author: Jim Johnson, Associate Justice.

text:
    Mattar v. Moeller.
    5-1881
    326 S. W. 2d 808
    Opinion delivered May 25, 1959.
    [Rehearing denied Sept. 1, 1959]

      Richard W. Hobbs, for appellant.

      Sydney S. Taylor, for appellee.
   Jim Johnson, Associate Justice.

This action was brought by appellee, George Moeller, against appellant, George Mattar, for recovery of a balance of money due under a promissory note on which appellee appeared as payee and appellant appeared as a joint maker.

The testimony is somewhat in conflict but the record reflects that appellee was a tourist in Hot Springs some twenty years ago when he wandered into one of the auction houses on Central Avenue and became acquainted with appellant who has been connected with these places since boyhood. During the normal course of the years appellee bought a considerable amount of goods from appellant and was entertained by him many times at his home. From this association apparently a warm friendship resulted.

Late one night in November 1954, while Moeller was socially visiting with Mattar attending an auction at Edwards Art Galleries, owned by A. Edward Harnik, Mar-tar asked Moeller to lend his friend Ed Harnik $5,000 and agreed to sign the note with him and guarantee the payment. Moeller loaned them $5,000 that night.

Harnik personally drew this note, dated November 9, 1954, and in it promised to pay Moeller $5,500. The wording of the note and due date is in some dispute and it was not introduced into evidence. Harnik said he drew it to pay 20 per cent. He and Mattar signed the note. Both Harnik and Mattar testified that they were familiar with usury and knew it was void. Mattar also drew and signed a paper he called a guarantee.

Nothing was ever paid on the this note. On May 9, 1955, a new note on a regular banking form was executed by Edwards Art Galleries, A. Edward Harnik, and George Mattar, in which they promised to pay George Moeller $5,000 ninety days after date with interest at 7 per cent after maturity. This note was given in lieu of the first note. After the execution of this note, Harnik and Mattar paid $2,732.81, which was duly credited on same. This was the only payment ever made, although request by letters for additional payments was made to no avail. In April 1956, A. Edward Harnik and Edwards Art Galleries went into bankruptcy. The estate paid no dividends.

This suit was filed on the debt evidenced by the new note of May 9,1955, for the balance due under the terms of said note, against George Mattar as co-maker. The case was tried before the court, both parties waiving a jury. The trial court found that there were two notes given; that the first note given was a usurious note, but that the plaintiff had sued upon the second note, this being given in lieu of the first note, and that the second note was a valid note. The court entered formal judgment against appellant Mattar on the 14th day of November 1958, for the total sum of $2,928.85, including that amount the court found to be due upon the principal, together with interest. From this judgment comes this appeal.

For reversal appellant relies upon the following three points:

1. That the lower court erred in holding that the defendant, by signing the second note, waived the defense of usury, and held, in effect, that by the giving of the second note, the first note, which was usurious upon its face, could not be considered in the suit on the second note. 2. That the testimony introduced in the lower court and admitted in the form of letters by the plaintiff, conclusively showed that the plaintiff, even after execution of the second note, was demanding payment under the terms of the original note. 3. That the judgment was contrary to the evidence and the law.

1. In considering the first point urged by appellant for reversal, we find that the rule laid down by this Court as early as 1896 in Garvin v. Linton, 62 Ark. 370, 35 S. W. 430, has not been changed. The material facts in that case are almost identical to those in the case at bar. In that case the Court said:

“If the debt be for money loaned and actually received by the debtor, there is an equitable and moral duty to pay it, which while the law will give it no effect, may be made the consideration of a new promise. The parties can cancel and destroy the old contract, purge the consideration of usury, and make it the basis of a new obligation, and thereby bind the borrower, in law and equity, to pay the money actually received and a legal rate of interest.”

We have been unable to find anything presented in the instant case that would persuade us to deviate from this rule.

2. In considering the second point urged by appellant for reversal, a careful review of the record reveals that the defense of usury in the first note was first raised the morning of the trial; that Mr. Moeller was 82 years of age; that he was living in Tucson, Arizona, when he wrote the letters, and that he did not have with him the note sued upon, the same being in a bank in Chicago at the time he wrote the letters.

If he wrote for more money than was due because he did not have the note with him, he violated no law and did appellant no damage as appellant had shown no intention of paying anything further on the note.

Under the facts presented here, the most that can be said for the letters is that they would go to the credibility of the witness and his testimony to be considered, along with all other evidence, by the trial court who was sitting as a jury.

3. In considering the third point urged by appellant for reversal, we have from the earliest decisions followed the rule that findings of fact by the court sitting as a jury are as conclusive as the verdict of a jury, and will not be disturbed if there be evidence to support them. Gulledge v. Howard, 23 Ark. 61. Therefore, finding no reversible error in the record we conclude that there is substantial evidence to support the judgment of the trial court.

Affirmed.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Edwards v. Austin.
    5-1856
    324 S. W. 2d 507
    Opinion delivered June 1, 1959.

      Talley <& Owen by Wayne W. Owen, for appellant.

      Murphy & Arnold and Fred M. Pickens, Jr., for appellee.
   Carleton Harris, Chief Justice.

This appeal is another phase of litigation arising as a result of reciprocal wills executed by Mr. and Mrs. C. M. Edwards in 1950, and a subsequent will executed by Mr. Edwards in 1955.

Mr. and Mrs. Edwards lived in Newark, and acquired extensive holdings in both real and personal property. They were the parents of one child, a daughter, Hazel, who died in 1922. Soon after her death, Mr. and Mrs. Edwards, who were members of the Methodist Church at Newark, caused to be constructed an elaborate church building in Newark, which was, and is still, known as the Hazel Edwards Memorial Methodist Church. In 1950, Edwards and his wife each executed reciprocal wills. Each will left all personal property to the other, and left all real property to the church, subject to a life estate in the surviving spouse. Mrs. Edwards died on August 8, 1953. In 1955, Mr. Edwards executed another will, purporting to revoke previous wills, naming the First National Bank of Batesville as executor and trustee of his estate, and creating a trust for charitable causes, including substantial gifts to the Hazel Edwards Memorial Church. Subsection G of Article 3 in the will provides that the trustee shall pay to such church each year “an amount sufficiently large to pay for (1) the Pastor’s salary, (2) the maintenance and upkeep of the church and the parsonage of said church, and (3) any other payments to the said Church that the Trustee in its discretion thinks proper. * * * The Trustee shall have broad powers under this trust and can make disbursements for an in the name of the Newark Church to be used for purposes, programs and projects of the Methodist Church throughout the entire North Arkansas Conference.”

C. M. Edwards died March 6, 1957, and the 1955 will was admitted to Probate. On September 11, 1957, a special session of the quarterly conference of the Hazel Edwards Memorial Methodist Church was held, at which time three attorneys and the vice-president of the executor bank explained the two wills executed by Edwards. The church employed attorneys to represent it in connection with litigation over the wills. A resolution was then adopted, as follows:

“Resolution

Be it resolved the Special Session of the Hazel Edwards Memorial Methodist Church Quarterly Conference approve and confirm the action taken by the Official Board of this church on the 29th day of August, 1957, as reflected in the minutes of the Official Board, and that the following express statements, resolutions, authorizations and directions be made and given:

(1) That the Hazel Edwards Memorial Methodist Church reaffirm its belief in the fact that C. M. Edwards was at all times a person of sound mind, and fully competent to dispose of his estate in any manner that he saw fit to do so.

(2) That this church reaffirm its faith and confidence in the First National Bank, Batesville, Arkansas, as Executor of the Estate of C. M. Edwards, deceased, and that this church express its willingness and desire to cooperate with the Executor in the administration of the estate and that a firm stand be made against any and all attacks on the will of C. M. Edwards.

(3) That solely as a protective measure and out of an abundance of caution without waiving any rights of any kind and in view of the fact that some of the heirs of C. M. Edwards have filed an action against this church it is thought best to authorize counsel for this church to file any action the counsel deems proper to protect the church’s interest in preserving the rights of this church under the will now admitted to probate or under the will of C. M. Edwards, dated May 27, 1950, or under any contract involving the estate of C. M. Edwards.

(4) And, that this church authorize W. J. Arnold and Fred M. Pickens to represent said church in the litigation now pending and any other litigation that may develop in this matter.

Be it further resolved, that we adopt this resolution with a firm resolve to keep faith with our departed loved one, C. M. Edwards, and to walk faithfully before Almighty God.

(s) Paul M. Bumpers, Batesville District Superintendent”

Thereafter, the trustees of the Newark church filed a complaint in the chancery court against the executor, apparently designed to protect the interest of the church in case the 1955 will should be held invalid. This complaint recited that the trustees desired to take under the 1955 will, “but in the event that the District Court of the United States, Eastern District of Arkansas, Northern Division, the Probate Court of Independence County, Arkansas, or any other court of competent jurisdiction would set aside the probate of the last will and testament dated December 30, 1955, then your plaintiffs are entitled to a specific performance of the contract made and entered into by and between Maude B. Edwards and C. M. Edwards, deceased, on May 27,1950, for the benefit of these plaintiffs.” The prayer was that in the event the 1955 will should be declared invalid, the bank be ordered to immediately deliver to the probate court, for immediate probate, the 1950 will of Mr. Edwards.

Previously, on September 4,1957, appellant and other relatives of Edwards had filed an action in the U. S. District Court (Eastern District of Arkansas, Northern Division), against the excutor (bank), Trustees of the Hazel Edwards Memorial Methodist Church of Newark, Paul Bumpers, District Superintendent of the Batesville District of the Methodist Church, and Paul E. Martin, Bishop of the Northern Arkansas Conference of the South Central Jurisdiction of the Methodist Church, alleging, inter alia, that Edwards was incompetent to make either of the wills, and that both should be declared invalid. By a subsequent amendment to the complaint, plaintiffs sought recovery on the theory that the reciprocal wills constituted a contract, it being alleged that the 1950 will was valid, but that the trustees of the Hazel Edwards Memorial Methodist Church were “guilty of laches and are estopped by acceptance of benefits and by their official resolution as aforesaid to claim any portion of said estate of C. M. Edwards except such portion as may be necessary to provide the income required to pay the salary of the pastor of said Church and to repair and maintain the church building and parsonage; * * *.”

On May 5, 1958, "Wilse A. Edwards, appellant herein, dismissed his action in the Federal Court without prejudice, and on May 23, 1958, filed the complaint involved in this appeal against the trustees of the Hazel Edwards Memorial Methodist Church and the First National Bank of Batesville. The complaint alleged that appellant was a qualified and acting member of the said church; that under the 1950 will of Edwards, the Hazel Edwards Memorial Methodist Church was to have received the entire estate of both Edwards and his wife (because she had predeceased him), while under the 1955 will, this church would only receive an amount sufficiently large to pay the pastor’s salary and the maintenance and upkeep of the church and parsonage; that the trustees were aware of these facts and should have instituted an action to enforce the terms of the 1950 will, rather than agreeing to accept the amounts due under the 1955 will; that “the failure and refusal of the aforementioned defendant trustees, of the Hazel Edwards Memorial Methodist Church, to attempt to gather unto themselves as representatives of said church the said estate, amounts to a malfeasance of office, neglect of duty, and verges on collusion with the defendant bank. * * *” Further, “that the unequivocal action taken by the defendants herein, trustees, in electing to renounce the said 1950 will and thereby set over unto the defendant herein all of the assets of the said C. M. Edwards’ estate, has rendered futile any attempt this plaintiff and the members of the said church similarly situated might make in demanding that said trustees attempt to enforce the terms of the said 1950 will of the said C. M. Edwards thereby authorizing this action, which your plaintiff, Wilse A. Edwards, brings in his own behalf as a member of said Hazel Edwards Memorial Methodist Church of Newark, Arkansas, and on behalf of all of the members of said church similarly situated. * * * ” The complaint concluded with the prayer that the bank be required to immediately account to the trustees for all property which has come into its possession as executor, and that the hank be required to surrender to the trustees the assets of the estate.

Appellees herein propounded certain interrogatories to appellant, and filed a Request for Admissions, following which a motion was filed to dismiss the complaint, succinctly stated, because appellant was not a trustee of the Hazel Edwards Memorial Church; had not alleged that the quarterly conference of such church authorized the filing of the suit; appellant was not a proper party plaintiff, and was without legal capacity to sue. The court dismissed the complaint, and from such decree, comes this appeal.

The basic question in this litigation is simply “Does Methodist Church Law give to the individual member of the church a right to instigate suit in a civil court on behalf of the church, when the member is neither a trustee nor officer, and when the quarterly conference has taken a position contrary to the position advocated by the individual member!” Before answering this question, perhaps it is well to briefly discuss the force and effect given church law by the civil courts. A landmark case is that of Watson v. Jones, 13 Wall 679, 20 L. Ed. 666, decided by the Supreme Court of the United States on April 15, 1872. There, the Court laid down a general principle, which has been followed by our courts throughout the land.

“In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religions doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent, and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.
Nor do we see that justice would be likely to be promoted by submitting those decisions to review in the ordinary judicial tribunals. Each of these large and influential bodies (to mention no others, let reference be had to the Protestant Episcopal, the Methodist Episcopal, and the Presbyterian church) has a body of constitutional and ecclesiastical law of its own, to be found in their written organic laws, their books of discipline, in their collections of precedents, in their usage and customs which as to each constitute a system of ecclesiastical law and religious faith that tasks the ablest minds to become familiar with. It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, to one which is less so. * * *”

It cannot be successfully argued that the case before us involves, not an ecclesiastical question, but a civil question only, for it has been held that ecclesiastical questions not only apply to doctrine, dogma, and creed, but likewise to church polity and church property; in fact, a property right was involved in the Watson case. See also Brundage v. Deardorf, 92 Fed. Reporter 214. Our own Court has likewise followed this principle many times, holding that when questions arise concerning matters of church discipline which have been decided by a church court vested with jurisdiction by church laws, the civil courts accept as final and conclusive the decisions of the ecclesiastical body. See Sanders v. Baggerly, 96 Ark. 117, 131 S. W. 49, in which case, Chief Justice Mc-Culloch, speaking for this Court, quoted extensively from Watson v. Jones, supra. See also Ables v. Garner, 220 Ark. 211, 246 S. W. 2d 732, and cases tíited therein.

We proceed next to a discussion of the original question which involves only Methodist Church Law. Methodist Church Law is found in “Discipline of the Methodist Church (1956)”. The Discipline is rather comprehensive, and only those provisions pertaining to the cause at hand will be discussed. The general organization of the Methodist church is discussed in the case of Turbeville v. Morris, 203 S. C. 287, 26 S. E. 2d 821, wherein the Court said:

“ * * * we should keep in mind the fact that the Methodist Church does not have a congregational or independent form of government. It is a connectional organization with a centralized form of government, the whole church being a general unit and the local churches being parts of the larger body. The church is governed by quarterly, district, annual and general conferences in an ascending scale and the size of a faction and whether or not it is a majority of the membership of a local congregation is not at all controlling, Zollman’s American Church Law, 262.”

The Quarterly Conference (herein involved) is vested with the following authority in matters relating to property :

Para. 151 provides: “In a pastoral charge consisting of one local church, the Quarterly Conference as constituted in Sec. 138, shall be vested with authority and power in matters relative to the real and personal property of the local church concerned as set forth in Sec. 156-194. ’ ’

Para. 157 provides in part: “In a pastoral charge consisting of one local chnrch, the Quarterly Conference, constituted as set forth in Sec. 138, shall be vested with power and authority as hereinafter set forth in connection with the property, both real and personal, of the said local church namely:

(3) To direct the Board of Trustees with respect to the acceptance or rejection of any and all conveyances, grants, gifts, donations, legacies, bequests, or devises, absolute or in trust, for the use and benefit of the local church and to require the administration of any such trust in accordance with the terms and provisions thereof and of the local laws appertaining thereto.

Para. 165: “Subject to the direction of the Quarterly Conference as hereinabove provided, the Board of Trustees shall receive and administer all bequests made to the local church; shall receive and administer all trusts; shall invest all trust funds of the local church in conformity with laws of the country, state, or like political unit in which the local church is located; and shall have the supervisory oversight and care of all real property owned by the local church and of all property and equipment acquired directly by the local church.”

It is therefore apparent that in the instant matter, the Quarterly Conference had the authority to act — the Quarterly Conference acted.

Our own Court has had only one case before it involving Methodist Church Law, Rushing v. Thompson, 208 Ark. 248, 185 S. W. 2d 941. A suit there instituted by Rushing, who was a member of the Rhodes Chapel Methodist Church, was dismissed, this Court pointing out that Rushing was not a trustee of the Rhodes Chapel church, and was without authority to bring the suit.

To summarize, it is clear that this Court has recognized the decisions of church courts, properly vested with jurisdiction, as final. It is equally clear, under Methodist Church Law, that appellant’s contention is without merit, and he was without authority to institute the suit. It follows that the court did not err in dismissing the complaint.

The litigation being thus disposed of, it becomes unnecessary to discuss other points urged by appellee in support of the court’s findings.

It might be pointed out that though appellant complains that the trustees are not properly looking after the affairs of the church, the record reflects, as already mentioned in this Opinion, that the trustees have instituted suit in the Chancery Court seeking to protect the rights of the Newark church, irrespective of the outcome of suits instituted by some of the Edwards heirs, and which litigation is presently pending in the Courts.

The Decree of the Chancery Court is affirmed.

       See Allen v. First National Bank of Batesville, 230 Ark. 201, 321 S. W. 2d 750.

       According to paragraph 138 of the Discipline of the Methodist Church (which paragraph is a part of the record in this case), the quarterly conference of a Methodist Church is, in the main, composed of the pastor, the stewards, the trustees, and representatives of selected groups of the church, and is presided over by the District Superintendent.

       See Allen v. First National Bank of Batesville, supra.

         This refers to the action of the Board in deciding to take under the 1955 will.

       While this suit is styled Edwards, et al. v. Austin, et al., it being alleged that the suit was brought in behalf of others similarly situated, Edwards admittedly (answer to Interrogatory No. 6) had no specific authority to represent any other person; thus the use of the term “appellant”.

       No response was made to the requested admissions; the facts in the Request are therefore deemed admitted. See White River Limestone Products Co., Inc., et al. v. Missouri-Pacific Co., 228 Ark. 697, 310 S. W. 2d 3.

       Other allegations were contained in the motion, which we do not reach in this appeal.

       Webster’s New International Dictionary, 2nd Edition, defines “Discipline” as follows: “Body of laws pertaining to conduct, church government.”


text:
    Ark. State Highway Comm. v. Speck.
    5-1919
    324 S. W. 2d 796
    Opinion delivered June 1, 1959.

      W. R. Thrasher, Edward Boyett, Bill B. Demmer, for appellant.

      James E. Hyatt, Jr., for appellee.
   Carleton Harris, Chief Justice.

This appeal concerns a condemnation suit filed by the Arkansas State Highway Commission condemning a 28.075 acre tract of land in Mississippi County, complaint being filed under authority of Act 419 of 1953. Declaration of Taking was also filed under authority of Act 383 of 1953, and under the latter act, a deposit of $12,906.00 was made by the Commission, and title to the lands was immediately vested in it. The tract from which this acreage was taken contained approximately 760 acres, and the designated highway route severs an additional 25 to 30 acres of land which will, after construction of the highway, be south and east of the remaining farm unit. The proposed highway (interstate highway No. 55) will consist of two-lanes of pavement, one for traffic proceeding north and the other for traffic proceeding south. The proposed highway will be a controlled-aceess highway, i.e., ingress and egress to the main lanes will only be at designated points. The cause proceeded to trial in January, 1959, and after hearing the evidence, the jury returned a verdict in favor of appellees in the amount of $34,600. From the judgment accordingly entered, appellant brings this appeal. For reversal, appellant relies upon only one point, viz:

‘ ‘ The Court erred reversibly in permitting witnesses in behalf of the landowner to testify as to the ‘cost’ of various improvements which might be made by the landowner after and as a result of the condemnation action by the Arkansas State Highway Commission.”

The evidence reflects that this 760 acres was operated as a rice farm; the farm was operated as a unit, but because it is necessary that rice be rotated every two years, two separate rice fields, with well and irrigation systems, were established and maintained, together with adequate roads and storage facilities. The headquarters and one field were located on the north part of the farm, and the other field, consisting of 240 acres, was operated as the south farm. The taking of the land bisects and severs the south rice field, leaving 189 acres west of the right of way, and approximately 28 acres east of the right of way. Appellees contended that their means of ingress and egress (a road which they had constructed) had been cut off; that there is no road from headquarters south through the farm to this south field. Mr. Speck testified that the new highway would not allow him to cross from the east to the west . . . that to farm the 189 acres south of the drainage ditch, it would be necessary to build a road from the headquarters to the south portion of the land with a bridge spanning the drainage ditch . . . that even then, he would not have as good a farm as before the taking. Mr. Speck listed additional improvements that would have to be made because of the farm being split, such as an additional well at an approximate cost of $7,400 ... an additional flume at a cost of $250 ... as a matter of damage, he testified that after the highway is built, he will have to travel over five miles to reach a hard surfaced road, whereas presently it is only necessary to travel about three-fourths of a mile. Speck valued the land south of the drainage canal at $350 per acre before the taking, arriving at that figure by calculating the income basis, the soil bank payments, the amount paid for the land, clearing and leveling, and number of flumes that were built. He placed a value of $100 per acre upon this land after the taking, mainly due to the inaccessibility of the 189 acres. The witness testified that in his opinion, the fair market value of his farm before the taking was $265,240; that after the taking, the farm would be worth $202,182, or a difference of $63,058. He stated that his land would receive no benefits, but only detriments from the highway.

Lee Wesson, a farmer and resident of Mississippi County for twenty-three years, testified that he operated a 7,700 acre plantation with about 276 acres in rice. Based upon his experience in farming rice and cotton, including the cost of acquiring rough land and developing it, it was his opinion that the value of the farm before the taking was $266,000, and the value of the property after the taking was $181,200, or a difference of $85,800.

Elliott Sartain testified that he had been requested by Mr. Speck to make an estimate of the cost of construction of a road on the Speck farm. He testified that the distance would be about two and three-fourths of a mile . . . that the soil over which the road would run, would be gumbo . . . that quite a bit of leveling would be necessary, and that ditches would have to be dug for the proper maintenance of the road. He estimated the cost of the road at $20,449, and broke this figure down.

Curtis Anderson, engaged in the real estate business in Blytheville, testified that he had handled loans for Prudential Insurance Company for approximately seven years . . . had taken two courses in real estate appraisal (at Michigan State University and Notre Dame) . . . two years of college at the University of Missouri . . . has handled PHA and GI loans . . . has personally made appraisals for companies making loans, including Travelers of Hartford, John Hancock and Northwest Mutual . . . appraises from one million to one and three-quarters million dollars of property each year, and has been approved by the Bureau of Public Roads and the Highway Department of Missouri. The testimony of Mr. Anderson reflects that he made a very comprehensive survey of the Speck farm. He did not testify to any restoration costs, but stated that he used three methods in arriving at his figure of the fair market value before the taking, vis., the income approach, the comparable sales approach, and the reconstruction less depreciation approach. Mr. Anderson then stated that he only used the income and cost approach as a check against his final evaluation. The witness testified that in his opinion, the Speck property was worth $181,750 before the taking, and $142,000 after the taking, a difference of $39,750. He estimated the value of the acreage taken at $250 per acre, or a total of $7,000, and then stated that the balance of $32,750 represented severance damages.

Mr. A. W. Hardy, employed as a Right of Way Engineer for the Highway Commission, testified that the abutting property owners on the highway could not be allowed ingress and egress other than at designated interchange points. He stated, relative to the Speck property, that there is a grade separation at Frenchman’s Bayon and at Manasha, and that local traffic may pass over the main thoroughfare at those points. He also testified that one conld go to the Jericho Grade Interchange located at Joiner, on the north of the Speck property ; if south of the Speck property, or going in that direction and desiring ingress or egress to the two main lanes, one could go to the Lake David Interchange north of Turrell, Arkansas. Hardy testified about other routes that could be taken from the northern portion of the Speck property to the southern portion and stated that drainage in respect to the Speck property will be normal and adequate. As to the severed 25 to 30 acres, the witness testified that it is possible to pipe water underneath the highway from the west side to the east side so that the well may still be used to supply water on the east side, and that it would not cost in excess of $300 to construct a flume beneath the highway. He testified that the shoulder of the ditch on the west side of the highway would be level with the Speck property, and if a rice farm was operated on this land, it probably would be necessary for some adaptation to be made in order to retain the water in the rice field.

Mr. George Wiggs of Blytheville, a real estate dealer, testified that he had appraised residential, commercial and real property, primarily in northeast Arkansas and southeast Missouri; that he had appraised approximately one-fourth of the area in Mississippi County. Mr. Wiggs attended an appraisal course at the University of Tennessee, and one at Michigan State University . . . attends appraisal institutes regularly each year . . . is on the Board of Directors of the Blytheville Beal Estate Dealers, and has served as president of the organization. He explained the method of arriving at his appraisal, though he testified that he knew of no rice farms that had actually been sold in the county, and considered it difficult to determine the fair market value of an established rice farm. Admittedly, his figure of $25 per acre damage to the 189 acres was reached by “hearsay”; that is, he asked other people. Mr. Wiggs concluded that the value of the property before the taking was $158,750, and after the taking, $145,800, or a difference of $12,950.

Mr. Herbert Hooten, an appraiser for the Highway Department for the last 18 months, testified that he had previously worked for the Government for over seven years on farm loans and chattel loans, covering nine counties in this state. He holds a degree from the College of Agriculture, University of Arkansas. Mr. Hoot-en testified that he did not own any property in Mississippi County, but that he was familiar with the market value of property in the county after having made a study. After detailing the method of his appraisal, Mr. Hooten testified that in his opinion, the property was worth $190,000 before the taking, and $177,000 afterward, or a difference of $13,000.

It might be here noted that all of the witnesses pretty much detailed their findings, describing the steps taken in appraising the premises, and giving their reasons for the figures reached.

In American Jurisprudence, Vol. 18, page 910, para. 269, we find:

“When part of an owner’s property is taken for a public use, the owner may be damaged from inability to make the most advantageous use of the remaining land without additional expense. The cost of restoring the remaining land to a condition that will make it available for use, if a reasonable and proper method of meeting the damage caused by the taking, is a proper element to consider. ’ ’

Also, Vol. 85, American State Reports, lists the following elements of damage as proper: cost of fencing (p. 304), cost of crossings, gates, or cattle-guards (p. 305), obstruction of ingress or egress, etc. In Louisiana Highway Commission v. Treadaway, La. App. 173 So. 209, testimony as to the approximate cost of two bridges that would be required after condemnation proceedings was approved. In Louisiana Highway Commission v. Bradberry, La. App., 193 So. 198, the Court said:

“In these records, however, we do not find any evidence touching upon the cost of construction of bridges, and therefore, though we conclude that each of the property owners is entitled to the amount which it will be necessary for him to expend to erect these bridges, or, in the alternative, to construct the ramps, we are unable to say what this cost will be. We therefore find it necessary to remand all of the cases in order that there may be introduced evidence touching upon the cost of these bridges, or the cost of the alternative ramps.”

See also State Highway Commission v. Pope, et al, 228 Mo. App. 888, 74 S. W. 2d 265. Appellant admits that the above citations express the general rule, but attacks the lack of logic of the rule, and states that many cases, in apparent accord, actually pay only “lip service” and do not allow testimony of dollar and cent costs of restoration. This “hypothetical” dollar and cent testimony of possible further improvement to the remainder of a parcel of land after condemnation, is the sole point of objection by appellant. In its brief, appellant states:

“Yet, while adopting this position, the appellant has no objection to a landowner or his expert witnesses stating detriments such as inconvenience of operation, possible additional labor and the necessity of other various corrective measures which are appreciable and substantial in nature without which there is a reasonable tendance to lesson the market value of the land remaining.” But appellant asserts that testimony of restoration costs is not practical. From its brief:
“First, what type of improvement should be considered for restoration purposes? Should a possible bridge be constructed of wood, of concrete, of steel or of some new miracle fabric? The cost in dollars and cents would certainly vary tremendously from this standpoint above. The same conclusion may be reached when considering the manner of construction. Should the bridge be a suspension type, poured concrete, or closer set type treated wood posts? These same questions might be asked for construction of fencing, adding additional wells, the leveling of land, and construction of roads and each and every element which in any way might be said a needed improvement to make the remainder usable.”

"We do not agree with appellant’s contention, for we see no logic in permitting a witness to testify that a fence, bridge, or road will have to be constructed, but at the same time, hold inadmissible the probable cost of such construction. To declare such evidence inadmissible, would be to leave the matter to absolute “guess work”. It goes without saying that many jurors would have no idea of the cost of various items necessary for restoration. Appellant says that this evidence of approximate costs permits the jury to speculate; we take a contrary view, for without such testimony, any amount reached would be through sheer speculation. So if evidence of improvements for restoration purposes is proper (and this is admitted by appellant), the purported cost of such improvements is admissible. As to appellant’s argument, just quoted, we think it proper for the jury, after hearing the evidence, to determine the type of improvements that will more nearly restore the property to its original status. Let it be borne in mind that these prospective expenditures are not the measure of damages, but are only an aid in determining the difference in the before and after value of the property. Actually, we have already approved this type of evidence. In Kirk v. Pulaski Road Improvement District No. 10, 172 Ark. 1031, 291 S. W. 793, a street (also a state highway) next to the landowners property, was widened, and it became necessary to excavate the high bank in front of appellants’ property. Appellants contended that the blasting away of the slate in excavating for the extension of the street, loosened the earth and rock back beyond the property line, thus invading their property; this caused the bank to cave from time to time, and appellants contended that a retaining wall would have to be built to afford protection from the injury. On appeal, this Court said:

“The record also shows that it would cost more than $2,000 to erect a retaining wall which would prevent the embankment of the plantiff’s property, abutting the improved street, from further caving in. While this proof was competent to show the damage to plaintiff’s property it was not the measure of her damages. In cases of this sort, the owner is entitled to recover the difference between the market value of her property before the taking or damage to it and the market value afterwards. ’ ’ In Stuttgart & Rice Belt R.R. Co. v. Kocourek, 101 Ark. 47, 141 S. W. 511, the railroad company filed a petition to condemn a right-of-way through 160 acres of land belonging to appellee. The actual right-of-way occupied and consumed seven acres of the land, but appellee contended that he had good rice land, but because of the building of the road across it, the land could not be used for rice without two pumping stations, which would cost $2,500. In affirming a judgment for $1,500, and quoting from earlier cases, this Court said:
“As a general guide to the range which the testimony should be allowed to assume, we think it is safe to say that the landowner should be allowed to state, and have his witnesses state, every fact concerning the property which he would naturally be supposed to adduce, in order to place it in an advantageous light if he were attempting to negotiate a sale of it to a private individual. * * * The elements which enter into such an estimate are not alone the market value of the land actually appropriated, but include also the injury to the owner’s remaining land, arising from the increased difficulty of communication between the parts of the severed tract, the inconvenient shape in which the remaining land is left, the cost of new fences, required in consequence of the construction of the railroad, the increased exposure to fire, so far as it depreciates the value of the residue of the land, and various other causes,' provided they are not of a remote or speculative character. ’ ’

Appellant also contends that to permit such evidence would require a condemnor to not only secure evideuce rebutting the reasonableness of the particular improvement but further to secure rebuttal as to the cost of the improvement. From appellant’s brief:

“This is indeed an involved task for these factors are unknown prior to trial and would require knowledge as to the specifications, etc., of the improvements under consideration. ’ ’

In the case before us, Jefferson Speck and wife alleged in their answer that they had been damaged in the amount of $68,203.75, asserting the value of the property taken as $9,803.75, and the balance as damages by reason of the severance of their property. Appellant, had it so desired, could have filed a motion asking that the answer, wherein this amount of damage was asserted, be made more definite and certain, and that appellees be required to specifically break down the alleged damage to their property. We accordingly are unable to find merit in this contention.

No reversible error appearing, the judgment is affirmed.

       Mr. Speck is primarily a farmer; however, he teaches at Memphis State University in the mathematics department two nights a week, and holds a BS degree from the Georgia Institute of Technology, and a BS degree in electrical engineering from the same school.

       Mr. Speck testified the construction of the bridge would cost about $18,437 (concrete).

       Appellees’ answer alleged that they had been damaged in the amount of $68,203.75.

         From his testimony: “Q. Would you explain to the jury how you arrived at that iact and figure? A. Well, there was two things that were obvious, of course. One was the well located here. * * * Pointing to the second farm, center of Section 34. Well is located on the south line of the property. Could not any longer put water to this 25 acre tract after the improvement is made, highway through there. Second was this access road from the present highway No. 61, would be stopped and the land here would have a very decided loss in value because it is no longer accessible. Q. You say it is no longer accessible, what do you mean? A. By the same type road it had. It is possible you can get to this. In fact, I think there is a turn row from the south side of this farm. Q. Turn row? A. A turn row from another man’s farm, would come, wind out to 77 some distance away. Wouldn’t be very practical to use. The thing I am pointing up, if you are looking for a buyer for the land, the man right to the south, adjoining, would be the only prospect. Q. Because of what? A. Access, poor access. No overpass, no service roads on the side of the new highway. Any way you get in there is going to have to come from away from the highway right-of-way. Q. Was there any public roads to the south, county roads, gravel roads, suitable to give access to the west 189 acres? A. No, sir. This road going south, if it is a public road — doesn’t have the appearance of being, is a dirt road. Could not be used to haul grain out for instance.”

       Mr. Hardy has been with the Commission in various positions for a number of years, and received his engineering education at the University of Oklahoma.

       It is approximately three miles between the Lake David Interchange and the Jericho crossing, and approximately five to six miles between Lake David and Frenchman’s Bayou.

       Emphasis supplied.


author: J. Seaborn Holt, Associate Justice. George Rose Smith, Associate Justice, Jim Johnson, Associate Justice,

text:
    Henry v. Tarpley.
    5-1935
    324 S. W. 2d 503
    Opinion delivered June 1, 1959.

      Frank Holt, Prosecuting Attorney, John Jernigam, Chief Deputy Prosecuting Attorney, for appellant.

      Gerald T. Ridgeway, for appellee.

      Catlett J Henderson, Amici Curiae brief; MeHaffy, Smith $ Williams, Amici Curiae brief.
   J. Seaborn Holt, Associate Justice.

This appeal involves the constitutionality of Act 107 of the 1959 Legislature. On a hearing, the trial court held the Act unconstitutional on two grounds: (1) that it violates Amendment No. 40 to the Constitution of the State of Arkansas and, (2) that it also violates Amendment No. 14 for the reason that it was special and local in its effect.

Since we have concluded that the Act clearly, we think, violates Amendment 40 on two grounds, which we shall point out it becomes unnecessary to consider whether it violates Amendment 14.

A brief summary of Act 107 may be stated as follows:

(1) Upon the petition of not less than 10% of the qualified electors of each of the school districts within any county that may now or hereafter have a population of 100,000 or more, the County Board of Election Commissioners of the county shall call a special election on the question of whether the county shall he a County Equalizing School District.

(2) If a majority of the “qualified electors in the county voting on the issue” shall vote for the County Equalizing School District, the same shall be established and if a majority vote against the County Equalizing School District, the same shall not be established, and another election shall not be held in the same county for a period of two years.

(3) If the vote is for County Equalizing School District, the County Board of Election Commissioners certify the same to the County Clerk and the district is named for the county voting for the same.

(4) The County Equalizing School District shall be composed of the territory of the school districts of the county voting the same but “The establishment of a County Equalizing School District shall, in no way, alter, change, or affect any of the powers, duties or existence of any of the school districts of the county”.

(5) The electors of the County Equalizing School District (thus the electors of the entire county) have the power at the annual school election to vote for the allocation of a portion of the total tax proposed by the school board of each school district and such revenue as may accrue from the annual tax allocated to the county Equalizing School District shall be distributed to the respective school districts of the county to be used for equalizing educational purposes.

The County Board of Education serves as the board of the County Equalizing School District and the County Board of Education ‘ ‘ shall provide for the placing on the ballot” in each school district the question of the voting for the allocation of nine mills at the first annual election after the establishment of such Equalizing District, and thereafter eighteen mills. “If a majority of the qualified electors in the County Equalizing School District voting on the issue” votes for the allocation, the appropriate county officials levy, collect and distribute the revenues from the tax to the Equalizing District to be used for the purposes of the Act. If a majority votes against the allocation, the millage shall be levied, collected and credited to the respective school districts by the appropriate county officials. The Act states its purpose to be that the school boards of the respective school districts shall propose the total millage levy for vote in each school district of the county.

(6) The County Board of Education distributes moneys derived by the Equalizing District as follows:

A. To each district a proportional part of the total funds as the average daily attendance of pupils in said district for the previous year bears to all pupils in average daily attendance for the previous year in all school districts of the county. Average daily attendance, in the case of a school closed by Governor’s Proclamation of Act 4 of the Second Extraordinary Session of 1958, is defined to be that of the year immediately preceding sneh closing and shall so continue until one full year after the school has been reopened.

B. The funds are to be distributed and credited by the County Treasurer upon order of the County Board of Education, to the school districts as now provided by law for distribution of funds derived from school millage levies. Funds so received may be used for maintenance and operation, erection and equipment of buildings and retirement of existing indebtedness.

(7) Section 7 of the Act repeats the intent that nothing shall amend, alter, diminish or change any of the existing powers and duties of school districts of the state.

(8) The Act contains a separability clause, a repealing clause, and an emergency clause.

Amendment 40 provides: “Poll tax — School district tax — Budget—Approval of tax rate by electors. — The General Assembly shall provide for the support of common schools by general law, including an annual per capita tax of one dollar, to be assessed on every male inhabitant of this State over the age of twenty-one years; and school districts are hereby authorized to levy by a vote of the qualified electors respectively thereof an annual tax for the maintenance of schools, the erection and equipment of school buildings and the retirement of existing indebtedness, the amount of such tax to be determined in the following manner: The Board of Directors of each school district shall prepare, approve and make public not less than sixty (60) days in advance of the annual school election a proposed budget of expenditures deemed necessary to provide for the foregoing purposes, together with a rate of tax levy sufficient to provide the funds therefor, including the rate under any concinuing levy for the retirement of indebtedness. If a majority of the qualified voters in said school district voting in the annual school election shall approve the rate of tax so proposed by the Board of Directors, then the tax at the rate so approved shall be collected as provided by law. In the event a majority of said qualified electors voting in said annual school election shall disapprove the proposed rate of tax, then the tax shall be collected at the rate approved in the last preceding annual school election. Provided, that no such tax shall be appropriated for any other purpose nor to any other district than that for which it is levied.”

Sections One (1) and Two (2) of Act 107 make provisions for calling special elections for determining fiscal affairs of a school district which we have heretofore held to be in violation of the provisions of Amendment 40 which does not permit, or recognize, special elections, but only annual school elections for such purpose. In 214 Ark. 771, 218 S. W. 2d 359, Adams v. DeWitt Special School District No. 1, in considering Amendment 40, we held that “Special Elections are not recognized by the Amendment,” (headnote 3) and in the opinion we said: “The Amendment [40] is comprehensive in that it removes all prior financial restrictions upon the electorate. Buildings, equipment, existing indebtedness, maintenance, all may be cared for in the Board’s recommendations, and finality needs only the approval of a majority of those voting. The entire plan revolves around the annual election, mentioned four times. ’ ’

In Sims v. Hazen School District No. 2, 215 Ark. 536, 221 S. W. 2d 401, where there was involved the question, whether a school district could impose a tax to support a bond issue at a special election held for that purpose, we there said: “We hold that it cannot for the reason that Amendment No. 40 of our Constitution, adopted November 2, 1948, prohibits the imposition of such a tax unless it has been approved by a majority vote of the qualified electors of such School District at an annual school election, and not at a special election, as was attempted here.

“The General Assembly could not by any provision of Act 161, supra, do anything forbidden by the Constitution. We said in Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39: ‘The Act . . . could not have the effect of amending the Constitution, as would be the result if the contention of counsel be correct. The Legislature cannot cure a proceeding made void by the Constitution, and no act that it passes can breathe vitality into a thing that is dead. The Legislature cannot do indirectly a thing directly prohibited by the Constitution.’ ” We hold, therefore, that the Act is void for this reason.

We hold also that the Act is clearly void and unconstitutional for still another reason: It will be observed that Section Five (5) of the Act attempts to place a limit on the number of mills that the electors in a school district may vote upon themselves for school purposes by providing that, “The number of mills to be allocated to the County Equalizing School District at the first annual school election after the establishment of such District shall be nine (9) mills, and thereafter the number of mills to be allocated to the County Equalizing School District shall be eighteen (18) mills.”

This attempted limitation is right in the teeth of Amendment 40 which places no limitation whatever on the number of mills that any school district may vote at any annual school election. Amendment 40 specifically places the amount needed to operate a school district in the hands of the voters of such district and removes all financial restrictions as to their powers in determining these amounts deemed necessary by the Board of Directors of the District for maintenance of schools, the erection and equipment of school buildings and the retirement of school indebtedness, while Act 107 provides that the millage cannot be less than nine (9) mills in the first school election and eighteen (18) mills thereafter, whether those amounts are needed or not.

Accordingly, the decree is affirmed.

George Rose Smith, MoFaddin and Robinson, JJ., concur.

Johnson, J., dissents.

George Rose Smith, Associate Justice,

concurring. The only constitutional point I find it necessary to consider is the clear violation of the proviso in Amendment 40, which directs that no school tax “be appropriated for any other purpose nor to any other district than that for which it is levied. ’ ’

The equalizing school district created by Act 107 is not really a school district at all; calling it a school district does not make it one. It has no schools, no teachers, no pupils. It is simply a bookkeeping device by which tax money is to be taken from one or more of the true school districts in the county and given to one or more of the other districts. It seems so plain to me that the constitution cannot be circumvented in this manner that I see no need to express an opinion upon the various other issues that have been presented.

McFadbin and Robinson, JJ., join in this opinion.

Jim Johnson, Associate Justice,

dissenting. In respectfully dissenting to the majority view, I am convinced that Act 107 of 1959 does not violate Amendment No. 40 to the Constitution of the State of Arkansas.

In the past year it has been necessary for high schools in Pulaski County outside of the Little Rock School District to enroll students whose residences are within the Little Rock District due to that district’s high schools being closed. This influx of additional students has caused these schools to suffer unreasonable financial hardships. Act 107 provides an ingenious method whereby the financial difficulties of these schools may be relieved.

Act 107 cannot be viewed as a temporary measure simply because the high schools in Little Rock may be opened in the future. There will always be those in the Little Rock District who love their children enough to insist that they attend segregated schools.

It cannot be argued that the legislature does not have the constitutional authority to provide for the creation of school districts. There is no constitutional provision setting out the kind or number of school districts the legislature may cause to be created. In passing Act 107 of 1959 the legislature chose to create a “County Equali7,ing School District” to be composed of the existing school districts in the county. In the absence of a constitutional prohibition against the creation of such a district, how can it be said that they did not have the authority to do so.

The majority contends that the creation and operation of such a district violates Amendment No. 40. Let us examine this constitutional provision. Amendment No. 40 simply authorizes school districts to levy an annual tax (a) for the maintenance of schools, (b) for the erection and equipment of buildings, and (c) for the retirement of existing indebtedness, specifies that no tax levied, assessed and collected for the benefit of a school district shall be appropriated for any other purpose or to any other district than that for which it is levied. A careful review of the record reveals that Act 107 of 1959 does not appropriate any tax levied and collected for the benefit of one school district to another. It clearly provides that the electors of the County Equalizing School District must vote upon the millage allocation. The end result is the levying and collecting of taxes within the County Equalizing School District for use within the County Equalizing School District. Such procedure is expressly authorized by Amendment 40 wherein it is stated: “School districts are hereby authorized to levy by vote of the qualified electors respectively thereof an annual tax . . . ” The conclusion is inescapable that Act 107 of 1959 is valid. It follows and implements the' express purposes of Amendment 40 and should therefore be upheld.

Further, the Act does not offend Amendment 40 by authorizing a special election to determine whether a County Equalizing School District should be established. The only special election which is violative of that Amendment is one called to impose a tax to support a bond issue. Sims v. Hazen School District 2, 215 Ark. 536, 221 S. W. 2d 401.

In Bush v. Martineau, 174 Ark. 214, 295 S. W. 9. this Court said:

“Before proceeding to a discussion of the issues raised by this appeal, we deem it proper to premise our remarks by two fundamental rules of construction announced and adhered to throughout the history of this Court. First, that the Constitution of this State is not a grant of enumerated powers to the Legislature, not an enabling, but a restraining act (Straub v. Gordon, 27 Ark. 629), and that the Legislature may rightfully exercise its powers subject only to the limitations and restrictions of the Constitution of the United States and of the State of Arkansas. St. L. I. M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S. W. 938; Vance v. Austell, 45 Ark. 400; Carson v. St. Francis Levee Dist., 59 Ark. 513, 27 S. W. 590; Butler v. Board, etc., 99 Ark. 100, 137 S. W. 251. In other words, as was said in McClure v. Topf & Wright, 112 Ark. 342, 166 S. W. 174: ‘It is not to be doubted that the Legislature has the power to make the written laws of the State, unless it is expressly, or by necessary implication, prohibited from so doing by the Constitution, and the act assailed must be plainly at variance with the Constitution before the court will so declare it.’ Second, that an act of the Legislature is presumed to be constitutional, and will not be held by the courts to be unconstitutional unless there is a clear incompatibility between the act and the Constitution; and further, that all doubt on the question must be resolved in favor of the act.”

Seeing no reason to deviate from the settled rules of this Court, I would accordingly reverse the judgment.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Hays v. State.
    4941
    324 S. W. 2d 520
    Opinion delivered June 1, 1959.

      James E. Hyatt, Jr. and Omar F. Greene, for appellant.

      Bruce Bennett, Atty. General; by Thorp Thomas, Asst. Atty. General, for appellee.
   Ed. F. MoFaddin, Associate Justice.

Appellant, Arthur Hays, was convicted of first degree murder for tbe homicide of Justus Edrington, and sentenced to death. This appeal ensued. The motion for new trial contains three assignments; and we also consider every objection in the transcript, as is the rule in capital cases. Smith v. State, 205 Ark. 1075, 172 S. W. 2d 249. We group and discuss all the assignments and objections in suitable topic headings.

I. Sufficiency Of The Evidence. The deceased, Justus Edrington, operated a liquor store owned by Melvin Lapides, in Osceola, Arkansas. Some time between 9:30 and 10:30 on the night of Friday, August 8, 1958, Will Henderson went into the store to make a purchase, and found Edrington either dead or dying. The law enforcement officers were called and began investigations. Edrington was in the back room of the store, sitting on the floor and leaning against the back door, which was locked. He had been beaten with a granite rock and a railroad spike; and his head and face were covered with blood. Edrington was immediately taken to the local hospital and was pronounced dead on arrival. He might have been dead at the time Henderson discovered him.

Someone had not only wounded Edrington, but had also robbed the liquor store: the cash register was open, another money repository was open, and several small silver coins were scattered on the floor. It was reasonably inferred that the culprit had entered and departed through the front door; that a terrible struggle had taken place; and that the robbery had been committed after the struggle, since there was blood on the cash register. Pictures taken the same night disclosed a very gory scene. The admissibility of these and other pictures will be discussed in Topic IV, infra.

An immediate search was started to locate the culprit ; money had been spent with blood on it; the source was traced to appellant; and he was arrested Monday night, August 11, 1958, and placed in jail. The next day, August 12th, appellant was taken before the Osceola Municipal Court for preliminary trial, was formally charged with the murder of Justus Edrington, and entered a plea of guilty. This will be discussed in Topic III, infra. The appellant went with the officers to the scene of the crime and told them just how he struck and beat Edrington, committed the robbery, and then used the bloody money to buy an automobile. All of the furnished details were verified; and the bloody granite rock and railroad spike, used to beat Edrington, were identified.

Hays was sent to the Arkansas State Hospital for Nervous Diseases, under the provisions of § 43-1301 Ark. Stats.; and the results of the examination showed that he was “without psychosis”. He was charged with first degree murder committed while in the act of robbery (§ 41-2205 Ark. Stats.). Able counsel were appointed by the Trial Court to represent him, and they have vigorously prosecuted this appeal and have exemplified the fine tradition of the legal profession. The trial jury found the defendant guilty and fixed the punishment at death by electrocution. The evidence is amply sufficient to support the verdict. There remain questions, whether any errors were committed in the admission of the evidence, or in any other procedure in the course of the trial; and these we will now discuss.

II. Corpus Delicti. The appellant’s counsel insist that the State failed to prove the corpus delicti’, that is, they insist that the State failed to prove that Edrington died from the effect of a wound unlawfully inflicted by the appellant. Appellant’s counsel argue that Edrington could just as well have died from a heart attack as from the assault that Hays made. The words, corpus delicti, mean the “body of the crime”. The State must prove the corpus delicti, which means that the State must prove beyond a reasonable doubt: (a) that the deceased was in fact killed; and (b) that the deceased came to his death by the act of someone other than himself.

That Edrington died, is established because both the doctor and the funeral director testified that they viewed his body. The mortician who prepared Edrington’s body for burial testified that there were twenty-one wounds on the head which required the use of sutures. Some were straight cuts and some were triangular cuts. Dr. Fairley, who examined Edrington and pronounced him dead, stated that the wounds on Edrington’s head were “conducive to cause death”, and that the wounds on the head were a producing cause of death and competent to produce death. On cross-examination the following occurred :

“ Q. You don’t know, whether or not, something other than the blows on the head produced death?
A. Yes, I know.
Q. How do you know, doctor?
A. Because, he had the injury to produce death. ’ ’ And on re-direct examination this occurred:
“Q. Were the wounds on Mr. Edrington’s head such as were calculated to produce death?
A. Yes, sir.”

It was testified that the defendant admitted inflicting blows on Edrington with the granite rock and the spike. Certainly there was ample evidence to submit the question to the jury as to the cause of Edrington’s death. Our leading case on corpus delicti is that of Edmunds v. State, 34 Ark. 720, decided in 1879. In that case, Chief Justice English said:

“ ‘In cases of alleged homicide, the proof of a corpus delicti involves that of the following points, or general facts: First, the fact of death, particularly as shown by the discovery of the body, or its remains: secondly, the identification of such body, or remains, as those of the person charged to have been killed; and, thirdly, the criminal agency of another, as the cause of the death
‘Criminal agency as the cause of death. A dead body or its remains, having been discovered and identified as that of the person charged to have been slain and the basis of a corpus delicti being thus fully established, the next step in the process, and the one which serves to complete the proof of that indispensable preliminary fact is, to show that the death has been occasioned by the criminal act or agency of another person. This may always be done by circumstantial evidence, including that of the presumptive kind; and for this purpose a much wider range of inquiry is allowed than in regard to the fundamental fact of death, and all the circumstances of the case, including facts of conduct on the part of the accused, may be taken into consideration.’ ”

We conclude that the corpus delicti was sufficiently established to take the case to the jury.

III. Objection To Statements Made By Appellant At And after The Preliminary Trial. As aforesaid, appellant was arrested Monday night, August 11th. The next morning, Tuesday, August 12th, he was taken before the Municipal Court in Osceola for preliminary trial and he there entered the plea of guilty. One of the objections raised by appellant’s counsel was that the plea at the preliminary trial should not have been allowed to be shown in the trial of the case; but we find no merit in this contention. In Barnhardt v. State, 169 Ark. 567, 275 S. W. 909, the accused had pleaded guilty at the preliminary trial, and such fact was testified in the trial on the merits, and we held that such was competent, saying:

“This was a question of fact, and any admission made by Barnhardt in this connection was admissible against him. He had the right to testify as to the plea entered by him, and likewise to explain such plea, but any statements made by him in making this plea were admissible against him, and it was competent and admissible for Hughes, or any other witness who heard Barnhardt’s statements, to testify as to the statements then made.”

After the preliminary trial the appellant went with the officers to the liquor store and told them just how he had committed the crime. Appellant’s counsel objected to statements that the defendant made to the officers at that time. These statements were clearly admissible. Any statement voluntarily made by the defendant was an admission that was competent evidence. Bly v. State, 213 Ark. 859, 214 S. W. 2d 77; and Wooten v. State, 220 Ark. 750, 249 S. W. 2d 964.

IV. Admission Of Pictures. In the course of the trial the State introduced several photographs. Some of these were taken the night Edrington was killed and show the condition of the inside of the liquor store. It was shown that nothing had been disturbed, and that the conditions were identical with what they were when Edrington was found. Other pictures were taken inside the store while the defendant was there on August 12, 1958; and he was pointing out the blood on some of the articles in the store, and also showing how he had rifled the cash register. The accuracy and authenticity of all of the pictures having been established, they were clearly admissible. Grays v. State, 219 Ark. 367, 242 S. W. 2d 701; Smith v. State, 216 Ark. 1, 223 S. W. 2d 1011; Sellers v. State, 93 Ark. 313, 124 S. W. 770.

V. The Punishment. Appellant’s counsel most vigorously argue that the punishment should be life imprisonment instead of the death penalty; but the Trial Court correctly instructed the jury in its Instruction No. 7, as follows:

“Therefore, if you find from the evidence in this case, beyond a reasonable doubt, that the defendant, Arthur Hays, in the Osceola District of Mississippi County, Arkansas, unlawfully and of his malice aforethought while in the perpetration of or in the attempt to perpetrate robbery, did assault one Justus Edrington by striking him about the head and face with an iron mauling spike and with a granite rock, and from which the said Justice Edrington died, then you will find him guilty of murder in the first degree and if you do so find it will be your duty to assess the punishment. The punishment for murder in the first degree is death by electrocution or, at the option of the jury, imprisonment in the penitentiary for the term of his natural life.”

The verdict of the jury was: “We, the jury, find the defendant guilty of murder in the first degree and fix his punishment at death by electrocution.”

Finding no error, the judgment is affirmed.

       In the case at har the Trial Court instructed the jury on corpus delicti in Instruction No. 9, as follows:
      “You are instructed that in all homicide cases corpus delicti must be proved as an essential condition of conviction. Corpus delicti is defined as meaning both the ‘body of the deceased’ and the ‘body of the crime’; and the ‘body of the crime’ consists of three elements: That is, first, that the deceased should be shown to have died from the effect of a wound; second, that it should appear that this wound was unlawfully inflicted by the defendant; and third, that the defendant was implicated in the crime. The burden of proof is upon the State to prove to your satisfaction, beyond a reasonable doubt, all three of these elements, and if it fails to prove to your satisfaction, beyond a reasonable doubt, any one of these elements, then your verdict must be for acquittal.”


author: Ed. F. MgFaddin, Associate Justice.

text:
    Young v. State.
    4940
    324 S. W. 2d 524
    Opinion delivered June 1, 1959.

      James E. Hyatt, Jr., for appellant.

      Bruce Bennett, Atty. General; by Thorp Thomas, Asst. Atty. General, for appellee.
   Ed. F. MgFaddin, Associate Justice.

This is a capital case. On Sunday afternoon, August 17, 1958, the appellant, William Yonng, shot and killed Erman Cox, a State Highway Police Patrolman. Appellant was arrested a few hours after the shooting; and at a preliminary hearing in the Municipal Court of Osceola, he pleaded guilty. He was charged with murder in the first degree. (§ 41-2205 Ark. Stats.) The jury trial of appellant in Circuit Court began on October 14, 1958; and he entered a plea of guilty to the information filed against him. A jury was empaneled to determine the degree of the crime and to fix the punishment, as provided by § 43-2152 Ark. Stats. The jury returned a verdict of murder in the first degree and fixed the death penalty. The motion for new trial was overruled; sentence was pronounced; and this appeal ensued. We have examined all of the assignments in the motion for new trial and also every objection appearing in the transcript, as is our rule in capital cases (Smith v. State, 205 Ark. 1075, 172 S. W. 2d 249). We group and discuss the assignments and objections in suitable topic headings.

I. Sufficiency Of The Evidence. Erman Cox was an Arkansas State Highway Police Patrolman; and had been stationed at Osceola, Arkansas for some time. He was subject to call 24 hours a day; and the fact that he was not in uniform did not prevent him from being in the discharge of his duties. About 1:00 P.M. Cox went in his personal car (being a red and white Dodge) to the store of Mr. Heaton to get a package of cigarettes. Cox had frequently been in that store, both in uniform and in civilian clothes; and Mr. Heaton testified that he had seen the appellant, Young, talking to Officer Cox when the latter was in uniform as well as in civilian clothes. While Officer Cox and Mr. Heaton were in conversation (about 1:00 P.M. Sunday afternoon, August 17th) they observed Appellant Young getting someone to push his pickup truck and when the truck started, Young drove in a fast and reckless manner. On direct examination Heaton described the'method of Young’s driving as “going all over the road”; and on cross-examination he said Young was “zigzagging”.

Officer Cox got in Ms car and “started ont after” the appellant and pursued him across two levees to Young’s home on the bank of the river. It was there that the homicide occurred. The witness, Grigsby, testified that he saw Young marching Cox at gunpoint around the house and cursing him, and then the witness heard the shot. Other witnesses heard the shot, and when they reached Cox’s car they found him seated in his car, dead. A bullet had entered his face under the left eye and had never left the cranium.

In his statement to the officers after the arraignment in Municipal Court, Young said that he shot Cox without knowing that Cox was an officer, but that Cox was retreating to his car; and Young said that after he had shot Cox and while Officer Cox was seated in the car “quivering”, Young turned off the ignition to Cox’s car, and then went into a boat and went to sleep in the boat after going some distance from the landing. The statement which Young gave to the officers wras in writing and witnessed; and Young admitted (when he testified in the hearing on the motion for new trial) that the statements in the confession were correct, and were voluntarily made.

The testimony of all the witnesses makes clear that when Cox saw appellant driving as he was, Cox pursued him to make an arrest; that Young drove to his home, went in and got the gun, came out and marched Officer Cox around the house, cursing him; and then after Cox had returned to his car and was seated therein and had started the engine, Young shot the officer in the face and caused his death. This evidence is sufficient to show that Young acted deliberately, feloniously, wilfully, and maliciously and with premeditation and malice aforethought, and intentionally shot Cox in the head. So the evidence is amply sufficient to support the verdict. We have several cases wherein, after a plea of guilty, the appellant has been given the death sentence by the jury. Some of them are: Rorie v. State, 215 Ark. 282, 220 S. W. 2d 421; and Jones v. State, 204 Ark. 61, 161 S. W. 2d 173.

Appellant’s counsel, on appeal, argues most persistently that we should reduce the punishment from the death sentence to life imprisonment. It was the prerogative of the jury to assess the degree of the crime and fix the punishment; and when we find the evidence is sufficient to sustain the verdict, we have performed our constitutional duty. In Rorie v. State, supra, we were urged to reduce the punishment in a death case; and what we said there applies with equal force here:

“Finally, appellant’s counsel asks this Court to ‘exercise its constitutional power and reduce the death sentence to life imprisonment’. Among other cases, we are cited to Blake v. State, 186 Ark. 77, 52 S. W. 2d 644, in which case this Court modified the judgment from the death sentence to imprisonment. When this court finds that the evidence is insufficient to support the punishment assessed, then we have the power to modify the punishment. Our cases clearly reflect, however, that this modification is done, not on a basis of judicial clemency, but only in a case in which the evidence would not sustain the higher punishment assessed. In the case at bar we find the evidence sufficient to support the jury verdict. ’ ’

II. All Of The Appellant’s Rights Were Recognised and Safeguarded. Appellant’s present counsel makes an ad hommem argument to the effect that appellant did not receive full protection of all his constitutional rights at the jury trial. We have examined the record most carefully in this regard, and find no merit in such argument. The appellant was taken before an examining magistrate shortly after his arrest (§ 43-601 Ark. Stats.); and he was sent to the State Hospital for sanity examination (§ 43-1301 Ark. Stats.). The information charged in part:

‘ ‘ The said defendant on the 17th day of August, 1958, in the Osceola District of Mississippi County, Arkansas, did unlawfully, deliberately, feloniously, wilfully, maliciously, and with premeditation sboot and kill Arkansas Highway Patrolman, Erman Cox, near Jacksonville Landing, Osceola, Arkansas, by deliberately and intentionally shooting the said Erman Cox through the head with a 31 calibre Japanese make rifle, against the peace and dignity of the State of Arkansas.”

On October 1,1958, on arraignment in Circuit Court, appellant had no attorney; and the Court appointed two attorneys to represent him, being Messrs. Ralph Wilson and Mitchell Moore. They were and are capable attorneys and conscientious gentlemen. They entered into the discharge of their duties; had access to the signed statement appellant had given the officers; and they conferred with appellant, his wife, and others. As to defendant’s plea, the record reflects:

“On this 14th day of October, 1958 comes the State of Arkansas by Terry Shell, Prosecuting Attorney, and comes the defendant in proper person in custody of the Sheriff and by his Attorneys, Moore and Wilson, and waived formal arraignment, and after having the nature of the Information, plea, and effect thereof explained to him by the Court elected to enter a plea of GrUILTY.”

After the plea of guilty, the Court empaneled a jury to fix the degree of the crime and the punishment (§ 43-2152 Ark. Stats.). Appellant was advised repeatedly by his counsel that he could take the witness stand or not, as he saw fit, and that his failure to testify would not be considered against him. He decided that he did not want to testify, and later admitted (in the hearing on the motion for new trial) that he so advised his attorneys. These lawyers were so anxious to fully represent their client and protect his rights that they consulted an attorney from another city, and even went to the Trial Judge in chambers on the matter of the appellant deciding not to testify. The cross-examination of some of the State’s witnesses and the objections made as to the order of argument (to be considered later) show the zeal which these attorneys exhibited in representing the confessed murderer. Since appellant had pleaded guilty in the examining trial and had made a free and voluntary confession, the attorneys thought that by allowing the appellant to plead guilty, the jury might give him punishment of life imprisonment rather than the death sentence.

The Trial Court required the State to prove every point of its case, just as though there had been no plea of guilty, because it was for the jury to determine the degree of the crime and to fix the punishment. The Court fully instructed the jury. The forms of verdict given to the trial jury covered not only murder in the first degree with the two options of punishment, but also murder in the second degree with years for sentence, and also a form for a possible finding of not guilty. The jury returned into open Court its verdict:

“We, the Jury, find the defendant guilty of Murder in the first degree and fix the punishment at death by electrocution.”

When the trial came to the stage of argument to the jury, this occurred:

“MR. WILSON: The defendant moves that the counsel argue alternately, according to § 43-2133 Ark. Stats.
“THE COURT: In ruling upon this, the court is fixing the order of argument to be: first, the argument of counsel for the State, then, argument by counsel for the defendant, in order in which they themselves determine, and the closing argument to be had by counsel for the State.
“MR. WILSON: Exception.”

The Court made no error in its ruling. The record reflects that the State was represented by its Prosecuting Attorney, Terry Shell, and its Deputy Prosecuting Attorney, H. J. Swift; and that the defendant was represented by Ralph Wilson and Mitchell Moore. In Cooper v. State, 145 Ark. 403, 224 S. W. 726, the accused admitted the killing, the venue, and the time of the killing, and claimed that such admission gave his attorney the right to open and close the argument; hut this Court held that even with such a plea of guilty, the State had the burden of proving the defendant’s guilt beyond a reasonable doubt, and that the right to open and close the argument remained with the State. With the right to open and close the argument remaining with the State, and with only two attorneys representing the State, the Court was not in error in requiring the State to open the argument and then the two attorneys for the defendant to make their arguments, and then the State to close the argument.

We find that in all the other matters, the Court was zealous in protecting the appellant’s rights. After the verdict, appellant’s mother decided to employ counsel to represent appellant, so sentence was delayed to give the appellant’s mother time to employ an attorney of her own choosing. She employed the present counsel, James M. Hyatt, Jr., and he filed the motion for new trial; and at the hearing on that motion appellant’s counsel called a series of witnesses, and appellant testified himself — something he had not done at the original trial.

III. The Motion For New Trial. The verdict of the jury was returned on October 15, 1958, and the present counsel filed the motion for new trial on October 30, 1958. The hearing on the motion was delayed until December 18, 1958. At the conclusion of the hearing the motion for new trial was overruled and formal sentence was pronounced.

We find nothing to justify any criticism of trial counsel (see White v. State, 192 Ark. 1102, 96 S. W. 2d 771). It is frequently difficult for a lawyer representing a defendant in a criminal ease to decide what is best as regards the defendant taking the witness stand. Particularly is it difficult for a court-appointed attorney to make the decision. These attorneys represented a client who had pleaded guilty and who had made a free and voluntary confession. If they had put him on the witness stand, his criminal record would have certainly been developed on cross-examination, just as it was developed when he took the witness stand in support of the motion for new trial. He seemed to have a tendency to shoot at people: he shot at a man in a car several years before and was sent to the penitentiary for assault with intent to kill. While out on parole, he was not supposed to touch any firearms, and yet he shot at his wife. When that gun was taken away from him, he traded his shotgun for the Japanese rifle with which he killed Officer Cox. The intoxication record of the appellant was likewise developed on cross-examination.

The court-appointed counsel, in the exercise of sound discretion, left it to their client to decide whether he would testify before the jury; he admitted in the hearing on the motion for new trial that he had decided he did not want to face the jury; and the Trial Court instructed the jury that the defendant’s failure to take the stand and testify could not be considered against him.

It is argued that the court-appointed attorneys failed to call any witnesses to testify on behalf of the defendant. It occurs to us that the court-appointed counsel used considerable adroitness in this regard: (a) to have called witnesses to refute appellant’s voluntary confession would not have had a tendency to reduce the punishment; and (b) the witnesses that the present counsel called, to testify for the appellant in the hearing on the motion for new trial, certainly did not testify to anything that did the appellant any good. The counsel in the trial before the jury did all they could with a bad case.

Finally, it is claimed in the motion for new trial that the appellant was intoxicated at the time that he killed Officer Cox and that such intoxication should have been shown to the jury in defense of the appellant’s act of homicide. We conclude that the Trial Court did not abuse its discretion in overruling the motion for new trial on this point. The fact, that appellant had been drinking a great amount of whiskey and beer, does not show that his intoxication had reached a stage amounting to insanity. The facts, that he was able to drive his car over two levees and back to his home and get his gun before the officer following him could get to his house, indicate that appellant knew what he was doing. In Casat v. State, 40 Ark. 511, Judge William W. Smith, speaking for this Court, stated the law that has been many times followed by this and other courts, and which is apropos to the case at bar:

“. . . the degree of drunkenness that is proved falls short of that extreme point which can mitigate the enormity of his offense. The evidence does, indeed, show that on the morning of the fatal day, and for several days previous, Casat had been drinking more freely than was good for him. But this is not an unusual thing in cases of homicide. There is no evidence that the drinking had proceeded to the extent of producing any disease, either permanent, temporary or periodical, such as delirium tremens, mania-a-potu or dipsomania. So there is no proof that the ordinary effect of strong liquors was to make a mad man of him, as is its effect upon men of a certain temperament. Nor is there any cause to believe that on this particular day his reason was, by excessive indulgence, overthrown, and he no longer able to distinguish the nature and quality of his acts . . .
‘ ‘ But mere nervous excitement does not go far enough to reduce the grade of the offense. No voluntary intoxication can have that effect unless it is accompanied by a temporary destruction of the reason. Shannahan v. Comm., 8 Bush, 463; S. C., 8 Am. Rep. 465; People v. Robinson, 1 Parker, Cr. R., 649; Comm. v. Hart, 2 Brewst., 546; Pennsylvania v. McFall, 1 Add., 255.
“If the inebriate’s memory has not been impaired,, or his judgment perverted; if his physical senses, and especially his sight and hearing, have not become enfeebled or distorted; if he walks with a firm, elastic step; if he can distinguish friend from foe, and knows the difference between right and wrong, then he retains mind enough to plan and execute a murder . . .
“The eye-witnesses of the final scene are unanimous that he was remarkably cool and collected, until he lashed himself into fury by the abuse of Richardson. He did. not stagger like a drunken man, but Ms tread was quick and active.”

Finding no error, the judgment is affirmed.

       Some of our cases involving this statute are: Carson v. State, 198 Ark. 112, 128 S. W. 2d 373; Jones v. State, 204 Ark. 61, 161 S. W. 2d 173; and Rorie v. State, 215 Ark. 282, 220 S. W. 2d 421.

       The order of commitment to the State Hospital is not in the record before us, but appellant testified (while in support of his motion for new trial) that he had requested a sanity hearing and was taken to the State Hospital at Little Bock on two different occasions. Also, appellant’s wife testified (in the hearing on the motion for new trial) that she had filled out papers for the State Hospital while appellant was there.