author: Carleton Harris, Chief Justice. Conley Byrd, Justice,

text:
    CITY of LESLIE v. Gus B. WATTS
    5-6102
    488 S.W. 2d 8
    Opinion delivered December 18, 1972

      John B. Driver, for appellants.

      Jerry Patterson & Kenneth R. Smith, for appellee.
   Carleton Harris, Chief Justice.

Gus B. Watts, appellee herein, and Rubin H. Summerhill were opponents for the office of City Marshal of Leslie, Arkansas, at the General Election held in November, 1970. Appellee received the highest number of votes and received his certificate of election from the election commissioners of Searcy County, and was subsequently sworn in. Summerhill had been acting under appointment by the City Council of Leslie from the time that Watts had, during a prior term, resigned from the position. Following the General Election in 1970, the City Council voted to retain Summerhill as night watchman or night marshal for the city. Prior to January 1, 1971, when appellee took office, Summerhill had been paid a total salary of $4,200,00 per year, but this was on the basis of the marshal also holding another position, $2,100 for serving as Marshal (including night marshal) and $2,100 as superintendent of the Street Department. Summerhill was permitted to serve in these capacities as a matter of paying him a living wage. The only pertinent ordinance that has ever been passed by the City of Leslie is Ordinance No. 130 which was passed in 1926 providing that the office should be considered that of City Marshal and Ex Officio Street Commissioner. The ordinance provided that as marshal, the holder of the office should receive a salary of $20.00 per month together with such fees as may by law be allowed for similar services, and that as street commissioner, he should receive the sum of $30.00 per month, payable from the street funds. The city offered to pay Watts under Ordinance No. 130 the sum of $50.00 per month but appellee refused to accept this amount and instituted suit in the Searcy County Chancery Court against the city, its disbursing officer and Summerhill asking that the City of Leslie and its disbursing officer be enjoined and restrained from paying to Summerhill any monies from the general funds of the city; that Summerhill be required and compelled to account for sums paid to him by the city since January 1, 1971, and that judgment be rendered against him for such amount. The case was subsequently transferred to the Searcy County Circuit Court where, prior to the taking of evidence, appellee dictated an amendment to his complaint into the record as follows:

“Counsel for plaintiff: Wherefore, Plaintiff prays for judgment against the Defendant for the sum of $4200.00 per year as salary as City Marshal for the City of Leslie. That said judgment be pro-rated on the basis of $4200.00 per year to the date of this judgment.”

After the taking of evidence, the court made the following findings:

“That the Defendant, city of Leslie cannot, during the term for which the city marshal has been elected, reduce the regular salary for said office; that the City of Leslie has attempted to circumvent said election by appointing one of the Defendants herein Rubin Summerhill, as night watchman and street commissioner.
The court finds that at the time of the general election in 1970, the city marshal for the City of Leslie was receiving a salary of $4,200 per year, $2,100 of which was designated as city marshal salary and $2,100 as street superintendent which was paid from the street funds.”

The court found that Watts was entitled to a judgment and entered the following order:

“It is, therefore, adjudged that the Plaintiff be and he is hereby awarded judgment against the City of Leslie for the sum of $2,100 for the year of 1971 and for the further sum of $175 for three months of 1972 which is for the months of January, February, and March.”

From the judgment so entered, appellant brings this appeal. It is first asserted that the court committed error in granting the appellee judgment for any sum in excess of the amount fixed by Ordinance No. 130.

There is no ordinance nor written resolution fixing a salary different from Ordinance No. 130. The salary increases seem to have been granted on the basis of oral motions passed by the city council but such action of the council was not reflected in the minutes. The minutes do reflect that a resolution was passed on July 27, 1962 by the council (though there was no written resolution) that the council employ Thomas Massey to fill an unexpired term as marshal “and also to assume the duties of Street Commissioner and Water Maintenance Man,” the council agreeing that “It is advisable for the present, that the City Marshal hold these three positions enabling him to draw a living wage”. However, even here, no salary was set out.

Another matter that somewhat confuses the situation is that the minutes of the December 8, 1970 council meeting reflect that the council voted “to retain Ruben Summerhill as Night [our emphasis] Marshal” under Ordinance No. 82, heretofore set out in footnote No. 1.

At any rate, the case of Jeffery v. City of Mt. View, 235 Ark. 657, 361 S.W. 2d 540, bears similarity to the instant litigation. In affirming the circuit court in its holding that Jeffery, Marshal of Mountain View was not entitled to recover the same amount of salary which had been paid his predecessor, this court said:

“In Horton v. City of Marshall, 227 Ark. 141, 296 S.W. 2d 418, we listed some of the recent cases that have been before this Court involving the matter of salary for a city marshal in a city of the second class. In those cases may be found the applicable law. In the case at bar, there is no showing whatsoever that the City of Mountain View had ever adopted an ordinance fixing the salary of the marshal. The City paid the marshals Whatever amount the City saw fit to pay from time to time. This being true, the case of Horton v. City of Marshall (supra), is authority for the statement that Jeffery cannot recover any fixed salary for his services as marshal merely because his predecessor was paid a certain amount. All Jeffery could legally demand for services as marshal were the fees due a constable for like service. If the city had ever fixed a salary for the marshal, then it could not have been changed during Jeffery’s tenure (§ 19-907 Ark. Stats.); but, with no salary fixed, then the city had the right to refuse to pay Jeffery any salary in addition to the fees due a constable.”

It may well be, looking at the matter entirely from a standpoint of fairness to Watts, that it would appear that he was perhaps mistreated by the city council; our cases however are clear that he can only recover whatever amount has been lawfully fixed. It thus appears that the judgment of the trial court must be reversed.

Appellant argues other points, but under our holding as to the first point, there is nó necessity to pass on the other allegations.

The judgment is reversed.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. Ark. Stat. Ann. § 19-907 (1968 Repl.) provides that the salaries of municipal officials may be increased but not decreased during the term for which such officials have been elected. At the time Gus B. Watts was elected to the office of City Marshall over the incumbent Rubin H. Summerhill, the latter was drawing $2100 per year as City Marshall and $2100 per year as superintendent of the Street Department for a total of $4200 per year, described as a living wage by the City’s Recorder. After Summerhill’s defeat at the 1970 General Election and before Watts took office on January 1, 1971, the City Council (on December 8, 1970) employed Summerhill as NIGHT Marshall on the same salary basis he was receiving as Marshall. However, the City Council now only wants to pay Watts $50 per month in accordance with a 1926 ordianance. Under the circumstances, the City of Leslie should be estopped to deny the salary scale.

The rule with respect to estoppel on the part of municipalities is stated in 28 Am. Jur. 2d, Estoppel and Waiver § 128 as follows:

“It is generally recognized that with respect to matters within the scope of its power and authority to act, a municipal corporation is subject to the rules of estoppel in those cases wherein equity and justice require their application and where such application will not interfere with the proper exercise of governmental functions; but where there is an entire absence of such power on its part, there can be no estoppel as against the municipality or its inhabitants.
“Thus, municipal corporations may be, and frequently have been, held subject to the doctrine of estoppel under special circumstances and accordingly estopped by their acts and conduct, as where they are acting within their powers and in a proprietary or private capacity, or where right and justice and principles of common honesty require that the doctrine be applied to municipalities, in matters not wholly ultra vires, the same as it is to individuals, as where the party invoking the doctrine has expended large sums of money, or has parted with value or incurred a new liability in reliance upon the acts or conduct of the municipality or its officers and agents; or where the nonapplication of the doctrine will encourage or permit a fraud,. . .” [Emphasis mine]

In the first place it is an insult to an official who has expended 1970 dollars to get elected to offer him a 1926 salary. In the next place the view taken by the majority encourages a subterfuge on the part of the municipality to evade the intent and purposes of Ark. Stat. Ann. § 19-907 (1968 Repl.).

Furthermore, the fact that the defeated incumbent is elevated to the position of NIGHT Marshall with a 1970 salary while the 1970 winner is demoted to an antiquated 1926 salary shouts for some common honesty and fairness.

For the reasons stated I would hold the City estopped to dispute the salary scale. Therefore I respectfully dissent.

       Ordinance No. 82 was passed in 1912 setting up the office of night marshal and provided that between the hours of 6:00 p.m. to 5:00 a.m., the holder of that office was clothed with all the powers possessed by the day marshal; that the night marshal should be elected by the majority vote of the city council and that he should receive as compensation all costs and one half of all fines imposed and collected from violators of law upon the information “procured and produced by him”. No salary was provided in this ordinance.

       There is no contention in the present litigation that any ordinance or resolution has been passed which was subsequently lost.

       While the complaint filed by Watts asked that Summerhill be required to account for all sums paid him while acting as night marshal, the court made no finding relative thereto and the matter is not argued here on appeal. Apparently, when the circuit court rendered judgment for Watts against the City of Leslie, appellee was satisfied and no longer interested in pursuing the action against Summerhill, and the question of whether the latter was legally paid is not an issue in this court.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Charles POE v. STATE of Arkansas
    5779
    488 S.W. 2d 21
    Opinion delivered December 18, 1972

      Jack L. Lessenberry, for appellant.

      Ray Thornton, Atty Gen., by: James A. Neal, for appellee.
   Carleton Harris, Chief Justice.

Charles Poe, appellant herein, was convicted for forgery and uttering and the conviction was affirmed by this court. See Poe v. State, 251 Ark. 35, 470 S.W. 2d 818. Subsequently, Poe filed an application here seeking permission to proceed under Criminal Procedure Rule I for the vacation or correction of his sentence imposed by the Pulaski County Circuit Court, and this court granted permission for him to proceed, limiting the hearing however to, “his allegations that he was denied effective assistance of counsel and this his sentence is excessive by reason of improper procedures in application of the habitual criminal act.” Thereafter, Poe filed his petition in the Pulaski County Circuit Court setting out numerous grounds in addition to those permitted by our per curiam order. A hearing was conducted, and at the conclusion thereof the court rendered its findings on the basis of our per curiam order, and denied relief, finding that appellant had not been denied effective assistance of counsel and that appellant had “failed to advance anything but his naked assertion that the habitual offender statute was unconstitutionally applied to his case.” From the judgment dismissing the petition and remanding Poe to the Department of Corrections, appellant brings this appeal. For reversal, it is first asserted that Poe was deprived of the effective assistance of counsel.

As to this allegation, Poe stated that he met Louis Rosteck, appointed by the court to represent Poe, when he came to court for plea and arraignment. He said that he was visited one time, and that he did not recall the substance of the conversation held, but that Rosteck was not there but about ten minutes. Appellant stated that the attorney asked him about the possibility of entering a plea of guilty but that he (Poe) did not wish to plead guilty because he was not guilty. Admittedly, he did not ask counsel to call witnesses because “I didn’t have any witnesses”. As to other allegations of inadequate counsel, Poe stated “Well, I tried to get Mr. Rosteck to bring up the fact that I didn’t have a lawyer during the preliminary hearing, or anything. I tried to get him to file a motion to suppress the evidence on it, on me, of the handwriting or anything taken during that time, and he wouldn’t do it.”

Further, he stated that his lawyer would not allow him to take the stand and testify. When asked if he realized if the attorney had placed him on the stand in his own behalf that the prosecution could have then brought out his prior convictions, Poe replied “The way I was looking at it, if I took the stand, I could have maybe beat the other charge and that way they couldn’t put the habitual criminal act on me at all.”

Mr. Rosteck, a practicing attorney for approximately twenty years, testified that he was appointed to represent Poe at his plea and arraignment on November 2, 1970; that he talked with Poe at that time, having seen the prosecuting attorney’s file, and going over that file with appellant. He said that he talked with Poe about thirty minutes, after which a plea of not guilty was entered. A few days later, he went to the jail and talked with appellant, after which he went back to the prosecuting attorney’s office and took another look at the Poe file. Rosteck then returned to the jail and informed Poe that the evidence was very strong against him, particularly the fact that he would be positively identified by the “man at the bank”. He also pointed out the fact that Poe had a prior record. The attorney said that they talked of the possibility of a plea of guilty and he advised appellant that he might possibly get three or four years on a plea of guilty, but Poe stated that he was innocent. Rosteck testified:

“I was convinced myself that they had a fairly strong case against him, and that was my reason concerning the plea. I wanted to give him something that I had there, the good possibilities of what he could get. He said he did not want to plead guilty, and I said, ‘You don’t have to; I don’t want you to.’ so the case did proceed to trial. I did get him up here in the courtroom, and we proceeded to try the case and I tried that case as hard as I try any case and, in fact, the jury — and I pointed out to the jury how long he had been in the county jail, and the record reflects that even the foreman of the jury, not only finding him guilty and gave him the minimum sentence of two years, but even recommended to the court that credit be given on the time that he had already previously been in the county jail.”

As to Poe taking the stand for the purpose of testifying in his own defense, Rosteck stated:

“At the time it came for him to take the stand, I asked him, I said, ‘All right, you heard what they said. Now, if you want to take that stand, you can, I am advising you against it.’ I said, ‘Because if you testify, they are going to ask you questions as to your record,’ and he said he didn’t want to testify. He said, ‘Well, I agree with you on that point.’”

Rosteck said that he advised Poe that it was not a violation of his rights to take the handwriting samples. This advice, of course, under our decisions, was correct. In McDonald v. State, 253 Ark. 23, 484 S.W. 2d 345, McDonald contended that using a letter he had written from the jail to make comparison with the signature on the check (which he was accused of forging) violated his constitutional rights. We disagreed and held the contention to be without merit. We cited Robinson v. United States, 144 F. 2d 392, where an objection was made to the introduction of letters written by appellant and used for handwriting comparison with a ransom note. Appellant contended that the letters were in the nature of an involuntary confession of guilt and were therefore inadmissible but the court held the contention to be unsound. In Adams v. State, 253 Ark. 286, 485 S.W. 2d 746, the appellant contended that his right against self-incrimination was violated because a lock of his hair was taken while he was in the county jail and used for comparison with a lock of hair found in a window of a wrecked automobile in which it was believed that appellant had been riding. We held the contention to be without merit, stating:

“As to appellant’s argument, it appears in the first place, that there really was no objection to the lock of hair being taken, but were it otherwise, the contention would still be without merit. It has been held that only testimonial evidence is protected as being within the scope of the privilege against self-incrimination guaranteed by the Fifth Amendment to the Federal Constitution; Schmerber v. California, 384 U.S. 757; McGinnis v. State, 251 Ark. October 18, 1971.”

As to not taking the stand to testify, Poe admitted four or five convictions, and it certainly is understandable that his counsel would hesitate to place him on the stand. However, Rosteck testified that while he advised appellant against taking the stand in his own behalf, he told him that he could take the stand if he desired to do so. This is generally the position taken by defense attorneys in this area and there is no reason to doubt the testimony of counsel. Mr. Rosteck has practiced law nearly twenty years, and has tried dozens of criminal cases. When we consider that the jury only fixed the time to be served at the minimum, and even then, according to the evidence, recommended that Poe be given credit for the time he had been in jail, it appears that his representation was certainly adequate, and we agree with the trial court that Poe was not denied the effective assistance of counsel.

As to the second point for reversal, Poe stated:

“Well, the way I look at it, the way he represented me wasn’t effective, because when he appealed to the State Supreme Court and he tried to get the whole habitual criminal act ruled unconstitutional, where he should have got it the way it was applied to me ruled unconstitutional.”

Poe is in error in this contention. In the case of Poe v. State, 251 Ark. 35, 470 S.W. 2d 818, the original appeal from the conviction, in addition to an attack upon the validity of the statute, it was also contended that utilization of the statute is discretionary with the prosecuting attorney, and thus permits discriminatory application to different habitual offenders. In other words, Poe contended that he was selected to be tried under the habitual criminal statute while the prosecuting attorney ignored the statute in some other cases. We held that the record did not disclose that the prosecuting attorney, in seeking application of the act in this case, acted arbitrarily, capriciously, or willfully discriminated against appellant or a class of which he was a member. This point is not really argued by present counsel who recognizes that Poe offered no additional evidence in the post-conviction hearing that he was singled out for punishment under the act.

At any rate this contention was passed upon originally, and found to be without merit.

Affirmed.


author: George Rose Smith, Justice.

text:
    CITIZENS BANK of LAVACA v. PERRIN & SONS, Inc.
    5-6104
    488 S.W. 2d 14
    Opinion delivered December 18, 1972
    [Rehearing denied January 8, 1973.]

      Daily, West, Core & Coffman, for appellant.

      Robert E. Hornberger and Shaw ir Ledbetter, for appellees.
   George Rose Smith, Justice.

The appellant, Citizens Bank of Lavaca, seeking to collect an unsecured $400 debt owed to it by James Ray Smith, obtained judgment against Smith in the Sebastian circuit court and attached a used tractor owned by the judgment debtor. At the ensuing attachment sale the tractor was bought by a third person, Carl Triplett, for $700. The bank satisfied its judgment from the proceeds of sale and deposited the surplus with the sheriff for the benefit of the judgment debtor.

Unknown to the bank, Smith’s title to the tractor was subject to a $1,561.44 lien in favor of the appellee, Perrin 8c Sons, Inc. Several months earlier Perrin had-sold the tractor to Smith and had perfected its lien for the unpaid purchase price by taking a security agreement and filing a financing statement in compliance with the Uniform Commercial Code. When Perrin learned of the attachment sale it brought this action for conversion against the bank and Smith. The trial court sustained the plaintiff’s theory of conversion and entered judgment against the bank for the amount of Perrin’s lien.

The pivotal issue is whether the bank’s conduct amounted to a conversion of the tractor. Before the U-C-C-was adopted one who bought mortgaged personalty without the mortgagee’s consent was liable for conversion. May Way Mills v. Jerpe Dairy Products Corp., 202 Ark. 397, 150 S.W. 2d 615 (1941). Similarly, the debtor’s interest in mortgaged personalty was not subject to sale by attachment or execution. Erdman v. Erdman, 109 Ark. 151, 159 S.W. 201 (1913); Maxey v. Cooper, 94 Ark. 296, 126 S.W. 2d 842 (1910).

Such restrictions upon the alienability of encumbered personal property were abrogated by the U.C.C., which provides: “The debtor’s rights in collateral may be voluntarily or involuntarily transferred (by way of sale, creation of a security interest, attachment, levy, garnishment or other judicial process) notwithstanding a provision in the security agreement prohibiting any transfer or making the transfer constitute a default.” Ark. Stat. Ann. § 85-9-311 (Add. 1961). The Committee’s Comment is especially applicable in Arkansas: “Some jurisdictions have held that when a mortgagee or conditional seller has ‘title’ to the collateral, creditors may not proceed against the mortgagor’s or vendee’s interest by levy, attachment or other judicial process. This Section changes those rules by providing that in all security interests the debtor’s interest in the collateral remains subject to claims of creditors who take appropriate action.”

Thus under the U.C.C. the bank’s action in merely causing the encumbered tractor to be sold under attachment was not in itself wrongful. We point out that the bare sale of the property was not a conversion in fact, such as there was in U.C.C. cases involving the transportation of a car to another state, where title was registered in the name of an innocent purchaser, First Nat. Bank of Bay Shore v. Stamper, 93 N.J. Super. 150, 225 A. 2d 162 (1969), or the sale of commodities subject to processing, such as slaughtered chickens or raw peanuts. United States v. McClesky Mills, 5th Cir., 409 F. 2d 1216 (1969); United States v. Pete Brown Enterprises, 328 F. Supp. 600 (D.C. Miss., 1971). As far as this record shows, the tractor, in the hands of the attachment vendee, was as fully accessible to Perrin as it would have been if Smith had sold it directly to that vendee, as he had a right to do.

We need not discuss at length the appellee’s other arguments. Perrin was not entitled, under § 85-9-504 (3), to notice of the proposed attachment sale, because Chapter 9 of the Code, governing secured transactions, does not apply to attachment sales pursuant to a judgment. Sections 85-9-102 (2) and 85-9-104 (h). Nor were Perrin’s rights in the tractor destroyed, under § 85-9-504 (4), by the attachment sale, for that section relates to the discharge of subordinate liens when property is sold under the Code.

The controlling salient fact in this litigation is that Perrin’s right to enforce its lien against the tractor was in no way adversely affected by the attachment sale to Triplett. Consequently Perrin has no basis for claiming damages from the bank.

Reversed and dismissed.


text:
    MAY CONSTRUCTION COMPANY v. Roberta J. FRICK
    5-6110
    488 S.W. 2d 3
    Opinion delivered December 18, 1972

      Smith, Williams, Friday, Eldredge ir Clark, by: William H. Sutton, for appellant.

      Barber, Henry, Thurman, McGaskill ir Amsler, by: Guy Amsler Jr., for appellee.
   George Rose Smith, Justice.

This is an action for personal injuries sustained by the appellee when she tripped on a hose which the appellant, a contractor, had placed across a public sidewalk. This appeal is from a $6,000 verdict and judgment for the plaintiff. Among several contentions for reversal we need consider only the appellant’s insistence that it was entitled to a directed verdict.

At the time of her fall Mrs. Frick, age 89, was a resident of Presbyterian Village, a home for the elderly in Little Rock. May Construction Company had contracted to build an infirmary on the Village premises. In the course of the work May found it necessary to pump the water from a creek bed that crossed the Village property and passed through a culvert beneath the sidewalk along Brookside Drive, a public street. In pumping out the water May placed a four-inch hose and a two-inch hose across the sidewalk directly above the culvert.

On the afternoon of the accident Mrs. Frick, who was quite active for one of her age, had started to walk about half a mile to a mailbox on Markham Street, to mail two or three letters. During her five-year residence at the Village Mrs. Frick had walked that route many, many times. She testified that she saw the hoses about twenty-five feet before she reached them. “I figured I could step over them and so I just stepped up, but I didn’t do it.” In an earlier statement, which was read to the jury, Mrs. Frick had said: “I was about twenty-five feet back from where a ditch was when I saw some hose across the sidewalk. I thought I could step across them without any problem. I stepped over one of the hose[s] but not over the second. When I stepped over the second hose, I tripped and fell to the sidewalk.” There was a metal handrail along the edge of the sidewalk at that point, but Mrs. Frick did not try to use it until she was actually falling.

We cannot conscientiously say that May’s conduct in laying the hoses across the sidewalk was a proximate cause of Mrs. Frick’s fall. A proximate cause is one which, in a natural and continuous sequence, produces damage. AMI 501 (Civil, 1965). Here the hoses might fairly be likened to tree limbs of comparable size that had been blown upon the sidewalk by the wind or washed upon it by the rain. The action of the elements would have created a condition passively involved in the accident; but neither the wind nor the rain would be regarded as a proximate cause of the mishap, the causal connection being too indirect.

An almost identical situation was considered by the Supreme Court of Mississippi in Rowe v. City of Winona, 248 Miss. 411, 159 So. 2d 282 (1965). There an elderly woman observed a crack in the sidewalk and thought that she could step across it. She did not step far enough, however, and caught her heel in the crack, resulting in a fall. In sustaining a directed verdict for the defendant municipality the court said:

"Mrs. Rowe knew about the existence of the crack in the walk and frankly stated that she thought she was stepping over it. As a matter of fact, she knew that the crack was there — one merely big enough on which to catch her shoe heel. Obviously the sole cause of her fall was her own miscalculation about the length of the step which she was taking at the time. Unlike the cases which she had cited, there was nothing concealed in this instance to mislead a pedestrian in the exercise of ordinary care. Mrs. Rowe had actual knowledge of the condition.”

In the case at bar Mrs. Frick, with complete candor, testified that she was aware of the hoses and thought that she could step over them without difficulty. In the circumstances we are compelled to agree with the Mississippi court, that the defendant’s conduct was not a proximate cause of the plaintiff’s injury. That conclusion makes it unnecessary for us to consider whether either a city ordinance or a Department of Labor code provision, both having to do with sidewalk^obstructions, should have been considered by the jury.

Reversed and dismissed.

Jones, J., dissents.


author: Lyle Brown, Justice.

text:
    Charlene A. GUNTER, executrix of the estate of Jack P. GUNTER, dec’sd. v. Robbie LAGRONE
    5-6096
    488 S.W. 2d 18
    Opinion delivered December 18, 1972

      William W. Green, George M. Callahan ér Eudox Patterson, for appellant.

      Tackett, Moore, Dowd ir Harrelson, for appellee.
   Lyle Brown, Justice.

This suit was initiated by appellant Charlene Gunter, executrix of the estate of her husband, for fatal injury allegedly caused by appellee Robbie LaGrone. The trial court granted appellee’s motion for summary judgment, hence this appeal from that order.

In the early morning hours of August 1, 1968, a dispute arose on the streets of Hot Springs between appellee and deceased. A scuffle ensued and appellee is alleged to have knocked the deceased to the sidewalk, which fall is said to have inflicted fatal injury. On February 13, 1969, appellant filed suit for wrongful death against appellee. Appellee’s insurance carrier denied liability and on August 13, 1969 the executrix and the heirs of the estate of Jack Gunter entered into an agreement with appellee. That instrument was styled “Covenant and Trust Receipt Agreement”, the body of which is as follows:

This covenant, made and entered into by and between Charlene Gunter, individually and as Executrix of the Estate of Jack Gunter, deceased, and Jack P. Gunter, Jr., Jerry E. Gunter and Vickie Ann Gunter, hereinafter called GUNTERS, and Robbie LaGrone, hereinafter called LaGRONE, WITNESSETH:
WHEREAS, Gunters have filed an action in the Circuit Court of Garland County, Arkansas, No. 11,484, against LaGrone, seeking damages in the sum of $420,000.00 as a result of the death of Jack Gunter on or about July 31, 1968; and
WHEREAS, LaGrone has denied and does deny all and any liability in any cause of action that has now or may subsequently be filed by Gunters; and
WHEREAS, LaGrone had Texas standard homeowner’s policy with The Western Casualty & Surety Company, Ft. Scott, Kansas, which policy was in full force and effect on July 31, 1968; and
WHEREAS, Under provisions of said policy, LaGrone was provided insurance coverage against liability to the extent of $50,000.00; and
WHEREAS, the said company has been placed on notice and has denied liability; and
WHEREAS, LaGrone desires to limit his exposure while specifically denying liability.
NOW, THEREFORE, for and in consideration of the sum of Twenty Thousand Dollars ($20,000.00) cash in hand paid by Robbie LaGrone, the receipt of which is hereby acknowledged, Gunters covenant, for themselves, their heirs, personal representatives and assigns, as follows:
1. That in Case No. 11,484, or any subsequent suit by amendment or otherwise resulting from the incident which occurred on or about the 31st day of July 1968, to pursue solely any proceeds that may be legally due from The Western Casualty & Surety Company, Ft. Scott, Kansas under the terms of the provisions of said policy exclusively.
2. That LaGrone, for himself, his heirs, personal representatives and assigns, is to be and shall be held harmless from the requirement of payment of any of his personal funds, including funds of his estate, personal representatives or assigns.
It being the intention herein that by the payment of $20,000.00 by LaGrone to Gunters that Gunters, their heirs, personal representatives or assigns shall never make any other claim, other than under the aforementioned policy, demand, execution or garnishment upon any of the personal assets of LaGrone, his personal representatives, heirs or assigns.
3. Gunters further agree that LaGrone shall have the right to and shall fully cooperate with The Western Casualty & Surety Company in preparation of the defense of the policy and meet all requirements under the terms and conditions of the said policy.
4. That the sole purpose of this covenant is to assure LaGrone, individually and specifically, excluding any rights he or Gunters may have under the terms and provisions of said policy, from the payment of any further sums by himself, his heirs, personal representatives, or assigns, from his personal assets, even though said sums may be legally due as determined by any court, or otherwise. That in the event Gunters breach this covenant and seek payment from LaGrone, individually, his personal representatives, heirs or assigns, other than recovery upon or through him upon his homeowner’s policy with The Western Casualty & Surety Company, that the amount of liquidated damages will be measured and determined by the exact amount Gunters seek to recover from LaGrone individually, his personal representatives, heirs or assigns.
5. As there is a conflict as to whether or not the death of Jack Gunter was or was not accidental or unintentional, and as LaGrone has covenanted to the payment of $20,000.00 to Gunters to limit his excess exposure or exposure, Gunters covenant with LaGrone that in the event they recover any sum above $30,000.00 by collection upon the aforesaid homeowner’s policy, that they will hold in trust and reimburse LaGrone for any sum recovered above $30,000.00 up to the initial payment of $20,000.00.

Within two weeks after the execution of the agreement the suit was dismissed without prejudice. One year later appellant filed another suit seeking damages for the death of Jack Gunter allegedly at the hands of appellee. Appellee Robbie LaGrone responded by filing a motion for summary judgment. The trial court granted the motion and we think correctly so. The agreement provided in substance (1) that a suit was anticipated wherein LaGrone would be the named defendant; (2) that appellant would pursue Western Casualty for any judgment recovered against appellee; (3) that neither appellee nor his estate would ever be held liable for any part of the judgment; and (4) that any recovery above $30,000 would be paid over to appellee (the insured) up to the amount he paid in settlement, namely, $20,000. It is the last provision that compels us to conclude that the agreement cannot be allowed to stand. There are certain fundamental reciprocal obligations between an insurer and insured, one of which is that one will not, to his advantage, voluntarily expose the other to liability. By the terms of the instrument the insured would be placed in an adversary position to that of his insurer. Additionally, the personal liability coverage in the policy (which was before the trial court) obligated the insurer “to pay on behalf of the insured all sums which the insured shall become legally obligated to pay”. We are unable to see how appellee could, in face of the immunity granted by the contract, become legally obligated to pay appellant anything.

Appellant contends that the agreement between the parties was a matter of defense to be presented at the trial and was not the proper subject for appellee’s motion to dismiss by way of summary judgment. Appellant also asked for summary judgment on all issues except damages. Therefore both parties put the question of summary judgment squarely before the court.

Affirmed.


text:
    Mrs. Clyde R. SEVENER v. Joe H. FAULKNER & Shelby Jean FAULKNER
    5-6113
    488 S.W. 2d 316
    Opinion delivered December 18, 1972
    [Rehearing denied January 22, 1973.]

      Rhine & Rhine, for appellant.

      No brief for appellees.
   Lyle Brown, Justice.

This is a dispute over the right of appellees to the use of an old county road to gain access to their property, the county road having been replaced by a new state highway. It is contended on appeal that the court erred in holding that the old road had never been abandoned. It is also asserted that the court should have allowed damages for destruction of fencing.

The parties are next door neighbors in a rural area in Greene County. Their homes both face state highway 25. The state highway runs east and west and the homes are on the south side. Until that highway was built there was a county road running north and south and between where are now located the homes of the parties. Several years ago appellant had a survey made and discovered that the county road running between the houses was inside her east boundary line. Nothing was then done to change the east boundary fence; but in 1971 appellant moved her east boundary fence to the survey line. The effect of that move was to block appellees’ entrance to their home. In other words they could no longer come off the old county road and go onto their property. Although the erection of the new fence cut off appellees it is of course still open to appellant and connects with her driveway which she constructed. (It is undisputed that the old county road, as it continues south past the subject properties, is no longer is use).

It is not disputed that the survey line is the correct boundary line between the parties. It is also undisputed that for many years (one witness recalled sixty years ago) the old county road has been used by the party litigants, their neighbors and predecessors in title, to gain access to the properties in question. The question is whether the rights of either of the litigants have been cut off by the passage of time, or by abandonment of maintenance by the county. We think not. See Brumley v. State, 83 Ark. 236, 103 S.W. 615 (1907); Meek v. Love, 197 Ark. 394; 122 S.W. 2d 606 (1938). In 39 C.J.S. Highways § 129 it is recited that when a public highway is abandoned it does not affect the private right of occupants along the old highway to the use of the old road for the purposes of ingress and egress. In Spradley v. Hall, 57 S.W. 2d 182 (Tex. 1933), the county discontinued maintenance of the road in question. In that circumstance the court said:

This was not such an abandonment of the use of the road by those residing on same as to work a legal discontinuance authorizing its obstrucu’on by the adjoining landowners. People who resided on said road and wished to continue its use and so used it could not be thus deprived of its use.

Nor do we find any merit in appellant’s claim to damages for fencing. The chancellor held that a few old fence posts which were destroyed by fire when appellees burned an old barn on their premises were without value. The chancellor directed appellees to replace the new fence they cut as it existed prior to his having removed it and leave an unobstructed gap twenty-two feet wide to allow them ingress and egress. We think that requirement was sufficient to make appellant whole.

Affirmed.


text:
    Bobby Farrell MILAM v. STATE of Arkansas
    5778
    488 S.W. 2d 16
    Opinion delivered December 18, 1972

      Herndon & Barton, P.A., for appellant.

      Ray Thornton Atty Gen., by: Julie W. McDonald, for appellee.
   Lyle Brown, Justice.

James Wesley Stone was last seen alive on February 19, 1968. On July 16, 1971, he was found in his truck, in a water-filled bauxite pit. He had been shot and his body was secured in his truck by means of a heavy jack tied to his body. The appellant, Bobby Farrell Milam, was convicted of the murder and sentenced to life imprisonment. Appellant advances seven points for reversal and they will be listed and discussed along with the pertinent evidence.

Point I. The court erred in not directing a verdict of acquittal at the close of the case. The body was positively identified as that of James Wesley Stone. It was established by several witnesses that appellant was seen with the deceased late in the night in question; that they were alone; that deceased had on his person over $1000; that late that night appellant went to the home of a friend, telling the latter that Stone did not have as much money as he thought; and that appellant tried to persuade his companion to go with appellant to the bauxite pit to dispose of Stone’s body. Mary Fraley, a companion of appellant, testified that appellant took her to a point near the bauxite pit and pointed out the spot where appellant said he killed Stone and “if I tried to leave [him] it would happen to me”. We have related that part of the testimony which supports the State’s case and which unquestionably constitutes substantial evidence.

Point II. The State failed to prove that the purported crime was committed in Lonoke County. First the bauxite pit was located near Allport which is in Lonoke County. Secondly, Mary Fraley testified that the point of the killing as related to her by appellant was on the road between Humnoke and England. Those towns are in Lonoke County. It is presumed in law that the offense occurred in the county wherein the indictment is returned. Ark. Stat. Ann. § 43-1426 (Repl. 1964). No evidence was offered that the crime was committed in another jurisdiction. That fact makes appellant’s position untenable. Lyons v. State, 250 Ark. 920, 467 S.W. 2d 701 (1971).

Points III and IV. The court erred in permitting the State to introduce a rifle belonging to appellant’s brother. The rifle was introduced conditioned that it later be connected with the appellant. The State’s expert could not say positively that it was that rifle which fired the shot that killed Stone. Thereupon the trial court ordered the weapon withdrawn and admonished the jury not to consider any evidence relative thereto. Any error was cured by the admonition because it is clearly not manifest that prejudicial error remained after the exclusion. Thompson v. State, 249 Ark. 36, 458 S.W. 2d 40 (1970).

Point V. Ervin Graves testified in rebuttal and in contradiction to the testimony of another rebuttal witness for the State and it was therefore error to admit Graves’ testimony. James Milam, brother of appellant, was called as a witness by the State. He was asked if he had told Ervin Graves that Milam’s brother had shot a policeman and would not hesitate to shoot another one. James Milam denied making the statement. The State then called Ervin Graves, a car dealer. He testified that appellant was delinquent in payments on a car and Graves went to the premises to take possession. He said James Milam made the statement attributed to him and about which the State inquired of Milam. The appellant made no objection to the questions propounded to those two witnesses; therefore, he is in no position to raise the issue on appeal.

Point VI. The court erred in admitting four exhibits into evidence. The exhibits were photographs of the retrieved truck containing Stone’s remains. The correct foundation was laid for the introduction of the pictures. The court and jury were advised that they were introduced “to depict the scene, to represent the vehicle as it was pulled out of the water in various positions, and to show the contents of the truck”. Photographs may be introduced to describe and identify the premises, to establish the corpus delicti, to disclose the environment of the crime, and to corroborate testimony. Stewart v. State, 233 Ark. 458, 345 S.W. 2d 472 (1961). We are unable to say the court abused that broad discretion long recognized in the introduction of photographs. When photographs are otherwise properly admitted it is not a valid objection that they tend to prejudice the jury. Oliver v. State, 255 Ark. 809, 286 S.W. 2d 17 (1956).

Point VII. Witness C. C. Fortney was an accomplice and appellant could not be convicted on Fortney’s uncorroborated testimony. In the first place it was not contended at the trial that Fortney was an accomplice; in fact the evidence would not bear out such a fact. Even if Fortney were an accomplice there was ample corroboration of his testimony.

Affirmed.


author: John A. Fogleman, Justice.

text:
    TRI-STATE INSURANCE COMPANY v. Mary BUSBY, Bruce BUSBY, Ethel Louise NELSON, and Helen M. LITTLEFIELD, guardian
    5-6116
    488 S.W. 2d 1
    Opinion delivered December 18, 1972
    [Rehearing denied January 15, 1973.]

      Wright, Lindsey if Jennings, for appellant.

      Spears if Sloan, for appellees.
   John A. Fogleman, Justice.

This is the second appeal in appellees’ suit to recover from appellant $6,250, the amount by which a judgment in favor of appellees Busby against appellee Nelson exceeded the $10,000 automobile liability policy issued by appellant to appellee Nelson. See Nelson v. Busby, 246 Ark. 247, 437 S.W.2d 799. On the previous appeal by Tri-State Insurance Company, we reversed a judgment against it for the $6,250 excess and remanded the case for a new trial. See Tri-State Insurance Company v. Busby, 251 Ark. 568, 473 S.W. 2d 893. Upon remand, the circuit court rendered judgment against appellant. The judgment contains the following recitals:

On this 8th day of May, 1972, this cause comes on for hearing; the plaintiffs appear in person and by their attorney, J. H. Spears; and the defendant in person and by its attorney, Ronald A. May; this being the day this was set at pre-trial conference which was held on the 21st day of April, 1972.
The plaintiffs announced ready for trial, at which time' the defendant announced it desired a trial by jury.

Appellant designated an abbreviated record consisting of our mandate on the previous appeal, the judgment of the circuit court, appellant’s notice of appeal, and the designation of record. Simultaneously, appellant filed its statement of the point to be relied on as:

The trial court erred in refusing to allow defendant a new trial by jury after reversal and remand by the Supreme Court.

Under the circumstances prevailing, we find a great similarity to Scates v. State, 244 Ark. 333, 424 S.W.2d 876. There, we held that when the defendants, who waived a jury trial on January 4, 1967, did not move for a jury trial and withdrawal of their waiver until July 19, 1967, the date the case had been set for trial, the granting or denial lay within the trial court’s discretion, which was not abused by a denial of such an untimely request. The trial setting had been made on the day of arraignment, when the defendants’ plea of not guilty and waiver of jury trial were entered.

We have held that, upon retrial, the case stands as if there had never been a trial. Palmer v. Carden, 239 Ark. 336, 389 S.W.2d 428; Clark v. Arkansas Democrat Company, 242 Ark. 133, 413 S.W.2d 629, supplemental opinion, 242 Ark. 497, 413 S.W.2d 633; Hartford Fire Ins. Company v. Enoch, 79 Ark. 475, 96 S.W. 393; Heard v. Ewan, 73 Ark. 513, 85 S.W. 240. We have even held that new issues may be introduced. See American Surety Company v. Kinnear Manufacturing Company, 185 Ark. 959, 50 S.W.2d 586; Morgan Engineering Company v. Cache River Drainage District, 122 Ark. 491, 184 S.W. 57.

We have never passed upon the particular question now posed, but a very convincing argument has been made by appellant that a waiver of jury trial, in the absence of a statute or rule of procedure providing otherwise, does not bind an appellant after a reversal and remand for a new trial. This argument is supported by an impressive array of authorities. But we find it unnecessary to make any pronouncement on this precise point in this case. Granting, for the purposes of this appeal, that appellant’s waiver of jury trial could be withdrawn after its successful appeal on which a new trial was ordered, we recognized in Scates that the trial court has a latitude of discretion in permitting a withdrawal of a waiver of trial by jury and in honoring a demand for jury trial, when a timely request has not been made. Other jurisdictions have recognized that a trial court had a discretion in the matter, even on retrial. A typical case, and one strikingly similar to the case at bar, is Thompson v. Blagg, 294 P.2d 577 (Okla. 1955). It was held that there was no abuse of discretion in the denial of a jury trial upon retrial when there had been a waiver prior to the first trial, but no demand for jury trial had been made when the retrial date was set or at any time until the day preceding the new trial, some 17 days after the setting of the date for retrial.

The first indication of appellants desire for a jury trial, disclosed by the record, appears in the judgment from which this appeal is taken. The date of the judgment is the very date which had been set for the trial at a pretrial hearing conducted something over two weeks earlier. It has been well said that the purpose of the pretrial conference is to procure the just, speedy and inexpensive determination of every action, and that among the advantages of the procedure is the elimination of juror time waste, partially because of the court’s improved ability to set its docket upon the basis of reasonable anticipation of probable length of trial and partially by elimination of developments on the eve of trial, which the court had no reason to anticipate. Cockrill, Act 301, Pre-trial Procedure, 3 Ark. L. Rev. 351 (1949).

Since appellant did not make its desire for a jury trial known until the date of trial, although it knew at the pretrial conference that the case would be tried on the date then set, we cannot say that the trial court abused its discretion in denying a jury trial in this case.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    Clifford JOHNSON v. MIDWEST-KENWORTH Sales and Service, branch of Pacific Car and Foundry
    5-6121
    492 S.W. 2d 250
    Opinion delivered December 18, 1972

      Lloyd C. Burrow Jr., for appellant.

      Powell Woods, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Clifford Johnson from a judgment of the Benton County Circuit Court in favor of Midwest-Kenworth Sales and Service, Branch of Pacific Car and Foundry, hereafter called Midwest, in a suit by Midwest for a repair bill on a truck belonging to Johnson and in which Johnson counterclaimed alleging damages because of breach of warranty and breach of contract in the repair of the truck.

The facts appear as follows: Johnson owned a K123 International truck tractor and in March of 1970 he left it with Midwest for repairs. Midwest did work on the truck tractor engine and charged therefor the sum of $1,364.19, none of which was paid at the time the truck was delivered back to Johnson. Midwest filed suit against Johnson on an itemized verified account for the repairs and Johnson answered by general denial and by way of counterclaim. In his counterclaim Johnson alleged that the work was performed by Midwest in a careless, negligent and faulty manner, and that by reason thereof Johnson was forced to spend additional sums in the amount of $2,841.18 for material and labor to replace the faulty repairs performed by Midwest on the vehicle and he prayed judgment against Midwest for $2,841.18. In response to a motion and order to make more definite and certain Johnson alleged in his counterclaim that Midwest carelessly and negligently replaced the left head, pistons, seals and gaskets in the engine of the vehicle and that it negligently failed to replace the right head in the engine of the vehicle when same should have been, replaced. After several preliminary motions and amendments, requests for admissions and interrogatories, and memorandum briefs in support of same were filed in this case, the issues were finally heard by the court on May 16, 1971. The trial court entered judgment for Midwest for the repair bill and against Johnson on his counterclaim and on appeal to this court Johnson states the point he relies on for reversal as follows:

“Appellant established a prima facie case and the court erred by directing a verdict in favor of the appellee.”

The brief of the appellant is rather confusing on the “directed verdict” feature of this case because according to the record when the case reached its call on the trial court docket, the record reflects as follows:

“BE IT REMEMBERED, that on the 16th day of May, 1971, the same being a regular day of the regular March 1971 term of this court, the above-entitled cause having been reached on its regular call and the plaintiffs appearing in person and by their attorney, Mr. Powell Woods, attorney at law of Siloam Springs, Arkansas, and the defendant appearing in person and by his attorney, Mr. Lloyd C. Burrows, attorney at law of Bentonville, Arkansas, and all announced ready for trial.
“WHEREUPON, by agreement of the parties, a jury was waived and it was agreed that the Court should sit as a jury to try the issues of fact herein, and the plaintiffs and defendant introduced and following testimony to sustain the issues of fact in their respective behalves.”

The record then reflects a discussion between the attorneys and the trial judge as to who had the burden of going forward with the proof and it was determined that Midwest had made a prima facie case by filing its verified account with its complaint and that the burden of going forward with the proof rested with Mr. Johnson.

We shall not summarize the testimony except to say that Mr. Johnson testified that he delivered his truck to Midwest to be “fixed” and that when he received it back from Midwest it was not “fixed.” He said that he returned the truck to Midwest again but that they did not return it to him in good condition. He said that he eventually had to put a different engine in the truck at a cost of $2,841.18, then Mr. Johnson testified as follows:

“Q. Mr. Johnson, what symptoms did this vehicle show when it was returned from Midwest-Ken-worth; what was actually the trouble with this vehicle?
A. Well, I wasn’t driving the truck myself. I had another boy driving it, all I know is what he tells me. The truck had no power, it blowed water out of the right head on the breather pipe.
Q. But anyway it was, it was returned in a defective condition.
A. Yes, —”

On cross-examination Mr. Johnson testified that one of his drivers took the truck to Midwest for repairs and signed all of the repair tickets. He said that Midwest replaced the lefthand cylinder head in the truck engine and he presumes that the righthand one was sent to Kansas City to be ground and refaced. Mr. Johnson then offered evidence to the effect that a truck such as the one involved in this case should be expected to operate many more miles than his truck had been operated before repairs. He testified that following the repairs the truck completely broke down after it had been driven 5,463 miles.

Mr. Meek testified that he replaced the engine in Mr. Johnson’s truck and that when he did so he found the right piston stuck and the engine head cracked. He testified that he has no idea what caused the piston to stick or the engine head to crack. He testified that freezing or overheating might cause an engine head to crack but that he has no idea what caused the stuck piston and cracked engine head in this case.

At the close of the evidence offered by Mr. Johnson his attorney argued to the trial court that Johnson had shown by the evidence that the truck had been delivered to Midwest in a damaged condition and returned in a damaged condition, and that the evidence was sufficient to overcome the presumption attending the verified account filed with the complaint, and that the burden of going forward with proof shifted back to Midwest. Mr. Johnson then rested his case and Midwest rested and also moved for a “directed verdict.” After considerable argument concerning the evidence and lack of it, as to what was wrong with the truck, the court entered a judgment as follows:

“On this 16th day of May, 1972, this cause comes on to be heard. Plaintiff appearing by its attorney, Powell Woods, and Defendant appearing in person and by his attorney, Lloyd C. Burrow, Jr. Whereupon, both parties announced ready for trial, this cause is heard upon the Complaint, Answer, Counterclaim, First Amended Counterclaim, Second Amended Counterclaim, Requests for Admissions, Interrogatories, Answer to Interrogatories, Amended Answer to Interrogatories, Reply to the Counterclaim and First Amended Counterclaim, Reply to Second Amended Counterclaim, and upon the evidence adduced by the parties, from all of which the Court being well and sufficiently advised, finds: that the Plaintiff is entitled to recover judgment against the Defendant in the amount for which the Defendant was sued which is $1,364.19; that the Counterclaim, First Amended Counterclaim, and the Second Amended Counterclaim of the Defendant should be dismissed and that the Defendant take nothing under his Counterclaim, First Amended Counterclaim or Second Amended Counterclaim.
IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED that the Plaintiff have judgment against the Defendant in the sum of $1,364.19; that the Plaintiff recover of and from the Defendant all of its cost herein laid out and expended; that this Judgment bears interest from this date at the rate of 6% per annum until satisfied in full.”

We have examined the entire record in this case and conclude that the trial court sat as a jury in hearing the evidence in this case and that the judgment of the trial court is supported by substantial evidence. Mr. Johnson did not deny that Midwest made the repairs on the truck as requested by Johnson and as stated on the account rendered by Midwest. Mr. Johnson only attempted to prove that the difficulty he was having with the tiuck was not eliminated by the repairs made by Midwest and that the repairs made by Midwest did no good. The evidence is vague and indefinite as to the nature of the trouble Mr. Johnson was experiencing with the truck both before and after the repairs made by Midwest. Mr. Johnson did offer proof that the truck was driven about 5,463 miles after it was repaired by Midwest; that the motor “locked up” and he had to have a complete new or rebuilt motor installed in the truck. There is evidence that the “locked up” motor was caused by a stuck piston and that the engine head was cracked between the valves but there is no evidence at all that the cracked head or stuck piston resulted from, or was connected with, the repairs made, or the work done, on the motor by Midwest.

The judgment is affirmed.


text:
    Lois MICKLE v. James MICKLE
    5-6137
    488 S.W. 2d 45
    Opinion delivered December 18, 1972

      Jones, Gilbreath ir Jones, for appellant.

      Pearce, Robinson ¿r McCord, by: Owen C. Pearce, for appellee.
   J. Fred Jones, Justice.

James Mickle filed a petition for divorce against Lois Mickle in the Sebastian County Chancery Court and alleged three years’ separation as his ground for the divorce. Ark. Stat. Ann. § 34-1202 (Repl. 1962). Lois Mickle filed an answer admitting the three years’ separation but she alleged on counterclaim that she was the one entitled to a divorce on the ground of indignities. In her counterclaim Mrs. Mickle prayed that a divorce be granted to her; that she be awarded the custody of their children and one-third of the personal property. The parties entered into a stipulation providing as follows:

“The defendant, Lois Mickle, is entitled to a divorce against the plaintiff, James Mickle on the grounds of personal indignities and Lois Mickle is entitled to the maximum property division allowable to her under Arkansas law, which is one-half of the jointly held property and one-third of the separate property of James Mickle. The defendant, Lois Mickle, is entitled to alimony but the parties cannot agree on the amount of alimony to which she is entitled.”

The chancellor granted a divorce to Mrs. Mickle on her counterclaim and after referring to the above provision of the stipulation the chancellor, under paragraph 8 of the decree, provided in part as follows:

“Lois Mickle is hereby awarded the following assets of James Mickle in kind:
Description of Asset Shares Owned Shares Awarded
By James Mickle To Lois Mickle
Fairfield Bay 56,648 19,546-1/3
# # #
. . . James Mickle will forthwith make the transfer of the assets listed under this paragraph in kind, subject to any existing lien as a result of the initial margin on purchase of said assets.”

Upon appeal to this court we reversed on points of error not important to the present appeal. Mickle v. Mickle, 252 Ark. 468, 479 S.W. 2d 563.

After the record in the original divorce case was lodged in this court and while the appeal thereon was still pending, Mr. Mickle filed a motion in the chancery court designated “Motion to Modify Decree to Add Additional Findings of Fact.” The motion alleged facts concerning the questionable market value of the Fairfield Bay, Inc. stock and in substance alleged that a transfer of one-third of the Fairfield Bay stock from James Mickle to Lois Mickle, as ordered in the decree, might result in Mr. Mickle having to pay income tax on the increased market value of the shares so transferred and that Mrs. Mickle would take the shares without the necessity of sharing in the income tax liability, if any, incidental to the transfer. The motion then alleged in effect, that one-third of the stock in Fairfield Bay, Inc. already belonged to Mrs. Mickle by virtue of being one-third of her husband’s personal property acquired during the marriage; that under the divorce decree she was only awarded the exclusive possession of her separate one-third of the Fairfield Bay stock; that this should be made clear in the divorce decree so that neither party could be expected to pay income tax on the stock transfer from Mr. Mickle to Mrs. Mickle under compulsion of the divorce decree. Mr. Mickle then prayed a modification of the original decree by adding a finding to paragraph 8 as follows:

“...that the one-third interest of Lois Mickle in the Fairfield Bay, Inc. stock arose as a matter of law because acquired by the parties during the existence of the marriage, and that her property interest in the stock shall be made to her in kind by delivering one-third of the shares registered in the name of James Mickle to her.”

As alternative relief prayed in the motion, Mr. Mickle requested that the 19,549 1/3 shares of Fairfield Bay, Inc. stock awarded to Lois Mickle be reduced to such number of shares as would be necessary to pay any income tax which is assessed in connection with the transfer from James Mickle to Lois Mickle. The thrust of Mr. Mickle’s contention is more clearly stated in a letter from his attorneys to the chancellor which stated in part as follows:

“The point we make is that once James Mickle acquired this stock, and having done so at a time when he was married to Lois Mickle, Lois Mickle had a right in either the stock or the proceeds of sale of stock which could not be divested from her except in accordance with applicable legal requirements.
# # #
Under our Arkansas law, it of course would be possible for James Mickle to sell the Fairfield Bay stock, then take the proceeds and transfer them for something else. But regardless of how many transactions he might choose to enter into, starting out with the Fairfield Bay, Inc. stock, Lois Mickle at all times had her right to one-third (1/3) of the Fairfield Bay, Inc. stock or its proceeds.”

On March 30,1972, the chancellor entered the “Modification of Decree” which is the subject of this appeal, and this instrument reads in part as follows:

“(f) The one-third interest of Lois Mickle in the Fairfield Bay, Inc. stock arose as a matter of law because acquired by the parties during the existence of the marriage, (Ark. Stats. 34-1214), and her property interest shall be made in kind to her by delivering one-third of the stocks registered in the name of James Mickle to her.”

On appeal to this court Mrs. Mickle alleges error under the points she has designated as follows:

“The lower court had no jurisdiction to enter an order entitled ‘Modification of Decree’ on March 30, 1972, after the record in case No. 5-5856 had been docketed in the Arkansas Supreme Court and the appeal was pending therein.
The ‘Modification of Decree’ entered by the lower court on March 30, 1972, and filed April 5, 1972, is contrary to the law.
The ‘Modification of Decree’ entered by the lower court on March 30, 1972, and filed April 5, 1972, is contrary to the evidence.”

We find it unnecessary to discuss the first and last points because we are of die opinion that the chancellor’s modification of the decree is contrary to the law as alleged under the second point.

We do not agree with the statement of the law as set out in paragraph (f), supra, where it is stated that “The one-third interest of Lois Mickle in the Fairfield Bay, Inc. stock arose as a matter of law because acquired by the parties during the existence of the marriage, (Ark. Stats. 34-1214).” (Our emphasis). As we construe Ark. Stat. Ann. § 34-1214 (Repl. 1962) as well as Ark. Stat. Ann. § 61-202 (Repl. 1971) in the light of prior decisions, the one-third interest of Lois Mickle in the Fairfield Bay, Inc. stock did not arise as a matter of law because acquired by the parties during the existence of the marriage, but did arise as a matter of law because she was “granted a divorce against the husband.” The pertinent part of § 34-1214 is as follows:

“In every final judgment for divorce from the bonds of matrimony granted to the husband, an order shall be made that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and where the divorce is granted to the wife the court shall make an order that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and the wife so granted a divorce against the husband, if she shall have actually personally resided in this State for a period of time before the commencement of the action at least equal to the residence required to enable her to maintain an action for divorce, shall be entitled to one-third [1/3} of the husband’s personal property absolutely, and one-third [1/3] of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific property both real and personal to which such wife is entitled. ...” (Our emphasis).

Ark. Stat. Ann. § 61-202 (Repl. 1971) reads as follows:

“A widow shall be entitled, as part of her dower, in her own right, to one-third part of the personal estate, whereof the husband died seized or possessed.” (Our emphasis).

A widow’s right of dower, even in real property, remains only an inchoate right, and is not an estate, until the husband’s death. The right of dower is only a contingent expectancy during the lifetime of the husband. Sanders v. Taylor, 193 Ark. 1095, 104 S. W. 2d 797. As to personal property see McClure v. Owens, 32 Ark. 443.

The seventh statutory ground for divorce in Arkansas is set out in Ark. Stat. Ann. § 34-1202 (Repl. 1962) as follows:

“Where either husband or wife have lived separate and apart from the other for three (3) consecutive years, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether such separation was the voluntary act or by the mutual consent of the parties and the question of who is the injured party shall be considered only in cases wherein by the pleadings the wife seeks either alimony under Section 34-1211, Arkansas Statutes 1947, or a division of property under Section 34-1214, Arkansas Statutes 1947, as hereby amended, or both.” (our emphasis).

In the 1910 case of Hix v. Sun Ins. Co., 94 Ark. 485, 127 S. W. 737, this court had occasion to examine the wife’s rights in her husband’s property prior to its distribution under a divorce decree in connection with property insurance coverage. While only real property was involved in that case, in discussing the wife’s dower interest in connection with divorce, we said:

“The statutes of this State provide that where a final judgment for divorce is rendered in favor of a wife, she ‘shall be entitled to one-third of the husband’s property absolutely, and one-third of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form. . . .’
This court has construed the statute to give to the divorced wife for and during her natural life such interest and amount of his real estate as would be her dower in case of the husband’s death. Beene v. Beene, 64 Ark. 518.
Now it is seen from an inspection of the decree, that the court did not ‘designate the specific property, both real and personal,’ to which the wife was entitled, nor did it order a sale of the property for division. * * *
It may be insisted, however, that the statute of its own force vested in the divorced wife title to an undivided interest in the husband’s property, which she could have asserted and had set apart at the time the decree for divorce is rendered, or could do so afterwards. The statute provides that the specific property to which the wife is entitled shall be designated in the decree for divorce; but, conceding that this may be done afterwards by another decree of the court, until it is done the divorced wife’s claim is an unascertained one which does not change the husband’s interest in the property from that of sole and unconditional ownership. He is still the sole and unconditional owner thereof in fee simple, though the divorced wife’s undetermined claim exists, and he cannot convey it without her concurrence. The husband cannot sell his homestead before divorce unless his wife joins in the execution of the conveyance, nor can he convey his other lands free of the wife’s inchoate dower right; yet he is the sole and unconditional owner. He is not merely the owner of an undivided interest, but he is the sole and unconditional owner until his wife’s interest be asserted and carved out. The title remained vested in the husband solely and unconditionally until it was divested by a decree of the court designating the specific property to which the wife was entitled.”

In the 1877 case of McClure v. Owens, supra, as security for an indebtedness, Owens mortgaged some personal property (livestock) to McClure with power to take possession of the property and sell it in the event of default. Owens died and dower was assigned to Mrs. Owens. Mrs. Owens attempted to replevy the livestock from the possession of McClure and Burton, and in that case this court said:

“The wife, by marriage, has no such inchoate right of dower in the personal estate of her husband as she has in his real estate, and he may sell, mortgage or dispose of the same at his pleasure. Her right of dower in his personal estate does not accrue until his death, and only in such as he then owns.”

It is our view that the law in Arkansas has remained the same as above stated ever since, and even before, McClure, and that a wife’s rights in her husband’s property were not increased or broadened by § 34-1214, supra. As we view the amendatory decree of the chancellor in the case at bar, it would change the personal property law in Arkansas at least to the extent of placing personal property on equal footing with the inchoate right of dower in real property. The legislature is the proper forum for the making of such change.

The decree is reversed.

Byrd, J., dissents.


text:
    Jacky D. ALBRIGHT v. STATE of Arkansas
    5785
    488 S.W. 2d 11
    Opinion delivered December 18, 1972

      W. Gary Kennan, for appellant.

      Ray Thornton, Atty. Gen., by: Julie W. McDonald, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Jacky D. Albright was charged with the crime of burglary on information filed by the prosecuting attorney in the Benton County Circuit Court. He was found guilty at a jury trial and was sentenced to six years in the Arkansas Penitentiary. On appeal to this court Albright assigns error under points designated as follows:

"That the information was amended without said amendment being noted of record or the trial court granting such an amendment.
That there was a fatal variance between the allegations and the proof; and therefore, there was no substantial evidence to sustain the verdict.”

We find no merit in either assignment.

Police officers in Rogers received information about 8:30 p.m. that something unusual was going on at Consumer’s Pharmacy about seven blocks distance from the police station. A police officer drove an unmarked police car into an alley at the rear of the store and Albright was apprehended as he and his co-defendant Howell ran from the west side of the store. Albright was wearing black gloves and was carrying a sledge hammer and some screwdrivers wrapped in a sack bearing the name of a linen service in Oklahoma City. The officers testified that the lock on the outside door at the west side of the building had been battered in and the door had been opened. The building had been entered as evidenced by some boxes that had been removed from a shelf near the door and left setting on the floor. The officers testified without contradiction, that the gloves worn by Albright and the hammer he carried bore visible particles of paint similar to the paint on the battered lock and door of the drugstore. They furthermore testified that Albright admitted that he had taken drugs and stated that he and his companion, a Mr. Howell, were passing through Rogers and needed a “fix” and when they saw the Consumer’s Pharmacy had no strip on the door indicating a burglar alarm, they “hit it.” The evidence is amply sufficient to sustain the conviction for burglary.

Returning now to the assigned error, the information charged Albright and Howell with the crime of burglary on a printed form ending with the printed words “did unlawfully” and then followed by the remainder of the charge in typewritten words with alteration as follows:

or
“willfully and feloniously break -and enter a certain building, to-wit, Consumer’s Pharmacy in the City of Rogers, Arkansas, with intent then and there to commit a larceny. . . .”

It will be noted that the information form as originally typed charged “breaking and entering.” At some point, not made clear in the record, a line was drawn through the word “and” as above indicated and the word “or” was substituted. Albright now contends that this change was made without authority from the trial court and that the information was thus amended in derogation of Ark. Stat. Ann. § 43-1024 (Repl. 1964) which reads as follows:

“The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged. All amendments and bills of particulars shall be noted of record.”

We find no merit at all in Albright’s contention. In the first place there is no evidence that the change was made after the information was drawn rather than at the time it was drawn, and regardless of when the change was made, it did not “change the nature of the crime charged or the degree of the crime charged.” In the second place, Albright could not have been prejudiced by the change under the evidence in this case, regardless of when the change was made, and furthermore he objects to the change or amendment for the first time on this appeal.

Burglary is defined by Ark. Stat. Ann. § 41-1001 (Repl. 1964) as follows:

“Burglary is the unlawful breaking or entering a house, tenement, railroad car, automobile, airplane, or any other building, although not specially named herein, boat, vessel or water craft, by day or night, with the intent to commit any felony or larceny.”

Prior to the passage of Act 185 of 1955 we had two statutory criminal Acts constituting the crime of burglary. Section 41-1001 originally defined burglary only as “the unlawful entering a house,” etc. Ark. Stat. Ann. § 41-1004 originally provided “If any person shall in the nighttime willfully and maliciously, and with force, break or enter any house .... he shall be deemed guilty of burglary.” Prior to Act 185 the wording of an indictment or information was important in distinguishing night and daytime burglaries; the daytime burglary requiring proof of entry, and breaking only was no offense when done in the daytime under § 41-1001. Under the “nighttime” statute, § 41-1004, either breaking or entering constituted the offense. (See Mouser v. State, 215 Ark. 131, 219 S. W. 2d 611). By Act 185 of 1955 § 41-1004 was repealed and § 41-1001 was amended to its present form.

We have held under § 41-1004 prior to its repeal, that either the act of breaking or the act of entering may constitute the crime of burglary if committed in the nightime in violation of that statute. Minter v. State, 71 Ark. 178, 71 S. W. 944; Ingle and Michael v. State, 211 Ark. 39, 198 S. W. 2d 996; Mouser v. State, supra. We now hold that either the separate act of breaking or the separate act of entering either in the daytime or nighttime in violation of § 41-1001, supra, constitutes the crime of burglary.

Returning now to the case at bar, if Albright was charged with both the acts of breaking and entering, he could have been found guilty of burglary under § 41-1001 upon proof that he committed either the act of breaking or the act of entering whereas under the statute prior to the 1955 amendment, he could not have been found guilty of burglary by only the proof of breaking unless it was alleged and proved that the acts occurred in the nighttime. If Albright was charged in the language of the statute with breaking or entering, still he could be found guilty of burglary. upon proof that he committed either the act of breaking or the act of entering the building in violation of the statute, consequently, Al-bright could not have been prejudiced by changing “and” to “or” in the information, or by proving him guilty of only one of the acts constituting the crime of burglary when the proof of two separate acts would have added nothing to, or subtracted anything from, the offense charged or the penalty that could be imposed.

Albright did not testify at the trial but at the close of the state’s evidence he moved for a directed verdict for the alleged reason that the state had not proved “the fact of any breaking or entering into the building as charged to by the information.” (Emphasis added).

The trial court in instruction No. 5 instructed the jury that the information alleged that Albright “did unlawfully, willfully and feloniously break or enter the building of Consumer’s Pharmacy. . .” (Emphasis added). The trial court gave to the jury instructions Nos. 8 and 9 as follows:

“You are instructed that burglary is the unlawful breaking or entering a building, by day or night with the intent to commit any felony or larceny.
If you find beyond a reasonable doubt that defendant, Jacky Albright, did, in Benton County, Arkansas, on the date stated in the information or within three years before the filing of the information, break or enter the building of Consumer’s Pharmacy with the intent to commit any felony or larceny, you will find defendant guilty of burglary. If you do not so find, or if you have a reasonable doubt thereof, you will find defendant not guilty.”

These instructions correctly stated the law and there was no objection to them. Apparently as the instructions were being given one of the jurors had a question directed to instruction No. 5. The record as to the juror’s question appears as follows:

“THE COURT: I understand you have a question?
MR. TURNER: Yes, sir, we don’t understand the term ‘burglary.’ Does it mean breaking and entering or, breaking or entering?
THE COURT: The statute says breaking or entering with the intent to commit larceny, breaking or entering, either one.
MR. KENMAN: Your Honor, the information states breaking and entering, however—
THE COURT: The statute says breaking or entering.”

The judgment is affirmed.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    Charles WALKER v. STATE of Arkansas
    5773
    488 S.W. 2d 40
    Opinion delivered December 18, 1972

      Howard, Howard ir Howard, by: James R. Howard, for appellant.

      Ray Thornton, Atty. Gen., by: James A. Neal, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

For reversal of his first degree murder conviction, appellant Charles Walker contends that the trial court erred in failing to declare a mistrial after commenting on the evidence and in failing to permit the jury to pass on the voluntariness of a confession.

The record discloses that during the direct examination of Officer Larry Dill the State, as a prelude to the introduction of a confession, sought to introduce a “waiver of rights form” signed by appellant. After the trial court overruled appellant’s objection thereto, the following occurred:

“THE COURT:
I might make this explanation to you, ladies and gentlemen. While you were in the jury room, outside the courtroom here, I heard all of the evidence that the State had to offer on the voluntariness of this statement and the rights form, and a certain drawing that he made, and it used to be I had to submit the question of voluntariness to the jury; but, the last two or three years ago, I think it was in 1969, the Legislature passed an Act that I should pass on the voluntariness of it, so I have held that this confession—
“MR. TUCKER:
(Interposing) Your Honor, may we approach the bench just a moment?
“THE COURT:
Yes, Sir.
[At this time, counsel for the State and the defendant approached the bench and conferred with the Court, out of hearing of the jury and the court reporter, after which the following proceedings occurred:]
“THE COURT:
I am just telling you what the law is. The question of the voluntariness of the statement won’t be up to you. The only question that will be submitted to you is the truthfulness of it and whether or not this man made it. I have already passed on the voluntariness of it, and he has already saved all of his exceptions.
“MR. HOWARD:
If the Court please, at this time I respectfully request a mistrial in this case for the reason that the Court has commented on the evidence.
“THE COURT:
Overruled.”

Our Constitution Article 7 § 23 provides:

“Judges shall not charge juries with regard to matters of fact, but shall declare the law, and in jury trials shall reduce their charge or instructions to writing on the request of either party.”

In construing this provision in Sharp v. State, 51 Ark. 147, 10 S.W. 228 (1888), we said:

“In all trials the judge should preside with impartiality. In jury trials, especially, he ought to be cautious and circumspect in his language and conduct before the jury. He should not express or intimate an opinion as to the credibility of a witness or as to controverted facts. For the jury are the sole judges of fact and the credibility of witnesses; and the constitution expressly prohibits the judge from charging them as to the facts. The manifest object of this prohibition was to give to the parties to the trial the full benefit of the judgment of the jury, as to facts, unbiased and unaffected by the opinion of judges. Any expression or intimation of an opinion by the judge as to questions of fact or the credibility of witness'es necessary for them to decide in order for them to render a verdict would tend to deprive one or more of the parties of the benefits guaranteed by the constitution, and would be a palpable violation of the organic law of the State.”

Other jurisdictions in considering the question, State v. Barber, 268 N.C. 609, 151 S.W. 2d 51 (1966), and United States v. Fayette, 388 F. 2d 728 (1968), hold that the findings of the trial court on the issue of voluntariness should not be referred to in the presence of the jury. Of course the voluntariness of the confession would also affect its weight and credibility. Consequently, the trial court’s statements amounted to a comment on the weight of the evidence, and under the circumstances shown above a mistrial should have been granted.

Appellant’s other argument has to do with the trial court’s refusal to submit the voluntariness of appellant’s confession to the jury. On this issue the trial court did not err. Following Jackson v. Denno, 378 U.S. 368, 12 L. ed. 908, 84 Sup. Ct. 1774, 1 ALR 3d 1205 (1964), the General Assembly adopted Act 489 of 1965, [Ark. Stat. Ann. § 43-2105 (Supp. 1971)], which provides:

“Issues of fact shall be tried by a jury, provided that the determination of fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; that the trial court shall hear the evidence concerning the admissibility and the voluntariness of the confession out of the presence of the jury and it shall be the court’s duty before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily.”

We construe this statute as adopting the so-called “Wig-more” or “Orthodox” rule. See 29 Am. Jur. 2d Evidence § 587. By this rule the trial court determines the voluntariness of the confession — i.e. whether the confession was obtained contrary to the constitutional right against self-incrimination. While this finding by the trial court may affect the ultimate finding of guilt or innocence, it has only to do with the admissibility of the evidence and nothing to do with the weight and credibility to be given to it. The finding on this issue by the trial court occurs only because of the evidentiary rule that excludes evidence obtained contrary to the right against self-incrimination. Of course this finding in no way affects the constitutional right of a defendant to have his case heard on the merits by a jury.

The “Wigmore” rule also offers the added advantage that such hearings can be held at pretrial conferences and before the jury is empaneled — thus allowing the trial courts to make a better utilization of its time and the time that the jurors are taken from their respective occupations.

In both Brown v. State, 239 Ark. 909, 395 S.W. 2d 344 (1965) and Hall v. State, 242 Ark. 201, 412 S.W. 2d 603 (1967), we said that a trial court did not err in permitting the jury to pass on the voluntariness of a confession, but as pointed out in a footnote in Brown, supra, it is not necessary that the issue be submitted to the jury.

Reversed and remanded.

Fogleman, J., dissents in part.

John A. Fogleman, Justice,

concurring in part; dissenting in part. I agree wholeheartedly with the majority’s treatment of the procedural question relating to determining the voluntariness of an accused’s statement, but I would affirm this conviction. The statement of the judge is so nearly correct, that I have reservations about its being properly classified as a comment on the evidence. The circuit judge clearly recognized that the jury must determine whether the statement admitted in evidence was actually made by the defendant and its “truthfulness.” In my view, this properly left for jury determination three questions, namely: (1) whether Walker made the statement received in evidence; (2) its credibility; and (3) the weight to be accorded it. All the circumstances surrounding the making of the statement would then have been admissible in evidence. There is no suggestion in the abstracts and briefs that any evidence on the subject was offered or excluded during the course of the trial.

Assuming, however, without conceding, that the statements of the judge to the jury did constitute a comment on the evidence, the reversal of this judgment based upon the failure of the trial judge to declare a mistrial on that account is, in my opinion, totally unjustified. The widely and generally recognized rule is that the declaration of a mistrial is an extreme and drastic remedy, the granting or refusal of which lies in the sound judicial discretion of the trial judge, which should not be interfered with on appeal in the absence of an abuse of that discretion or manifest prejudice to the rights of the complaining party which cannot be otherwise removed. Perez v. State, 249 Ark. 1111, 463 S.W. 2d 394; Parrott v. State, 246 Ark. 672, 439 S.W. 2d 924; Jackson v. State, 245 Ark. 331, 432 S.W. 2d 876; First National Bank of Springdale v. Hobbs, 248 Ark. 76, 450 S.W. 2d 298; Schroeder v. Johnson, 234 Ark. 443, 352 S.W. 2d 570; Kroger Company v. Burleson, 245 Ark. 371, 432 S.W. 2d 847; 88 C.J.S. 96, Trial § 36b. We have said that the award of a mistrial as a means of correcting error should be the exception rather than the rule, and that it is unwarranted unless it is apparent that justice cannot be served by a continuation of the trial. First National Bank of Springdale v. Hobbs, supra; Back v. Duncan, 246 Ark. 494, 438 S.W. 2d 690. This principle has been applied to cases in which the motion was based upon alleged comments upon the evidence by the trial judge. Donahue v. Cowdrey, 246 Ark. 1028, 440 S.W. 2d 773.

The trial court’s necessarily wide latitude of discretion in matters pertaining to the conduct of a trial should never be interfered wiijh on appeal unless abuse in its exercise is manifest. Perez v. State, supra; Petty v. State, 245 Ark. 808, 434 S.W. 2d 602; Lewis v. State, 220 Ark. 914, 251 S.W. 2d 490; Clements v. State, 199 Ark. 69, 133 S.W. 2d 844. We have, in many cases, clearly recognized that error in the trial proceedings is not reversible error unless it is so manifestly prejudicial to-3 defendant that a proper admonition would not have. afforded an adequate cure. Moore v. State, 251 Ark. 436, 472 S.W. 2d 940; see also, Lin Manufacturing Company of Arkansas v. Courson, 246 Ark. 5, 436 S.W. 2d 472. This rule also applies to statements of the trial judge to the jury. Harper v. State, 249 Ark. 1013, 462 S.W. 2d 847; Ford v. State, 222 Ark. 16, 257 S.W. 2d 30.

Justice, in this case, would have clearly been served by an admonitory instruction to the jury, telling it to disregard the remarks of the trial judge, if the instructions later given by the trial court were not sufficient, under the existing circumstances, to cure any error. The court instructed specifically as to the jury’s consideration of the statement as follows:

There is evidence in this case as to a statement made by the defendant. Before you can consider any evidence of any statement that the defendant may have made you must first find that he made it; second, that the statement he made is the same as you heard it from the witness stand; and third, that it is the truth.
It is a question for you to say under the evidence, and the law as I have given it to you, whether or not that statement is true and if true, what weight should be given to it in determining your verdict in the case.

The only objection to this instruction registered by appellant was that the instruction did not permit the jury to pass on the voluntariness of the confession and offered the following alternate:

There is evidence here that the defendant made a confession. Before you can consider any confession as evidence, you must find:
1. That he did make a confession.
2. That the confession he did make was the one you heard on the witness stand.
3. That when he made it he told the truth.
4. That it was voluntarily made.
In order for a confession to be voluntary you must find that it was made without hope of reward or fear of punishment. The basis of the statement that a confession must be voluntary is that the Constitution of the State says that no person shall ever be compelled to give evidence against himself.

The offer was refused, but the court also instructed the jury that it was the sole judge of the credibility of witnesses and of the weight to be given to the testimony and that the court had nothing to do with these matters.

An instruction in the form of AMI 101(e) would probably have rendered any error in the court’s remarks harmless. Certainly, the judge would have given an even stronger admonition to the jury to disregard his remarks in considering the statement if it had been requested. In cases relating to improper remarks of counsel, only those exceptional ones, involving statements so flagrantly prejudicial that this court can say that efforts of the trial judge to eradicate their evil effects by instructing the jury to disregard them would be unavailing and that a new trial would be the only means of freeing the trial of prejudice, should be reversed for abuse of the trial court’s discretion. Schroeder v. Johnson, supra; Kansas City Southern Ry. Co. v. Murphy, 74 Ark. 256, 85 S.W. 428. I do not see why the same should not be said in cases involving remarks of the circuit judge.

We have in many cases recognized that an instruction to the jury to disregard a matter which has erroneously come to its attention is sufficient to cure any error, and that we must find an abuse of the court’s discretion in that respect before we will reverse. Parrott v. State, supra; Lewis v. State, supra. In Back v. Duncan. supra, we said:

Counsel for the appellant cite our rule that an error is presumed to be prejudicial unless the contrary affirmatively appears. * * * In the nature of things, however, that rule does not apply when the trial judge has undertaken to correct an apparent error by instructing the jury to disregard it. In that situation we accord much latitude to the trial court and reverse the judgment only if there is an abuse of discretion involving manifest prejudice to the complaining party. Briley v. White, 209 Ark. 941, 193 S.W. 2d 326 (1946). Thus in effect we sustain the trial court unless prejudice affirmatively appears.

I realize that the majority places great emphasis upon the prestigious position of the judge, and his resulting power to influence the jury to the prejudice of a party by his words or actions. I submit, however, that the same judge occupies the same prestigious position when he admonishes a jury not to consider matters arising during the course of the trial and that his admonition should be presumed to carry at least as much weight as his other declarations and actions.

An admonitory instruction was considered to be sufficient prophylaxis in Murchison v. State, 153 Ark. 300, 240 S.W. 402. In that case where the appellant was charged with selling and being interested in the sale of intoxicating liquors, the prescription for cure of any error here was clearly written. We said:

Objections were made to remarks made by the court, in overruling appellant’s objections to this testimony, wherein the court stated, in substance, that the grounds for overruling the objections were that the testimony of the witnesses showed that the whisky came out of appellant’s house and tended to show that appellant was operating and controlling the house. The basis of the objection to this statement of the court is that it amounted to an expression of the opinion of the court on the weight of the evidence. When the objection to the remark was made, the court turned to the jury and gave the following admonition:
“You need not pay any attention to what the court said. I am simply making a ruling, and anything the court said you will pay no attention to, for the facts are for you to determine. And the court further states to you, with reference to the parties coming out of the back door of this place, as to what force and effect it has and the weight to attach to it, under the evidence, it is solely in your province to determine.”
We do not think that the court’s statement, when considered in connection with the admonition given to the jury, could be treated as an expression of the opinion of the court, upon the weight of the evidence.

A similarly worded admonition would have certainly been sufficient in this case. If not, certainly one similar to those given in Coulter v. State, 110 Ark. 209, 161 S.W. 186, where the conviction of the appellant in the case for assault with intent to kill was affirmed, would have sufficed to remove any prejudice that might have resulted from the court’s remarks. In treating this situation we said:

The defendant was a witness for himself, and on cross-examination the prosecuting attorney asked him if he had not been convicted for killing his brother. Counsel for defendant objected to this question, and the court stated that it was proper to ask him as a witness if he was convicted as a matter affecting his credibility. Counsel for defendant remarked that, if the defendant did kill his brother, he was justifiable, and the court then remarked to counsel for defendant, “You know, Judge Steel, he was not justifiable.” The defendant excepted to this remark of the court, and the court said: “I did not mean that, I meant it would not be competent to go into that question here in this trial at all. It is competent to ask him if he had been convicted of a felony. You can ask him how long he has been living over there; but, as to how long he stayed in the penitentiary, that is not material.” At the request of the defendant, the court instructed the jury as follows: “You will not consider the fact that defendant has previously been convicted of a crime as in any manner establishing his guilt of the crime charged; but it may be considered only as it may affect his credibility.” Under these circumstances, we do not think that the remarks made by the court were prejudicial to the rights of the defendant.

Since the judge’s remarks could have been corrected upon proper request and any prejudice attributable to them removed by a proper admonition, which was not requested, I can find no excuse for saying that the circuit judge manifestly abused his discretion in denying a mistrial or for ordering a new trial in this case.