text:
    Saul LOCKWOOD v. STATE of Arkansas et al
    5428
    462 S. W. 2d 465
    Opinion delivered February 1, 1971

      Dan McCrow, for appellant.

      Joe Purcell, Attorney General; Garner L. Taylor, Jr., Asst. Atty. Gen., for appellees.
   J. Fred Jones, Justice.

This appeal by Saul Lockwood is from an adverse decree of the Garland County Chancery Court in which Mr. Lockwood, through declaratory judgment procedure, attacked the constitutionality of Act 135 of 1965 (Ark. Stat. Ann. §§ 41-3812— 3823 [Supp. 1969], commonly known as the Sunday Closing Law).

Mr. Lockwood is of the Jewish faith and owns a general retail merchantile store in Hot Springs. His petition and amendment thereto allege that he conscientiously observes Saturday of each week as a day of rest in accordance with the requirments of his religious faith; that he abstains from selling items in his store on Saturday that may not be lawfully sold on Sunday under Act 135; that he proposes to keep his store open for general business on Sunday and is threatened with prosecution if he attempts to do so. Mr. Lockwood alleged several grounds for the unconstitutionality of Act 135.

Following a rather thorough memorandum opinion, the chancellor rendered the decree appealed from, as follows:

“IT IS THEREFORE, CONSIDERED, ORDERED AND DECREED, that the plaintiff is permitted to remain open and sell the listed commodities on Sunday upon the condition, that he, in good faith, closes his individual proprietorship sundown Friday to sundown Saturday, next proceeding such Sunday opening in conformity with the tenets of his religion, and such Sunday opening applying only to the individual proprietorship, and the Plaintiff’s cause of action is otherwise dismissed for want of equity.”

On appeal to this court Mr. Lockwood relies on the following points for reversal:

“I The unconstitutional sections of the Act are not separable and render the entire Act unconstitutional.
II Section 12 of the Act is local legislation and is unconstitutional under Amendment 14 of the Arkansas Constitution.
Section 12 of the Act is an unlawful delegation of the legislative function and is therefore unconstitutional. M HH h-4
IV Section 10 of the Act does not provide equal protection of law or freedom of religion, and is therefore unconstitutional.
V The court erred in its interpretation of the word ‘Day’ and its findings as to the requirements of the appellant’s religious beliefs.”

The appellant’s first point is rendered moot by the conclusions we have reached on the other four. Points two and three have to do with Section 12 of the Act and point four relates to Section 10. These Sections are as follows:

“SECTION 10. No natural person shall be subject to the criminal or injunctive provisions of this Act if that such natural person conscientiously observes a day other than Sunday as a day of rest in accordance with the requirements of his religious faith and abstains on such day from selling, or offering for sale, any items which may not be sold on Sunday under the provisions of this Act.
SECTION 12. In cities or towns whose corporate limits are adjacent to towns or cities in adjoining states, such cities and towns may by municipal ordinance permit the selling of items which are legally sold in such adjoining towns in other states, or they may enact more restrictive ordinances.”

We agree with the chancellor that under the constitution of most states, the “so called” Sunday Closing Laws have been held valid as a proper exercise of the police power. McGowan v. Maryland, 366 U. S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101. We have held, and we now hold again, that Arkansas is no exception. Green Star Super Market, Inc. v. Stacy, 242 Ark. 54, 411 S. W. 2d 871. We also hold that Section 12 of the Act is not local legislation within the prohibition of Amendment 14 of the Arkansas Constitution. Amendment 14 is as follows:

“The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.”

In support of his second point, the appellant relies on the cases of Ark. Game & Fish Comm’n v. Clark, 192 Ark. 840, 96 S. W. 2d 699; State ex rel. Burrow v. Jolly, 207 Ark. 515, 181 S. W. 2d 479; Jacks v. State, 219 Ark. 592, 242 S. W. 2d 704, and Ark. Commerce Comm’n v. Ark. & Ozarks Rwy. Co., 235 Ark. 89, 357 S. W. 2d 295.

In Clark, the state Game & Fish Commission, under authority of Act 323 of 1935, passed and promulgated regulations for the protection of wildlife in the state. Among the regulations so passed was one changing the seasons and the number of days in which deer might, be taken as well as prohibiting the chasing of deer with dogs in some designated counties, but not in others. The Jolly case had to do with an Act setting out the method of selecting road overseers. By use of population classification, the legislature attempted to avoid the effect of Amendment 14 by making the Act apply to all the counties of the state having a population between 18,300 and 18,350. Only one county in the state had such population and as was stated in the opinion, the Act eliminated all the other 74 counties from its provisions. The Act was struck down as in violation of Amendment 14.

The Jacks case concerned an Act which attempted to change the, general stock law. Initiated Act No. 1 of 1950 was a general stock law act which prohibited the running at large of certain livestock on public highways. Act 120 of 1951 attempted to amend the Initiated Act by making it apply only to paved highways and those designated as U. S. Highways. Act 120 also exempted from its operation any county or district having a stock law enacted prior to January 1, 1951. The state had well over 100 local and special stock law districts created for different classes of stock and for different purposes prior to 1951. Act 120, in effect, would have resulted in the re-enactment of all the local stock laws in existence on January 1, 1951, and was held to be in violation of Amendment 14.

In the Ark. & Ozarks Rwy. Co. case, the legislature had passed an Act obviously intended to prevent the abandonment of a railroad between Harrison, Arkansas, and Seligman, Missouri, by requiring the payment of a removal tax. All railroads in Arkansas of more than 100 miles or less than 50 miles in length were exempt from the provisions of the Act. Held: in violation of Amendment 14.

In all four of these cases relied on by the appellant, this court restated and adhered to the general rule pertaining to the purpose of Amendment 14 as announced in Simpson v. Matthews, 184 Ark. 213, 40 S. W. 2d 991, wherein Chief Justice Hart, writing for the court, said:

“In determining whether a law was general or local, the Legislature might still make the classification where it was appropriate and germane to the subject and was based upon substantial differences which make one situation different from another. The classification of counties and municipalities is legitimate when population or other basis of classification bears a reasonable relation to the subject of the legislation, and the judgment of the Legislature in the matter should control unless the classification is arbitrary or is manifestly made for the purpose of evading the Constitution.”

In State ex rel. Atty. Gen. v. Lee, 193 Ark. 270, 99 S. W. 2d 835, this court quoted with approval from 25 R. C. L. page 815, as follows:

“In determining whether a law is public, general, special, or local, the courts will look to its substance and practical operation rather than to its title, form, and phraseology, because otherwise prohibitions of the fundamental law against special legislation would be nugatory.”

The general purpose of the Sunday Closing Laws is to regulate business and commercial activities in such manner that the citizens of the state shall have a day of rest and relaxation. While it may be argued that the general purpose of such laws is now met, in our modern society, by the 40 hour work week and labor union contracts; it might also be argued that such change is more than offset, especially in the more congested areas, by the constant clamor and turmoil of modern day business and commerce. Section 12 of Act 135, supra, permits the classified border cities to adjust their day of rest to conform to the business and commercial activities in the adjacent area over which they have no control. It is our opinion that such classification does have a reasonable relation to the purpose of the Act. Applying the above rules to the case at bar, we hold that Section 12 of Act 135 is neither local legislation nor a delegation of legislative authority within the constitutional prohibitions.

We find no merit in the appellant’s assignment under his fourth point. Section 10 of Act 135, supra, applies to all persons in the same class or similar situations as the appellant, and restriction on the freedom of religion does not enter into this case at all. If Section 10 of the Act required Mr. Lockwood to keep his store open on Sunday, or on any other day which the tenets of his religious faith require him to close it, this case would present a different problem, but such is not the situation in this case. Section 10 actually insures Mr. Lockwood against religious discrimination or restriction by permitting him to keep his store open on Sunday in lieu of closing it on whatever day his religion requires him to close it.

Mr. Lockwood alleged in his petition that the tenets of his religion require him to observe Saturday of each week as a day of rest and that he conscientiously does so. According to Mr. Lockwood’s testimony, he considers his religious holiday as beginning at sundown on Friday, but he is rather vague as to when it ends. He personally observes that portion of Friday after sundown but indicates no conscientious religious scruples against keeping his store open during all hours before sundown on each day of the week, including Friday and Saturday. On this point Mr. Lockwood testified as follows:

“The major service is — in my faith, and I’ve always observed this since I was a boy — is the observance that is from sundown Friday to sundown Saturday. We — the major services are Friday nights and since I — since I’ve been adult I’ve never attended — they have a minor service on a Saturday morning, but we have never observed Saturday in the strength of business. We have always observed our church rites on a Friday night. That’s the Reformed Judaism practices more that way. Our stores from the time my father had one that I used to be in with him, always observed Friday night and we were always open on Saturday.”

As to appellant’s fifth point, it is clear from Mr. Lockwood’s testimony that the tenets of his religious faith require him to observe Saturday as a day of rest, but that the practices to which he personally subscribes only require him to observe Friday night. Under such circumstances we are unable to see how the provisions of Act 135 would handicap or affect Mr. Lockwood at all in the free exercise of his religious practices, for there is nothing in the Act that requires him to keep his store open on Friday night.

Apparently the chancellor recognized the possibility that Mr. Lockwood might desire to conscientiously observe all day Saturday as his religious day of rest as is his right to do so under the tenets of his religious faith; so, as to appellant’s fifth point, we find that the chancellor’s decree is not against the preponderance of the evidence.

The decree is affirmed.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    John SULLIVAN et al v. J. D. VOYLES
    5-5438
    462 S. W. 2d 454
    Opinion delivered February 1, 1971

      Giles Bearing, for appellants.

      James Luker, for appellee.
   Conley Byrd, Justice.

Appellant John Sullivan is a neighbor and a rice farmer of appellee J. D. Voyles. Appellant Norman L. Burnett operates Burnett Flying Service. It is admitted that on May 20, 1968, Burnett applied some chemicals to Sullivan’s rice crop. Appel-lee Boyles brought suit for damages to his truck crops. The jury returned a verdict for $600 upon which judgment was entered. For reversal, appellants contend that there was no evidence of negligence; that appellee’s crops were so young and immature that the only measure of damage should have been rental value of his land, of which there was no evidence; and that appellee’s testimony was purely speculative, upon which a judgment should not be allowed to stand.

Mr. Voyles testified that he was in his field when the spraying started, that the wind was west northwest— i. e., blowing from the direction of Sullivan’s farm where the spray was being applied — and that the spray came over on his farm. According to Voyles, at the time of the spraying he had a beautiful crop of tomatoes, squash and Irish potatoes. The tomatoes had little tomatoes beginning, the Irish potatoes would have been ready to dig by June 15 th and he had already had one mess of squash from his squash plants. The green beans had produced one mess for his personal use by June 2, some 12 days after the spraying, but when the rain hit them, they began to show damage from the chemical and dried up the same week.

After objection by appellants, Voyles was qualified as to his farming experience and also his truck farming experience. Based upon his experience he testified that 1968 was a good year for truck crops and that the two acres of tomatoes, without the damage, would have produced 35 bushels every other day for a period of three weeks at a value of $4.00 per bushel; that he actually picked 101 bushels; and that after deducting the expense of harvesting and selling, his damages amounted to $1,050 to $1,250. Like testimony was given about the squash, potatoes and the green beans.

Voyles’ testimony relative to the wind direction was substantial evidence of negligence in the application of the chemicals. See Burns v. Vaughn, 216 Ark. 128, 224 S. W. 2d 365 (1949).

Testimony similar to Voyles’ testimony about the maturity value of his crops less the crops actually gathered and less the expense thereof was approved by this court in Railway Company v. Lyman, 57 Ark. 512, 22 S. W. 170 (1893).

Neither can we agree with appellants that the crops here, near the fruiting stage, were so young and immature that they had no value.

Affirmed.

Harris, C. J., dissents.


author: Oliver M. Clegg, Special Chief Justice.

text:
    John F. WELLS v. PARAGON PRINTING CO. et al
    5-5342
    462 S. W. 2d 471
    Opinion delivered February 1, 1971

      R. Eugene Bailey, for appellant.

      Wright, Lindsey ir Jennings, for appellees.
   Oliver M. Clegg, Special Chief Justice.

This is a taxpayer’s suit brought by appellant, on his own behalf and for all others similarly situated, to cancel a contract made by the State with the appellee, Paragon Printing Company, for the printing of the decisions of this Court during 1968 and 1969. The other appellees are State officials having statutory duties with respect to State contracts.

The Chancellor, after a trial on the issues, dismissed appellant’s complaint and he appeals.

Appellant contends here, as in the lower court, that the contract contains provisions violative of statutory authority (Ark. Stats. § 22-223) and is “indefinite and ambiguous” and, therefore, void.

We cannot reach a consideration of the merits because appellant has failed to comply with Rule 9 (d) of this Court. Not only is the abstract of testimony inadequate, none of the documentary evidence is abstracted, including the contract alleged to be void as containing illegal provisions and being “indefinite and ambiguous.”

In these circumstances, it would be impossible for the members of the Court to decide the questions argued without individually examining the transcript. The practical reasons which require compliance with Rule 9 (d) have been stated many times, and make further discussion here superfluous. Vire v. Vire, 236 Ark. 740, 368 S. W. 2d 265.

Affirmed.

William I. Prewett and John Stroud, Special Justices, join in this opinion.

Harris, C. J., and Fogleman and Byrd, JJ., not participating.


author: Frank Holt, Justice.

text:
    John Harris JONES v. COMMERCIAL PRINTING CO.
    5-5407
    463 S. W. 2d 92
    Opinion delivered February 1, 1971
    [Rehearing denied March 8, 1971.]

      John Harris Jones, pro se.
    Coleman, Gantt, Ramsay ir Cox, for appellee.
   Frank Holt, Justice.

This appeal results from a jury verdict and judgment favorable to appellee, publishing company of the Pine Bluff Commercial, which was defendant below in a libel action based upon certain newspaper articles alleged to be false, malicious, and, in effect, calculated to destroy appellant’s professional reputation.

Appellant, a practicing attorney in Pine Bluff, was instrumental in the organization of the Pine Bluff National Bank and owner of a substantial portion of its stock. Together with three other stockholders and organizers of the bank, appellant filed in chancery court a petition seeking an order to allow them to inspect the bank’s financial records. In the court action which ensued, appellant was both a party petitioner and attorney for the petitioners.

Appellee, through its reporters and staff of the Pine Bluff Commercial, covered the proceedings and published articles on three successive days purporting to report the progress and outcome of the case. Appellant, however, interpreted the articles as an attack upon his integrity and instituted a libel action against appellee in which he alleged in his complaint that:

* * * said articles were false and malicious and were not true or fair reports of such proceedings; defendant [apnellee] knew said reports were false and maliciously intended to be understood by its readers that plaintiff [appellant] was unworthy and unqualified to practice his profession, imputing unprofessional conduct, corrupt and dishonest conduct, and guilty of such misconduct as a bank director that the Federal Regulatory Authority had demanded his resignation as a director, all of which was false and known by defendant [appellee] to be false, and was malicious and libelous per se.

The complaint further asserted that appellee’s publications had a natural tendency to degrade appellant, to expose him to public ridicule and disgrace and to deprive him of that public confidence necessary to the successful practice of his profession. Appellant then enumerated in his complaint many incidents of alleged omissions, distortions and misstatements by appellee in its report of the chancery proceedings. The complaint continued:

In purporting to report said judicial proceedings defendant [appellee] added comments and insinúa-tions of its own which were not a part of such proceedings * # * to degrade and destroy the reputation of plaintiff [appellant] * * * [and] published all testimony, arguments and rulings derogatory to plaintiff [appellant] but failed to publish the further testimony, arguments and rulings vindicating plaintiff [appellant].
Defendant’s [appellee’s] arbitrary selections from such judicial proceedings amounted to such a garbled report as to be libelous.

The complaint concluded by requesting compensatory damages of $500,000 and punitive damages of $100,000. As previously stated, a trial on the issues resulted in a judgment for appellee.

In one of his points for reversal, appellant contends that the trial court erred in refusing to give his tendered instructions B and either C or D, and that the court compounded its error by giving, over his objections, several of appellee’s instructions. Appellant’s tendered instruction B was fashioned, in substantial part, from Restatement of the Law of Torts, § 611, and comment d of that section; C and D were alternatively tendered instructions on punitive damages. The given instructions (appellee’s) of which appellant complains are- those imposing, as a prerequisite to his recovery, the requirement of proving that any defamatory statements were made with “actual malice.”

The Restatement of the Law of Torts, § 611, from which appellant modeled his tendered instruction B, states in pertinent part:

The publication of a report of judicial proceedings * * * is privileged, although it contains matter which is false and defamatory, if it is
(a) accurate and complete or a fair abridgment of such proceedings, and
(b) not made solely for the purpose of causing harm to the person defamed.

We have had previous occasion to approve this section as the correct basis for an instruction. Brandon v. Gazette Publishing Co., 234 Ark., 332, 352 S. W. 2d 92 (1961). There the given instruction was approved as a correct declaration of the law.

We are most concerned with the given instructions (appellee’s) which require a showing of actual malice. The long-established rule is that a report of judicial proceedings is privileged if it is complete, impartial and accurate. See Door v. United States, 195 U. S. 138 (1903); Prosser on Torts § 110, pp. 818-819 (3d ed. 1964); 50 Am. Jur. 2d, Libel and Slander, § 258 (1970). Appel-lee, however, argues that, as a result of the rationale and holdings in New York Times v. Sullivan, 376 U. S. 254 (1964) and Time, Inc. v. McLaney, 406 F. 2d 565 (5th Cir. 1969), the privilege remains despite any incompleteness, partiality or inaccuracies of the report unless actual malice is also demonstrated.

The New York Times case held that a public official is precluded by the constitutional guarantees of the First and Fourteenth Amendments of the United States Constitution from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice — i. e., with knowledge that it was false or with reckless disregard of whether it was false or not. This rule was later extended to “public figures” who are not public officials. Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967). In Time, Inc. v. McLaney, supra, a lower federal court further extended the rule to encompass “individuals involved in matters of important public interest.” Appellee contends that participants in judicial proceedings of more notable community interest should be included in this latter category. While we, of course, agree that trials are often of great public interest, we do not think that this is sufficient reason to engraft an “actual malice” requirement onto the constitutionally well-balanced rule presently applicable to reports of judicial proceedings. There are other more cogent considerations which we deem controlling.

The lodes tone of the New York Times decision and its progency was protection and encouragement of freedom of speech and press. The fear of a costly lawsuit for inaccurately, though honestly, reporting matters concerning public officials would certainly discourage the exercise of that degree of freedom which the Constitution guarantees to the press, especially in matters where even good faith investigative efforts cannot assure absolute accuracy. An added incentive behind this rationale is that public figures normally have access to the various mass media and can thereby readily correct or refute any defamatory misstatement made about them. Therefore, it is reasoned that a showing of actual malice as a prerequisite to recovery is, in such instances, a realistic and fair requirement.

This reasoning, however, has little significance relative to publications which purport to be reports of judicial proceedings. The major distinction in this regard between judicial proceedings and public figures (and perhaps other subjects of great public interest) is the former’s peculiar susceptibility to exact reporting in every instance. An account of what transpired at trial is not contingent upon falliable or futile modes of investigation. Court records are available; and, insofar as reports of in-progress proceedings are concerned, the threat of a libel" prosecution emanates only from incompetent reporting. Furthermore, those who partake in judicial proceedings enjoy an absolute immunity from suit for defamation (Prosser, supra, § 109, pp. 796 —797); if reports of those proceedings were to be afforded a more protective privilege than presently allowed, instances of defamation perpetrated by trial participants might well be significantly, yet unnecessarily, compounded before reaching the public. Since it is always possible for a report of a judicial proceeding to be complete, impartial and accurate, we decline to engraft the actual malice requirement onto our present rule, regardless of the notoriety of the subject matter or participants involved in the judicial proceedings. We therefore must hold that the giving of instructions requiring proof of actual malice as a basis of recovery constituted prejudicial error.

Because of our disposition of this case, it becomes unnecessary to discuss the propriety of refusing appellant’s tendered instructions on punitive damages except to say that upon retrial such an instruction should of course be given if warranted by the evidence.

In another of his points for reversal, appellant contends that the trial court erred in excluding from evidence a subsequent publication by appellee. We must agree. After appellant had instituted this libel action, appellee caused to be published, through its reporters and other staff members of the Pine Bluff Commercial, an árdele which stated in part:

Jones’ suit alleged that the articles did not report the trial fairly and completely and that they reflected unfavorably upon him.
The Commercial Printing Company’s answer to the suit states that the articles were ‘true and accurate accounts of the trial’ and of the statements that counsel and witnesses made during the trial.

Appellant attempted to introduce this article as a republication of the original asserted libel in an attempt to demonstrate aggravation of damages. However, ap-pellee’s objecdon to its admissibility was sustained.

The complained of publication appears to be a complete, impardal and accurate report of the pretrial pleadings of die parties. Of course, appellant views it as a reaffirmation by appellee of its allegedly defamatory statements. If the jury finds that appellee’s initial publications were libelous and not privileged, it might well also find that the subsequent report of the pleadings had another purpose which was to further impress its defamations upon- the public mind. However, since actual malice — i. e., knowledge of the falsehood or reckless disregard for the truth — is not required, the jury, even if it finds that the initial publications were unprivileged, could nevertheless find that the subsequent report was published in good faith as a fair account of the pleadings. Of course, the jury might also find that the initial publications were privileged, in which case the subsequent report has no significance. In any event, we think the appellee’s subsequent report of the pleadings should be made available for the jury’s consideration.

We turn now to appellant’s last remaining point for reversal. During voir dire of the prospective jury, a venireman stated that he would be embarrassed to return a verdict against appellee since he had been friends for a number of years with two of the owners of the Pine Bluff Commercial. He added, however, that he would try the case on the law and the evidence and reach an impartial verdict. We take this opportunity to once again admonish that although the refusal to excuse such a venireman for cause may not necessarily constitute an abuse of discretion, nonetheless it is always the better practice to excuse him. Armstrong v. Lloyd, 234 Ark. 233, 352 S. W. 2d 84 (1961). But since in all probability this situation will not arise upon a retrial, we deem it unnecessary to further discuss this issue.

Reversed.


author: Carleton Harris, Chief Justice.

text:
    Jeffery Cook BELL v. Anita C. BELL, Administratrix et al
    5-5404
    462 S. W. 2d 857
    Opinion delivered February 8, 1971

      W. C. Dinning, Jr. and Shieffler & Murray, for appellant.

      Charles B. Roscopf, for appellees.
   Carleton Harris, Chief Justice.

Reverend Eugene Bell, who resided in Phillips County, Arkansas, died testate on October 14, 1967, leaving an estate valued at approximately $85,000. He was survived by his widow, Anita Carter Bell, administratrix herein. Under the will, the widow was left less than the amount that she was entitled to as dower under Arkansas law, and the balance of the estate was devised and bequeathed to various individuals; no mention was made of any child. Approximately four months after the death of Bell, a child, Bernie Jean Bell, was born to his wife. Anita Carter Bell elected to take against the will and filed a petition for determination of heirship and distribution. Original respondents were the legatees and devisees mentioned in Bell’s will, and other collateral heirs. Tillie Cook Thornton, mother and next friend of Jeffery Cook Bell, appellant herein, then filed a petition asserting that she was the mother of Jeffery Cook Bell, who was born on August 11, 1954, at Memphis, Tennessee, and that the decedent, Eugene Bell, was the father of this child. After mentioning alleged facts relied upon for the establishment of paternity, the petitioner asked that Jeffery Bell be declared an heir of Eugene Bell, deceased. On trial, after hearing several witnesses, the court found that Bernie Jean Bell was a subsequently born child of Eugene Bell; that Eugene had no other children or descendants, and that Bernie Jean Bell was the sole and only heir at law of the decedent and entitled to all the rights of a subsequently born child as provided by Ark. Stat. Ann. § 60-507 (1969 Supp.). It was held that the various legatees, devisees, and collateral heirs were without any interest in the estate. Accordingly, the entire estate was ordered vested in Bernie Jean Bell, subject to the dower and homestead rights of her mother, Anita Carter Bell. From the order so entered comes this appeal. For reversal, it is asserted that appellant, as a pre-termitted child, should inherit from his father, and it is next asserted that statutory enactments which prevent illegitimate children' from inheriting from the father, are unconstitutional because they deny such children equal protection of the law as required by Article 2, § 3 of the Arkansas Constitution, and as required by the Fourteenth Amendment to the United States Constitution.

At the outset, it may be said that there is no dispute but that Bernie Jean Bell is the child of Eugene and Anita Carter Bell, and appellant is simply contending that he is entitled to share in the estate along with this daughter.

The pertinent part of the statute involved, Ark. Stat. Ann. § 61-103 (1947), reads as follows:

# # If a man have by a woman a child or children, and afterward shall intermarry with her, and shall recognize such children to be his, they shall be deemed and considered as legitimate.”

In Parker v. Hadley, 227 Ark. 161, 296 S. W. 2d 391, this court held that the statute requires proof of three things, viz, “(1) The actual parentage of the putative father; (2) The putative father’s marriage to tbo mother of the illegitimate child, and; (3) Recognition by the putative father, after the marriage, of the child as his”. Without any hesitation whatsoever, we hold that none of the requirements have been met in the instant case.

As to paternity, Jeffery Bell testified that he was fifteen years of age and lived with his mother and her husband in Chicago, having been born on August 11, 1954. Appellant stated that Eugene Bell was his father but that he never knew Bell until 1964. The witness said that he spent two summers, and one school year, with Bell and Anita. As a young child, he lived for a time with his uncle and aunt, Mr. and Mrs. Rubin Donahoo, at Onedia, in Phillips County. Appellant stated that during the summers that he spent with Reverend Bell, the latter took him hunting and fishing, and to church and Sunday School on Sunday, and said that his father entered him in school when the term commenced in 1966. He also said that he had received letters from his father, and he “thought” the alleged father visited him once in Chicago; however, he offered no letters in evidence.

Rubin Donahoo, the uncle, testified that when Jeffery was small, he spent part of the time with the Donahoos and part with Eugene Bell. Subsequently, he testified that he could not recall Jeffery visiting in the home of Eugene Bell prior to the death of Fannie, who died in October, 1963. He also stated that Jeffery stayed with Bell during a school term, although he couldn’t remember whether it was 1965, 1966, or 1967. On cross-examination, Donahoo was asked if he knew several particular persons who, according to thev questions, had at one time lived with the Reverend Bell. Donahoo replied “I know that most of those names you called was — Fannie Bell’s peoples. I know that”. He said that he did not know whether they lived in the Bell house or simply stayed on the Bell “place”. He was then asked “As a matter of fact isn’t it true that Reverend Bell raised the nieces and nephew of his former wife — deceased wife, Fannie Bell?” Donahoo replied, “That probably — probably is possible. I don’t know”.

Anita Bell testified that Jeffery Bell lived with her and Eugene Bell from September of 1966 until the end of May 1967, and that the youngster had visited on one other occasion for about three months during the summer. She said that she fixed Jeffery’s meals, washed his clothes, that her husband bought Jeffery’s clothes, and enrolled the boy at school. During the years 1965, 1966, and 1967, Jeffery was listed as a dependent child on the income tax return filed with the federal government. Bell also listed another child as a dependent, Jessie, a nephew of Eugene Bell’s by marriage. Jeffery and the nephew slept together in the Bell home during 1966 and 1967. This was the sum total of evidence offered in support of the contention that appellant was the son of Eugene Bell, and we think it falls far short of establishing that fact. The only testimony that Jeffery Bell was the son of Eugene Bell was given by appellant himself, who gave no basis for his belief, and whose information, of course, could only depend upon what he had been told by some other person, or documentary evidence. One might perhaps assume that Jeffery obtained the information from his mother, since the petition was brought in her name (though she did not sign it). The only documentary evidence offered was the income tax return heretofore mentioned, and it certainly is without particular significance since the boy Jessie, also listed as a dependent, was without dispute a nephew of Eugene Bell by marriage. No birth certificate was offered; there was no evidence of birth from a family Bible, nor evidence of statements by Eugene Bell that Jeffery was his son; nor was there evidence that Bell “courted” Tillie Thornton, co-habited with her, or had opportunities for intimacy with her; in fact, it is not shown that these persons even knew each other prior to the time of Jeffery’s birth. Probably the most conspicuous omission in appellant’s evidence was the failure of Jeffery’s mother to testify, either in person, or by deposition. While the mother apparently instituted the petition that occasioned the hearing on the question of Jeffery’s parentage, she did not testify, nor is any reason given for her failure to do so. Jeffery only testified that she was presently married to Odell Thornton and lived in Chicago. Certainly, Mrs. Thornton is the one person living who has the most knowledge regarding the paternity of appellant, and would have been, by far, the most important witness on his behalf. It is apparent, from what has been said, that appellant’s proof was insufficient.

Momentarily passing the second requirement for an illegitimate child to establish himself an heir of the purported father as set out in Parker v. Hadley, Supra, we might also state that proof, relative to the third requirement (recognition by the putative father, after marriage to the mother, that the child is his own), is also lacking. The only evidence offered in this connection is set out under point one, and is, of course, insufficient.

There is no need to discuss appellant’s point two since we are- holding the evidence insufficient to establish either paternity or recognition of the illegitimate child. However, it might be stated that appellant admits his mother was never married to Reverend Eugene Bell. It is contended that the statute, quoted at the outset of this opinion, is unconstitutional as discriminatory against illegitimate children, in that they are denied the same protection of the law afforded legitimate children. We do not pass upon constitutional questions when litigation is disposed of without reaching the constitutional question, Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S. W. 2d 487. Accordingly, since anything said on this point would be pure dictum, there is no need for further discussion.

Affirmed.

       Mrs. Donahoo was a sister of Jeffery Bell’s mother, Tillie Thornton.

       Fannie Johnson Bell was the former wife of Eugene Bell, having married him on March 4, 1942.

       The record does not reflect the name under which Jeffery was enrolled.

       The income tax return only listed the two boys by their first names as “dependent children”, no relationship being shown.

       This finding makes it unnecessary to mention a rather unusual argument advanced by appellant. It is mentioned that Ark. Stat. Ann. § 60-507 (1969 Supp.), Sub-Section b, relating to pretermitted children, only refers to a living child or issue of the testator, rather than referring to a “legitimate” child. In other words, he argues that there is no requirement that a pretermitted child be legitimate. Without going into any extended discussion, it might be said that all statutes relating to inheritance must be read together. As to legitimacy, this court, quoting § 5 of the chapter on “Bastards”, in R. C. L. page 725, in the case of Williams v. Ketchum, 178 Ark. 1141, 13 S. W. 2d 605 (February 11, 1929), said:
      “It has been said that the law presumes that every child in a Christian country is prima facie the offspring of a lawful rather than of a meretricious union of parents, and this is true in one sense. Filiation being established, legitimacy is presumed. However, where the right to inheritance is claimed, the burden is on the claimant to establish the fact that he is a legitimate heir, [Our emphasis] though, after proof of filiation, he will receive the benefits of the presumption of legitimacy.”


author: George Rose Smith, Justice.

text:
    William F. SHERMAN, Securities Commissioner et al v. HALLMARK LOAN & INVESTMENT CORPORATION
    5-5414
    462 S. W. 2d 840
    Opinion delivered February 8, 1971

      Ted Sanders and Joe Purcell, Attorney General; By: Mike Wilson, for appellants.

      Pope, Pratt, Shamburger, Buffalo ir Ross, for ap-pellee.
   George Rose Smith, Justice.

This action was brought by the appellee Hallmark to obtain a declaratory judgment finding that it is a duly authorized industrial loan institution within the purview of Act 111 of 1941. Ark. Stat. Ann., Title 67, Ch. 10 (Repl. 1966). The action was resisted by the defendants, the Securities Commissioner and the Bank Commissioner, who contend that Hallmark never substantially complied with the requirements of Act 111. The trial court, sitting without a jury, found that Hallmark had acted as an industrial loan institution ever since its organization in 1927, that Hallmark did comply with Act 111, and that Hallmark is entitled to a certificate authenticating its existence as an industrial loan company. The sole question here is whether there is any substantial, evidence to support the circuit court’s judgment.

Many of what would be the controlling facts have been lost in the mists of time. The corporation that is now Hallmark was organized in 1927 under the name, Union Industrial Loan Corporation. The company entered the industrial loan business and was so engaged when Act 111 became a law without the governor’s approval, on March 3, 1941.

Section 3 of Act 111 provided that existing companies such as Union Industrial might become industrial loan institutions under the act by making a written application to the Bank Commissioner within 30 days after the approval of the act. Ark. Stat. Ann. § 67-1003. The Bank Commissioner was required to issue the requested certificate of authorization if he concluded, either from his own files or from an examination of the corporation’s condition, that the net worth of the corporation was not less than the par value of its outstanding capital stock.

At the trial the defendant commissioners introduced three letters taken from the Bank Commissioner’s files, having to do with Union Industrial’s application for authority to do business under Act 111. On March 27, 1941, the Bank Commissioner wrote to Union Industrial, calling attention to its privilege of complying with the act within BO days after its effective date, which was actually April 2, 1941. On April 1 Union Industrial wrote to the Commissioner, stating that “this letter is to ask you to consider this our formal application to this act in case this act should be ruled mandatory. In case this Act is not mandatory we would not care to qualify ...” On April 3 the company wrote this one-sentence letter to the Commissioner: “Confirming our phone conversation this p.m., this will be our request to withdraw our application for compliance with Act No. Ill, 1941.” Except for those three letters, there is no direct proof of what happened in 1941.

Section 3 of Act 111 also provided that the Bank Commissioner should issue cerdficates of authority to corporations qualifying to do business under the act. All other persons, firms, or corporations were prohibited from using in connection with their business or in their stationery or advertising the phrase “industrial loans,” “industrial plan of loans,” or “industrial lending,” in such a way as to create a belief that the party was authorized to engage in business as an “Industrial Loan Institution.”

For 26 years, from 1941 until 1967, the appellee company did business in North Little Rock as Union Industrial Loan Corporation. If the concern was actually violating the statute by using such a corporate name, no one raised any question about that fact. The company’s financial records were duly examined through the years by the public authorities. The 1962 report of examination by the Securities Commissioner was introduced in evidence. That report was prepared upon a printed form on which the examiner had crossed out the words “Credit Union,” as descriptive of the company, and had typed in the words, “Industrial Loan Co.” Finally, in 1967, the Securities Commissioner questioned Hallmark’s authority to act as an industrial loan company, with the result that this suit was filed.

In our opinion there is substantial evidence to support the trial court’s decision. The three 1941 letters are decidedly inconclusive. The company first sought to qualify under the act within the 30-day period. After the expiration of that period, and in the light of a telephone conversation about which nothing can be known, the company made a request that its application be withdrawn. A former director of the company testified without objection that the company manager, who signed that letter, had no authority from the board of directors to withdraw the application. It is certainly possible that the withdrawal request was never honored and that the company’s application was approved. Certainly its course of conduct during the succeeding quarter of a century affords credence to that view. The Commissioner’s acquiescence in the company’s status as an industrial loan company of course does not estop the State, but it can fairly be regarded as additional evidence supporting the trial court’s judgment. Upon the record as a whole we cannot say that there is no substantial evidence to support the judgment.

Affirmed.


author: Lyle Brown, Justice.

text:
    James E. SCOTT v. STATE of Arkansas
    5531
    463 S. W. 2d 404
    Opinion delivered February 8, 1971
    [Rehearing denied March 15, 1971.]

      £'. V. Trimble, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant was convicted of first degree rape and his punishment was fixed at death. In his brief appellant contends that the court should have ordered a change of venue, and that members of the Negro race were intentionally excluded in the selection of jurors. Pursuant to our Rule 11 (g) the attorney general has briefed all points raised in the motion for new trial and all objections made during the course of the trial.

Appellant, for the first time on appeal, argues that venue should have been changed because of a race riot then taking place in the county seat. The record is silent as to any race riot or any other type of public disturbance. Nor was there any motion for change of venue. Our constitution authorizes a change of venue “upon application of the accused, in such manner as now is, or may be, prescribed by law.” Art. 2, § 10. Our law provides that the defendant may apply for such order of removal by petition setting forth the facts, supported by at least two affidavits of qualified electors not related to the defendant. Ark. Stat. Ann. § 43-1502. Appellant did not attempt to follow the recited statute.

The other point argued in the brief is that “members of the Negro race were deliberately and intentionally limited and excluded” from the jury panel. The trans-script is void of any reference to the discrimination now raised on appeal. We would have to speculate on the racial composition of the panel.

The sufficiency of the evidence is not argued on appeal but was raised in the motion for new trial. Terry Wilhite, a fifteen year old white girl testified that on the night of August 23, 1969, she was parked with her boy friend in a “parking place” at the edge of Forrest City; that four Negro boys came to the car and at knife point forced her to alight; and that she was taken to a nearby secluded spot by three of the boys. She said that one of the boys raped her while one held her legs and another stooped down by her head with a knife. After that incident she said she was taken a short distance down the road and raped by the boy who held the knife. She could not identify any of the four boys. One of the boys, McKinley Green, testified for the State. He said that he accompanied appellant and two other boys to the parking place on the night in question. He testified that he spent the entire time with Terry’s boy friend. He said he did not see appellant have intercourse with the girl but that appellant did go to the woods where the girl was taken by two of the boys.

Robert Radde is a special agent for the federal bureau of investigation and is stationed at South Bend, Indiana. Two weeks after the incident Radde took appellant in custody at South Bend under a fugitive warrant. He testified that he explained to appellant all the latter’s constitutional rights and explained that he was wanted on a rape charge in Forrest City. Appellant offered to relate the occurrence in Forrest City but said he did not want to sign anything. After a hearing in chambers the witness related to the jury that appellant told him that he (appellant), accompanied by three other Negroes, went to a wooded area outside of Forrest City some two weeks prior to his detention in South Bend and there the appellant had sexual relations with a girl who said she was fifteen years of age. Dr. Neal Laney said he examined the prosecuting witness at the hospital around midnight that night. He said he found male motile sperm, and that her sexual organs were bleeding, raw and irritated. Appellant testified in his own behalf and denied making any incriminating statement to the special agent. He admitted being with the other three boys on the night of August 2S but insisted that he got out of the car and caught a bus for South Bend. He asserted that he was never out on “lover’s lane” that night. The evidence introduced by the State easily meets the test of the substantial evidence rule.

Upon completion of voir dire examination of the jury appellant’s counsel moved the court to excuse Juror Williams for cause. The voir dire was not recorded but the attorney from memory recited that the victim’s companion and the juror were members of the same church and that Williams expressed a high regard for Clem-mons, the girl’s companion. The court replied that Juror Williams also asserted that he would not, “on the basis of friendship alone, put any more credit in his testimony than he would that of other witnesses in the case. The court is of the opinion, based upon the testimony of this juror, on voir dire, that he is a qualified juror.’’ We are unable to say that the court abused its discretion. Additionally, we cannot discern from the record whether appellant exercised all his challenges.

Shortly after the incident the officers, upon information, stopped a car with appellant’s three companions in it. The officers removed from the car a rifle, a knife, and a box opener. When testimony was offered describing the three items, appellant objected because (1) he was not in the. car at that time, and (2) the officers did not have a search warrant. The officers had a description of the boys as well as the automobile. The officers were informed by headquarters that a rape was committed by boys of that description and that they occupied the described vehicle. A somewhat similar state of facts is to be found in Johnson v. State, 249 Ark. 208, 458 S. W. 2d 409, and we upheld the search as incidental to a lawful arrest:

In the case at bar the arresting officer was informed of the correct license number of the get away car and had an accurate description of it as well as of the armed appellant and his trunk mate. We are without hesitation in finding that these facts and circumstances were more than sufficient to establish probable cause for arrest and that, therefore, the search and seizure incidental thereto were lawful.

Furthermore, a knife had been used in the perpetration of the heinous crime and it was not unreasonable to suspect that the weapon had been stashed in the car. The knife which was recovered was in fact identified as the same weapon held over the prosecuting witness. Finally, the arrest was made around midnight and a search warrant could not have been obtained without some difficulty and delay. We therefore conclude that the search was a reasonable one. “Only those searches and seizures which are unreasonable are prohibited by the Fourth Amendment to the United States Constitution and Art. 2, § 15, Arkansas Constitution.” Mann v. City of Heber Springs, 239 Ark. 969, 395 S. W. 2d 557 (1965). Also, see Chambers v. Maroney, 399 U. S. 42, 26 L. ed. 2d 419, 90 S. Ct. 1975. Appellant also objected to the introduction of the knife because he was not present when the search was made. We attach no significance to his absence.

Appellant asked, in an in-chambers hearing, that the FBI agent not be allowed to repeat any statement made to the agent by the appellant in South Bend. Appellant did not contend that any statements made to the FBI were involuntary; he objected on the ground that it would constitute hearsay evidence in view of the fact that appellant declined to sign a statement. Voluntary statements made by an accused after a crime are properly admitted in evidence as an admission. Martin v. State, 236 Ark. 409, 366 S. W. 2d 281 (1963).

Affirmed.


author: John A. Fogleman, Justice.

text:
    FIRST NATIONAL BANK OF MEMPHIS, Memphis, Tennessee v. C. F. THOMPSON
    5-5402
    463 S. W. 2d 87
    Opinion delivered February 8, 1971

      Clark, Clark ir Clark, for appellant.
    No Brief filed for appellee.
   John A. Fogleman, Justice.

The chancery court held a certain conditional sales contract, signed by appellees C. F. Thompson and wife and assigned to appellant, void for usury. Appellant argues that the court erred by considering the date of the conditional sales contract as the proper date from which interest should accrue in testing for usury, rather than the earlier date of an alleged contract between the parties.

Appellee C. F. Thompson testified that he entered into a contract with Coffey-Clifton, Inc. for the purchase of a mobile home on April 11, 1968. He stated that the mobile home was a special order for him. The total price was $13,881, of which Thompson paid $7,000 in cash on the date of this contract. The balance of $6,881 plus insurance premiums of $87.50 and interest was to be paid on November 1, 1968.

A memorandum of the contract bearing date of April 11, 1968, prepared by Coffey-Clifton, Inc. and signed by its president was furnished C. F. Thompson. It was entitled “Standard Mobile Home Invoice and Bill of Sale.” It recited the terms of the agreement and showed a balance to be financed of $6,968.50 “plus 7% interest maximum,” through First National Bank, Memphis, Tennessee. It also noted that payment due November 1, 1968, was principal plus 7% interest.

The mobile home in question was in the process of manufacture on the date of this memorandum. It was completed and delivered to Thompson in June, 1968. According to Thompson, he was asked to, and did, sign a conditional sales contract quite some time before the unit was delivered. Coffey said that this instrument created a security interest when the unit passed from his hands, and that this form was required by the bank. This document was dated June 25, 1968. Appellee mailed the contract to appellant on June 25, 1968, and the bank then remitted the unpaid balance of $6,968.50 to Coffey-Clifton. Thompson admitted that none of the indebtedness had been paid. When no payment was made, appellant instituted this foreclosure action.

John Coffey of the selling company testified that he was shopping on April 11 for a bank to purchase this contract when appellant agreed to “make the loan.” Appellant at that time furnished him with a figure of $522 time differential to be inserted in the contract and added to the unpaid balance. It is conceded that this differential is interest. Coffey’s testimony that the interest was discussed with Thompson on April 11 is not disputed. Interest calculations stipulated by the parties show clearly that the interest charge amounted to more than 7%, but less than 10%, per annum if calculated from April 11 to November 1.

We cannot say that the chancellor’s finding is against the preponderance of the evidence. Salient factors leading to that conclusion are:

1. The bill of sale was not signed by Thompson on April 11, nor was there any other evidence that he agreed to pay interest from that date.
2. The “Mobile Home Conditional Sales Contract” upon which this action was based was prepared by the seller upon a standard form prescribed by appellant and on which its name is printed.
3. The first sentence of the conditional sales contract begins: “The undersigned Buyer (whether one or more), having been quoted a time price and a lesser cash price, and having elected to buy the mobile home for the time price as hereinafter set out, does hereby büy, and the undersigned Seller does hereby sell, on a time price basis, * * *”
4. The amount of the time price differential was fixed by appellant at a figure in excess of 7%, even if calculated from April 11.
5. Thompson was required to sign this contract before delivery of the mobile home. Coffey, a witness called by appellant, testified that it was signed by Thompson on April 11, but that the time differential balance was not filled in until later.
6. No money was advanced- by the bank until the contract was mailed to it by Coffey-Clifton on June 25, 1968, when the bank paid Coffey-Clifton the exact amount of the balance of the selling price.
7. The contract was assigned by the seller, without recourse.

This court issued its caveat that transactions substantially similar to this might be subjected to, the taint of usury if entered into after the opinion in which it was pronounced became final. Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973. In that case the caveat stated that when a seller transfers title documents to a company engaged in purchasing such documents at a price which permits the transferee to obtain more than a return of 10% on its investment, then a question of fact arises as to whether the seller increased his cash price with reasonable assurance that he could so discount the paper to such company. If so, the transaction is, in substance, a loan, subject to attack for usury. The supplying of a set of forms and a schedule for credit price increases without more tends to show that the seller had such assurance. We have unfalteringly applied the principles then expressed. The chancellor was justified in finding that the transaction was a loan by appellant to Thompson.

Any sum added to the cash price as interest, differential, or carrying charge in excess of 10% per annum on the sale price renders a contract void. Sloan v. Sears, Roebuck & Co., 228 Ark. 464, 308 S. W. 2d 802. In the absence of any valid agreement between appellant, as lender, and Thompson, as borrower, for the payment of interest from an earlier date, or other considerations not pertinent here, this transaction must be tested for usury by calculating the allowable rate from the date of the disbursement of the loan, which is also the date of the instrument and the date of its assignment. See Brown v. Polk, 230 Ark. 377, 322 S. W. 2d 681.

Appellant argues that the requisite intent to exact an excessive rate of interest was not shown. This argument is sufficiently answered by the conclusive legal presumption that, in the absence of fraud or mutual mistake, the lender is presumed to know the consequences of its adding an illegally excessive charge. Sunderland v. Babcock, 224 Ark. 444, 277 S. W. 2d 74, There is no evidence of fraud or mistake here. Furthermore, no evidence is offered from which the court might have found that there was an excusable error in the calculation of the charge, so the trial court was justified in deducing that any mistake of appellant lay in its belief that the charge was lawful. This is a mistake of law from which it cannot be relieved. See Brooks v. Burgess, 228 Ark. 150, 306 S. W. 2d 104; Holland v. C. T. Doan Buick Co., 228 Ark. 340, 307 S. W. 2d 538. Such a mistake might well have been attributable to the fact that such a differential appears to be lawful in Tennessee, the state of appellant’s domicile [see Bank v. Mann, 94 Tenn. 17, 27 S. W. 1015, 27 L. R. A. 565 (1894)], where it seems that the penalty for usury is loss of excess interest only. Tenn. Code Ann. § 47-14-112 (Repl. 1964). We have specifically held that, under such circumstances, the error in mathematical calculations cannot be forgiven and the taint of usury removed, even by allowing the lender to repay the overage. Ford Motor Credit Co. v. Catalani, 238 Ark. 561, 383 S. W. 2d 99.

Appellant mentions that the chancery court awarded the Thompsons damages and recission of the contract on their cross-complaint against Coffey-Clifton. They seem to be arguing that there is an inconsistency in that holding and the finding that the contract is void. The relief granted by the court’s decree against appellant merely dismisses its complaint for want of equity. Be that as it may, Coffey-Clifton has not appealed from the decree, and we have demonstrated our reasons for not finding the court’s holding as to usury to be against the preponderance of the evidence.

The decree is affirmed.

       There is some conflict in the evidence on this amount. The first memorandum of the contract recited a cash payment of $7,000. Thompson testified that he paid roughly $7,300. The document assigned to appellant recited a cash payment of $7,461.68. However, there seems to be no dispute about the amount of the principal balance.

       See, e. g., Matthews v. Georgia State Savings Assn., 132 Ark. 219, 200 S. W. 130, 21 A. L. R. 789; McDougall v. Hachmeister, 184 Ark. 28, 41 S. W. 2d 1088, 76 A. L. R. 1463.


text:
    Hollis L. CALHOUN v. STATE of Arkansas
    5548
    462 S. W. 2d 849
    Opinion delivered February 8, 1971

      A. K. Monroe, for appellant.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant prays reversal of the order of the circuit court denying him an evidentiary hearing on his petition for post-conviction relief under our Criminal Procedure Rule 1. His first motion to vacate his sentence of 20 years upon a charge of second degree rape alleged that he was denied the right to assistance of counsel in the proceedings leading up to his sentencing. He averred that he had not waived this right, saying that he was ignorant of his rights in this respect until long after the judgment imposing his. sentence. This motion was properly denied without a hearing pursuant to Criminal Procedure Rule 1 (C) upon a record that showed conclusively that Calhoun was not only advised by the circuit judge of his right to counsel but that an attorney was appointed to represent him before his plea of guilty was accepted.

Calhoun then filed an amended petition seeking an evidentiary hearing and alleging, in addition to the grounds stated in his first petition, that he was not advised or admonished by the court of the consequences of his plea of guilty. The circuit judge again denied the petition without a hearing, finding that the record conclusively showed that appellant had voluntarily entered his plea of guilty with an intelligent understanding of his constitutional and statutory rights. The trial judge noted in the order denying this petition the following: that an attorney had been appointed for appellant, in order to assure the court that his plea of guilty was voluntary; that, even though the court’s own advice to appellant of the maximum sentence for the crime was given before the sentence, but after his plea of guilty, he did not, either before or after sentence or in his first petition, indicate that his plea of guilty was involuntary, or attempt to withdraw the plea; that this issue was first raised more than two years after the sentence was imposed.

We find abundant support for the findings of the trial court in the record. It discloses that, on arraignment, the circuit judge meticulously explained to Calhoun the nature of the charge, the presumption of innocence, the burden of proof upon the state, his right to speedy trial by jury, his right to remain silent, the fact that any statements made by him when aware of his constitutional rights could be used against him upon trial, and his right to assistance of counsel. Appellant had told the court that he understood the charge against him, and after the court’s explanation said that, while he could be provided with the services of an attorney, he did not want to avail himself of this opportunity, as he just wanted to plead guilty. The judge then advised appellant that he did not want to accept the plea of guilty unless appellant had talked to an attorney. Even though appellant persisted in the statement of his desire to plead guilty and have it over with, the court appointed an attorney to represent appellant and suggested that this attorney discuss with him the merits of his case.

The record discloses that Calhoun and the attorney returned to the courtroom after some interval, and the attorney advised the court that if the things Calhoun had told him were true, the plea would be in order. He also requested a mental examination of appellant, and received assurances that a letter would be sent to the Department of Correction revealing appellant’s medical history. The record discloses that the attorney then advised the court that Calhoun was ready to plead, but the judge repeated that he did not want any plea unless it was voluntary. Thereafter, the record reveals the following:

DEFENDANT: I would like to say a word or two. I told myself it was hurting me. I got forgiveness from her. I brought it all on myself. I want to plead guilty. I don’t want to bring them in no court. I want to take what I got coming.

MR. CHAMBERS: The guilt is on his conscience and wants to talk to someone to relieve him of it. He is ready to plead.

THE COURT: What is your plea to the charge of second degree rape?

DEFENDANT: I am going to plead guilty to it, Your Honor.

THE COURT: Is your plea of guilty voluntary on your part without force or coercion, duress, promise of reward?

DEFENDANT: Yes, sir.

THE COURT: This is one of the worst violations in the statutes.

MR. KINARD: The State has no recommendation. It is within the confines of the limitations of the statute.

THE COURT: Do you recommend the maximum?

MR. KINARD: Yes, sir.

THE COURT: The penalty is from three to twenty-one years in the Department of Correction. It is going to be the judgment and sentence of the court that you be sentenced to the term of twenty years in the Department of Correction. You will have an opportunity to make parole after you serve one-third of your sentence less good time earned. You will have an opportunity to earn eight days per month under five years statutory good time, twelve days per month over five years, statutory good time, and five days per month meritorious good time. Your attorney can explain this to you. I have no control over paroles. It is entirely up to the Parole Board.

DEFENDANT: Yes, sir. I will try to make the best of it. I know I wasn’t at myself. I don’t want no mercy. I hope you will pray for me. I would appreciate your praying for me. I don’t want to have any trouble up there.

The only basis for appellant’s contention that he should have a hearing on the additional allegations of his amended petition is the failure of the trial judge to advise him of the length of sentence provided by law for the offense with which he was charged. He now argues that this failure prevented him from understanding the consequences of his plea.

We do not agree with appellant that the mere fact that the judge did not state the maximum sentence for second degree rape rendered appellant’s plea of guilty involuntary. We have seldom seen a record which more clearly depicted an intentional determination on the part of an accused to enter a plea of guilty. The accompaniment of the repeated expression of appellant’s insistence on entering this plea with his statements of remorse and willingness to accept his punishment following his statements of desire to enter the plea without advice of counsel certainly indicates that Calhoun was not only willing, but anxious, to admit his guilt and to have his punishment imposed without any trial. He does not even now assert his innocence. Before imposing sentence the circuit judge advised Calhoun that the offense with which he was charged was one of the worst violations in the statutes. No protestation or attempt to withdraw the plea was expressed by appellant at this time or when the judge did state the range of punishment or even after the sentence was pronounced. Appellant’s statement following the sentence belies any such feeling or intention on his part and clearly demonstrates that lack of knowledge of the possible sentence had nothing whatever to do with his plea of guilty.

Appellant relies upon McCarthy v. United States, 394 U. S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969) to support his argument. This decision was based solely upon the requirements of Rule 11 of the Federal Rules of Civil Procedure and was made under the United States Supreme Court’s supervisory powers over the lower federal courts. The opinion clearly states that the court did not reach constitutional arguments. Neither this case nor others based upon requirements of statutes or court rules have any application, as we have no such requirement.

We have previously held that it is to be assumed that one who appears in court with an attorney of his choice has ample opportunity to understand the consequences of his plea of guilty. See Thornton v. State, 243 Ark. 829, 422 S. W. 2d 852. We have never specifically stated that the same rule should apply when counsel was appointed. In at least one jurisdiction, it has been held that the court is under no duty to inform a defendant represented by counsel of the effect of his plea of guilty. People v. Emigh, 174 Cal. App. 2d 392, 344 P. 2d 851 (1959). It has also been held that one represented by counsel will not be heard to say that he was misled regarding his possible sentence or his rights in the premises regarding a plea of guilty. State v. Cummings, 52 Wash. 2d 601, 328 P. 2d 160 (1958). Even when counsel is court appointed, it has been said that a defendant cannot be deemed to have been deprived of any constitutional right on the theory that he was not informed of the effect of a plea of guilty. People v. Emigh, supra. Relief has been denied where there was no showing that the appointed attorney failed to properly represent the complaining defendant. People v. Loeber, 158 Cal. App. 2d 730, 323 P. 2d 136 (1958), appeal dismissed and cert. denied, 358 U. S. 132, 79 S. Ct. 242, 3 L. Ed. 2d 226.

Even though the assumption, that an accused represented by court-appointed counsel has full opportunity to know the consequences of a plea of guilty, may not be fully warranted in every case, we are unwilling to assume that any attorney appointed to represent any person charged with any offense in any court in this state would be derelict in his duty to fully inform the accused of his rights and of the possible consequences of his plea. We certainly will not make that assumption in the absence of any allegation by a petitioner seeking relief from the consequences of his plea that the attorney misled, or failed to inform, him or was otherwise guilty of misconduct or breach of duty. There is not even a suggestion by appellant of any such conduct. As a matter of fact, appellant does not even allege that he did not know the possible sentence for the crime to which he was not only confessing, but proclaiming, his guilt.

While we find no grounds for relief here, we hasten to add that it is the better practice for the circuit judge to ascertain to his own satisfaction that one who enters a plea of guilty has previously been informed of his rights and of the maximum sentence which could be imposed.

The judgment is affirmed.

       See, e. g., State v. Banford, 13 Utah 2d 63, 368 P. 2d 473, 97 A L. R. 2d 547.


author: J. Fred Jones, Justice.

text:
    MOYERS BROTHERS et al v. Nero POE
    5-5439
    462 S. W. 2d 862
    Opinion delivered February 8, 1971

      Riddick Riffel and Robert Law, for appellants.

      James M. Barker, for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case in which the employer, Moyers Brothers, and the compensation insurance carrier, appeal from a judgment of the Ashley County Circuit Court which affirmed an order of the Workmen’s Compensation Commission awarding to the claimant employee, Nero Poe, compensation based on a 60% permanent partial disability apportioned to his body as a whole.

The facts are briefly these: On November 14, 1967, the appellee claimant, Nero Poe, while loading a pulpwood truck in the course of his employment for the appellants, Moyers Brothers, fell from the truck and sustained a compensable injury to his left arm resulting in a permanent partial disability to the left arm below the elbow. Upon medical release following this injury, he returned to work cutting timber with a chain saw for the same employer. On March 20, 1968, the first day he attempted to work following his release, he lost control of the chain saw and sustained a severe laceration to his right arm, resulting in a permanent partial disability to his right arm below the elbow. He filed a claim for permanent and total disability to his body as a whole as a result of the combined injuries.

The referee found that Poe had sustained a 25% permanent partial disability (loss in the use) of the left arm below the elbow, and the appellants accepted, by failure tp controvert, a 50% permanent partial disability to the right arm below the elbow. As a result of the combined injuries, the referee found that Poe was totally disabled and awarded 100% permanent partial disability to the body as a whole. Following a review by the full Commission, the Commission reduced the award of the referee and entered its finding of fact No. 7 as follows:

“That as a result of his March 20, 1968, accidental injury superimposed upon his November 14, 1967, injury, claimant has sustained a 60 per cent permanent partial disability to the body as a whole.”

As a part of its conclusions, the Commission states in its opinion as follows:

“Although the Commission is unable to agree with the Referee’s finding that claimant is permanently and totally disabled, we concluded from all of the evidence that claimant’s March 20, 1968, injury clearly reduced his wage earning capacity in view of his prior injury on November 14, 1967. While the physical impairment resulting from the March 20, 1968, injury was not of great magnitude, its impact upon reducing claimant’s wage earning capacity was great, thus producing a great degree of disability.”

That part of the Commission’s award which is questioned on this appeal is as follows:

“Beginning October 2, 1968, and continuing for a period of 37Vz weeks, respondents shall pay to claimant compensation at the weekly rate of $38.50 for a 25 per cent loss of use of his left arm below the elbow; further, at the end of the foregoing period, respondents shall pay to claimant compensation at die same weekly rate and continuing for a period of 270 weeks for a 60 per cent permanent partial disability to the body as a whole.”

On appeal to the Ashley County Circuit Court the order and award of the Commission were affirmed, and Moyers Brothers and the compensation insurance carrier have appealed to this court. They rely on the following points for reversal:

“The finding by the Commission that the claimant —appellee in this case, sustained a sixty (60%) per cent permanent partial disability to the body as a whole is contrary to the applicable statutory provisions.
There is no substantial evidence to support the Commission’s finding that appellee is disabled to the extent of sixty (60%) per cent permanent partial disability to the body as a whole.”

The precise question squarely presented on this appeal is whether an injury scheduled under the statute, Ark. Stat. Ann. § 81-1313 (c) (Repl. 1960) may properly be apportioned to the body as a whole in determining the extent of permanent partial disability. We agree with the appellants that it cannot. The pertinent section and subsections of the statute, § 81-1313, we are dealing with are as follows:

“Compensation for disability. The money allowance payable to an injured employee for disability shall be as follows:
(a) Total Disability: In case of total disability there shall be paid to the injured employee during the continuance of such total disability sixty-five per centum [65%] of his average weekly wage. Loss of both hands, or both arms, or both legs, or both eyes, or of any two [2] thereof shall, in the absence of clear and convincing proof to the contrary, constitute permanent total disability. In all other cases, permanent total disability shall be determined in accordance with the facts.
(c) Scheduled permanent injuries: An employee who sustains a permanent injury scheduled in this subsection shall receive, in addition to compensation for the healing period, sixty-five per centum [65%] of his average weekly wage for that period of time set out in the following schedule:
(1) Arm amputated at the elbow, or between the elbow and shoulder, two hundred [200] weeks;
(2) Arm amputated between below the elbow and wrist, one hundred fifty [150] weeks;
* # *
(5) Hand amputated, one hundred fifty [150] weeks;
(21) Total loss of use: Compensation for permanent total loss of use of a member shall be the same as for amputation of the member;
(22) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member shall be for the proportionate loss or loss of use of the member.
(d) Other cases: A permanent partial disability not scheduled in subsection (c) hereof shall be apportioned to the body as a whole, which shall have a value of 450 weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury.
(f) Second injury: In cases of permanent disability arising from a subsequent accident, where a permanent disability existed prior thereto;
(1) If an employee receive a permanent injury after having previously sustained another permanent injury in the employ óf the same employer, for which he is receiving compensation, compensation for the subsequent injury shall be paid for the healing period and permanent disability by extending the period and not by increasing the weekly amount. When the previous and subsequent injuries received result in permanent total disability, compensation shall be payable for permanent total disability, but the sum total of compensation payable for previous and subsequent injuries shall not exceed 450 weeks or twelve thousand five hundred dollars (fl^OO.OO).”

It is not difficult to understand how the Commission fell into error of law in this case. Permanent total disability caused by the loss of both hands, arms, legs, eyes or any two of them; or permanent total disability as determined by the facts in other cases, as set out and provided for in § 81-1313 (a), supra, amounts to the same in dollars and cents, as well as in. period of time over which payment is to be made, as a 100% permanent (partial) disability, when apportioned to the body as a whole under § 81-1313 (d). It will be noted that permanent total disability is only mentioned in § 81-1313 (a), and loss of use of the body as a whole is only mentioned in § 81-1313 (d) which does not mention total disability at all.

There is, of course, a considerable difference between permanent partial disability and permanent total disability. A permanent partial disability may be as low as 1% if it is permanent, and total disability must be 100% whether it is temporary or permanent. So, for all practical purposes, a permanent partial disability from an injury which is not scheduled in subsection (c), and therefore must be apportioned to the body as a whole under subsection (d), becomes the same as permanent total disability, when, and only when, the disability from such unscheduled injury reaches 100%.

It must be remembered that an injured employee is entitled to compensation for the scheduled injuries under subsection (c) whether his earning capacity is affected or not, and total loss of use of the member is the same as loss by amputation under subsection 21; and under subsection 22 partial loss, or partial loss of the use, of a member shall be for the proportionate percentage of the actual and total loss. The same rule applies when the permanent partial disability results from an injury not scheduled under subsection (c) and is apportioned to the body as a whole under (d).

Anything less than total disability is not compensa-ble under § 81-1313 (a). A total loss of any two of the designated members under this subsection only gives rise to a presumption of permanent total disability; (not a permanent disability to be apportioned to the body as a whole) but a permanent total disability, rebuttable only by clear and convincing proof to the contrary. In all other cases permanent total disability shall be determined in accordance with the facts.

Permanent partial disability is only provided for under subsection (c) and subsection (d). Permanent partial disability under (c) is the disability caused by the injuries scheduled under (c) and resulting in partial loss, or partial loss of the use, of the members set out in subsection (c). Permanent partial disability not scheduled under (c) must be apportioned to the body as a whole under (d). We must keep in mind that we are considering here the kind of disability for which a claimant is entitled to compensation whether his earning capacity is affected or not.

The appellee cites Garner v. American Can Co., 246 Ark. (April 28, 1969), 440 S. W. 2d 210, as decisive of the issues in the case at bar. In that case the claimant Garner sustained a severe injury to his left hand requiring bone graft. The graft material was taken from the right leg and he developed thrombophlebitis secondary to the removal of the bone graft. He also developed multiple pulmonary emboli {blood clots in the lungs) which required ligation of the large blood vessels (the opinion does not say where). Following the ligation, and apparently as a partial result of it, he developed deep venous thrombosis in both legs. Thus, Mr. Garner wound úp with his disability related to the condition of his hand, both legs and his lungs. His permanent disability might well have been apportioned to his body as a whole because the disability caused by the blood clots in his veins, and certainly those in his lungs, were not scheduled under subsection (c). As a matter of fact, however, we only know that Mr. Garner was paid the maximum benefits, only part of which was for permanent partial disability. It is not set out in Garner whether the permanent disability was apportioned to his hand and legs under subsection (c), or whether it was apportioned to his body as a whole and paid under subsection (d). The real problem in the Garner case concerned a subsequent injury to his left leg and continued liability for medical treatment of the bone graft lesion on the right leg. In any event, our decision in Garner is of no assistance in the case at bar.

We thoroughly recognize the apparent inequitable gap between say an 80% permanent partial disability to both hands of a common laborer which would entitle him to 240 weeks of compensation under subsection (c), and say a 60% permanent partial disability because of a back injury which would entitle him to 270 weeks compensation when apportioned to the body as a whole as required under subsection (d). A musician might be totally disabled from playing an instrument by the loss, or partial loss of the use, of one hand or even one finger and have very little actual disability following a back injury resulting in a 60% permanent partial disability to his body as a whole. It might appear logical to apportion the musician’s disability in the loss of a finger to his body as a whole when it would appear ridiculous to follow the same procedure in the case of a common laborer or an attorney.

The answer, of course, is that the apparent gap is closed by relating the scheduled injuries to loss in earning capacity under the definition of disability appearing in § 81-1302 (e). A 50% permanent partial disability in both hands entitles the injured employee to 150 weeks of compensation. If the employee’s earning capacity has been diminished or destroyed by such permanent partial disability, he may be entitled to workmen’s compensation benefits even to the extent of permanent total disability. McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409, S. W. 2d 502. In such event the “body as a whole” does not enter the picture at all.

By the same token, if an employee sustains an unscheduled injury resulting in a 50% permanent partial disability to the body as a whole, he is entitled to 225 weeks of compensation. If his earning capacity is diminished or destroyed by such permanent partial disability, he too may be entitled to more than 225 weeks compensation even to the extent of the maximum payable for permanent and total disability. Glass v. Edens, 233 Ark. 786, 346 S. W. 2d 685; Wilson & Co. v. Christman, 244 Ark. 132, 424 S. W. 2d 863.

Medical specialists should be more qualified than the Commission in estimating permanent partial disability (functional) because of scheduled injuries under subsection (c), or to the body as a whole under subsection (d). But the Commission should be far more competent than medical specialists in estimating the effect the injury has on the employee claimant’s earning capacity. Thus, if an employee loses the sight of one eye, and the use of one arm and one leg, he is presumed to be permanently and totally disabled. But if the presumption is overcome by clear and convincing evidence to the contrary, he is still entitled to the maximum of 450 weeks of compensation under schedule (c). If these same injuries were apportioned to his body as a whole, he would have the burden of proving that he has a 100% permanent partial disability to his body as a whole in order to receive compensation for the maximum period of 450 weeks.

In the case at bar the Commission recognized the separate classification of disabilities under subsections (c) and (d) by the separate awards of 25% to the left arm under subsection (c) and 60% to the body as a whole under subsection (d). Assuming that the combination of the two disabilities for the injuries scheduled under subsection (c) could properly be apportioned to the body as a whole under subsection (d), then the injuries to both arms would necessarily merge to constitute the disability to the body as a whole. The effect of the Commission’s award was to properly apply subsection (c) to the disability caused by the injury to the left arm and then erroneously apply subsection (d) to the same scheduled injury causing the disability in the right arm, and apportion that disability to the body as a whole. Subsection (c) does not distinguish between the right and left arms. Injury to the right, as well as to the left arm, is a scheduled injury under subsection (c), and the total loss of both arms only creates a re-buttable presumption of permanent total disability under subsection (c). A permanent partial disability in both arms does not change either or both to disabilities not scheduled under subsection (c), and therefore ap-portionable to the body as a whole under subsection (d).

We now turn to the disposition we make of this case. This claim was presented, heard and determined on the theory that whatever permanent disability the claimant sustained as a result of the injuries to his arms was to be apportioned to his body as a whole. This, as we have pointed out, was error. The evidence in the record would sustain a finding that the claimant is still totally disabled. He testified that he was unable to work at anything he knew how to do. He tried measuring logs and marking them with a chopping ax, but was unable to use the ax a full day. He attempted to operate a power mower but his hands swelled and he was unable to do so. The medical evidence was to the effect that he certainly would be unable to use a power saw a full eight hour day. He testified that he was unable to drive a truck in the log woods and he explained why. The claimant is a 53 year old Negro man with a seventh grade education. There is nothing else the claimant has done in a number of years except work in timber and preach. There is no evidence that he ever did receive anything in the way of remuneration for his preaching. There is substantial evidence that the claimant’s earning capacity is nil at the present time, but there is also evidence that his condition is still improving.

It is true that there is medical evidence that Poe was able to drive a truck for short periods of time, but Poe says he is unable to hold the steering wheel of a log or billet truck when it runs over small logs and rough ground as is necessarily encountered in hauling billets or pulpwood. It is also true that Poe was a subcontractor and employed three other men to cut and skid logs and to cut them into pulpwood lengths. But Poe also testified that he drove his own truck and always put in a full days work as truck driver or doing what his employees were doing. He disposed of his equipment because he was physically unable to operate it and he was unable to make an income from the operation when he only supervised and did none of the actual work.

We conclude, therefore, that this case should be remanded to the workmen’s compensation for a determination of the extent of Poe’s permanent partial disability to his left and right arms under the provisions of § 81-1313 (c) of the Workmen’s Compensation Law, if his healing period has ended; and for a determination of the extent of his loss in earning capacity if he has suffered a permanent loss in his earning capacity. The judgment of the trial court is reversed and this cause is remanded with directions to remand to the Commission.

Reversed and remanded.

Byrd, J., dissents.

       In 1969 the Act was amended to increase the compensation benefits and in other respects not germane to this opinion. See same section Ark. Stat. Ann. 1969 Supp.