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

text:
    Harold Kimble v. The State of Arkansas
    5-5401
    438 S.W. 2d 705
    Opinion Delivered March 24, 1969

      Phillip Carroll for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   Carleton Harris, Chief Justice.

On June 27, 1967, appellant, Plarold Kimble, was tried by the Circuit Court of Pulaski County (First Division) sitting as a jury, convicted of the crime of assault with intent to kill, and sentenced to five years in the penitentiary. Pie remained in the penitentiary until May 16, 1968, when the conviction was set aside by the court after a hearing under a Criminal Procedure Rule 1 petition. The court found that, at the original trial, no witnesses were called on appellant’s behalf, though Kimble had furnished his then attorney with the names of four or five persons, who appellant stated would testify to the effect that he was acting in self-defense. Appellant was again tried on June 12, 1968, by a jury, again found guilty, and the verdict fixed his punishment at nine years’ imprisonment in tlie penitentiary. From tlie judgment entered in accord with this verdict, Kimble brings this appeal. For reversal, five points are urged, as follows:

I. The Arkansas jury selection system and its application by the Commissioners in this instance deprived the defendant of a fair cross-section of the community to pass judgment on his life and liberty.

II. Appellant’s confession ivas taken in violation of his constitutional rights and should not have been admitted in evidence.

III. Admissible evidence on cm important issue was wrongfully excluded by the Court.

IV. The Trial Judge wrongfully expressed his opinion of defendant’s guilt in the presence of the jury.

Y. Appellant’s period of confinement should be reduced by the period of confinement under the former void conviction.

AVe proceed to a discussion of these contentions in tlie order listed.

I.

It is forcefully argued that the composition of the jury panel precluded Kimble from being tried by a jury of his peers. The argmnent is directed, not particularly to the fact that there was discrimination against members of the Negro race, but a discrimination occasioned by the selection of a particular group of persons, rather than a cross-section of the entire community. There were six Negroes on the jury panel, and actually four of these were selected as members of the twelve-person jury which convicted Kimble. As expressed by appellant, the jury commissioners picked the “blue ribbon” class of jurors, i.e., businessmen, school principles, teachers, etc., and completely ignored day laborers, mechanies, and other wage earners. In other words, it is the contention of appellant that he was deprived of a jury composed of his economic and social peers.

Appellant’s attack is made upon the system of selection óf jury panels, and he says that it is only natural that jury commissioners will select persons for jury-service composed- of their neighbors, friends, acquaintances, i.e., persons that they know, and the selection of businessmen for jury commissioners, necessarily means that-the same members of that classification only will be selected for jury service. It is pointed out that the three jury commissioners were respectively the owner of- an exclusive men’s store, an owner and operator of several florist shops in Little Bock, and the assistant controller of a dairy. Five of the six Negro personnel selected for jury service were school (high school or college) personnel, and the other was a self-employed sign painter. Appellant states:

“* * * The :Qollim.iggioners cannot really be blamed when the panel is unconstitutionally constituted, for it is inherent in the system that they will choose-their-neighbors, friends, ■ acquaintances, or persons who have reputations as substantial citizens in the community.”

The attack is actually on the Arkansas statutes providing for the selection of jurors, which appellant says violates his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. The case of Thiel v. Southern Pacific Company, 328 U.S. 217, is cited by appellant, but we do not agree that this case affords support to appellant’s position. There, the. court pointed out that the American tradition of trial by jury necessarily contemplates an impartial jury, drawn from a cross-section of the community. The court, however, stated:- •

“ * * * This does not mean, of course, that every jury must contain representatives of.all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups.”

The court reversed the judgment because wage earners were systematically and ordinarily excluded, but, in Thiel, the court made this pertinent finding:

“The undisputed evidence in this case demonstrates a failure to abide by the proper rules and principles of jury selection. Both the clerk of the court and the jury commissioner testified that they deliberately and intentionally excluded from the jury lists all persons who work for a daily wage.”

In the case before us, all jury commissioners testified ; it is true that one testified that he partly took into consideration whether the selection of certain jurors would cause a hardship, but the panel was picked by all three commissioners, and there is no evidence that the other two considered possible inconvenience to any particular group. It certainly cannot be said that the jury was made up of owners or heads of businesses for the record reflects that employees heavily predominated the composition of the panel; nor was there any evidence that prior jury panels had been limited to any particular class of persons. There is no showing, nor it is argued, that there was any systematic exclusion of any group, racial, economic, social or religious.

As far as the statutory method of selecting'jurors is concerned, this is the responsibility of the General Assembly, and not of this court. . The United States Supreme Court has never declared this method of selection to be violative of any constitutional requirement, and until that is done, it is our view that any change can only properly be consummated by legislative act.

II.

AVe do not agree that appellant’s confession was taken in violation of his constitutional rights. It is first mentioned that the Little Rock Municipal Court was in session in the same building in which Kimble was questioned by two Little Rock detectives on February 17, and it is argued that appellant should have been taken to the chambers of the Municipal Judge so that the prisoner’s rights could be properly protected. The fact that the court was in session at the time does not, in our view, strengthen appellant’s case, for certainly a judge, with a set docket of cases to be heard, would not have been expected to adjourn court, and proceed to chambers with the officers and Kimble. AVe have made it clear, on numerous occasions, that the failure to take an arrested person before a Magistrate does not vitiate his confession. In Paschal v. State, 243 Ark. 329 (1967), 420 S.W. 2d 73, we said:

“Counsel for the appellant, citing McNabb v. United States, 318 U.S. 332 (1943), insist that the confession was inadmissible because Paschal had not been taken before a magistrate for commitment, as the statute requires. Ark. Stat. Ann. § 43-601. The McNabb case, however, involved the interpretation of federal statutes that do not apply to the states. State v. Browning, 206 Ark. 791, 178 S.W. 2d 77 (1944). Under our statute the failure to take an arrested person before a magistrate does not vitiate a confession, because the statute is construed to be directory only. State v. Browning, supra; Moore v. State, 229 Ark. 335, 315 S.W. 2d 907 (1958).

The important consideration is whether Kimble was advised of his constitutional rights, and whether the procedure followed was in line with the United States Supreme Court decision in Miranda v. Arizona, 384 U.S. 436. Before this statement was introduced, the court went into chambers with counsel for the purpose of holding a hearing on the question of whether the statement was voluntarily made. Detective Bob Moore of the Little Rock Police Department testified that he first talked with Kimble about 8:30 A.M. on the morning after appellant’s arrest. 'The detective stated that he and officer Pete Evans advised Kimble that he liad the right to remain silent; the right to talk with an attorney before giving a statement; the right to have an attorney present when answering any questions; that any statement that he gave would be used in a court of law, and that, if he waived these rights, he had the right to stop the interrogation at any time. He then gave Kimble a waiver to read and sign, and testified that he did not make any promises or threats to induce appellant to make a statement. Kimble signed the waiver, and the officer said that appellant was very cooperative in telling about the shooting. Moore stated that he wrote the statement as Kimble related the facts. Appellant said that he started giving the statement when first brought to the jail, then went to sleep, and finished giving it the next morning. He said that he gave the statement, stopping at times to give Moore an opportunity to wnite what was said. He added that he initialed it in places at the request of the officer, but he really did not know whether the • officer wrote everything, word for word, that he said. He never did answer the question as to whether he read it over before signing it. The court held that the statement was voluntarily made, and the weight of the evidence appears to be to that effect. The officer testified emphatically that the Miranda warnings were given, that Kimble waived his right to an attorney at that time, and voluntarily made the statement. Appellant answered, “No,” to his attorney’s question relative to whether he had had an opportunity to confer with a lawyer, but, though represented at the second trial by able and competent counsel, he never did state that he was not offered an attorney, nor did he deny that he was told he had the right -to remain silent. He only said that he was confused and upset. There is no contention of threats, force, or duress. Actually, the statement does not conflict with appellant’s defense at the trial, since Kimble pleaded self-defense, and the court instructed the jury on self-defense. In his statement, Kimble said that he was accosted by Columbus Collins (victim of the shooting), who was quite belligerent, and that he shot Collins after the latter started toward him with his hand in his pocket. Kimble’s testimony at the trial, with reference to the shooting, reiterated that the shooting was in self-defense; that Collins came toward appellant with his hand in his pocket, and Kimble pulled out his pistol and shot Collins. In describing the shooting, the only difference was that on trial, Kimble stated that he fired the first shot in the air, and fired the second shot at Collins. Appellant said that he only fired twice. In his statement, he did not mention firing the first shot in the air, and said, “I think I shot three times.” .We hold that the statement was voluntarily made, after Kimble had been advised of his constitutional rights, heretofore enumerated.

III.

Collins was only struck by one bullet. Appellant says that the most important issue in the case was whether he had the intent to kill when pulling the trigger. He was asked the question by his attorney, “If you had wanted to, would you have had any difficulty in shooting him more than once?” The state objected to the question on the basis that it called for a conclusion on the part of the witness, and this objection was sustained.

Of course, the question did call for a conclusion, in-as much as Kimble was saying that any shots fired would have struck Collins, and this would seem problematical, since according to Kimble’s own testimony, Collins turned and fled down an alley after the second shot. However, we agree that appellant had the right to testify as to his intention when he shot Collins, but we find no prejudicial error in the court’s ruling. It appears that the point that he was trying to get over to the jury was that lie had bullets left in his pistol, and could have fired them had he wanted to. He had already testified that he did not aim the first shot at Collins, and had already testified that he did not want to kill his victim. From the record:

“I fired directly in the air to get him to stop running his hand in his pocket. I didn’t want to hurt him, and I didn’t want him to hurt me. ’ ’

Also, when asked if he had the gun in his pocket when the incident arose in the shine parlor, and if he “pulled” the gun, appellant answered:

“No, I didn’t. I didn’t want any trouble. I could have shot him then, but I tried to get away from him. I tried to withdraw from him so there wouldn’t be any trouble, and then he followed me outside. After he came up to the front, I could have, shot him then if I had wanted to. J could have shot him then when we came from the hack to the front but I withdrew from him again and tried to avoid all that, but he kept pressing and kept pressing, and then he ran his hand in his pocket, and I warned him not to put his hand in his pocket, and he kept on, and that is when I shot him, and Andrew Carey hollered to him that I had a gun, and told him to run * * V’

He said that “when he ran down the alley, I put my gun back in my pocket, and there was no more shots fired, just those two shots.”

After the court ruled the question improper, Kimble testified in chambers that he had four more bullets in his pistol, but ho didn’t fire them, because he “was just trying to stop him from doing something to me, and that is just why I shot him one time. ’ ’ After Kimble returned to the witness stand, the record reveals the following:

“Q. (Mr. Carroll, continuing) You testified you fired two shots, and the first one did not strike Mr. Collins, but the second one did. After you fired those two shots, did you fire any additional shots?
A. No, sir, not after I fired those two shots. After I fired those two shots, I put my gun back in my pocket.
Q. Did you have any more bullets left in your revolver after those two shots?
A. Yes, sir, I had four.
Q. And you did not fire them?
A. No, sir.”

It is difficult to see, from these quoted portions of the transcript, how appellant could have conveyed more clearly to the jury that he had no desire to kill Collins ; that he was only trying to scare his adversary from making an attack on him (appellant), and that he had plenty of ammunition in his pistol to continue firing if he desired to do so.

IV.

During the closing argument to the jury, counsel for appellant asked the jury to take into consideration the fact that Kimble had already served four hundred and seventy-nine days in jail, and in the penitentiary. The court instructed the jury that it could not take this into consideration, stating:

“The man was tried in this Court and this Court thought he was guilty and sentenced him to the Penitentiary. He later was brought in under Rule I, a new rule of the Supreme Court, because of the fact that certain witnesses weren’t called in his behalf and, for that reason, I set the judgment aside so he could have the opportunity to get these witnesses in that he wanted to testify, and, also, to try it before a jury if he liked.”

Appellant argues that the court’s statement that it “thought he was guilty” (at the first trial) was a prejudicial comment made in the presence of the jury, and calls for a reversal. We do not discuss this asserted error for the reason that no motion for a mistrial was made; nor, for that matter, was any objection made or exception saved. See Randall v. State, 239 Ark. 312, 389 S.W. 2d 229.

Y.

The record reflects that Kimble was in jail one hundred and twenty-five days before the first trial. After the first conviction was set aside, he was returned from the penitentiary, and placed in the county jail until making bond twenty-six days later. He also apparently served a total of three hundred and thirty days in the penitentiary between the time of the first conviction and the order setting the same aside.

Appellant argues that he should have been given credit on the present sentence for this amount of time. As to the days served in jail, we do not agree, for we have no statute permitting this to be done. It is not shown why appellant did not make bond before the first trial; certainly, the alleged offense was bailable, and, as mentioned, bond was made subsequent to the prisoner’s being returned to the jail after the judgment was vacated. As to the time served in the penitentiary, wre thiuk appellant is due to have deducted the number of days served after the first conviction. Ark. Stat. Ann. §§ 43-2726 through 43-2728 (Repl. 1964) deals with the confinement of a prisoner in the penitentiary where an appeal is taken, and the judgment reversed by the Supreme Court. The first two sections set out that upon a reversal, if a new'' trial is ordered, the defendant shall be removed from the penitentiary back to the county jail. Ark. Stat. Ann. § 43-2728 provides that, if a defendant, upon a new trial, “is again convicted, the period of his former confinement in the penitentiary shall be deducted by the court from the period of confinement fixed in the last verdict of conviction.”

The state argues that these statutes have no application to a situation where the trial court itself sets aside the first conviction, and appellant is, accordingly, not entitled to this relief. The state is technically correct in that the statutes refer to a reversal by the Supreme Court, but we do not think the General Assembly particularly intended a distinction between convictions reversed by the Supreme Court, and convictions vacated by the Circuit Court. Bather, the only logical conclusion is that the General Assembly intended for a convicted person who obtained a new trial, and was again convicted, to receive credit for the amount of time already served for the same offense.

The record reveals that Kimble received a fair trial, and was found guilty by the jury. We find no reversible error, and the cause is remanded to the Pulaski County Circuit Court, First Division, with instructions to amend the judgment, crediting the second sentence of appellant witli the amount of time served for this offense in the state penitentiary between the first and second convictions.

It is so ordered.

Brown and Fogleman, JJ., dissent.

John A. Fogleman, Justice.

I agree with the majority opinion in every particular except one. That has to do with appellant’s Point III. I do not agree that excluding the testimony of appellant with reference to his intention on the occasion of the alleged offense was not prejudicial. In order that the matter be put in proper perspective, I deem it necessary to refer to a portion of the record not mentioned in the majority opinion.

After the court’s ruling on the original question propounded by appellant’s attorney, he asked to be permitted to make a record on his proffer of proof in chambers. Thereupon, the judge, the defendant, and counsel for the state and defendant’s attorney retired to chambers, whore the following occurred:

Q. (by Mr. Carroll) Mr. Kimball, if you had wanted lo shoot Columbus Collins more than once, was there anything that would have prevented you from doing so?
A. No, sir, there wasn’t.
Q. Why didn’t you shoot him more than once?
MB. ROBINSON:
Objection. That calls for a conclusion.
the court:
You can move to strike it after he is through testifying.
A. I didn’t shoot no more than just the one time, because, in the first place, I didn’t want to have any quarrel with him. I didn’t want to shoot him. In the first place, I didn’t want to shoot him, and I was just trying to stop him from doing something to me, and that is just why I shot him one time.
Q. Now, after you shot this first shot, that did not strike him, and did he keep coming'?
A. I fired the first shot in the air. I shot a warning shot, and he made a couple more steps, and. I hollered at him not to open up on me, and then I shot him.
Q. Did he have his hands in his pocket?
A. He had his hand in his pocket at that time.
Q. Did you have any more bullets in your gun after you shot him?
A. Yes, sir, four more.
ME. CARROLL:
Your Honor, I want to offer that evidence to the jury.
MR. ROBINSON:
It is repetitive and conelusionary. It is not proper redirect anyway. This has nothing to do with what I went into on cross examination. I don’t think it is proper.
the court:
I don’t think it is. The other witness testified four or five shots were fired, and this man said he shot some in the air.
MR. CARROLL:
One, Your Honor.
the court:
One shot in the air, and the other witness said he heard three or four while running away from him. It is up to the jury to decide whether or not he wanted to kill him. The jury has to conclude that from the evidence before them, not by what he says he had in mind at the time.
MR. CARROLL:
He knows better than anybody else.
the court:
That’s right, but it is up to the jury to decide from the evidence.
MR. CARROLL:
Note my exceptions to the ruling of the Court. Now, specifically, I want to ask him back on the stand if there were any bullets left in his gun.
the court:
You may do that. That is admissible and you may do that.
(THEREUPON, the Court, the defendant and counsel for the State and the defendant returned to the courtroom and the following proceedings occurred:)

The point that appellant was trying to get over to the jury was not that he had bullets left in his pistol; rather, it was that he had no intention to kill Collins, the critical point in the trial. Thus by refusing the appellant’s offer of proof, he was deprived of his right to state categorically why he did not shoot more than once. It can well be imagined that an aggressive and alert prosecuting attorney might make a vigorous argumeut that the jury should draw the inference from the testimony that appellant did intend to kill Collins because, even though appellant elected to take the witness stand, he never stated his own intentions or state of mind.

I think that prejudice is clearly demonstrated and is not removed by reason of the fact that the appellant may have stated that he did not want to hurt Collins when he fired the shot into the air. Nor is it sufficient that he stated that lie could have shot Collins, if he had wanted to, after Collins came up to the front or when he and Collins came from the back to the front. Nor is it sufficient that appellant testified that he put his gun back in his pocket and fired no more shots when Collins ran down the alley. The proffered testimony had to do with direct statements of his intentions at the time that he fired the shot which struck Collins and thereafter. This was the real issue in the ease.

I think that the proper rule to be applied by us is that it is prejudicial error to exclude direct testimony of an accused as to his intent, motive, reason or beliefs whenever that intention, motive, reason or belief is an essential element of the crime or is an issue in the case —particularly when the only other .evidence on that element relates to acts from which the intention of the accused can only be inferred. See Cummins v. United States, 232 F. 844 (8th Cir. 1916); 22A C.J.S. Criminal Law § 647; 29 Am. Jur. 2d 413, Evidence 364; Miller v. State, 230 Ark. 352, 322 S.W. 2d 685.

While the authorities cited above have not been determined on the basis of prejudice, or lack thereof, there is a clear inference in Cummins v. United States, supra, that the exclusion of a question calling for a direct statement of intent by the defendant is prejudicial unless questions of substantially the same character and of the same full import had been answered. It seems to me that the great weight of authority would support that position.

In People v. Levan, 295 N.Y. 26, 64 N.E. 2d 341 (1945), tlie state took the position that there was harmless error in excluding a direct statement by a defendant in a murder case.as to his intention because the jury might have inferred from evidence already in the ease that the defendant’s intent was not to commit a robbery, in the course of which the victim was killed. There the court held that when a defendant would otherwise have to depend upon inferences from the evidence to establish his lack of the essential intention, it was not harmless error to exclude his direct denial of the requisite intent.

In Cain v. State, 112 Ga. App. 646, 145 S.E. 2d 773 (1965), the appellant was charged with larceny of an automobile. The evideuce showed that the defendant had taken the vehicle, driven it from Carrollton to Atlanta and back. Even though he had testified that he was returning the car to the place from which he had stolen it when the police apprehended him, refusal to permit him to state whether it had been his intention not to return it and to state what lie would have done with the car if he had not been apprehended was held reversible error. The court held the error prejudicial in spite of the fact that it stated that the evidence strongly indicated that he intended, to return the automobile to the place from which it had been taken and that there was no intent permanently to deprive the owner of it.

In Smith v. State, 38 Okla. Cr. 416, 262 P. 507 (1928), it was said:

“It is well established that a defendant charged with a crime which has as one of its ingredients an unlawful intent may explain his intent and mental purpose, and may deny the specific intent required to constitute the offense. Wigmore § 581, says, with the exception of Alabama, the rule is absolute in the United States. See Snow v. State, 3 Okl. Cr. 291, 105 P. 572 [575]; Cosby v. State, [30 Okl. Cr. 294,] 236 P. 51; 8 R.C.L. § 174, p. 181, authorities cited. ’’

In Haigler v. United States, 172 P. 2d 986 (10th Cir. 1949), reversible error was found in the sustaining of objections to testimony by one charged with violation of the income tax laws concerning his understanding of the law applicable to his income tax liability on the grounds that his intent would be judged by his acts and not by what he understood to he their consequences. This result was reached in spite of the-fact that the appellant was permitted, indirectly, to adduce the theory of his defense by stating what he had told the investigators in explanation of his acts.

I would reverse and remand this case for a new trial.

Brown, J., joins in this dissent.

      Ark. Stat. Ann. § 39-201, § 39-205, § 39-208, and 5 39-215 (Repl. 1962).

      Collins testified in an unusual manner for a prosecuting witness, in that he admitted having his hand in his pocket: “I have my hand in my pocket all the time. I’ve got in trouble in the Army about that. I walk down the road with my hands in my pocket, or with one hand in my pocket. I do that all the time, and I have got in trouble about that. * * * I have change in my pocket and I just play with it, just running the change through my fingers. * * * When I went outside I had one hand in my pocket. I always keep one hand in my pocket, I always keep it that way.”

      All italicized statements in this paragraph denote our emphasis.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Howard K. Pharr v. State of Arkansas
    5-405
    438 S.W. 2d 461
    Opinion Delivered March 24, 1969

      John O. Moore for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   George Rose Smith, Justice.

The appellant, tried before a jury, appeals from a judgment sentencing him to three years imprisonment for having taken $209.57 that had come into his possession as an employee of L. F. Snodgrass, the operator of a service station in Texarkana. Ark. Stat. Ann. § 41-3927 (Repl. 1964). Pharr contends only that the evidence is not sufficient to support the conviction.

On the night of the crime, August 8, 1968, Pharr was in his second week as the night attendant at the station, working alone oil a 12-hour shift that began at 6:00 p.m. Snodgrass had assigned a separate drawer in the cash register to each of his employees, providing each man with a key to his. assigned drawer. Every day when Snodgrass checked out the receipts he put $50 in each man’s drawer to enable him to begin business on his shift.

At about 4:00 on the night in question Snodgrass was called by telephone to the station. The police had also been summoned, because a passing prospective customer had found the station open and unattended. A day attendant had apparently forgotten to take his drawer key with him; it was still in the lock. Both that drawer and Pharr’s drawer were empty, except for a few cents. Snodgrass determined from the cash register tapes and the credit card slips that about $209 was missing.

During the same night police officers in the city of Hope, about 32 miles from Texarkana, saw a man that proved to be Pharr arrive in an out-of-town taxicab and alight at a motel. Finding the motel full, Pharr asked the officers to assist him in obtaining a room for the night. As Pharr appeared to be drunk, the officers took him to the police station, where a test confirmed his intoxication. Pharr was booked and was found to have $183.13 in his possession, of which at least $100 was in silver. The next day Pharr, who still showed signs of intoxication, was turned over to the Texarkana police. Snodgrass and officers from both cities testified at the trial, narrating the facts essentially as we have summarized them.

TTo find the proof abundantly sufficient to support the conviction. The jury was warranted in believing from the proof that Pharr had taken the money from both cash drawers, had left the station unattended without notifying his employe]-, and had embarked upon an apparently pointless trip to Hope to spend the night. "When Pharr was arrested he was still in possession of almost all the missing money. At least $100 of it was in silver, which in itself is enough to arouse suspicion. Absent an eyewitness, the State’s proof is fully as strong as could be expected in such a case.

The appellant hinges his argument principally upon the matter of reasonable doubt. That issue does not arise on appeal, for as we said in Graves v. State, 236 Ark. 936, 370 S.W. 2d 806 (1963): “The jury must be convinced beyond a reasonable doubt, but there is no requirement that the members of this court be similarly persuaded by the proof. Here the test is that of substantial evidence. If the verdict is supported by such proof we are not at liberty to disturb the conviction, even though we might think it to be against the weight of the evidence.” In the case at hand we hardly see how the verdict could have been other than that of guilty.

Affirmed.


author: Lyle Brown, Justice.

text:
    Lorine Andrews Smith, Adm’x v. Noel W. Perkins, et al
    5-4843
    439 S.W. 2d 275
    Opinion Delivered March 24, 1969
    [Rehearing denied May 5, 1969.]

      Hhelby R. Blackmon and Billy B. Boive for appellant.

      Wright, Lindsey & Jennings by William R. Overton for appellees.
   Lyle Brown, Justice.

The parties in interest on appeal are the appellant, Lorine Andrews Smith, Administratrix, and Chicago, B-.I. & P.R.R. Co., an appellee. Bussell C. Smith was fatally injured in a crossing accident at Carlisle. His administratrix brought suit against the railroad company, Noel Perkins, and Harold Snyder. A verdict was directed in favor of Snyder and Perkins was found to he free of negligence. The jury apportioned the negligence, 70% to the deceased, Smith, and 30% to the railroad company, which of course resulted in a judgment for the railroad. The solo contention on appeal is that there was a colloquy between the trial judge and the jury foreman which confused the jurors to the prejudice of plaintiff administratrix.

The certified transcript shows that the jury executed six interrogatories but before announcing the findings this conversation transpired:

EOREMAN:
We have a question, we don’t know if it should be asked in secret.
the court:
No sir. There is nothing in secret, it should be in open court.
EOREMAN ;
It has to do with the amount. We have figures, we are not sure whether this figure is supposed to correspond with some figure, the way we understand it you just want the dollar figure.
the court:
What one do you refer to?
EOREMAN :
Number Six.
THE COURT:
I think that would be just dollars.
EOREMAN :
That is what we thought. We wanted to be sure.

The conversation was there ended and the record recites that the foreman thereupon read “in the presence of the other members of the jury, the parties and their attorneys and the court the interrogatories agreed upon by the jury.” The interrogatories were handed to the judge and the jury was discharged. Interrogatory number one found Russell C. Smith guilty of negligence. Number two found Noel Perkins free of negligence. Number three found the railroad guilty of negligence. Number four fixed Smith’s negligence at 70% and the railroad’s at 30%. Number five fixed damages to the estate at $900. Number six found that Lorine Smith and the next of kin sustained damages of $25,-000.

The foreman did not designate the figures to which he referred when he said, “we have figures, we are not sure whether this figure is supposed to correspond with some figure.” Surely he must have been referring to various dollar figures that had been introduced in evidence or suggested in closing arguments. That conclusion is more logical than the novel reasoning advanced by appellant, namely that the answer given by the judge to the jury affected their answers to the interrogatory concerning percentages of negligence. In fact, the record reflects that at the time of the conversation between the judge and the jury foreman, the interrogatories had already been executed. In oral argument, appellant’s counsel contends that the jury returned for further deliberation after questioning the trial judge, but that assertion is contrary to the record.

It is undisputed that no objection was made to the completed interrogatories or to the conversation between judge and jury until days after the jury had been discharged. Before the discharge of the jury appellant had a right to have the. jurors polled. She had a right to call for corrective measures to cure any apparent confusion caused by remarks of the trial judge. Further she had a right, and duty, to then and there call any irregularities to the attention of the trial court. Southern Cotton Oil Co. v. Campbell, 106 Ark. 379, 153 S.W. 256 (1913).

Three clays after the trial the administratrix secured from each of the jurors an identical affidavit. Those affidavits stated that the jurors were misled by the responses made by the trial judge to the questions asked by their foreman. The affidavits were filed with the trial court in support of a motion for new trial. The trial court, and properly so, apparently gave no consideration to the affidavits. Nor do we consider them on appeal. Testimony or affidavits of jurors cannot be used to impeach a verdict except in instances where the verdict was reached by lot. Strahan v. Webb, 231 Ark. 426, 330 S.W. 2d 291 (1959); Pleasants v. Heard, 15 Ark. 403 (1855); Ark. Stat. Ann. § 43-2204 (Repl. 1964).

Affirmed.

Jones, J., not participating.


text:
    Bobby Payne v. State of Arkansas
    5-5407
    438 S.W. 2d 462
    Opinion Delivered March 24, 1969

      Fit-ton, Meadows & Adams for appellant.

      Joe Fnrcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   Lyle Brown, Justice.

Appellant Bobby Payne was tried by a jury, convicted and sentenced to one year in the penitentiary on a charge of abetting an arson. Appellant challenges the sufficiency of the evidence and asserts error in the giving of an instruction.

The only question which is properly before us is the sufficiency of the evidence to support the verdict. On the night of December 28,1967, one of three barns owned by Edwin McClellan burned; it was filled with dry hay; the night was clear and cold; and the owner, who lived on the farm, discovered the fire a few minutes after it ignited. Lynn Beavers testified that lie helped burn the barn and had pleaded guilty; that he was sixteen years of age and a cousin of the defendant; that a few days before Christmas, Payne drove him to the farm and showed him the barn; and that Payne told him he could make $25 by burning it. Beavers further testified that on the night the barn was burned he drove to the Riverside Cafe at Calico Rock in company with Richard Flock; and that Beavers and his companion Mock there met Bobby Payne, who advised Beavers that he (Payne) would pay $50 for the burning of the barn. According to Beavers, he was advised that one Gene Fields, a neighbor of the prosecuting witness, would pay the money to Payne, who would in turn compensate the boys for the burning. Both Beavers and Flock testified that after the conversation with Payne, they headed for Calico Rock and after driving a few miles turned back, went to the barn, and burned it.

The fourth and last witness for the State was not an accomplice. He was fifteen-year-old Sonny Chaffin. His testimony was to the effect that Bobby Payne approached him about a week before Christmas 1967; that Payne inquired of Chaffin if he wanted to make some money; that when Chaffin inquired of the nature of the work, Payne invited Chaffin for a ride; that they drove out of Norfork and to the McClellan farm where Payne pointed out a barn and said he would give Chaffin $50 to burn it; and that Chaffin advised Payne he would have nothing to do with it.

Bobby Payne was the only witness for the defense. He testified that he was twenty-seven years old and lived at Calico Rock. He related that Grene Fields had offered him $50 to burn the McClellan barn; and that he had recounted the conversation at different times to Beavers, Chaffin, and others, but not with the intention of encouraging them to do the burning. He denied having pointed out the barn to any of the State’s witnesses. On the night of December 28 he says he was sitting in a truck at the Riverside, Cafe with Don Lackey, a merchant at Norfork; that Beavers and Flock drove on the parking lot and called Payne to their car; that Beavers “asked me if they would go do it if I would get the money for them”; that Payne started talking to them but Beavers interrupted the conversation and drove off, making the statement as he left that “we are going to go do it.” Shortly thereafter the barn burned.

If the testimony of Sonny Chaffin, independent of the testimony of Beavers and Flock, tended to connect Payne with the commission of the crime charged, it is sufficient corroboration of the accomplices. Smith v. State, 199 Ark. 900, 136 S.W. 2d 673 (1940). Of course, Chaffin’s testimony is required to be of substantive character. Yates v. State, 182 Ark. 179, 31 S.W. 2d 295 (1930). If an accomplice is corroborated as to some particular fact or facts, the jury is authorized to infer that the accomplice speaks the truth as to all. 2 Wharton’s Criminal Evidence, § 469 (1955).

The testimony of Chaffin convinced the jury that appellant was shopping for a prospective arsonist within a matter of days before the fire. From that testimony we think the jury was authorized to reasonably infer that the accomplice Beavers was telling the truth when he testified that appellant proposed that Beavers set the fire. A very similar situation is to be found in the recent case of State v. Dills, 416 P. 2d 651 (Oregon 1966). Oregon’s statute comports with our statute prohibiting a conviction on the uncorroborated testimony of an accomplice. There an accomplice testified for the State. Another witness, not an accomplice, testified that the defendant offered the witness $500 to burn the house. He did not accept the offer. Three days later the house burned. The Court held that the testimony of the latter witness corroborated the accomplice and upheld the conviction. Also, it could here have been of some significance to the jury, and properly so, that appellant met with Beavers and Flock shortly before the latter set the fire. Again, the jury may have attached some importance to the fact that Don Lackey was not called as a witness by appellant, nor was Lackey’s absence explained. Lackey was said to be present at the Riverside Cafe in company with appellant at the time Beavers and Flock drove up before the fire. If appellant was testifying truthfully then Lackey’s testimony could have corroborated appellant to some extent.

The other point advanced for reversal is that one of the instructions given by the court was incomplete. The challenge comes too late. No objection was made to that instruction at the time it was given, nor did the defendant incorporate the alleged error in his motion for new trial. It was his duty to object, except to an overruling of tlie objection, and carry tlie assignment of error forward in bis motion for new trial. Randall v. Slate, 239 Ark. 312, 389 S.W. 2d 229 (1965).

Affirmed.

      Appellant’s counsel on appeal did not participate in the trial.


author: John A. Fogleman, Justice.

text:
    Nicholas W. Riegler, Jr. v. Mary Miller Riegler
    5-4804
    438 S.W. 2d 468
    Opinion Delivered March 24, 1969

      ■Howell, Price & Worsham for appellant.

      II. tí. Rtubblefield for appellee.
   John A. Fogleman, Justice.

This is the third appeal involving these parties to reach this court in litigation ensuing after the fracture of a 21-year marriage. See 243 Ark. 113, 419 S.W. 2d 311 and 244 Ark. 483, 426 S.W. 2d 789. This appeal and cross-appeal come from a decree of the chancery court entered July 25, 1968, after a hearing on motions of the respective parties relating to alimony and child support.

I)r. Riegler, the appellant, first filed a petition for a reduction of child support and alimony. He also sought relief from the payment of child support during visitation periods when he would have custody of the children of the marriage. Mrs. Riegler, the appellee, filed a motion alleging that appellant was in arrears in the payment of alimony and child support pursuant to the court’s earlier decree. She asked that appellant he punished for contempt of court. Appellant then filed an amendment to his petition alleging that appellee’s circumstances had so materially changed that the court should abolish the alimony allowed her. The original decree of divorce affirmed by this court provided that Mrs. Riegler be paid $250 per month as alimony and $550 per month as maintenance for the three minor children whose custody had been awarded her. This decree specifically provided for automatic increases of $100 in both alimony and child support “when the jointly owned residence ... is sold and possession thereof surrendered by plaintiff.” The decree provided that until this property was sold, Mrs. Riegler should have exclusive possession of the house and furnishings. Upon consummation of the sale the net proceeds were to be divided equally between the parties. This decree also provided for a commissioner’s sale of the property in the event it was not sold at a price mutually acceptable to the parties by January 1, 1967. Dr. Riegler was inquired to pay the monthly payments on the indebtedness against the property.

The chancellor decreed, after hearing the respective motions, that appellee have judgment against appellant for $600 in arrearages in alimony and $150 for attorney’s fees. He also ordered that appellant pay $450 per month for child support of the two children who were still minor and $350 per month as alimony.

Appellant contends that there was error in this decree in the court’s refusal to reduce the alimony and child support and in the increase of alimony and child support. He also asserts that the chancellor abused his discretion in awarding attorney’s fees.

Mrs. Riegler asserts that she was entitled to judgment for $1,484.88 for arrearages and that the allowance of child support and attorney’s fees were both inadequate.

Rebecca Riegler, one of the three minor daughters, reached her majority on January 23, 1968. The other two are 13 and 11 years of age. Rebecca had lived with her father for about a year at the time of the hearing and is now living with him and his present wife, whom lie married October 18, 1967. Appellee did not object to this daughter living with her father and has paid none of this daughter’s living expenses. In spite of this, Dr. Riegler continued to pay what he considered to be the full amount of child support.

Three of appellant’s present wife’s children, the oldest of whom is 22, are living with him and he claims to be supporting them. He professes not to know the extent of his present wife’s property or whether her children have any separate property. Dr. Riegler purchased the home in which he is now living on March 1, 1968.

Appellant claims that appellee has inherited a substantial amount of money. The value of this inheritance from an aunt who died August 8, 1963, is no more accurately shown than in the original appeal in this case. Appellant contends that it amounted to $113,220.68. Appellee denies that the total amounted to as much as $100,000. She states that the total consisted of $61,-524.83 plus certain stocks, the value of which she professed not to know.

The parties reached an agreement under which appellant paid appellee $37,000 in settlement of all of her claims under previous decrees of the court, exclusive of alimony and child support. As a part of this settlement appellee conveyed her equity in the residence by deed dated January 11, 1968. She testified that she vacated the premises on January 30, 1968, and moved to an apartment for which she paid $230 a month rent. Dr. Riegler testified that he had been unable to sell this house and will have to pay monthly payments of $257 on the. mortgage indebtedness thereon, insurance, taxes, and utilities bills until he can sell it. The property is vacant, and he receives no income from it.

Appellee has purchased a .home for which she paid $28,000, $13,000 of which was in cash. The balance is payable in monthly installments of $143.80. She also bought draperies, furniture, and appliances for this residence. Dr. Riegler paid her $800 a month beginning February 8 until June 8 when he paid $689.45. He paid her $616.67 on July 8. Based on the assumption that the payments should have been $1,000 per month beginning February 8, the arrearage amounted to $1,-484.88.'

She also testified, in substance, as follows: Her cost of living has increased tremendously. Her cost for utilities for herself and two children is the same and for food practically the same as it would be if she had three children. She paid her attorneys in the divorce case $5,500 in excess of the amount allowed by the courts. She sold stock from her inheritance to pay attorney s’ fees in litigation she had with her sister over their aunt’s estate. She has not attempted to obtain employment, having figured that, on the basis of the minimum wage scale, her expenses would be such that she couldn’t be profitably employed. She is a member of Riverclale Country Club. She has done without a maid for about three months but planned on rehiring one last fall. She paid appellant approximately $2,600 as a result of the judgment affirmed by this court in 244 Ark. 483, 426 S.W. 2d 789. She owns an automobile, a lot she acquired in 1965 for $7,900, and has a savings account of $6,900. She paid $790 as a down payment on the lot and is paying the balance at the rate of $79 per month.

It was shown that Federal Reserve Bulletins showed a rise of 9.1 percent in the Cousumcr Price Index from April 1966 to April 1968.

"We are unable to say that the finding of the chancellor relative to the amount of alimony and child support to be paid after rendition of the decree was erroneous. The burden was on the appellant to show such a change in circumstances as would justify a reduction in these amounts. See O’Kane v. Lyle, 123 Ark. 242, 185 S.W. 281. While appellant has assumed the support of his current wife and her children, he has not shown that this burden renders him unable to make the payments originally decreed by the court or to make those he is now directed to pay. A husband’s remarriage is a matter that may be considered in weighing the equities of the situation, but this fact alone is ordinarily not a ground for reducing the amount of child support or alimony. McCutcheon v. McCutcheon, 226 Ark. 276, 289 S.W. 2d 521. There is no evidence whatever as to (lie present income of appellant. Neither the obligation nor the necessity for his supporting his current wife’s children can be said to have been established. Nor can we determine the extent of this wife’s property even though the inference that she has assets of her own is clear, rkctually there is nothing to indicate the difference in Dr. Riegler’s cost of living before and after the second marriage. The allowance for child support was not reduced pro rata because of Rebecca’s obtaining her majority, but the court’s action can be justified by reference to the increase in the cost of living and the inescapable conclusion that the cost of food and shelter is not in direct proportion to the number of people involved.

One of appellant’s contentions with reference to the amounts he is required to pay by the court’s latest decree is that the residence has not been sold as contemplated by the first decree. On this point we agree with the chancellor, who found that the alimony payments should have been $350 per month and the child support $650 per month beginning on the first payment date after the vacation of the residence by appellee. While the terms of the agreement under which the deed to appellant was executed are not shown in detail, it seems obvious that it was the intention of the court in the original decree that the lesser amounts be paid to appellee so long as she was permitted to occupy the house. When we consider that the agreement between the parties concluded all rights of the appellee under the original decree except for alimony and child support, this conclusion seems even more obvious. As soon as Mrs. Riegler vacated this house, her cost of living was increased by $230 per month for rent. Although Dr. Riegler will be required to continue the monthly house payments until he has sold the property, he will not be required to account to appellee for any of the proceeds of the sale.

One of the bases for determination of alimony and child support is the manner and style of living to which the wife and children have been accustomed. Lewis v. Lewis, 202 Ark. 740, 151 S.W. 2d 998. The present manner and style of their living is not shown to be materially different from that enjoyed by them before the dissolution of the marriage.

We cannot sajr that there was any abuse of discretion in the allowance of attorney’s fees in the lower court. It was appropriate for the trial court to consider the financial abilities of both parties and to weigh the allowance in the light of other factors concluded by the decree. Wo are quite sure that no greater fee was allowed because of Mrs. Riegler’s financial ability.

We cannot say that there was error in denying appellant’s plea for remission of child support during summer vacation visits of the children with him. The trial court may well have taken this into consideration in fixing the amount of the monthly payments.

There is one respect in which we find error in the decree. The chancellor stated that the equities of the case were such that appellant should not be required to pay any part of arrearages in excess of $600. He arrived at the latter amount by saying that the alimony paid should have been $100 more for each month after appellee vacated the house. Apparently the chancellor thought that the fact that the 18-year-old daughter had lived witli lier father for a year warranted his relief from the remaining arrearages of $884.88. This view was considered and rejected in Sage v. Sage, 219 Ark. 853, 245 S.W. 2d 398. Under the rule announced in that ease and followed in Brun v. Rembert, 227 Ark. 241, 297 S.W. 2d 940, the chancery court had no power to remit accumulated payments which became vested in appellee as they became due under the circumstances of this case. A modifying decree can relate to the future only.

In view of Mrs. Riegler’s ap^iarent ability to pay, we deem an allowance of $250 for attorney’s fees on this appeal to be adequate.

The. decree is affirmed as to the allowance of alimony, child support, and attorney’s fees for services in the lower court and modified as to the judgment for arrearages by an increase from $600 to $1,484.88.

Byrd, J., not participating.

      Mrs. Riegler was plaintiff in the action.


author: J. Fred Jones, Justice.

text:
    Ellsworth Brothers Truck Lines, et al v. S. Hubert Mayes, Jr., Admr., et al
    5-4817
    438 S.W. 2d 724
    Opinion Delivered March 24, 1969

      Rose, Meek, House, Barron, Nash & Williamson for appellants.

      l\fclllath, Leatherman, Woods & YoungdaM for appellees (Mayes & Wise Co. Bank)

      Cockrill, Laser, McGehee, Sharp & Boswell for appellee (Heaggan).

   J. Fred Jones, Justice.

This is an appeal by Ells-worth Brothers Truck Lines and its truck driver, Herbert Roberts, from portions of an adverse judgment in an action for wrongful death brought in the Faulkner County Circuit Court by the personal representatives of Malloy and Adkins, who died instantly on April 10, 1967, in a highway collision in Faulkner County.

The facts revealed by the record are briefly these: Before daylight on April 10, 1967, the appellants’ truck and trailer overtook a Plymouth automobile owned and being driven by Mrs. Willie Jean Heaggan. Rain was falling and the blacktop highway was wet and slick. Both vehicles were traveling about forty-five miles per hour with the truck and trailer about two hundred feet behind the Heaggan vehicle. The two vehicles had traveled in this manner for a distance of about two miles when the Heaggan vehicle, in negotiating a curve in the highway, skidded on the wet pavement and Mrs. Heaggan lost control of her automobile. The Heaggan vehicle skidded off the highway and into a ditch on its righthand side of the highway. It came to rest bogged down in mud but still headed in the same direction it was originally traveling. Appellant Roberts testified that the Heaggan automobile skidded across the center line of the highway at least twice before it finally left the highway, but Mrs. Heaggan denied that her automobile ever skidded across the center line of the highway.

While the Heaggan automobile was skidding from the highway, a Comet automobile belonging to, and being driven by, the decedent Malloy, approached the scene from the opposite direction and crashed into the left rear tandem wheels of appellants’ trailer. The decedent Adkins was a hitchhiking passenger in the Mallo)' automobile and both Malloy and Adkins were killed instantly by the impact. The air lines to the brakes on the trailer were broken by the impact, thus locking the wheels on the trailer. After the impact the tractor and trailer continued approximately eighty feet on its proper side of the highway with the tractor portion remaining in its proper lane on the pavement, and with the damaged rear portion of the trailer skidding along- the shoulder and ditch on its right-hand side of the highway. The truck and trailer came to rest with the tractor in its proper lane on the blacktop, but with the rear-end of the trailer in the ditch with its right front wheel of the rear tandem against the left rear bumper of the Heaggan automobile. Tbe left rear tail light lens on the Heaggan vellido was broken and that was the extent of the damage to the rear of the Heaggan vehide.

Hubert Mayes, Jr., administrator of the estate of Charles Malloy, and Wise County National Bank, administrator of the estate -of Buddy F. Adkins, sued Ells-worth Brothers Truck Lines, Inc., Herbert F. Roberts and Willie Jean Heaggan. The suit by Malloy’s representative was for property damage and funeral expenses on behalf of the estate and for mental anguish on behalf of three surviving children. The suit by Adkin’s representative was for funeral expenses on behalf of the estate, and for mental anguish on behalf of the surviving mother and father and five brothers and one sister. Roberts and Ellsworth filed a cross-complaint against Mrs. Heaggan for contribution on any judgment which the administrators might obtain against them, and Mrs. Heaggan filed a cross-complaint against Roberts and Ellsworth for personal injuries, as well as for contribution, on any judgment which the administrators might obtain against her.

The trial court directed a verdict for Mrs. Heaggan on the complaint of the administrators and also on the cross-complaint for contribution filed by Roberts and Ellsworth. The jury found in favor of the administrators against Roberts and Ellsworth and for Roberts and Ellsworth on the Heaggan cross-complaint. In other words, the trial court held as a matter of law, that Mrs. Heaggan contributed no negligence at all to the proximate cause of the collision and resulting deaths of Malloy and Adkins and the jury found as a matter of fact, that the appellants contributed no negligence to the proximate cause of Mrs. Heaggan’s injuries.

Judgment was entered on the verdict as follows:

“IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED that the plaintiff, Wise Comity Bank of Wise Comity, Virginia, administrator of the estate of Buddy F. Adkins, deceased, do have and recover from Ellsworth Brothers Truck Lines, Inc. and Herbert F. Roberts the sum of $10,-000 each for the nse and benefit of Aaron Adkins and Ada Adkins and the sum of $500 each for the use and benefit of Clifford Adkins, Garland Adkins, Donnie Adkins, Emory Adkins, Elsie Adkins, and Raymond Adkins, and the sum of $350 for the use and benefit of the estate of Buddy F. Adkins, deceased. Jn sum total it is considered, ordered and adjudged that the said administrator recover from the defendants Ellsworth Brothers Truck Line, Inc. and Herbert F. Roberts the sum of $23,-350 for the above beneficiaries.
IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED that the plaintiff S. Hubert Mayes, Jr., Administrator of the estate of Charles Maloy do have and recover the sum of $1,-500 for the use and benefit of Patrick Malloy and the sum of $1,000 each for the use and benefit of Charles Maloy and Shannon Cannopash and the sum of $1,750 for the use and benefit of the estate of Charles Maloy, deceased. In sum total it is considered, ordered aud adjudged that the said administrator recover from the defendants Ellsworth Brothers Truck Line, Inc. and Herbert F. Roberts the sum of $5,250 for the above beneficiaries.
IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED that by direction of the court the plaintiffs take nothing’ from Willie Jean Heaggan on their complaint against her and that the defendants Ellsworth Brothers Truck Line and Herbert F. Roberts take nothing by virtue of their claim for contribution and that both the complaint of the plaintiffs and the cross-complaint of the defendants Ellsworth Brothers Truck Line, Inc. and Herbert F. Roberts against Willie Jean Heaggan is hereby dismissed, to which action the plaintiffs and the defendants Ellsworth Brothers Trnclc Line, Inc. and Herbert F. Roberts duly note their exceptions.
IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED that Willie Jean Heaggan take nothing by virtue of her cross-complaint for damages against Ellsworth Brothers Truck Line, Inc. and Herbert F. Roberts.”

The appellants paid part of the judgment in favor of the estate of Adkins, including funeral expenses and damages for mental anguish to the parents and a brother, Clifford, who testified at the trial. The appellants also paid part of the judgment in favor of the estate of Malloy, including funeral expenses and $1,500.00 damages for mental anguish to a son, Patrick, who testified at the trial. The verdict was rendered and the judgment was dated May 14, 1968. On June 12, 1968, motion to vacate judgment was filed by Heaggan as follows :

“Comes Willie Jean Heaggan by her attorney, Felver A. Rowell, Jr., and moves the Court to set aside the Judgment of the Court rendered in this cause and grant her a new trial for the following reasons:
(1) —That the Judgment is contrary to the law.
(2) —That the Judgment is contrary to the evidence.
(3) —That the Judgment is contrary to the law and evidence.
(4) —That the verdict of the jury is inadequate in that the damage does not equal the actual pecuniary injuries sustained.
(5) — That the verdict is not sustained by sufficient evidence and is contrary to law.
WHEREFORE, PREMISES CONSIDERED the defendant and counter-claimant prays that this (hurt .set aside the Judgment of this Court and that a new trial be granted, or in the alternative, that the Judgment be set aside and Judgment entered in favor of this party, notwithstanding the Judgment and for any and all other relief to which she may be entitled in a court of law.”

On August 5, 1968, the trial court granted the motion as follows:

‘! On this 5th day of August, 1968, there is presented to the Court the Motion of defendant Willie Jean Heaggan to -set aside the verdict of the jury finding in favor of Herbert F. Roberts and Ells-worth Brothers Truck Lines, Inc. on her Cross-Claim against them and to vacate that part of the Judgment based thereon and to grant her a new trial, and said defendant appears bj7 her attorney, Felver A. Rowell, Jr., and Ellsworth Brothers Truck Lines, Inc. and Herbert F. Roberts appear by their attorney, J. W. Barron, and the Court being well and sufficiently advised is of the opinion that said Motion should be granted.
IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED that the verdict of the jury herein finding in favor of Herbert F. Roberts and Ellsworth Brothers Truck Lines, Inc. on the Cross-Claim of Willie Jean Heaggan, and that part of the Judgment rendered in favor of Herbert P. Roberts and Ellsworth Brothers Truck Lines, Inc. on the Cross-Claim of Willie Jean Heaggan, be, and the saíne are hereby, vacated and set aside and that Willie Jean Heaggan be, and she is hereby granted a new trial on her Cross-Claim against Herbert P. Roberts and Ellsworth Brothers Truck Lines, Inc. to all of which the defendants Herbert E. Roberts and Ellsworth Brothers Truck Lines, Inc. object.”

On appeal to this court the appellants designate the following points for reversal:

“The court erred in directing a verdict for "Willie Jean Heaggan on appellants’ cross-complaint against her for contribution.
The court erred in granting the Heaggan motion for a new trial.
A. The motion was not presented within the time required by law.
B. The granting of the motion for a new trial was a clear abuse of discretion.
The four brothers and the sister of the deceased Adkins who did not testily and the two children of the deceased Malloy who did not testify arc not entitled to damages for mental anguish.”

In support of their first point the appellants argue that there was sufficient proof of Heaggan’s negligence to make a question for the jury, and we agree. "Willie Jean Heaggan testified that she had just rounded a curve to the right at about 40 miles per hour and her car began to skid. She testified on deposition that she was familiar with the highway and knew that it was slick when wet; that when her automobile started skidding, she just decided to let the car go on to the right and into the ditch. She testified on deposition that just before the accident, and before her automobile started slipping, she noticed a car passing her and going in the opposite direction pretty fast. The appellant truck driver, Roberts, testified that as he followed the Heaggan vehicle, he observed it go out of control as it rounded a curve; that he immediately touched his brakes and shifted to a lower gear and slowed down. He says that his truck responded to the application of the brakes and did not swerve any and he had no sensation of the trailer being out of control. He testified that the Heaggan vehicle began to fishtail back and forth across the highway and finally wound up in the ditch on the right side of the highway. He testified that he saw the lights of an oncoming car and immediately thereafter felt something hit his trailer. ' He testified that he had his truck and trailer under control and in its proper lane on its proper side of the highway when it Avas struck by the Malloy vehicle. Mr. Roberts testified, in part, as follows:

“Q. Mr. Roberts, you heard portions of your deposition read in evidence by Mr. Woods with reference to your testimony that the Heaggan Ambicie crossed the center line of the highway?
A. Yes, sir.
Q. Now, how many times do you say that the Heaggan vehicle crossed the center line of the highway and got in the left-hand lane?
A. I would say more than once. I wouldn’t say any particular number.
Q. More than once. Then you would have to say tAviee ?
A. Twice or more, yes, sir.
Q. All right. Twice or more. If that’s true, Mr. Roberts, can you explain to the ladies and gentlemen of the jury why there was no collision between the Comet automobile and the Heaggan automobile ?
A. They just managed to miss one another is all I can say.
Q. All light. Did the Heaggan automobile going out of control or fishtail, or whatever you want to call it, cause you to do anything in ibis accident?
A. It caused me to be involved, yes, sir.
Q. But how? What’s [sic] what I want to know. How? Mr. Roberts, tell us how.
A. I think Mr. Malloy lost control of his car, because he thought the Plymouth was going to hit him.
Q. A.11 right. You think that the Comet crossed the center line and hit your truck?
A. Yes, sir.
Q. All right. Do you know whether or not— Your tractor was on the proper side of the road when it passed the Comet?
A. Yes, sir.
Q. It was?
A. Yes, sir.”

The rule governing directed verdicts which has been consistently followed by this court, is set out in Hawkins v. Missouri Pacific Railroad Company, Thompson, Trustee, 217 Ark. 42, 228 S.W. 2d 642, as follows:

“A directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances the trial judge must give to the plaintiff’s evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require Mm to set aside a verdict for the plaintiff should such a verdict be returned by the jury.”

Also in Smith v. McEachin, 186 Ark. 1132, 57 S.W. 2d 1043, we said:

“In testing whether or not there is any substantial evidence in a given case, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is directed, and, if there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fairminded men might draw different conclusions therefrom, it is error to direct a verdict.”

Wo are of the opinion that the jury could have logically concluded from the proof, including the circumstantial evidence in this case, that Mrs. Heaggan’s speed was such on the wet and slippery highway that she was unable to keep her automobile under control and as a result it slid back and forth across the center line of the highway, thus confusing the driver of the oncoming automobile causing him to lose control of his automobile in an effort to avoid colliding with her skidding vehicle, and causing the oncoming Malloy automobile to cross the center line of the highway and collide with the appellants’ truck trailer. We, therefore, hold that the trial court erred in directing a verdict for Mrs. Heaggan on the complaint and appellants’ cross-complaint.

As to the appellants’ second point, 'we certainly agree that the trial court erred in granting the Heaggan motion for a new trial. Arkansas Statutes Annotated § 27-1904 (Repl. 1962) provides as follows:

“The application for a new trial, except for the cause mentioned in subdivision 7 of section 1536 [§ 27-1901] shall be made within fifteen [15] days after- the verdict or decision was rendered, unless unavoidably delayed; provided, that if the time thus allowed for making such application expires after adjournment or expiration of the term, a motion for a new trial with an alternative prayer for an appeal to the Supreme Court in ease it is overruled, may be presented upon reasonable notice to the opposing party or his attorney of record, to the .Judge presiding when the verdict or decision was rendered, or his successor in office, wherever found, at any time within thirty [30] days from the day the verdict or decision was rendered ...”

The verdict was rendered in this case on May 14, 1968, the motion for a new trial was filed on June 12, 1968, the motion was argued and granted on August 5, 1968, approximately three months after the verdict was rendered and over one month after the judgment thereon was filed for record and partially satisfied. At the hearing on the motion for a new trial, Mrs. Heaggan’s attorney simply argued that the verdict was against the preponderance of the evidence and that if file original plaintiffs were entitled to recover against the appellants, then Mrs. Heaggan was entitled to recover also. The trial court gave no better reason for granting the motion, but simply stated: “Motion sustained, and I am setting the verdict aside.”

The evidence, as presented to the jury from blackboard drawings not of record before us, may have convinced the jury that the truck trailer was on its wrong side of the center line of the highway where it was struck by tire Malloy automobile. But be that as it may, the verdict in favor of the original plaintiffs against the appellants did not entitle Mrs. Heaggan to a favorable verdict on her cross-complaint. The record reveals no reason for granting tlie Heaggan motion for a new trial, except that the jury found against her.

It is true that Dr. Hickey testified that Mrs. Heaggan had suffered a 7%% permanent partial disability because of strained neck muscles and a bruised chest, and the record reveals that he administered to her thirty-one OV injections at $8.00 each. Mrs. Heaggan’s X-ray findings were all negative, she had fully recovered from an identical neck injury sustained about one yea]- earlier, and she lost no time at all from her employment because of her last injuries. Mrs. Heaggan was not entitled to a verdict in her favor simply because she was injured; she was not entitled to a verdict in her favor simply because the original plaintiffs obtained one, and she was not entitled to a new trial unless the adverse verdict she received was against the preponderance of the evidence. A trial court has a great deal of discretion in controlling its judgments and in directing new trials, but has no authority to set aside a jury verdict arbitrarily and without reasonable cause. Big Hock Stone & Material Co. v. Hoffman, 233 Ark. 342, 344 S.W. 2d 585. The evidence is undisputed that the truck and trailer came to rest with the rear wheel of the trailer touching the rear of Heaggan’s vehicle. The only damage to the roar of Heaggan’s vehicle rvas a broken lens in one of the three left tail lights. Her doctor testified that her injuries included a bruise over the anterior chest wall and the front of her chest. His testimony as to the cause of appellee’s in juries was as follows:

“Q. Doctor, I believe the testimony will be that Mrs. Heaggan was driving down the highway, that she was going 45-50 MPH and lost control of her car and ran off in the ditch on the right side of the road. Could that accident account for the injuries you found in this case?
A. Yes, sir, it could.
Q. And this injury to the chest, that had to be from a forward motion of body?
A. Yes, that was where her body struck something in front of her.
Q. And went forward?
A. Yes, sir.
Q. ... [0]ould you say with a reasonable degree of medical certainty that this accident could have occurred either when she lost control of her ear at 40 to 50 miles an hour, got off in the ditch, joustled around in the car, or she was hit from the rear, could you say with a reasonable degree of certainty either waj^?
A. It could have happened either way.
Q. You would just have to guess between the two possibilities to say which one in your opinion caused it?
A. Yes, sir.”

On the basis of the testimony the trial court denied the appellants’ motion for a directed verdict and presented the question to the jury, whose verdict was in favor of appellants. If the verdict had been returned otherwise, under the evidence presented, it would have been incumbent upon the trial court to then set it aside and enter a judgment for the appellants. This court has taken judicial notice of the physical facts based on common knowledge, that when an automobile is struck from the rear, the occupants are thrown backward instead of forward. Ellsworth Brothers Truck Lines v. Canady, 245 Ark. 1055, 437 S.W. 2d 243. We hold that the trial court clearly abused its discretion in granting Mrs. Heaggan’s motion for a new trial.

For their third point appellants assert that the evidence was not sufficient to allow the jury to consider damages for mental anguish for the four brothers and the sister of Adkins and the two children of the deceased Malloy who did not testify. We agree with the appellants on this point, not because these next of kin did not testify, but simply because there was no evidence on which a verdict for mental anguish could be permitted to stand.

In Peugh v. Oliger, Admx., 233 Ark. 281, 345 S.W. 2d 610, this court said:

“In Hancock v. Western Tel. Co., 137 N.C. 497, 49 S.E. 952, 69 L.R.A. 403, the North Carolina Supreme Court said that there is a very material difference between disappointment and regret and that keen and poignant mental suffering signified by the words, ‘mental anguish.’ In short, the Legislature in allowing recovery for mental anguish, meant something more than recovery for the normal grief occasioned by the loss of a loved one. To be aggrieved or to be shocked by the death of a loved one is natural, but in order to recover under the Act No. 255, one must suffer more than the normal grief.”

Mr. Malloy was apparently divorced from the mother of his children and the Malloy children had not seen their father but had completely lost contact with him for more than eight years prior to his death. We will not prolong this opinion by reciting the testimony pertaining to mental anguish, but suffice it to say there is absolutely no evidence in the record before us to indicate that appellees experienced more than normal grief in the loss of a loved one, and the appellees have totally failed in the proof of such mental anguish as is compensable under the statutory and case law of this state. The judgment of the trial court is reversed and this cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

      Arkansas Statutes Annotated § 27-1901, subdivision 7 pertains to newly discovered evidence.


author: Conley Byrd, Justice.

text:
    Mattie Dotson v. Mae Aldridge, et al
    5-4837
    438 S.W. 2d 464
    Opinion Delivered March 24, 1969

      Harold C. Rains, Jr., for appellant.

      Davicl O. Partain, for minor defendants.

      Franklin Wilder for appellees.
   Conley Byrd, Justice.

The common source of title to the 10 acres of land involved in this litigation was Nancy P. Foster. The record shows that she lived on the land until her death, June 12, 1951. She was survived by Mae Aldridge, Troy Foster, Wilburn Foster, Lela F. Hunter, George Foster, Frank Foster, Jr., Roosevelt Foster, Ellen Thacker and Melvin Foster. All of the foregoing children except Melvin Foster, who died in 1953, are appellees.

This suit was commenced by Mattie Dotson, a sister of Nancy P. Foster, as an action to quiet title. Mattie alleged that on Nov. 24, 1945, Nancy P. Foster conveyed ten acres to Melvin Foster and his wife, Eddye; that after Melvin’s death, Eddye mortgaged the lands, on Sept. 13, 1955, to the Peoples Bank & Trust Co. to secure $69.00; that Eddye was unable to repay Peoples Bank & Trust Company and made an agreement with Mattie that if Mattie would pay off the mortgage and back taxes, she could take the lands; that pursuant to such agreement, Mattie repaid the mortgage and back taxes in the amount of $101.29 and entered into possession of the lands;.and that Mattie has been in possession adversely to the rights of all others and has paid taxes thereon since 1954. Named as defendants in Mattie’s petition were Donald R. Gordey, formerly Foster, Carolyn Jane Foster, Delores Ann Gordey, formerly Posten-, Jimmy Dale Gordey, formerly Poster, and Diann Sell rider — the first four named defendants were children of Melvin and Eddye Poster and the latter, Diann Sclirider, is a daughter of Eddye Poster by another marriage.

The children of Eddye Poster, answering through their guardians and next friends, denied that Eddye had made any agreement with Mattie as alleged, and asserted that they were the owners of the 10 acres of land involved.

The appellees, all of the children of Nancy P. Poster except Melvin Poster, intervened. They alleged that the deed dated Nov. 24, 1945, from Nancy P. Foster to Melvin and Eddye Foster was a forgery, and that Mai tic Dotson had been in possession of the 10 acres with the intorvenors’ permission.

The trial court found that the deed from Nancy to Melvin and Eddye was a forgery, that Mattie had been in possession of the lands with the permission of the appellees and entered a decree in accordance with their prayer for partition sale of the lands. Both Mattie and (lie children of Eddye have appealed raising the issues hereinafter discussed.

THE DEED

The notary public who took the acknowledgment testified that she knew Nancy P. Foster, her son Melvin, and Melvin’s wife Eddye, that Nancy Foster and one of her daughters came to her office to make the deed, that she typed the deed in accordance with Nancy’s instructions and that it was signed at Mrs. Foster’s request. Since Mrs. Foster couldn’t write, she had Mrs. Foster touch the pen before she took the acknowledgment. The deed was not delivered to Melvin in her presence.

Cora Gordey, the mother of Eddye Foster, testified that during “hog killing” time in 1945, Nancy Foster and Melvin came by her house and declined to stay for dinner because they were going to have a deed made to Melvin. They came by her house to pick up a sausage grinder. Eddye was not with them and she is fairly certain Eddye was at home that day.

Pearl Foster, wife of Wilburn Foster, testified that in November 1945, she went with Nancy Foster to the notary public’s office about drawing up a deed. The others there were Melvin Foster, Eddye Foster and Pearl’s husband, Wilburn Foster. When she went in, the notary public had started to type and asked whose name Nancy wanted on the deed. When Nancy Foster said that she wanted Melvin and Ellen’s name on the deed (Ellen is Nancy Foster’s baby daughter), Melvin’s wife spoke up and said it should be made to Melvin and her, and then to Ellen. That after the matter went back and forth between Nancy and Eddye, Nancy Foster said, “If I can’t have it like that, I will just let it go and they can fight over it.” Thereafter, the notary gave the paper she had started to Nancy Foster and everybody left. Pearl never saw the deed again after that.

Mae Aldridge, Nancy’s oldest daughter, lived about a mile from her mother. She testified that shortly before her mother’s death on June 12, 1951, she went to the Citizens Bank in Yan Burén to pay off a note that her mother owed and while there she got all of her mother’s papers at the bank, including the deed. She says that the deed was not signed and did not have her mother’s mark on it. She had possession of these papers until two weeks after her mother’s death. When asked how Melvin got the deed she stated, “He asked me, he wanted to see the deeds, and wanted to see the mortgage after I picked them all up. I showed them to him. lie looked at them, and then just stuck them in his pocket and walked off.” She first found out about the. deed here involved in 1952 when she heard that Melvin was mortgaging the land. At that time she went to the bank and was shown the deed. She told the bank not to let Melvin make any more mortgages on the property.

The record shows that Nancy P. Foster mortgaged the lands on Nov. 19, 1947, on Dec. 4, 1948, and again on Feb. 19, 1950. In each instance the mortgages executed by Nancy Foster during her lifetime and subsequent to the date of the alleged deed were signed by mark and witnessed in accordance with Ark. Stat. Ann. § 27-109 (Repl. 1962). There was ample other evidence also showing that Nancy Foster always affixed her signature in this manner. In view of the testimony and the recorded documents, among which, is the recordation of the alleged deed on July 5, following the mother’s death on Juno 12, 1951, we hold that a preponderance of the evidence supports the Chancellor’s findings that the deed was a forgery.

STATUTE OE LIMITATIONS

Appellants argue that all the appellees were put on notice of the deed from Nancy Foster to Melvin and Eddye Foster in 1952 and that consequently their cause of action to cancel the forged deed is barred by the seven year statute of limitations, Ark. Stat. Ann. § 37-101 (Repl. 1962). Assuming without deciding that appellees were put on notice of the forged deed in 1952, we do not agree that the statute of limitations prohibits a person in possession from suing to remove a cloud upon his title even though the cloud had been in existence and within the knowledge of the possessor for more than seven years. The rule is that there is no necessity for resorting to legal remedies until there is an interference with possession, Penrose v. Doherty, 70 Ark. 256, 67 S.W. 398 (1902). There is no showing here that either Melvin or Eddye took possession of the premises during their lifetimes and, as will be shown, Mattie Dotson at all times held the lands with permission of appellees.

ADVERSE POSSESSION

The evidence in the record shows that Lela F. Hunter and her husband, Virgil, went into possession of the lands following Nancy Foster’s death and remained there for two or three years. Thereafter the land was vacant until Mattie Dotson took possession sometime after Dec. 18, 1957. On that date she paid off the mortgage, that Eddye Schrider, formerly Eddye Foster, had executed to the People’s Bank & Trust Company on Sept. 33, 1955, and at the same time paid the money for the back taxes from 1952 to the date of her transaction with the bank. She has had continuous possession of the property since that time and paid all taxes as they accrued up to and through 1966. On direct examination she was asked:

“Q. Now, Mattie, have you at all times occupied the land! By that, I mean had control of it and exercised control over it, and did these people know that you were claiming the land all these years?
A. There wasn’t nobody, I never did say anything about claiming the land until I brought them papers up there to you.”
Again, on cross examination she was asked:
“Q. Did you think that Melvin’s brothers and sisters had some interest in this property?
A. I thought that they just had as much interest in it as Melvin did.”

In addition to the above, the record shows that Mattie Dotson did not pay the mortgage or take possession of the land until after the death of both Melvin and Eddye Foster.

On Nov. 16, 1966, Mattie sold % acre of the land for $300.00 to Eugene O’Bar. O’Bar had erected a building on the half acre prior to trial. The trial court awarded the half acre to O’Bar in its decree and no appeal has been taken therefrom by. any of the parties.

Mattie Dotson readily admits that she talked to "Wilburn about taking possession of the lands before she paid off the mortgage at the bank. Wilburn testified that Mattie Dotson asked him about working the place and that they arrived at an agreement whereby she could work the place for three years if she would pay off the mortgage and the taxes. Thereafter she kept the taxes paid and no mention was made that the character of her possession was not permissive. The testimony of Wilburn is substantiated by the testimony of Lela Hunter and Mae Aldridge, both of whom testified that Mattie asked them for permission to enter into possession of the lands.

Thus when we read the whole record, together with the damaging admissions made by Mattie Dotson, we must find that a preponderance of the evidence fully supports the Chancellor’s finding that Mattie Dotson entered into possession of the lands with the permission of the children of Nancy Foster. Since there is argument that the Chancellor’s opinion and the decree were erroneous because he considered Mattie Dotson as a child of Nancy Foster, instead of a sister, we have reviewed the record and find that a preponderance of the evidence would support no other conclusion on the issue of adverse possession.

CONCLUSION

From the foregoing it is seen that the children of Eddye Foster (Schrider) are foreclosed from claiming the land because the alleged deed from Nancy Foster to Melvin and Eddye Foster is a forgery. Since Mattie Dotson went into possession of the lands with the permission of Nancy Foster’s children, it obviously follows that her claim of adverse possession is without merit, Still v. Still, 239 Ark. 865, 394 S.W. 2d 733 (1965).

In view of the fact that both appellants claim the decree is erroneous in that it classifies Mattie Dotson as an heir of Nancy P. Foster, we are remanding the case to the trial court with directions to clarify the decree to correct this erroneous impression.

Affirmed as modified.