparently it is Appellant’s contention that a suspect must be charged with and have explained to him all crimes for which he could be charged with or tried for, including all lesser offenses.

In the instant case it is undisputed that Appellant was told in Savannah, Tennessee and in West Memphis, Arkansas, upon his return, the exact nature of the charge against him, i.e., first degree murder. While Appellant was not told he could be tried for first degree murder as an accomplice, he did give an exculpatory statement which simply placed him at the scene of the occurrence and, if believed, might well have cleared him of all prior knowledge, intent, malice, as well as all other necessary elements even as an accomplice.

The facts remains that Appellant was informed of the charge against him and was tried for that particular charge, not as an accomplice, but as the principal. Accordingly, we can see no error in this regard.

In summary, we find no error or abuse of discretion on the part of the trial court in finding the statements to have been voluntary on the part of Appellant and, therefore, admissible into evidence.

At the hearing held prior to the second trial to determine the voluntariness of Appellant’s statements one of the interrogating West Memphis, Arkansas police officers did not appear but his testimony at the hearing on the same issue held prior to the first trial was presented to the Court and considered by the Court in determining the voluntariness question. Two of the police officers present at the interrogation did appear in person.

Appellant now contends that the testimony of Captain Raymond Gaia should not have been allowed into evidence as Captain Gaia was a material witness, was not present for the second hearing and no adequate explanation was given by the State for his absence. Therefore, under the Appellant’s theory, the State did not meet its burden of proof as to the voluntariness of the statements of Appellant when it did not produce all material witnesses connected with the controverted statement.

Appellant has cited this Court to a number of recent decisions to the effect that it is necessary in determining the voluntariness of a confession that all material witnesses be presented or an adequate explanation of their absence be given. Smith v. State, 254 Ark. 536, 494 S.W. 2d 489; Northern v. State, 257 Ark. 549 (1975); Russey & Way v. State, 257 Ark. 570 (1975). This Court acknowledges and reaffirms the holdings of the cited cases but feels there is adequate distinction between the situations in the cited cases and the situation in the instant case.

By way of brief history, following the 1964 U. S. Supreme Court decision in Jackson v. Denno, 378 U.S. 368, 12 L. ed. 2d 908, 84 S. Ct. 1774, 1 ALR 3d 1205, the Arkansas Legislature adopted Act 489 of 1965 (Ark. Stat. Ann. Sec. 43-2105) (Supp. 1973) to govern the hearing and determining authority on the issue of voluntariness of a confession. The adherence to the statutory procedure has been approved by this Court on numerous occasions. (See Walker v. State, 253 Ark. 676, 488 S.W. 2d 40 (1972)). Through various cases decided since the enactment of this statute, this Court has firmly established that the determination of the voluntariness of a confession must be made by the Trial Judge outside of the presence of the jury and the only jury determination in this regard would be the credibility of the statement and weight to be given same.

It, therefore, follows that any objection to the production of evidence on the voluntariness issue must be made at the hearing conducted by the Trial Judge (commonly referred to as a Denno hearing). No such objection was made by Appellant at the Denno hearing in the instant case. In fact, the lack of such objection was noted by counsel for Appellant during the trial, outside of the jury’s presence and immediately prior to the presentation of Appellant’s statemens to the jury.

Accordingly, this Court cannot on appeal consider Appellant’s objection to the use of Captain Gaia’s testimony taken during the Denno hearing prior to the first trial and used at the hearing prior to the second trial.

Appellant next contends that the trial court erred when it refused his instruction that Linda Austin Shaw was an accomplice as a matter of law. If such was the case Appellant could not be convicted upon her testimony unless such was corroborated by other evidence tending to connect Appellant to the commission of the crime.

Appellant relies heavily upon the decision of this Court in the first appeal of this Appellant, DuBois v. ¡State, 254 Ark. 543. In that opinion this Court did make the following finding:

“Applying these tests to the record in this case, this Court is of the opinion that Linda Austin, at least was an accessory within the meaning of Section 43-2116.”

However, the reason for the reversal by this Court on the first appeal was, in the final result, a finding of insufficient evidence connecting Appellant with the killing of Mack Howell without the testimony of Linda Shaw Austin and G. VV. Stewart.

“The only evidence placing DuBois in the State of Arkansas at the time of Mack Howell’s killing comes from the testimony of Linda Austin (now Shaw) and GW. Stewart.” DuBois v. State, Supra.

It was not the finding nor intention of this Court to require such an instruction as requested by Appellant upon the second trial as such could only be determined by the testimony at the second trial.

Appellant’s requested Instruction No. 3 on second trial was as follows:

“You are instructed that Linda Austin is, as a matter of law, an accomplice.”

Rather than giving this Instruction, the trial court allowed the jury to make this determination with the following instruction:

“It is for you to determine from all the facts and circumstances in this case whether or not Linda Shaw (formerly Austin) or G. W. Stewart, or both of them, were accomplices within the meaning of the law as just given to you.”

The trial court preceded and followed the above quoted language with a proper statement of the law of this State concerning the definition of an accomplice, and the weightto be given such testimony and the requirement of corroboration. Ark. Stat. Ann. Sec. 43-2116 (Repl. 1964).

Appellant’s contention has been presented to this Court on prior occasions and we have answered same in the following language:

“Appellant’s main objection to this instruction is that he says the instruction should have told the jury that Stanley Robinson was an accomplice and not leave that issue to the jury. This is not the law and there was no reversible error, if it were, in fact, submitted to the jury.” Rice v. State, 241 Ark. 570, 408 S.W. 2d 902 (1966).
See also Hummel v. State, 210 Ark. 471, 196 S.W. 2d 594 (1946). Boyd v. State, 215 Ark. 156, 219 S.W. 2d 623 (1949).

This Court reviewed the accomplice issue insofar as G. W. Stewart is concerned in the appeal of Jerry Austin and reaffirms the holdings there. Austin v. State, 254 Ark. 496, 494 S.W. 2d 472 (1973). Accordingly, we feel the question of whether or not G. W. Stewart was an accomplice was properly submitted to the jury for determination.

At the second trial of Appellant Linda Austin Shaw also testified she knew nothing about the plan to kill Mack Howell and was fearful of her husband and Appellant. At the same time there was considerable evidence tending to contradict her knowledge, participation and fear. All things considered, this Court has concluded that the evidence raised a fact question and was properly submitted to the jury for resolution. For these reasons we find no reversible error by the trial court in refusing Appellant’s requested instruction.

Appellant finally insists there was not sufficient corroborating evidence to convict him of the crime for which he was charged and that the jury’s verdict was not supported by the evidence. In making the contention Appellant has made two assumptions: first, that Linda Austin Shaw and G. W. Stewart were accomplices as a matter of law, and second, that the exculpatory statements of Appellant were involuntary and inadmissible. From our findings set out herein, both of these assumptions are erroneous.

While Appellant’s statements were exculpatory rather than incriminating as to the shooting of Mack Howell, they did place Appellant at the scene of the crime arid allowed the jury to judge the credibility of such.

We think ail the evidence was sufficient to convict Appellant regardless of the jury’s finding that Linda Austin Shaw and G. W. Stewart were or were not accomplices. In other words, even if they were accomplices, there was sufficient corroboration of their testimony connecting Appellant with the offense to sustain the verdict.

We find no reversible error on this contention of Appellant.

Affirmed.

Byrd, J., concurs.

Fooijeman, J., not participating.


author: George Rose Smith, Justice.

text:
    Frederick Lee HUBBARD and Richard WILLIS, Jr. v. STATE of Arkansas
    CR 75-55
    527 S.W. 2d 608
    Opinion delivered September 2, 1975
    [Rehearing denied October 6, 1975.]

      Jeff Duty, for appellants.

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

Frederick Lee Hubbard and Richard Willis, Jr., appeal from a conviction for burglary and grand larceny committed at Carroll Electric Co-op’s warehouse. Each received concurrent 21-year sentences with 12 years suspended. The six points for reversal present in substance three questions.

The material facts are hardly in dispute. On February 10, 1974, four men — Hubbard, Willis, Russell Brewer, and Burlin Witcher — drove to Bentonville from Missouri with the intention of stealing copper, which was readily salable, and taking it back to Missouri. The men made their headquarters at the home of Witcher’s wife, Dora, near the courthouse in downtown Bentonville. That afternoon they drove around together and spotted two places where quantities of copper might be found: Wilkes Construction Company, in Rogers, and Carroll Electric, in Bentonville.

After dark the four men drove to Rogers in a pick-up truck, burglarized the Wilkes place of business, returned to Bentonville, and left the stolen goods in Hubbard’s car at Dora Witcher’s house. At about midnight they drove to the Carroll Electric warehouse and spent several hours in loading the pick-up truck with a number of tools and more than 1,500 pounds of copper wire.

The men then started back to the Witcher house. Near the courthouse the overloaded truck aroused the suspicion of Officer Foster, a city patrolman on night duty. Burlin Witcher, upon seeing the officer, turned into a residential driveway and let the other three men get out of the vehicle. Officer Foster got a good look at Hubbard, near a street light. Witcher became alarmed and took off in an attempt to escape the officer. After a brief chase Witcher’s truck overturned in an open field. Officer Foster radioed for assistance, and Witcher was taken into custody. The stolen merchandise was identified as having come from the Carroll Electric warehouse, which had obviously been burglarized.

In the meantime the other three men made their way back to the Witcher residence. They decided to take another vehicle and see what had happened to Witcher. As they approached the site of Witcher’s accident they saw police cars and thought it best to return to Dora Witcher’s house and go to bed. A police officer found the men there early in the morning.

Two days later all four men were charged with the burglary and theft at Carroll Electric. Hubbard and Willis were tried together. Brewer testified for the State, narrating many of the facts that we have set forth.

Three of the points for reversal arise from an incident during the cross-examination of Brewer. On direct examination there had been no reference to Wilkes Construction Company or to the burglary there. On cross-examination, however, defense counsel inquired about the afternoon visit to Wilkes, including the men’s having “cased the joint.” Counsel also asked about the second trip to Wilkes that night, though not mentioning the burglary. The interrogation continued to follow the sequence of events until this interchange occurred:

Q. Well, what time did you come back to Bentonville?
A. I figure around ten-thirty or eleven.
Q. And where did you go then?
A. To the house. Dora’s house.
Q. Witcher’s house again?
A. Yes, sir.
Q. How long did you stay at Witcher’s house?
A. Just long enough to get all the stuff out of the pick-up and put it in Freddie’s car, from Wilkes.
Q. From what?
A. From Wilkes Construction.
Mr. Duty: Í ask that that be stricken, Your Honor.
The Court: Denied. You inquired into it.
Mr. Duty: I asked him how long he stayed at the Witcher house.
The Court: Well, that’s all right.
Mr. Duty: Save our exceptions. Well, he’s not charged with that, but I’m asking the court to make my record that the court instruct the jury that he is not charged with anything except this one.
The Court: All we’re trying is the charge on this one incident.

Later on the prosecuting attorney referred to the matter in his closing argument. The court overruled Mr. Duty’s request that the reference be stricken.

It is argued, on the authority of cases such as Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954), that Brewer’s answer should have been stricken, because it referred to another criminal offense. We do not agree. In the first place, counsel had already alluded to the other burglary by asking Brewer if the men had cased the joint and by bringing out their second visit to Wilkes after dark. The cat was already almost completely out of the bag. Secondly, the answer was responsive to the question, “How long did you stay at Witcher’s house?” That question did not necessarily call for an answer in terms of minutes or hours. It is not error for the court to refuse to exclude a responsive answer on cross-examination. Ark. Power & Light Co. v. Harper, 249 Ark. 606, 460 S.W. 2d 75 (1970). Inasmuch as the testimony was properly before the jury, the prosecutor was entitled to mention it in his closing argument.

In two points for reversal it is argued that the testimony of Brewer, an accomplice, was not corroborated by other evidence tending to connect Hubbard and Willis with the commission of the offense. Ark. Stat. Ann. § 43-2116 (Repl. 1964). We find the State’s corroborating testimony to be adequate. Dora Witcher testified that her husband, Brewer, Hubbard, and Willis were together during that day. She said that the four left the house at about eleven o’clock that night and that Brewer, Hubbard, and Willis returned. The burglary was shown to have taken place during the night. Officer Foster saw four men in the truck after the burglary and identified Witcher and Hubbard. Thus there was adequate corroborating testimony to justify the jury in finding that the four men committed the crimes together. For somewhat similar cases, involving the participants’ association before and after the offense, see State v. Bassett, 86 Ida. 277, 385 P. 2d 246 (1963); Lamp v. State, 231 Md. 537, 191 A. 2d 224 (1963); People v. Kress, 284 N.Y. 452, 31 N.E. 2d 898 (1940); Hill v. State, Okl. Cr., 500 P. 2d 1080 (1972).

The sixth point for reversal relates to defense counsel’s request that Officer Prather be recalled for cross-examination. The officer could not be recalled at once because, although he had been subpoenaed by the prosecution and not released, he had gone to Oklahoma after he first testified. The court did not abuse its discretion in refusing to delay the trial, because the proffered additional testimony was merely cumulative and, as far as the record shows, could have been elicited by cross-examination in the first instance.

Affirmed.


text:
    William (Willie) GRAVES v. STATE of Arkansas
    CR 75-45
    527 S.W. 2d 611
    Opinion delivered September 8, 1975

      Floyd Clardy III and David E. Smith, for appellant.

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

The appellant Graves, charged with robbery, was found guilty and was sentenced (as a habitual offender with three felony convictions) to imprisonment for 21 years. His present counsel, appointed to handle this appeal, argue five points for reversal. We affirm the judgment.

On April 13, 1974, according to the State’s proof, the appellant and Kenneth Agnew, masked and armed with pistols, held up a liquor store in Garland county and obtained more than 11,100 in cash and checks. Both men were later arrested and charged with robbery. They pleaded not guilty. Agnew, however, signed a confession and testified as a witness for the State in the court below. Another witness, the employee who was held up and robbed, identified Graves by scars upon his arms.

I. It is first argued that the trial court was wrong in refusing to permit Richard L. Slagle, the appellant’s trial counsel by appointment, to withdraw from the case. At a preliminary hearing Slagle asked to be relieved, because “our firm represents the establishment allegedly robbed.” Graves, however, in response to questions by the court, said that Slagle had done a better-than-average job in representing him in an earlier case. He considered Slagle to be competent and honest. “I don’t want to get rid of him. ... I would prefer that he represent me. I’d go along with him.” Upon that basis the court asked Slagle to continue to serve. After the trial the judge, in appointing counsel for the appeal, said to Graves that Slagle “has done an excellent job in my judgment; I don’t think he could have done any better.”

The court’s ruling was right. Although Slagle properly brought up the possibility of a conflict of interest, no real conflict is shown. It is not suggested that civil litigation arose from the robbery. There is no hint that Slagle had received any confidential information about the circumstances of the robbery. Finally, Graves (who was not inexperienced in criminal trials) asked that Slagle continue to represent him. Had that request been denied and had other counsel been appointed in Slagle’s place, Graves with some plausibility might well have sought a new trial upon the ground of having been denied counsel of his choice. We are not persuaded that Graves should be entitled to assert reversible error no matter which way the trial judge acted upon Slagle’s request to be relieved as counsel.

II. Agnew testified, over objections, about several statements that Graves had made in conversation as the two men were planning the robbery and driving together toward the liquor store where the hold-up took place. The statements were unquestionably competent as admissions made by a party to the case. Such admissions are admissible as original evidence, if relevant, simply because a party to the litigation is not in a position to disclaim responsibility for his own prior statements. Sherman v. Mountaire Poultry Co., 243 Ark. 301, 419 S.W. 2d 619 (1967); Bullington v. Farmers’ Tractor & Implement Co., 230 Ark. 783, 324 S.W. 2d 517 (1959); Conway v. Hudspeth, 229 Ark. 735, 318 S.W. 2d 137 (1958); McCormick on Evidence, § 262 (2d ed., 1972).

III. It is argued that the trial judge improperly commented upon the evidence in directing that $200 in currency, taken by the police from Agnew and produced in court, be returned “to its owner,” and that the jury disregard “any testimony that appears to be self-serving.” The short answer to this argument is that neither statement was objected to by defense counsel. Had such an objection been made the trial judge could readily have removed even the remotest possibility of prejudice by an admonition to the jury.

IV. Complaint is made that the trial court should have given Graves credit for three months spent in jail between hjs arrest and the date of trial. Graves had the burden of showing that his failure to make bond was due to indigency. Charles v. State, 256 Ark. 690, 510 S.W. 2d 68 (1974). The record contains an affidavit of indigency, having to do only with a request for the appointment of counsel, but there is nothing to show either that Graves asked the court to allow him to make bond or that indigency alone was the reason that bond was not made.

V. Graves testified in his own defense. He now argues that the prosecutor should not have been permitted to bring out on cross-examination that the municipal court had bound him over to the grand jury. The argument is without substance. On direct examination Graves had already testified to the same effect: “I went to a preliminary hearing and was bound over to the grand jury.” Moreover, the petit jury was certainly aware that the accused had been charged with the offense on trial. We fail to see how the prosecutor’s reference to that undisputed fact could have been prejudicial, especially as the court gave the usual instruction that the charge was not to be considered as evidence of guilt.

Affirmed.