author: John A. Fogleman, Justice.

text:
    PHOENIX OF HARTFORD v. J. D. CONEY
    5-5368
    459 S. W. 2d 558
    Opinion delivered November 16, 1970

      Terral, Rawlings, Matthews ir Purtle, for appellant.

      Patten ir Brown, for appellee.
   John A. Fogleman, Justice.

Appellant was the insurance carrier of workmen’s compensation insurance of T. L. English d/b/a Glover Equipment Company. English had a contract to build a service station in some sort of joint venture with one Jim Benton. Benton arranged a subcontract with appellee J. D. Coney for the concrete finishing work on the job. Benton had previously made similar arrangements with appellee to do similar work under contracts held by B. G. Coney Construction Company. On those jobs the prime contractor carried workmen’s compensation insurance covering the employees of J. D. Coney. Appellee did not actually know that English was the prime contractor on this job, rather than B. G. Coney Construction Company, until he asserted a claim that an injury to his employee Arvid C. Ellis was covered under B. G. Coney Construction Company’s workmen’s compensation insurance. The injury to Ellis occurred on or about October 27, 1967. Appellant paid the Ellis claim and sued appellee to recover the amount paid under the provisions of Ark. Stat. Ann. § 81-1306 (Repl. 1960). Appellee defended on the ground of estoppel. At the conclusion of the evidence offered by appellants before the circuit judge, sitting as trier of the facts upon waiver of jury trial, appellee moved to dismiss. The court granted the motion. This appeal comes from the resulting judgment.

Arkansas Statutes Annotated § 81-1306 provides that a prime contractor’s insurance carrier which becomes liable for payment of compensation may recover the amount paid from an insured subcontractor. Yet >ve do not take the statute to mean that the carrier may not be barred from recovery by estoppel. We have held that an employer is estopped to deny that an injured subcontractor is entitled to recover workmen’s compensation when there is a contract, supported by a consideration, obligating the contractor to furnish coverage on the subcontractor and his employees. Stillman v. Jim Walter Corporation, 236 Ark. 808, 368 S. W. 2d 270. In that opinion we pointed out that the weight of authority supports the application of the doctrine of estoppel against an employer and a carrier when an insurance premium for coverage has been paid on a particular person. We think this to be a sound rule and that it is properly to be considered in this case, as the trial judge apparently did. If the carrier was estopped by the receipt of a premium covering appellee’s injured employee, then the facts admitted were not sufficient to overcome the defense of estoppel.

This brings us to appellant’s primary argument, i. e., that the granting of the motion for dismissal was error. The motion was equivalent to a motion for a directed jury verdict, and we must consider its granting on the same basis we would review a judgment based upon such a verdict. This means that we must view all evidence in the light most favorable to appellant and draw all reasonable inferences in its favor. Home Mutual Fire Insurance Company v. Cartmell, 245 Ark. 45, 430 S. W. 2d 849. Even when we do, we find that the granting of appellee’s motion was not reversible error.

Appellant’s chief field auditor, Horace Taylor, testified substantially as follows:

It is customary that appellant make an audit of its insured employers to get payroll information from the person on whom the respective policies are issued. This is for the purpose of determining the correct premium to be charged the employer and is based on his payroll. Appellant made such an audit on English on August 7, 1968, covering the period from August 1, 1967, to August 1, 1968, but I did not make it. There was no indication in that audit that J. D. Coney was an uninsured subcontractor on whom premiums Were collected, even though three other subcontractors on the job were listed in the. audit worksheets. Upon making an audit, I am not concerned with whether the contractor is taking money from payments to subcontractors to cover workmen’s compensation premiums. I have the record of payments to subcontractors and charge a premium sufficient to cover the employees of a subcontractor, if there is no evidence the subcontractor is insured. When the evidence was submitted by the prime contractor that two of the three subcontractors listed carried workmen’s compensation insurance, the company only considered the remaining subcontractor in arriving at the final premium charge. It would have added a premium charge for appellee if his status had been readily discernible from the prime contractor’s records. It is clear from the audit papers that no charge was made for the employees of appellee and appellant’s records showed that English paid no premium on account of appellee. The payroll information furnished by the prime contractor showed the uninsured subcontractors and the type work they did. The premium charged is based on a classified rate applicable to each $100 of payroll. The records reviewed by the auditor were English’s cash journal, individual employee earning cards, State Employment Security Division quarterly reports and WCC reports. The cash journal normally shows payments made to subcontractors. My department has nothing to do with claims. That service is performed by another department.

William Stringfellow, Claims Supervisor of the Workmen’s Compensation unit of appellant, also testified substantially as follows:

The first report of the injury was signed by English and filed November 21, 1967. Nothing on the form showed that the injured person was working for a subcontractor. Appellant found by its own investigation that English was the general contractor and Coney a subcontractor. I have nothing to do with auditing to determine the amount of a premium or whether a premium is charged.

Travis English testified that:

Appellant had access to all my records; it sent a man to audit my books to determine the premium charged; I challenged the premium charged on account of two subcontractors, and furnished evidence that they were insured, after which the premium was reduced. I did not remit to appellant an additional $270 held out of Coney’s payment. I merely paid the amount finally billed. I am sure that payments to Coney were carried on his books somewhere. I don’t keep the books myself and I would have to see where and how it was carried. I think I carried everything relating to this partnership enterprise with Benton on the Glover Equipment Company books.

J. D. Coney testified that he thought he was covered and expected to pay someone the premium; that $274.80 was withheld from his contract price by English after completion of the job in November 1967.

We do not agree with appellee’s argument that the carrier’s rights are so dependent upon its insured’s rights that the judgment must be affirmed under any circumstances. Apparently, his position is that English is estopped to deny his liability and that his estoppel bars his carrier. Even though the trial court’s action was not based upon this theory, we would readily agree with appellee if appellant sought recovery under equitable doctrine of subrogation. See U. S. F. & G. Co. v. Maryland Cos. Co., 186 Kan. 637, 352 P. 2d 70 (1960); Little Rock St. Imp. Dist. v. Taylor, 184 Ark. 92, 40 S. W. 2d 786; Aetna Cas. & Surety Co. v. Taylor, 177 Ark. 181, 5 S. W. 2d 929. Subrogation, being a creature of equity, will not be enforced where it will work an injustice to one having an equal equity. Belleclair Planting Co. v. Hall, 125 Ark. 203, 188 S. W. 574. The action was brought under Ark. Stat. Ann. § 81-1306 (Repl. 1960); however, as we read that section, the statutory right of the carrier to recover from the subcontractor is not dependent upon the right of the prime contractor. It depends only upon payment of the claim by the carrier, whose claim for recovery does not affect its liability to the injured employee.

Where the insured employer’s liability is based upon estoppel, or other equitable considerations, rather than the workmen’s compensation laws, the estoppel will not automatically apply to an insurance carrier whose liability is to be determined by the workmen’s compensation statute. See Hano v. Kinchen, 122 So. 2d 889 (La. Ct. App. 1960); Hall v. Spurlock, 310 S. W. 2d 259 (Ky. Ct. App. 1957), both cited in Stillman. Yet this does mean that appellant was not estopped to recover from Coney.

The record reveals that the employer’s first report of the injury made on the usual form showed the following information with reference to the accident:

(10) Name of Foreman J. D. Coney — Employer

While the date of appellant’s investigation is not disclosed, the complaint in this case was verified by appellant’s attorney on March 5, 1968. It is alleged therein that Coney was an uninsured subcontractor who was not a self-insurer. Thus, it is obvious that appellant knew these facts five months before the audit. If it knew this and had access to all the subcontractor’s books, surely the amount of premium chargeable on account of Coney’s employees could and should have been determined. It undoubtedly would have been paid by English, who simply paid the amount for which he was billed after the audit. Appellant should be charged with any information which reasonable diligence would have disclosed. See Southern Underwriters v. Jones, 125 S. W. 2d 393 (Tex. Civ. App. 1939).

While we cannot say that appellant received and retained premiums withheld from Coney’s payment, it alone is to blame. The doctrine of estoppel should not be so narrow as to require the actual payment of the added premium under these circumstances.

We must, then, consider appellant’s secondary point for reversal. After the circuit judge had indicated what his holding would be on the motion to dismiss, appellant moved for summary judgment because of appellee’s failure to make timely response to certain requests' for admissions and because the requests were not answered by appellee, but by his attorney, and because the answers were unverified. Failure to properly answer-requests for admissions does not, in and of itself, authorize or require the entry of summary judgment in 'favor of the party requesting admissions. It only means that the court may take the request to have been admitted, and grant summary judgment if no material issue of fact is left to be determined. Brown v. Lewis, 251 Ark. 976, 334 S. W. 2d 225; Universal Life Ins. Co. v. Howlett, 240 Ark. 458, 400 S. W. 2d 294; B. & P., Inc. v. Norment, 241 Ark. 1092, 411 S. W. 2d 506; Delta Discount Company v. Fryer, 244 Ark. 489, 426 S. W. 2d 788; Young Adm’r v. Dodson, 239 Ark. 143, 388 S. W. 2d 94.

The facts admitted are:

That J. D. Coney on October 27, 1967, was engaged in the contracting business.
That J. D. Coney had sufficient employees on October 27, 1967, to be subject to the Arkansas Workmen’s Compensation Act.
That J. D. Coney on October 27, 1967, was not qualified as a self-insurer under the Arkansas Workmen’s Compensation Act.
That on October 27, 1967, Arvid C. Ellis sustained an injury compensable under Arkansas Workmen’s Compensation Act.
That under the provisions of Arkansas Statutes 81-1306, Arvid C. Ellis made claim for Workmen’s Compensation benefits for such injuries under the Workmen’s Compensation policy of T. L. English d/b/a Glover Equipment Company.
That Arvid C. Ellis has received and been paid in his behalf Workmen’s Compensation Benefits of 11,400.0o for such injuries under the Workmen’s Compensation Policy of T. L. English d/b/a Glover Equipment Company.
That at the time of such injury, T.' L. English d/b/a Glover Equipment Company was a prime contractor on the job where Arvid C. Ellis was injured.
That Phoenix of Hartford Insurance Company has paid to Arvid C. Ellis or paid in his behalf Workmen’s Compensation benefits of $1,400.00 for the injury he received on October 27, 1967.

Taking the requests to have been admitted, appellant still was not entitled to summary judgment.

The judgment is affirmed.

       This amount had been paid at the time the request was filed. Later the payments totaled $5,190.70 (Footnote ours.)


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Ralph BLANN v. HARVILL-BYRD ELECTRIC CO. et al
    5-5328
    459 S. W. 2d 267
    Opinion delivered November 16, 1970

      Whetstone ir Whetstone, for appellant.

      John M. Lofton, Jr., for appellees.
   J. Fred Jones, Justice.

This is a workmen’s compensation case in which the claimant-appellant, Mr. Blann, suffered a compensable heart attack on May 25, 1967, while carrying tools weighing 45 to 50 pounds up some steps in the course of his employment as an electrician by Harvill-Byrd Electric Company. Mr. Blann filed a claim for permanent and total disability. A hearing before a referee on April 9, 1968, resulted in an award of 15% permanent partial disability to the body as a whole. The award was sustained by the full Commission and affirmed by the circuit court on appeal. Mr. Blann has appealed to this court and relies on the following points for reversal:

“There was no substantial evidence to support the finding that appellant was not totally and permanently disabled.
There was no substantial evidence to support the findings that appellant was not permanently disabled from earning ‘high time’ which would entitle him to maximum benefits under the act.”

Following his heart attack on May 25, 1967, Mr. Blann went to Dr. B. B. Livingston in Camden, who recommended that he go to the hospital. On May 29, 1967, he went to the Veterans Administration Hospital in Little Rock where electrocardiograms were made, and where he remained under treatment and observation for about 28 days. Mr. Blann testified that after his release from the hospital, he tried installing some light fixtures in a school building in El Dorado but had to quit because of his heart condition. He testified that he then tried a maintenance job at Helena and was able to work only 10 or 12 days. He says that while working in Helena he was asked to climb a chemical tank and un-stick an elevator on top of the tank about 165 feet above the ground, and when he had climbed about 25 feet, his heart started bothering him and he had to come back down. He testified that he was discharged the next day and didn’t work any more until September. He testified that he was examined by Dr. Ellis in El Dorado on September 14, 1967, and on or about September 15, 1967, he went to work for the Alleghaney Electric Company on a paper mill job in Alexandria, Louisiana.

At the hearing before the referee on April 9, 1968, Mr. Blann testified that with the exception of one week when he was out of work because of Union trouble, he had not missed a single day’s work from the time he went to work for Alleghaney in April, 1967, until the day of the hearing. He testified that he has not seen a doctor since he last saw Dr. Ellis in September, 1967, and has received no medical attention. He says, however, that he carries nitroglycerin tablets in his pocket and takes them when he experiences chest pain. He testified that he is now restricted to ground work and has been unable to work above 40 feet in height, which demands extra pay called “high time.”

Mr. Allen O. Hobbs, business manager of the Electrician’s Union in El Dorado, testified that in that area the wage scale for journeymen electricians is $5 per hour and that “high time” would be $7.50 per hour. He testified that “high time,” under the Union contract, refers to work on towers, steeples, smokestacks, and other similar hazardous locations. He testified that “high time” is usually available on big jobs but that locally, in the residential shops, there wouldn’t be any. He says that on large industrial jobs “high time” would probably constitute 20% of the wages on a year in year out basis.

Dr. Ellis testified that he examined Mr. Blann on September 14, 1967, and primarily from the history and symptoms related to him, he tentatively diagnosed Mr. Blann’s condition as arteriosclerotic heart disease consistent with angina; that at that time he was of the opinion Mr. Blann had suffered some permanent partial disability but was of the opinion that it would take approximately one year to determine what Mr. Blann’s ultimate condition would likely be. On January 4, 1968, Dr. Ellis made a written report of his findings on September 14, 1967. He interpreted his own electrocardiograms as revealing no definite abnormalities, but interpreted the electrocardiograms performed in May and June at the Veterans Hospital, as indicating abnormalities consistent with infarction of the anterior myocardial wall. Dr. Ellis concludes his written report as follows:

“It is my opinion that this patient has arterio-sclerotic heart disease. It is also my opinion that he sustained a myocardial infarction in May, 1967. I believe that he continues having angina pectoris secondary to arteriosclerotic heart disease and that his physical output should be limited to tolerance. I would not want to perform an exercise tolerance test to ascertain this diagnosis at this time.
I believe that Mr. Blann should not perform manual labor which would involve more than the use of such instruments as pliers and screwdrivers at ground level for the next year. I do not think that he should climb ladders or stairs in the performance of his duties for the next year. I believe that any work involving the lifting or carrying of more than ten to fifteen pounds should be prohibited for the next year. His cardiac functional and therapeutic classification, in my opinion, is III-C.”

On February 16, in answer to inquiries made by the compensation carrier to Mr. Blann’s attorney and forwarded on to Dr. Ellis, he reported as follows:

“Regarding your question as to whether the healing period has or has not ended, I believe that the healing period of the condition has not occurred yet. I believe that it will take approximately one year for me to determine what the patient’s ultimate condition will likely be.
Regarding your next question as to the determination of permanent partial disability, I believe that Mr. Blann is permanently disabled partially. I consider him 100% disabled permanently from the standpoint of his doing any work on any high level. I further consider him 100% disabled from the standpoint of his performing manual activity that would involve any strenuous physical exertion at any level. I believe that he has no disability relative to his performing sedentary or semi-sedentary work or so-called ‘light Work.’ ”

Dr. Alfred Kahn, Jr. examined Mr. Blann and recommended that he should continue to perform light work. After explaining that “angina pectoris” is warning pains which warn an individual that he is putting more work on his heart than his heart will tolerate, Dr. Kahn testified that a heart patient, such as Mr. Blann, should avoid extremes in temperature and fatigue and should exercise to the point of almost inducing pain because of angina pectoris. He testified that exercise is not injurious, but actually prolongs life, if properly administered. He testified that the tracings on electrocardiograms should show definite evidence of coronary artery occlusion, which is the closure of the blood vessel leading to the muscle, and that he detected some muscle death on the tracings made at the Veterans Hospital. He testified, however, that in his opinion, the tracings made at the Veterans Hospital did not indicate a very large area of damaged muscle because the electrocardiograms made at his own office are now normal. Dr. Kahn testified, in part, as follows:

“Q. Would you recommend that he refrain from lifting?
A. Well, I think a limit on that might be five pounds.
Q. What about climbing, like a ladder?
A. Slowly. If he wanted to climb a ladder slowly I guess it would be safe enough, but I wouldn’t recommend that he do it very often. I wouldn’t recommend that he do it to the extent of producing pain. * * * I would say a man who has angina pectoris could perform light work as an electrician, if he did not lift more than five pounds, if he did not have to climb frequently, if he did not get over-fatigued, or exposed to extremes of temperature. I think this is a better way to put it. I’m trying to state it positively for you. # * # This gentleman is probably capable of working within the restrictions that I’ve mentioned to you, and within these restrictions he’s probably just as well off working as he is sitting at home. Exercise, if not overdone, is beneficial to a man such as this.”

Dr. Kahn testified that the fact that Mr. Blann had worked continuously from September 19, 1967, without losing any time because of his heart condition, would indicate his capability for doing the work he did, and that as long as he did not go beyond reasonable limits, he felt that Mr. Blann could continue in the course of his employment as a journeyman electrician until warned by angina pain.

Mr. Blann testified before the full Commission that he had to quit working for Alleghaney when the work consisted of putting rigid steel conduits underground, and that he was made foreman over a crew of men and was unable to do the walking and climbing necessary in laying out the work for the men. He testified that he worried a lot about not being able to carry out his work, and that was the reason for his leaving Alleghaney for the 30 day period he did not work for Alleghaney. He says that after leaving Alleghaney he went to work for Lawrence Electric Company and worked for a week or ten days “hanging piano wires” in boilers. He says that he was making $5.40 per hour for this work and quit when the wire hanging was completed and the electricians had to climb on top of the boiler. He says that he could not do the climbing required by Lawrence Electric, so he went back to Alleghaney when they had finished laying the heavy conduits in the wood yard and light work was again available.

Mr. Blann testified that when he went back to work for Alleghaney, “high time” work was available to him but he was unable to accept it. He says that “high time” was available to him from 30 to 35% of the time, but that he has been unable to do “high time” since he had his heart attack. He testified that any work over 40 feet above the ground that is not on a permanent deck or a permanent platform where handrails are required is considered “high time.” He testified that he had worked as a lineman and a wireman prior to his heart attack; that he is now unable to do the climbing necessary for that type of work, and that his work is now strictly limited to that of an electrician. He testified, however, that the work of a lineman and that of an electrician are practically the same except that a lineman does not draw “high time” pay. Mr. Blann testified that he was earning $4.85 an hour when he had his heart attack and is now making $5.40 an hour He testified, however, that the reason he had been able to continue his work without losing any time was because he was acquanted with the men on the job and they would assist him when his work required something that he could not do.

Mr. Blann’s first point deserves little comment in the light of the record in this case. According to the medical reports and testimony, Mr. Blann is able to do light work; and according to Mr. Blann’s own testimony, he had been doing light work without loss of time and without the necessity for medical treatment since he returned to work for Alleghaney in June, 1967. There is substantial evidence that the disability Mr. Blann does have is not totally disabling, and there is no substantial evidence to the contrary.

Mr. Blann presents a rather unique theory under his second point. He seems to contend that since he is no longer able to earn extra pay for high and hazardous work, and since such work was available to him in such quantity, that 65% of the amount he could earn in extra pay, would exceed the maximum weekly benefits he could receive under the law; he is totally disabled and should be paid the maximum weekly compensation benefits as long as he remains unable to earn “high time,” or extra pay at the high and hazardous work. The Arkansas Workmen’s Compensation Law does not sustain Mr. Blann in this contention.

Ark. Stat. Ann. § 81-1302 (e) (Repl. 1960) defines “disability” as follows:

“ ‘Disability’ means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.”

and Ark. Stat. Ann. § 81-1312 (Repl. 1960) provides as follows:

“Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of accident, and in no case shall be computed on less than a full time work week in the employment. Where the injured employee was working on a piece basis, the average weekly wage shall be determined by dividing the earnings of the employee by the number of hours required to earn the wages, during the period not to exceed fifty-two [52] weeks preceding the week in which the accident occurred, and by multiplying this hourly wage by the number of hours in a full time work week in the employment. Overtime earnings are to be added to the regular weekly wages and shall be computed by dividing the overtime earnings by the number of weeks worked by the employee in the same employment under the contract of hire in force at the time of the accident, not to exceed a period of fifty-two [52] weeks preceding the accident. If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the Commission may determine the average weekly wage by a method that is just and fair to all parties concerned.”

The mere fact that an injured employee is earning, in the same or other employment, the wages he was receiving at the time of his injury does not necessarily prove that he has the capacity to do so. (Abbott v. C. H. Leavell & Co., 244 Ark. 544, 426 S. W. 2d 166). But Mr. Blann is not an uneducated common laborer whose capacity to earn is dependent upon a strong body; he is a journeyman electrician with 22 years experience. His capacity to earn is based as much on what he knows as it is on strenuous physical exertion. Compensation for temporary partial disability is provided for in Ark. Stat. Ann. § 81-1313 (b) (Repl. 1960) as follows:

“In case of temporary partial disability resulting in the decrease of the injured employee’s average weekly wage, there shall be paid to the employee sixty-five per centum [65%] of the difference between the employee’s average weekly wage prior to the accident and his wage earning capacity after the injury.”

Compensation for permanent scheduled injuries is provided for in § 81-1313 (c), and compensation for permanent partial disability is provided for in subsection (d) as follows:

“A permanent partial disability not scheduled in subsection (c) hereof shall be apportioned to the body as a whole, which shall have a value of 450 weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury.”

Now, applying the statute to the case at bar, it was stipulated that Mr. Blann’s hourly wage under his contract of hire at the time of his injury was $4.75 per hour, but there is no substantial evidence as to what his average weekly wage was prior to his injury. There is substantial evidence that because of his injury Mr. Blann did lose some of his capacity to work in high and dangerous places, but there is no substantial evidence that this loss decreased his earning capacity beyond the 15% awarded to him by the Commission.

The judgment is affirmed.


text:
    CLARK COUNTY LUMBER COMPANY v. Justine COLLINS and Elease SWEARINGEN
    5-5381
    459 S. W. 2d 800
    Opinion delivered November 16, 1970

      Teague, Bramhall, Davis ir Plegge, for appellant.

      W. H. Arnold and G. W. Lookadoo, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Clark

County Lumber Company from a judgment of the Hot Spring County Circuit Court rendered on a jury verdict in favor of Justine Collins and Elease Swearingen the plaintiffs-appellees, in the amounts of $7,636 in favor of Collins and $15,604 in favor of Swearingen. The appellant company relies on the following point for reversal:

“The verdict of the jury in each case was excessive and therefore contrary to the law and contrary to the evidence.”

The plaintiffs-appellees are sisters and on January 30, 1968, were passengers in the back seat of an automobile belonging to, and being driven by, their father, Carmie Morrison, on Highway 67 near Malvern, Arkansas. In preparation for turning left from the highway the Morrison automobile had stopped to permit oncoming traffic to pass, and while so stopped, the defendant-appellant’s 1966 one-half ton truck ran into the rear of the Morrison automobile knocking it a distance of 81.6 feet and injuring the appellees, Collins and Swearingen.

The two separate complaints were consolidated for trial and the only question presented on this appeal is whether the verdicts were excessive. We, of course, must view the evidence in the light most favorable to the appellees and if there is any substantial evidence to sustain the jury verdicts, they will not be disturbed on appeal. Alexander v. Botkins, 231 Ark. 373, 329 S. W. 2d 530; Fred’s Dollar Store v. Adams, 238 Ark. 468, 382 S. W. 2d 592.

Mrs. Collins testified that prior to the accident she was employed by Levi Oberman factory in Arkandelphia, but wasn’t working at the time the accident occurred; that she has two children and was staying at home taking care of the children at the time of the accident. She testified that she returned to work on March 5, 1969, and was unable to work for a period of 13 months. She says she was not able to work at the time she did return to work but was forced to do so from economic necessity. She testified that she and her sister were thrown against the back of the front seat of the automobile with such force that it broke the back of the seat; that she sustained injuries to her head, neck, hip, back and leg on the right side. She says that her face was bruised in the accident and she received a “knot” on her head. She says that she saw Dr. Eli Garry, her family physician, four or five times; that she still has pain in her neck day and night and has constant pain in her back and down her right leg. She testified that her shoulder and neck bother her and that she has dizzy spells. She testified that along in March of 1969, she started going to Dr. Luck and was still under the care and treatment of Dr. Luck at the time of the trial. She testified that she was still holding down her job due to economic necessity brought about by injuries to her husband, but that some days she is unable to work because of headaches and pain. She testified that she used a heat pad for about a year but got afraid of it and went back on medication. She says that she has paid out approximately $150 for drugs because of her injuries. She testified that she went to see Dr. Luck some 13 months after the injuries and did so because she was not getting any better. Mrs. Collins submitted into evidence medical bills from Dr. Luck totaling $57 for treatment up to January 5; from the Clark County Memorial Hospital for $50 for X-rays, and from Dr. Garry in the amount of $35.

Dr. Luck testified by deposition that he had seen Mrs. Collins a number of times following the collision, the last time being on January 5. He testified that on physical examination he found tenderness about the muscles of the neck but that Mrs. Collins did not have restriction of motion. He says that Mrs. Collins seems to be under tension and still complains of pain in her neck and now complains of dizziness more in the form of blackouts. He says that Mrs. Collins complains of the pain in her neck and right hip, which seems to be localized now in the trapezius muscles bilaterally, and in the right sacroiliac joint. He testified that straight leg raising was negative which probably rules out sciatic nerve irritation, and that in the cervical spine there was no evidence of deficit or nerve involvement as distinguished from nervous anxiety. Dr. Luck testified that he was sure Mrs. Collins did sustain neck injuries and “in these injuries to the neck where the muscles and the supporting structures are injured, are notorious from individual to individual.” Dr. Luck testified that it was his opinion that Mrs. Collins’ symptoms were related to the anxiety which she herself relates to the accident, and that the anxiety brought on muscle tension. He testified if the muscles have been injured, she will continue to have symptoms until she gets some relaxation. He testified that Mrs. Collins’ pain in the sacroiliac joint will be aggravated by heavy lifting and straining.

On cross-examination Dr. Luck testified that when he first examined Mrs. Collins she had very little, if any, limitation of motion in her neck area, and that the straight leg raising was negative. He testified that on subsequent examination, he found the motions to be within normal limits, but that he did not want to say the movements were not restricted at all. He did consider the limitations as a minimum. He testified that X-rays of the cervical and bony spine did not reveal any bony injuries. He testified that his subsequent findings concerning Mrs. Collins’ complaint, were that the muscles about the neck were tense and tight, and that they still remained tense and tight. He testified that he prescribed cortisone for Mrs. Collins but she did not respond. Dr. Luck then testified as follows:

“Q. Doctor, do you relate most of her problems to her anxiety problem?
A. I think that her persistence of the symptoms is relating to anxiety primarily.
Q. In treating injuries such as this—
A. Well, let me add to that. These neck things are treacherous to deal with in making definite statements about it. It is very possible that the anxiety has nothing to do with the persistence of the neck symptoms and it may be an underlying injury that she sustained in the muscles and ligaments that give her persistence of pain, but I think, and my opinion is that the anxiety at least has a good deal to do with tension of the muscles and persistence of it over a prolonged course.”

He testified that Mrs. Collins was still having right sacroiliac pain and that the area is tender to pressure. He testified that after two years the left side has cleared up and apparently does not bother Mrs. Collins, but that the right side does still bother her. Dr. Luck testified that Mrs. Collins’ disability is limited to discomfort which may persist for an indefinite period and on an intermittent basis.

The other appellee, Elease Swearingen, testified that she was 21 years of age at the time of the accident, is married and has one child. She says that she vaguely remembers the trip from the scene of the accident to the hospital. She testified that she stayed in the hospital for 14 days under the care and treatment of Dr. Eli Garry. She testified that she experienced pain when she went into the hospital; that her head hit the top of the automobile, and that she had severe pain in her head and neck. She says that she was taken upstairs from the emergency room at the hospital and told not to raise her head for a week. She testified that she had pain in her entire left side but that most of her pain was in her neck, shoulder and back. She says that X-rays were made at the hospital and she was released to go home still under the care of Dr. Garry. She says that she remained under the treatment of Dr. Garry for five months or so after the accident. She testified that she took muscle relaxants and sauna treatments to her neck and back. She testified that she is still not physically able to do her house duties such as mopping or ironing or things of that sort, and that for a month after she returned home from the hospital, she was unable to do anything. She says that she has taken medication for a period of two years and still takes medication. She testified that when she was released from the care of Dr. Garry, approximately in October, she was still having neck pains and that the neck pains would end up with a headache which would cause her to have to go to bed. She says that she went to see Dr. Luck in March of 1969. She testified that she still has neck pains and frequent headaches and is not able to do anything strenuous such as mopping and things of that sort. She says that she had two brothers killed in an automobile accident, and that that fact does not help her mental situation. She says that the fact she has a small child she feels she is unable to care for probably depresses her considerably.

On cross-examination Mrs. Swearingen testified that she believes Dr. Garry’s bill was $120; that she was not satisfied with her recovery was the reason for her going to Dr. Luck, and that she is still taking pain pills she obtained from Drs. Luck and Garry.

Dr. Luck testified on deposition that he first saw Mrs. Swearingen on January 30, 1968, at which time she complained of pain in her neck running down into the shoulders, and that she had frequent occipital headaches; that she complained of catches in her low back when she attempted to lift or do any strenuous activity, and that complaints of pain in the back running down the back of both legs still continued a year later. He testified that Mrs. Swearingen had had some hypotension since the accident. Dr. Luck also testified that Mrs. Swearingen complained of urinary incontinence following the accident; that this condition has cleared up to some extent, but that she continues to have “stress incontinence.” On this point, as to “stress incontinence,” Dr. Luck testified as follows:

“Q. What does that mean?
A. That means when she would, say, cough or strain or something, she would lose a little urine.
Q. What does this relate to you, doctor?
A. Of course, that could be — Really, I did not relate that to the accident. I related that probably it could be related to the accident, possibly, but I related that, I think, more to a pelvic condition.
Q. All right. Then, you did make an examination?
A. Oh, yes, I examined her all over. Yes.
Q. What examination did you make and what did it reveal?
A. Well, I examined her in a complete physical examination. Now, I think in her past history it is interesting to note no serious illness. She stated she did not have back or neck pain before the accident, did not have urinary incontinence before the accident and wasn’t particularly nervous before the accident, no dizziness. Then, she stated she had been somewhat depressed before the accident, but that this was much worse since the accident, cried a lot since the accident, which she did not do before. She probably was initially depressed. Here I made a note of the fact that she had lost two brothers in another accident sometime within the recent past, and then on examination her vital signs were all normal and the positive findings were, well, say, on the examination of her neck and spine we found the following: She had a nearly normal range of motion, extreme tenderness in the Trapezius muscle ■ bilaterally, fibrosis in the body of the left Trapezius. In other words, this is a hard firm area that I interpreted as healing of a tear in that muscle. Tenderness paraspinally in the neck in the lower dorsal and upper lumbar region, particularly on the left and her rhomboid múscle, which sits between the scapular or wing bones, was tender and at this time bilateral. Straight leg raising was negative. She had some tenderness in the lower abdomen and then she had some tenderness in her pelvis as well. She had some hypothesia which should be some slight lack of sensation, some loss of sensation, later aspect of the left thigh, and medial aspect of the left calf. Blood findings were normal, urine was clear.
Dr. Luck, is this the type of findings that you normally would find where someone has received an injury such as she had received, that is, being struck from the rear? Of
Yes, I think so.
Did you make X-rays at this examination? d
No. But, we can go back and check on the X-rays that she had made and there was no evidence of damage to the bony structure which is about all that X-rays of this type reveal.
All right. These X-rays would be the X-rays that were made at the hospital at the time of her injury? Of
Right. Yes, sir. >
Did you notice any straightening of the cervical curve? p
On the X-rays? Yes. There was some.
Q. What would this indicate to you, doctor?
A. That the muscles were in spasm, the neck muscle.
Q. And, again, is this what you would normally expect to find with this type of injury?
A. Yes, I think so.
Q. Now, were the complaints that Mrs. Swear-ingen made to you and with the examination of the X-rays that were made, are they in harmony with each other? Is this what you would normally expect her complaints to be from the examination of the X-rays?
A. Yes. I think her complaints were consistent with the type of injury she had. Yes.
Q. And, after your examination and the history obtained from the patient, what was your diagnosis at that time?
A. Okay. We have cervical dorsal and lumbar sprain.
Q. Is this painful?
A. Oh, Yes, it is. And, tear of the Trapezius muscle on the left, mental anxiety and depression aggravated by the accident, possible low grade inflammatory diseases which is not related at all to the accident.
Q. All right. You say a muscle spasm is a painful thing to happen?
A. Oh, yes.
Q. How long do you normally expect an injury of this type with the muscle spasm to exist?
A. Well, most injuries to the neck of this type, you know, would be — be well in six months, I think. And, then, they might have some trouble on an intermittent basis after that for a while.
Q. Doctor, what significance, if any, would you place on the fact that the patient still has these complaints a year after the accident when you first saw her?
A. Well, I think again her anxiety, mental state, is giving her a persistence of this muscle spasm, which again is painful, and she reports pain of course; She doesn’t call it muscle spasm.
Q. And, do you relate this to the accident?
A. I relate the anxiety to the accident.
Q. Yes.
A. Yes, this girl is extremely anxious and tense and I think is going to need to have psychiatric care.
Q. Now, you have examined her and you had occasion to treat her then after her first examination.
A. I treated her. Now, let me look it up and be sure. I think three times since the initial examination. I have seen her on three occasions.
Q. Dr. Luck, did you have occasion to see her today?
A. Yes, I did.
Q. And, did she still have complaints on this date?
A. Yes, she still has complaints of being extremely nervous, which again, she relates back to the accident and states that she has developed this uterine spotting, or bleeding, which is a small amount of bleeding when she gets extremely nervous; whether this is related or not no one could say. She has frequent occipital headaches about twice a week, shooting pains in the region of the left rhomboid muscle and she has quite a fear of riding in an automobile as a passenger. She had the tenderness in her cervical muscles, Trapezius and rhomboid muscles when we examined her, but again, the most striking thing about her, I think, is the anxiety, which I think could well be related to the accident. There is no positive way that anyone can prove this.
Q. Dr. Luck, from your treatment, your examination and the history that you obtained from the patient and your examination of the X-rays and so forth, and based on your medical training, do you have an opinion as to the duration of her injury?
A. No. I don’t have any idea how long it will be before she is asymptomatic, so to speak.
Q. Is it your opinion that this type injury could have an effect for several years hereafter or would you normally expect it to clear up?
A. Well, again, I think that the persistence of her symptoms is probably related to anxiety and tension, an extreme state of tension, which of course, throws these muscles into spasms, and they are going to — How long this healing is going to be delayed I don’t know. I mean, I just wouldn’t — I would have expected her to be well but she isn’t.”

On cross-examination Dr. Luck testified that Mrs. Swearingen is still extremely nervous and to about the same extent as immediately following the accident; that she still has the spasm in her neck muscles; that he had to withdraw the drugs he had been giving Mrs. Swear-ingen for nervousness, because she was unable to tolerate them.

We have set out the evidence of record in some detail and from the evidence we are unable to say that the verdicts were excessive. In determining whether a jury verdict is excessive, the ultimate question is whether the verdict shocks the conscience of the court or demonstrates that the jurors were motivated by passion or prejudice. Fred's Dollar Store, v. Adams, 238 Ark. 468, 382 S. W. 2d 592.

This court has held that in determining whether the evidence is sufficient to sustain a verdict and judgment, we must not only view the evidence in the light most favorable to the appellee, and sustain the verdict if there is any substantial evidence to support it, but in determining whether there is sufficient evidence to sustain the verdict of a jury, we look at the evidence favorable to appellee alone. Missouri Pacific Rr. Co. v. Hampton, 195 Ark. 335, 112 S. W. 2d 428.

Every case involving the issue of an excessive verdict must be examined on its own facts; and before this court can constitutionally reduce a verdict we must give the evidence in favor of the verdict its highest probative force and then determine whether there is any substantial evidence to sustain the verdict. Breitenberg v. Parker, 237 Ark. 261, 372 S. W. 2d 828.

In the New Mexico case of Hall v. Stiles, 57 N. M. 281, 258 P. 2d 386, the court said:

“. . . the findings of the jury should not be disturbed as excessive, except in extreme cases, as where it results from passion, prejudice, partiality, sympathy, undue influence, or some corrupt cause or motive where palpable error is committed by the jury, or where the jury has mistaken the measure of damages. However, the mere fact that a jury’s award is possibly larger than the court would have given is not sufficient to disturb the verdict.”

This court is considerably limited in determining whether a jury award is excessive. A jury and the trial court have an advantage over us in seeing and hearing the witnesses as they testify and their testimony is weighed. We are unable to rely on awards made in other cases in determining whether an award of damages in a given case is excessive because a comparison of awards made in other cases is a most unsatisfactory method of determining a proper award in a particular case, not only because the degree of injury is rarely the same, but also because the dollar no longer has its prior value.

The judgments are affirmed.


author: Conley Byrd, Justice.

text:
    Larry EBSEN v. STATE of Arkansas
    5526
    459 S. W. 2d 548
    Opinion delivered November 16, 1970

      E. V. Trimble, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Larry Ebsen, convicted of burglary and grand larceny of Audell’s Pharmacy in Pulaski County, primarily questions sufficiency of the evidence to support the jury’s verdict.

Appellant was charged with breaking into and removing from Audell’s Pharmacy $125 in cash and a radio. The owner testified that when he was called to the store Sunday morning August 17, 1969, he found a plate glass window was broken in (rather than out), that a large piece of the sheet glass was standing up, that a locked drawer containing $125 had been forced open, and the money and a transistor radio were missing. He did not recall that appellant had ever been in the store and was quite certain that he had never seen him before. Little Rock police officer McKinney was the first officer on the scene and observed that most of the broken glass was inside the store, that a drawer appeared to have been forced open, a large piece of glass was leaning upright against something, that he called headquarters for a detective unit and protected the scene until they arrived in about five minutes. Officer Pettyjohn testified that he and Detective Hale went to Audell’s in answer to a call; that a plate glass window was out, broken glass inside the store, and a large piece of glass, about three feet wide, was inside leaning against a chair. There were smudges on both sides of the glass. Pettyjohn made five “lifts” of fingerprints from the glass. Pettyjohn turned the prints over to officer Hale at the scene. Detective Hale’s testimony was similar, adding that he initialed the prints (“latent fingerprints”) which he received from Pettyjohn and eventually sent them to the F. B. I. These were introduced. Officer J. A. O’Kelley testified that as jailer he fingerprinted (“inked fingerprints”) appellant on September 9, 1969, and a card of the prints was introduced in evidence. John C. Saunders, an F. B. I. fingerprint examiner, after qualifying as an expert, testified that the latent fingerprints and the inked fingerprints were made by the same person and used enlargements of the prints to demonstrate the similarities to the jury, and testified that there were 25 points of identity between the inked and latent prints in evidence. The state rested and appellant’s motion for a directed verdict was overruled.

Appellant’s witness Morris testified that appellant had been with him on Saturday evening August 16 until about 11:00 P.M., while witness worked on his auto, and that he had taken appellant to Audell’s one afternoon after work where witness had bought some cold medicine. Appellant corroborated this, and added that he had been to the pharmacy four or five times, could have put his hands on the plate glass window, and did not burglarize the store.

We find the evidence to sustain the jury’s verdict. Nick v. State, 144 Ark. 641, 215 S. W. 899; Fox v. State, 156 Ark. 428, 246 S. W. 863.

Appellant’s second point for reversal is that his attorney did not have time to prepare an adequate defense, which is not argued. However from the record we determine that appellant was arrested on October 10, 1969, and released on bond. On November 4, 1969, he was represented by employed counsel, Allan Dishongh, at his arraignment, at which time the case was set for trial on April 20, 1970. On April 10, 1970, Dishongh filed a motion to be relieved as counsel because appellant had not paid his fee, which was granted. Thereafter, Henry Osterloh was hired, sought a continuance because he had just been hired and wanted to be paid, which motion for continuance the court denied. Os-terloh advised appellant April 17 that he would rather not handle the case. E. V. Trimble, appellant’s present counsel, was hired April 17, appeared with appellant prior to trial the morning of April 20th and made a motion for a continuance because he had just been hired and had not had time to prepare an adequate defense. This motion was again denied, the court pointing out that appellant had had since November 4 to prepare for trial. This court has consistently held that continuances are a matter within the discretion of the trial court. No abuse of discretion has been manifested here.

We have considered the points raised in appellant’s motion for new trial which were not argued here, and find them without merit.

Affirmed.


text:
    Bobby Gene BALLEW et al v. STATE of Arkansas
    5411
    459 S. W. 2d 577
    Opinion delivered November 16, 1970

      Charles W. Baker, for petitioners.
    No brief for respondent.
   Conley Byrd, Justice.

This is a motion for leave to file a petition pursuant to criminal procedure Rule No. 1, a post conviction remedy.

The petitioners’ convictions for assault with intent to kill were affirmed in this court in Ballew v. State, 246 Ark. 1191, 441 S. W. 2d 455 (1969). Thereafter through writ of habeas corpus they applied to U. S. District Court, the Honorable J. Smith Henley, Judge, alleging that the state courts denied them due process because a shot gun introduced into evidence and an out of court statement of Bobby Ballew should have been suppressed. An amended petition raised the issues of whether the petitioners’ federal rights were violated because the state trial court did not instruct the jury with reference to the genuineness of the statements of Bobby Ballew and did not admonish the jury that the confession of petitioner Bobby Ballew was not to be considered against petitioner Rodger Ballew.

The Federal District Court found that the shot gun was properly admitted by the state, but dismissed without prejudice that portion of the petition with respect to the claims about Bobby Ballew’s statements and the absence of cautionary instructions with reference to Rodger Ballew. In suggesting that petitioners should apply here for permission to bring a post conviction action in the trial court, the Federal District Court raised the question of whether a finding of voluntariness of a confession pursuant to the “preponderance of the evidence” as provided by Ark. Stat. Ann. § 43-2105 was sufficient or must the determination be made “beyond a reasonable doubt.”

Admittedly none of the issues bothering the Federal District Court were raised in the trial court.

The questions raised by the U. S. District Court are stated in this language:

1. “What does give the Court trouble is that the Circuit Judge gave the jury no instructions whatever about the confession of Bobby Ballew, nor was he asked to do so. Specifically, the jury was not told anything about the genuineness of the confession, as opposed to the voluntary nature of it, was not told anything about the weight to be given to the confession as evidence, and was not admonished that the confession of Bobby Ballew was not to be considered against Rodger Ballew....
2. “Further, without warning instructions a jury may consider a confession of one defendant as evidence against another, even though all references to the other have been deleted from the confession which the jury hears....
3. “The other question that the Court feels that it should mention if not raise goes back to the Circuit Court’s basic Denno determination of voluntariness. While the trial judge clearly stated that he found Bobby Ballew’s confession to have been given voluntarily, he did not state whether he so found from the evidence beyond a reasonable doubt, as provided by Ark. Stats., section 43-2105, or whether he simply found the confession to be voluntary without reference to any particular quantum of proof.”

We deny this motion for leave to proceed under our post conviction procedure. The denial is because each matter now presented could and should have been presented to the trial court in the first instance.

(1) As pointed out in Wigmore 3rd Ed. § 860, no one other than the defendant is in any better position than the defendant to know the reasons why he should object to a confession. In this instance the record, at page 30, shows that the defendant in a hearing to suppress the confession verified its genuineness except with respect to his paramour making “trip after trip” to Arizona with another man. The defendant stated then that she had only been to Arizona with the man only once. West’s Arkansas Digest under Criminal Law Key 824 (1) carries a host of cases all to the effect that a trial court is not required to give instructions on a particular point unless a request is made therefor. West’s Modern Federal Practice Digest under Criminal Law Key 824 (1) cites a host of federal cases under this language: “In the absence of a request for a charge, reversal is justified only if failure to instruct constitutes a basic and highly prejudicial error.” Here the genuineness of the confession or statement against interest was admitted except as to one unimportant detail and furthermore the matters therein stated were corroborated by other evidence. We can find no excuse to say that petitioners were highly prejudiced under the circumstances.

(2) It appears to us that the issue relative to a cautionary instruction that Bobby’s confession was not evidence against Rodger Ballew was also a procedural matter. The federal courts require an objection and exception before such failure is prejudicial error, Nassif v. United States, (8 Cir. 1967), 370 F. 2d 147, and we can find no reason to hold to the contrary.

(3) As we view the record, the last point, too, should have been raised during the trial. Had such issue been raised the trial court could readily have stated whether his finding on the voluntariness of the confession was “by a preponderance” or “beyond a reasonable doubt” and, also, the issue could have been submitted to the jury as was done in Hall v. State, 242 Ark. 201, 412 S. W. 2d 603 (1967).

Furthermore, as pointed out in Wigmore 3rd ed. § 860 the finding by the trial court is only for the purpose of determining whether the confession is competent or incompetent evidence. Most such determinations are made upon a preponderance of the evidence by the trial judges. Lastly, but not least, in Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L. Ed. 908, 1 ALR 3rd 1205 (1964) it was stated:

“. . .But as to Jackson, who has already been convicted and now seeks collateral relief, we cannot say that the Constitution requires a new trial if in a soundly conducted collateral proceeding, the confession which was admitted at the trial is fairly determined to be voluntary. . .” (Emphasis ours).

It appears to us that the procedure outlined in Ark. Stat. Ann. § 43-2105 (Supp. 1969) which requires the trial court to determine the voluntariness of confessions by a preponderance of the evidence and our own independent review on appeal are sufficient to meet the test that the voluntariness be “fairly determined.”

Ordinarily motions such as here involved are either summarily granted or denied, but in view of the number of federal habeas corpus petitions made with respect to issues not raised in our trial courts, we have gone to some length here to show merit of giving credence to our procedural rules which are not vastly different from those in practice before the federal courts. Unless such credence is given to our procedural rules particularly with respect to matters within the knowledge and ambit of the defendant at the time of trial, the guilty by merely remaining quiet when he ought to speak can trap society and obtain his liberty after memories have failed, witnesses have died and records are lost. Our laws guarantee to every man charged with crime the right to his day in court before a jury and according to law. In so doing society should be entitled to demand that all issues be tried and litigated on that day, particularly with respect to matters within the knowledge and control of the defendant. Our procedural rules are designed to accomplish that result.

For the reasons stated the motion for leave to proceed for post conviction relief is denied.

Fogleman, J., not participating.


author: Frank Holt, Justice.

text:
    Billy Ray HOUPT v. STATE of Arkansas
    5536
    459 S. W. 2d 565
    Opinion delivered November 16, 1970

      Richard L. Slagle, for appellant.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was charged by information with the crime of robbery. A jury trial resulted in a verdict of guilty and a sentence of nine years in the state penitentiary. Present counsel was appointed for purposes of this appeal.

Appellant first contends for reversal that the jury verdict is not supported by the evidence. We disagree. The prosecuting witness, Cleo Smith, testified that on the night of the robbery, while he was working alone behind the counter at Lake Liquor Store in Hot Springs, a dark-haired man wearing dark trousers and a blue knit golf shirt entered the store between 11:30 p.m. and midnight, got a coke from the vending machine, and asked to have a fifty-dollar check cashed. When Smith refused, the man displayed a small pistol and inquired: “You’ll cash it for this, won’t you?” He then demanded and received all of th2 twenty and ten dollar bills in Smith’s till. Approximately five minutes elapsed from the time appellant entered until he made his getaway in a car which Smith described as being a two-toned, light over dark color. Smith identified appellant, both at the police station and at the trial, as the robber.

The owner of the store testified that an inventory of the money disclosed that $420.00 had been taken. Two officers related to the jury the events leading to appellant’s arrest and the subsequent search of his light over dark, two-toned car which produced a high powered rifle, a cheap small holster, and a box of 25-caliber shells.

Appellant presented an alibi witness who testified that appellant was with him in Monroe, Louisiana, all day and most of the night of the date of the robbery. Direct and cross-examination disclosed that this witness had a felony record and that he had first met appellant twenty years ago in Washington, D. C. at the National Training School, a federal institution for boys. Appellant then took the stand and corroborated his alibi witness’ story. He also displayed to the jury several clearly noticeable arm tattoos which the state’s witness, Smith, failed to mention in his description of his assailant.

In rebuttal, the state called two witnesses who testified they saw appellant in Hot Springs on the day of the robbery.

Reconciling conflicts in the testimony and weighing the evidence are, of course, within the exclusive province of the jury. Wright v. State, 177 Ark. 1039, 9 S. W. 2d 233 (1928). It was the jury’s prerogative to accept such portions of the testimony which it believed to be true and to discard that deemed false. Brown v. State, 231 Ark. 363, 329 S. W. 2d 521 (1959); Smith v. State, 216 Ark. 1, 223 S. W. 2d 1011 (1949). If a verdict is supported by any substantial evidence, that is sufficient to sustain it. Cook v. State, 196 Ark. 1133, 121 S. W. 2d 87 (1938). Viewing the evidence in a manner most favorable to the state, as we must on appeal [Crow v. State, (Ark. June 15, 1970), 455 S. W. 2d 89], it is obvious that we cannot say in the case at bar that the jury, as a matter of law, was without any substantial evidence to support its verdict.

In his second and final point for reversal, appellant argues that there was a fatal variance between an allegation in the information and the proof at trial. The information charged appellant with robbing Cleo Smith of “$420.00 silver and paper money”; whereas the proof at trial only established the taking of $420.00 in paper money. Appellant relies upon our earlier decisions such as Silvie v. State, 117 Ark. 108, 173 S. W. 857 (1915); Marshall v. State, 71 Ark. 415, 75 S. W. 584 (1903); Starchman v. State, 62 Ark. 538, 36 S. W. 940 (1896); and Wilburn v. State, 60 Ark. 141, 29 S. W. 149 (1895), which seemingly support his position. However, these cases precede the adoption of Initiated Act No. 3 of 1936. One section of this act [Ark. Stat. Ann. § 43-1006 (Repl. 1964)] relaxes the previous unnecessarily rigid requirements pertaining to the sufficiency of indictment or information. This act was adopted by the people of this state in order to simplify criminal procedure and to eliminate some of the technical defenses by which criminals had in the past often thwarted justice. Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304 (1943).

In Butler v. State, 198 Ark. 514, 129 S. W. 2d 226 (1939), it was contended that a robbery information was insufficient in that it did not allege whether the money taken was gold, silver, or paper. The court disposed of this contention by simply noting that Initiated Act No. 3 of 1936 made such a specific allegation unnecessary. Likewise, in the case at bar, we think appellant’s contention that the sufficiency or variance of the proof in relation to the allegation of “silver and paper money” should be disposed of with similar logic. Had the information read “$420.00 silver or paper,” no variance in proof could have been successfully asserted. To claim a reversal merely because the description of the money was in the conjunctive rather than the disjunctive is to employ a technicality, insignificant in the circumstances of this case, in an attempt to evade justice. While it is feasible that in some situations proof that silver and paper money were both taken may be essential to the prosecution’s case, in this instance the variance was clearly not a matter of substance, but simply one of form.

Appellant was fully apprised of the charge (robbery) against him. He does not demonstrate any resulting prejudice, nor does he even claim that he was in any way misled by the asserted variance. This slight variance in no manner affected the substantive issue of guilt or innocense. See Snider v. State, 242 Ark. 728, 415 S. W. 2d 53 (1967).

Finding no merit in appellant’s contentions, the judgment is affirmed.


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

text:
    Robert E. PULLEN, Jr. et al v. Estate of Virgie PULLEN, Deceased
    5-5362
    460 S. W. 2d 753
    Opinion delivered November 23, 1970
    [Rehearing denied January 11, 1971.]

      G. W. Lookadoo, for appellants.

      McMillan, McMillan ir Tanner, for appellee.
   Carleton Harris, Chief Justice.

This appeal involves the validity of a purported holographic codicil. On February 19, 1969, Virgie Pullen executed a properly attested typewritten will which was prepared by her attorney. In June, 1969, Miss Pullen entered the Clark County Memorial Hospital in Arkadelphia, returning to her home shortly after June 26, and remaining there until November, 1969, when she was again admitted to the same hospital. She was subsequently transferred from Clark County Memorial Hospital to a Little Rock hospital where she died on November 22, 1969. The will of February 19, 1969, containing eleven different items, was admitted to probate. A holographic writing, admittedly entirely in the handwriting of Miss Pullen was denied probate as a codicil to the will herein mentioned. From the order of the court denying the admission of this instrument to probate comes this appeal. For reversal, it is simply asserted that the court erred in refusing to admit to probate the writing in question.

The appellants are Robert E. Pullen, a nephew of the deceased, and two grand nephews. Since there is no dispute but that the statutory will of February 19, 1969, was properly admitted to probate, no mention of its provisions need be made except where pertinent to the issues in this case. We proceed to a discussion of the facts relied upon, and a photostatic copy of the writing prepared by Miss Pullen, and the other side of the paper on which it is written, are made a part of this opinion for the purpose of clarity.

Several phases of the case that we do not deem pertinent to a determination of this appeal are argued; were we to hold that the evidence establishes that Miss Pullen intended the writing to be a codicil, it would then be necessary to pass on these additional questions. However, since we cannot agree with appellants that the evidence clearly reflects that Miss Pullen had the testamentary intent for this writing itself to constitute a codicil, there is no need to go further than this one facet of the litigation. It is well settled that a writing must itself evidence a present purpose to declare a bequest rather than an intention to make such a provision in the future. Johnson v. White, 172 Ark. 922, 290 S. W. 9S2. In Stark v. Stark, 201 Ark. 133, 143 S. W. 2d 875, we held that there can be no will unless there is the intention to make a will, and the existence of this intention is not a matter of inference, but must be expressed so that no mistake be made as to the existence of that inention.

What are the facts that support appellants’ assertion that the alleged holographic codicil actually was a codicil? The strongest circumstance, if not the only one, is that Miss Pullen, while a patient the last time at Clark County Memorial Hospital, delivered to Jim Fisher, Administrative Clerk at the hospital, the will, and the handwritten alleged instrument with directions that they be placed in the hospital safe. She enclosed them in an envelope which was then put into a large paper bag and asked Fisher to place the sack in the vault, to remain there until such time as she would be able to return home; if not able to return home, Fisher was to deliver the contents to Dr. Tommy Roebuck, a long time friend of Miss Pullen. Mr. Fisher said:

“She called me in her room and designated to me in her terms to take care of the will, and wanted me to place these in the vault and to be there until such time she

went home or in any other case deliver them to Dr. Roebuck. That was the instructions I had.”

The circumstances indicating that the writing was only a memo are, we think much stronger. In the first place, it will be noticed that each statement contained in the memorandum addresses itself to a second party, and would appear to be either a direction to her attorney, or a reminder to herself, to make certain changes at some time in the future. The notations for change are themselves somewhat confusing. For instance, she had written “(third) change this in my will”, but the change to be made is not mentioned. Item “Third” in the typewritten will bequeaths and demises all of her personal property, including all home furnishings, to her executor, and directs that he dispose of same with the proceeds to be used “as hereinafter directed”. The items from “Fourth” through “Tenth” include specific devises and bequests (with the exception of item “Eighth” which names Dr. Roebuck executor and sets his fee). Item “Eleventh” is the residuary clause and leaves the balance and residue of her property to the First Baptist Church of Arkadel-phis. As stated, there is not the slightest indication of what change is to be made under item “Third”, and other changes desired as expressed in the writing are not dependent, in any manner, upon the change of the third item.

Miss Pullen has then written “(ninth) Change Beverly Tatman to one hundred dolars”. This notation is not at all understandable, since item “Ninth” of the typewritten will leaves Beverly Tatman one hundred dollars. It will be observed that Miss Pullen had written “change bal. 8c residue of my estate I give to the discretion of the exector to use at his ■ discression in any way he wishes”; this however was scratched out, which is even more of an indication that the writing is nothing more than a memorandum, and was never intended to be given testamentary status. Here, there is also an additional circumstance which indicates that Miss Pullen had no firm or fixed intention but was merely expressing thoughts that should be given consideration, for directly beneath the scratched out disposition of the residue she wrote, “Residue of my estate goes to Chris Pullen and Bruce Pullen [grand nephews] except what should be used for debts or settling of estate”. It will be immediately observed that these dispositions are very much in conflict, and it seems unlikely that a person preparing an instrument as important as a will, would actually start writing the instrument until he or she definitely knew to whom he intended to leave the property.

Her intent becomes even more confusing when we examine the typewritten will, for on some of the items mentioned, she has, with pen, endeavored to change the typewritten will to comply with the notations on the memorandum — but on other items she has not made the changes set out in the memorandum. What we are pointing out is simply that it is not even clear what she intended to do, even if the instrument could qualify as a codicil.

There are two other circumstances, the first of which is rather potent, that clearly indicate the writing to be only a memo. J. E. Still, who apparently had been the attorney for Miss Pullen for some period of time, testified that he had drawn several wills for her at different times, and that on such occasions, she would bring with her notations written in her own handwriting relative to what she desired to do. The other circumstance is that the so called codicil is written on the back of an advertisement of the Arkansas Federal Savings of Arkadelphia. While we recognize that a perfectly valid will, or codicil, could have been written on this paper, it would seem, if it were her desire that the writing be treated with the dignity of a formal instrument, that she would have requested a nurse or other hospital aide to give her some paper.

It is apparent, from what has been said, that we do not consider this writing to be a testamentary disposition. The chancellor, in his opinion, said that he was inclined to the view that the instrument was testamentary in character, though he denied probate on the basis that it was not a valid codicil. We do agree with him that this “instrument” cannot stand alone as a will. Be that as it may, we have held that if the chancellor is right in the result reached, he will be affirmed, even though our reason for reaching the conclusion differs from the reason given by the trial court. In Morgan v. Downs, 245 Ark. 328, 432 S. W. 2d 454, we said:

“It is our rule, however, that on trial de novo a chancery decree will be affirmed if it appears to be correct upon the record as a whole, even though the chancellor may have given the wrong reason for his conclusion.”

Since we hold the view that the writing was no more than a memorandum, and is thus not entitled to probate, there is no need to discuss other questions such as whether a valid executed statutory will can be changed by a holographic codicil, or whether the “instrument” could be incorporated into the February will by reference, and still further alternatively, could the will be incorporated by reference into the “instrument”? A discussion of these points would be dicta. Under our finding, the writing in question was not a codicil, but a memorandum.

Affirmed.

Brown, Fogleman and Byrd, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I respectfully dissent. I think that the majority has treated this case as if a construction of the purported codicil, or of the will as modified by the codicil, were the question before the court, in spite of the accurate statement of the question in the first sentence of the majority opinion and recital of authorities prescribing the intention necessary.

Circumstances emphasized in the majority opinion are:

1. The strongest circumstance to indicate that the writing was intended as a codicil is the delivery of an envelope containing the will and the later writing to the administrative clerk at the hospital to be delivered to Dr. Roebuck, the executor nominated in the earlier instrument, if the testatrix did not return home from the hospital.
2. Each statement appears to be directed to a scrivener as directions, or to herself as a reminder.
3. Some of the items in the later instrument are not complete in themselves
4. No change would actually result from one item listed in the later writing.
5. The testatrix changed one item in the later writing by scratching it out.
6. Writing a direction in lieu of the item scratched out and in conflict therewith indicates that the testatrix had no fixed or firm intention.
7. The testatrix had, on previous occasions, taken notations written in her own handwriting to her attorney relative to previous changes in other wills.
8. The purported codicil is written on the back of an advertisement.

I do not see how these facts considered separately or collectively indicate a lack of testamentary intent. On the other hand, some of them are, to me, indicative of a testamentary intent.

The first circumstance is correctly labeled a strong one. If the instrument had been intended as a memorandum of instructions to her attorney, rather than a statement of testamentary intention, it seems obvious that it would have been directed or delivered to Miss Pullen’s attorney to whom she had previously taken handwritten notations of desired will changes rather than to the person she was making custodian of her will. It must be remembered that the two instruments were placed in the hands of the custodian in an envelope labeled (apparently by Miss Pullen) “Last will and testament of Virgie Pullen, to be delivered to Dr. Tommy Roebuck in case of death.” This is very significant. See Bradshaw v. Pennington, 225 Ark. 410, 283 S. W. 2d 351. But there are other important circumstances.

The so-called directions or reminders are actually inexpertly couched in language used by a skilled scrivener in drafting a codicil wherein changes are often indicated by language reciting that a certain item “be changed to read as follows” or by similar language. The words “I desire to change the will in regard to J. W. Langfitt, * * *” has been held to be sufficient, when read with the testator’s will, to effect a change rather than to express a mere desire to do so. Harrison v. Langfitt, 158 Iowa 479, 139 N. W. 1076 (1913). See 2 Page on Wills 430, § 21.47. The words “I wish to give” in a codicil have also been held to be equivalent to the declaratory expressions “I change” and “I give.” Roberts v. Wright, 48 R. I. 139, 136 A. 486 (1927).

While item third only reads “change this in my will,” the change seems obvious to me. This item bequeathing personal property to her executor to be disposed of by him and applied to specific legacies is completely replaced by the changed disposition of her residuary estate which would have gone to Chris and Bruce Pullen. The intention to revoke a paragraph of a will by codicil need not be stated expressly. It may be manifested from the language used in the codicil. The extent of the revocation is determined by the extent to which the codicil is inconsistent with the will. Driver v. Driver, 187 Ark. 875, 63 S. W. 2d 274. No more effective change could have been wrought.

The fact that item ninth would result in no actual change is as inconsistent with a list of directions or a reminder as it is with a codicil. If this item stood alone, the instrument would be meaningless. It only indicates to me a strong desire that this person be remembered in Virgie Pullen’s will.

The writing is dated. The date it bears (June 26, 1969) indicates that it was written during an earlier confinement in the hospital. After that date, the record indicates, she was out of the hospital, and at her home until November 1969, when she delivered the envelope to the hospital clerk. In the interim, if the writing had been intended only as directions to a scrivener or reminder to herself, Miss Pullen would have contacted her attorney, or delivered the memorandum to him. Miss Pullen was able to be up and around in her house and to go out into her yard. Her attorney’s secretary (who was an attesting witness to the execution of her will) ran errands for her and occasionally took her for drives into the country during this period.

The writing bears the signature of the testatrix. I cannot conceive of any reason why one would place his signature on a reminder to himself. While one might sign directions to his attorney, the signatuie seems much more consistent with testamentary intention than with directions to another. There is no indication that Virgie Pullen had signed her name to previous notations of desired will changes.

Of course, a codicil is seldom complete in and of itself. Its meaning and construction are to be determined by construing it and the original will together as if they were one document executed at the time of executing the codicil. United States v. Moore, 197 Ark. 664, 124 S. W. 2d 807; Driver v. Driver, supra.

Language used in Kinnear v. Langley, 209 Ark. 878, 192 S. W. 2d 978, is particularly appropriate here. We said:

A codicil is not an entirely new will. A codicil is, rather, a postscript to the will showing something added by the testator to the original document. Just as a postscript to a letter may show a new idea of the writer or a change, or amendment to a thought, expressed in the letter; so a codicil may express a new bequest or a change or modification of a bequest in the will. Just as the postscript does not physically or literally erase or expunge whatever it affects in the letter; so, also, the codicil does not physically or literally erase or obliterate whatever it affects or changes in the original will. The will is probated along with the codicil; together they constitute the “last will and testament” of the testator or testatrix.

I am simply unable to follow the reasoning by which a lack of testamentary intention can be said to be indicated through eradication of a clause by scratching it out and immediately following the eliminated clause with a substitute, complete in itself, covering the same subject matter. The situation seems no different to me than one where the eliminated clause was erased from the paper. An erasure of a clause by a testatrix does not affect the validity of a will. Musgrove v. Holt, 153 Ark. 355, 240 S. W. 1068.

I cannot attach any significance to the paper on which the alleged codicil was written. We have sustained a grossly informal document left by a testatrix with her kinsman and attorney as the instrument by which she intended to make testamentary disposition of her property as one showing testamentary intention, rather than mere deliberative memoranda. Certain parts were written in pencil and others in ink. Pencil marks had been run through one clause. There were long blank spaces between paragraphs and sentences, and between the last writing and the signature. Musgrove v. Holt, supra. There we quoted appropriate words from Jarman on Wills, as follows:

The law has not made requisite to the validity of a will that it should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient that the instrument, however irregular in form or inartifi-cial in expression, discloses the intention of the maker respecting the posthumous destination of his property; and if this appear to be the nature of its contents, any contrary title or designation which he may have given to it will be disregarded.

We have held a very informal letter from a decedent to his wife to be testamentary in character. Arendt v. Arendt, 80 Ark. 204, 96 S. W. 982. See also, Murphy v. Murphy, 144 Ark. 429, 222 S. W. 721.

We have also approved an instrument written on the back of a blank check as a valid holographic will in Chambers v. Younes, 240 Ark. 428, 399 S. W. 2d 655. In that case, we quoted the following pertinent language from C. J. S.:

No particular words are necessary to manifest the animo testandi; thus, the paper need not refer to itself as a will. * * * The fact that the holographic instrument concerns itself with matters other than the disposition of property will not nullify its effect as a will, but it may be considered in determining the intent of the writer [Cartwright v. Cartwright, 158 Ark. 278, 250 S. W. 11]. Inquiry may be made into all relevant circumstances where the existence of testamentary intent is in doubt.

Insofar as informality in form and language is concerned, the document before us shows a testamentary intention at least as clearly as did the will we found valid in Hanel v. Springle, 237 Ark. 356, 372 S. W. 2d 822.

I think that another significant factor is the title placed on the later expression of Miss Pullen’s desires. She labeled it “Change of Will.” No better lay. designation of a codicil could have been given. A codicil is an instrument made subsequently to a will modifying or changing it in some respect. Black’s Law Dictionary, 4th Ed.; Webster’s New International Dictionary, 2nd Ed. and 3rd Ed. It is a testamentary disposition subsequent to a will which alters, explains, adds to, subtracts from, confirms or revokes the will by republication. Stivers v. Mitchell, 314 S. W. 2d 569 (Ky. Ct. App. 1958). See 57 Am. Jur. 415, 416, Wills, §§ 605, 607.

Some of the findings in the trial court’s memorandum opinion are significant, to wit:

It appears as notes to someone to prepare changes for her, but still the circumstances indicate that it was in the form she wanted it if she didn’t leave the hospital alive. However, the testimony this morning given, it indicates that she wrote it at least three months before she entered the hospital this last time. And the other testimony indicates that she was often driven around by Dr. Roebuck and he was always available to her to take her any place that she wanted to go, and she was able to make some trips to tend to business in this period of time.
* * *
Did Miss Pullen on June 26, 1969, debate as far as the evidence reflects that she wrote exhibit 1, an intention to make changes in her will, exhibit 2. My answer to that is “Yes.” Is exhibit 1 the instrument testamentary in character? I’m inclined to say that it is.
# # *
Now is this instrument just notes to a scrivener? From all the evidence in the case she wrote it out in June, 1969, it certainly looks like it was just notes for some lawyer to take her old will and redo it or prepare a codicil for it. As I understand the testimony, her general practice has been to just have another one written. She has had a number written in the past. A woman has a right to change her mind, but when she changes her mind about these matters that affect dying she had better get it pretty solid. In view of Mr. Fisher’s testimony this morning and the other testimony that we have in the case, my answer to that by the greater weight of the evidence must be “No.” Is the form of the instrument real important? Well the Vaught case, 247 Ark. 52, and the old case of Arendt v. Arendt, 80 Ark. 204, would indicate that form in addition to other citations I’ve read is not too important, but what we want to get to is the intention. Now I’ve come to the conclusion that this instrument, exhibit 1, must be a holographic codicil if it can be admitted as a part of this lady’s will. It’s in her handwriting, it indicates what she wanted to do. Does it add to or clarify — does it add to the confusion or does it clarify what she really intended? There is no confusion in exhibit 2, and with minor exceptions it doesn’t add particularly to any confusion that might arise if it was made a part of this will. Then I come down to this, because I can’t get away from it. I think she intended for this to be a part of her will, but she has failed to comply with the statutory formality. I just don’t believe our law will go that far to just have an informal instrument that cannot stand alone, written at a different time under different circumstances alter or change a will, and therefore this Court must hold and does hold that this instrument not be admitted to probate.

Other significant statements are contained in the probate court’s judgment, such as:

III.
It is found that the paper, Exhibit 1, is not a new will and that it does not revoke the statutory will, “Exhibit 2”.
IV.
It is the opinion of the Court that Exhibit 1 reflects an intention to make changes in the will Exhibit 2.
V.
Exhibit 1 having been signed above the provisions of any proposed changes to the will is in the opinion of this Court testamentary in character.
VIII.
It is also the opinion of this Court that the instrument Exhibit 1 is not merely notes to a scrivener.
IX.
Although this Court is of the opinion that the form of the instrument is not of real importance, but that the Exhibit 1 indicates the intention of the decedent as to what she wanted to do and that she intended for this Exhibit 1 to be a part of her will, but that it fails to comply with statutory formality.

I respectfully submit that the able probate judge was in error in his final conclusion, but I do not see how this court can, on trial de novo, say that his findings of fact are clearly against the preponderance of the evidence, as apparently the majority does.

The error of the probate judge lies in his denial of probate to the codicil because of its failure to comply with statutory formality.

Our authorities make it quite clear that a codicil need not stand alone, and certainly it would be unusual if it were not written at a different time and under different circumstances than the original will. A codicil is a republication of a will, and the whole is to be construed together as if it were one instrument executed on the date of the codicil with the latter yielding to the former only where they are in conflict. Rogers v. Agricola, 176 Ark. 287, 3 S. W. 2d 26; United States v. Moore, 197 Ark. 664, 124 S. W. 2d 807; Garnett v. Clayton, 222 Ark. 324, 260 S. W. 2d 441; City of Little Rock v. Lenon, 186 Ark. 460, 54 S. W. 2d 287. The language of. a codicil is to be harmonized with the will where there is no repugnancy. State v. Gaughan, 124 Ark. 548, 187 S. W. 918. A testator’s will may consist of several different testamentary papers of different dates. The aggregate or net result of the several writings is the expression of his testamentary wishes. His intention is to be ascertained by considering the language of the documents which, taken together, constitute the will. Bradshaw v. Pennington, 225 Ark. 410, 283 S. W. 2d 351,

I do not know of any statutory formality required of a holographic codicil other than the necessity that both the body of the instrument and the signature be in the proper handwriting of the testator, as is required for a will. Ark. Stat. Ann. § 60-404 (Supp. 1969). For the purposes of the probate code, the word "will” in the act includes codicil. Ark. Stat. Ann. § 62-2003 (Supp. 1969).

I agree with the probate judge and the appellant that a formally authenticated will may be changed by a holographic codicil. Our previous holdings to the contrary were based entirely upon the then existing statutory prohibition (Ark. Stat. Ann. § 60-104) against pleading a holographic will in bar of a will subscribed in statutory form. Parker v. Hill, 85 Ark. 363, 108 S. W. 208. This prohibition was eliminated when the probate code was adopted. See notes to Ark. Stat. Ann. §§ 60-101 — 127 (Supp. 1969); Smith v. Nelson, 227 Ark. 512, 299 S. W. 2d 645.

I would reverse the probate court, actually on the basis of agreement with that court’s findings, but disagreement with its action, and remand with directions to admit the handwritten document to probate as a codicil to Virgie Pullen’s original will.

I am authorized to state that Brown, J., joins in this dissent.

       Itis not entirely clear, but it appears that Dr. Roebuck was not Miss Pullen’s physician; in fact, it is not clear that the title of “Dr.” refers to the status of a medical doctor. The envelope which contained the will and alleged codicil was apparently an evenlope that had been furnished by Miss Pullen’s attorney, J. E. Still, when he prepared the instrument in February 1969, since it bore his name and return address in the left-hand corner, and on the front, stated:
      “LAST WILL AND TESTAMENT OF VIRGIE PULLEN”
      (To be delivered to Dr. Tommy G. Roebuck, in case of death)


author: George Rose Smith, Justice.

text:
    Will McDONALD v. STATE of Arkansas
    5542
    459 S. W. 2d 806
    Opinion delivered November 23, 1970

      James H. Pilkinton, for appellant.

      Joe Purcell, Attorney General; Mac Glover, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was convicted of uttering a forged check and was sentenced to imprisonment for five years and a day.

Most of the points argued in the brief by the appellant’s present court-appointed counsel, who did not try the case, are not properly before us, because they were not raised until their inclusion in the motion for a new trial. “Before an alleged error in a felony case of a degree less than capital may be considered by this court, there must be an objection calling for a ruling by the trial court, an exception to an adverse ruling, the matter brought into the record by bill of exceptions and carried forward into a motion for new trial.” Bivens v. State, 242 Ark. 362, 413 S. W. 2d 653 (1967). An assignment of error first raised in the motion for a new trial comes too late for this court to consider it. Tiner v. State, 239 Ark. 819, 394 S. W. 2d 608 (1965).

The evidence was amply sufficient to support the verdict. The appellant was identified as the person who cashed a check for $35.00, purportedly drawn by Ernest May, at a service station in Hope. May testified that the signature on the check was a forgery; in fact, his first name was erroneously written on the check as “Earnest.” There was also testimony that the appellant had an opportunity to obtain one of May’s blank checks, which were printed with his name and address on them. McDonald, the accused, took the witness stand and denied his guilt, but the jury’s verdict has settled the issue of fact raised by the conflicting testimony.

Mary Rankin, who was with McDonald when he cashed the check, testified for the State and admitted on cross examination that she too had been arrested and had been told by an officer that “they” would make it easy on her if she testified for the prosecution. Such an inducement, however, does not affect the competency of her testimony, for we have held that it goes only to the witness’s credibility. Vaughan v. State, 57 Ark. 1, 20 S. W. 588 (1892).

Albert Graves, Jr., an attorney at Hope, was appointed by the court to represent McDonald at the trial. Mr. Graves practices law in a firm composed of himself, his brother, John Robert Graves, and his father, Albert Graves, Sr. John Robert Graves is a deputy prosecuting attorney and as such signed the information charging McDonald with forgery and uttering. John Robert Graves was present at the trial, but the record indicates that he took no active part in the proceedings, which were conducted by the prosecuting attorney himself.

It is now insisted that the court’s action in appointing as defense counsel the brother and law partner of the deputy prosecuting attorney was so contrary to justice as to amount to a denial of due process of law. According to the record, there are eight practicing attorneys in the county. In assigning counsel for indigent defendants the circuit judge rotates the appointments among those lawyers. In that way it happened that Albert Graves, Jr., was named as counsel to defend this appellant.

We agree that Mr. Graves should not have been appointed to defend the case. It is settled, of course, that a lawyer cannot properly represent two clients having conflicting interests. Code of Professional Responsibility, EC 5-14 (1969). In such a situation the attorney’s partners and associates are subject to the same disability. Ibid,., DR 5-105 (D).

It does not follow, however, that the trial was so devoid of fairness as to constitute a denial of due process. As we have said, John Robert Graves did not actively try the case for the State. Our study of the record discloses no error or omission on the part of Albert Graves, Jr., in his handling of the defense. To the contrary, he obtained a verdict of not guilty on the companion charge of forgery. On the whole, we are convinced that the appellant received a fair trial in every respect, conducted according to law.

In much the same vein it is contended that the entire system of appointing counsel for indigent defendants involves a denial of due process, remediable only by the State’s furnishing a public defender in every instance. We find no sound basis for that contention. Quite the opposite, even the most recent studies approve the system of appointed counsel. That method was embodied in the Model Defense of Needy Persons Act, § 9, approved by the National Conference of Commissioners on Uniform State Laws in 1966. It is also included in the American Bar Association’s Minimum Standards For Criminal Justice. See Standards Relating to Providing Defense Services, § 1.2 (Tentative Draft, 1967). Thus, according to what may fairly be regarded as the most enlightened points of view, there is still a place for the appointment of defense counsel — especially, as here, in comparatively small counties.

No error appearing, the judgment must be affirmed.