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

text:
    Patricia Lea Sims v. STATE of Arkansas
    5664
    477 S.W. 2d 825
    Opinion delivered March 20, 1972

      Tackett, Moore, Dowd & Harrelson, for appellants.

      Ray Thornton, Atty. Gen., by: Henry Giner, Deputy Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Patricia Lea Sims, appellant herein, was convicted of two counts of grand larceny (charged in separate informations) and her punishment fixed at imprisonment in the Arkansas Department of Corrections for two years on each charge. The sufficiency of the evidence for conviction is not questioned, but two asserted errors are relied upon for reversal in this court. First, it is asserted that the court erred in permitting the prosecuting attorney to question appellant about a bond forfeiture for an alleged misdemeanor of vagrancy by prostitution, and it is also contended that the court erred in failing to grant a mistrial after the prosecuting attorney mentioned to the jury that he had wanted to introduce testimony of previous thefts of appellant but the trial judge would not permit him to do so. We proceed to a discussion of these points, but in reverse order.

The nature of the second point is explained by a stipulation entered into between the prosecuting attorney and appellee’s counsel, Paragraph I reading as follows:

“Immediately after the Defendant, Patricia Lea Sims, testified on direct examination, leaving an inference that she was well aquainted with the prosecuting witness and their homes, having visited and worked there on numerous occasions, and that she had never before been accused of theft at those homes, the Prosecuting Attorney called the defense attorney to the Judge’s bench, and outside hearing of the Jury, suggested to the Trial Judge that he be permitted to introduce proof that on previous occasions when the Defendant was in those homes items had been missed and recovered at her home, and that the prosecuting witnesses believed that the Defendant had stolen those items; that Trial Court Judge Bobby Steel advised the Prosecuting Attorney that he was not permitted to delve into other alleged thefts by the Defendant even though he was permitted to prove any prior criminal convictions of the Defendant.

The stipulation further reflects that during the final argument before the jury, defendant’s counsel stated to the jury that “If the Defendant was a thief it was strange to know why there had not been any evidence adduced to that effect even though the Defendant had been afforded many opportunities to steal in the past while visiting in the prosecuting witnesses’ homes as a babysitter and friend of children of her like age.” This argument was answered by the prosecuting attorney by commenting to the jury:

“That he had wanted to introduce testimony of previous thefts by the Defendant at the homes of the prosecuting witnesses, that he had approached the Trial Judge in the presence of the defense attorneys and asked the Judge to permit him to introduce such testimony; and that the Trial Judge had ruled that the Prosecuting Attorney would not be permitted to introduce any such testimony unless there had been a conviction of the Defendant concerning same.”

Defense counsel objected and moved for a mistrial whereupon the court instructed the jury that the remarks were not admissible and that they should disregard the comments of the prosecuting attorney, and the court further requested that if any member of the jury could not disregard the comments to let it be known by a show of hands. No juror indicated that he could not disregard the remarks; counsel for appellant again moved for a mistrial which the court denied.

We think reversible error was committed, even though the trial court commendably sought to remove any possible prejudice from the minds of the jurors and asked that members of the jury who could not disregard the remarks of the prosecutor should so signify by lifting their hands. We have said that error is presumed to be prejudicial unless it can be clearly shown that it was •not. Cabbiness v. State, 241 Ark. 898, 410 S.W. 2d 867. Though no juror lifted his hand, we are mindful that at that stage of the trial, a juror would have been most reluctant to indicate that a remark made during argument, about an occurrance not in the record, would have any effect upon his thinking.

At first blush, it would appear that counsel for defendant invited the remarks of the prosecutor but a study of the stipulation reveals that defense counsel said no more than he was perhaps entitled to say. The remark by counsel, as stipulated, was that if Mrs. Sims was a thief, it was strange to know why there had been no evidence introduced to that effect even though opportunities had been afforded when she formerly visited in the homes of the prosecuting witnesses. The only legal evidence that could have been offered during the trial that she was a thief would have been by asking her on cross-examination if she had been convicted of larceny (or if she had committed an act of larceny). This was not done, undoubtedly because the state’s attorney knew that there were no such convictions. The evidence that he had sought to offer was that on previous occasions, when appellant was in the homes, items had been missed and recovered at her home, and the prosecuting witnesses believed that she had stolen those items. Of course, none of this evidence was admissible in the current trial, and the learned trial judge so held. The remark by the prosecuting attorney was that he had wanted to introduce testimony of previous thefts; however, the stipulation clearly shows that he had not tried to introduce testimony of previous thefts, but had only desired to introduce testimony of suspicious circumstances that indicated appellant might be guilty of theft. After thorough deliberation, we have reached the conclusion that the court should have granted the motion for a mistrial, and committed error by not doing so.

Relative to the first point mentioned by appellant for reversal, the record reveals the following during the cross-examination of Mrs. Sims:

“Q. Let me ask you this. Have you ever earned any money as a prostitute?
A. No, I haven’t.
MR. TACKETT:
Your Honor, I thought this young lady was charged with burglary and grand larceny, and we’ve spent about an hour here talking about everything in the world except burglary and grand larceny. I expect, Your Honor, the reason for that is because he doesn’t have any evidence on burglary and grand larceny.
THE COURT:
This is cross-examination, Mr. Tackett, and he has a wide range of latitude. Go ahead, Mr. Pickett.
Q. Have you ever been charged—
THE COURT:
No, Mr. Pickett, not charged.
Q. Have you ever been convicted of vagrancy by prostitution?
A. No, I wasn’t.
Q. You mean to tell me that on March 17, 1971, you didn’t post bond and forfeit that bond in the sum of $159.25 on a charge of vagrancy by prostitution?
A. Yes, sir, I was charged, but I wasn’t convicted.
Q. You forfeited a bond. Is that correct?
A. Yes.
MR. TACKETT:
Your Honor, without interfering with the cross-examination, I renew my objection.
THE COURT:
The objection is overruled. Members of the jury, at this stage, I. should caution you that the only purpose for which evidence of this nature is admissible, is as it may affect the credibility of the witness as a witness in her own behalf in the defense of her case, and for no other purpose should it be considered by you. Only as to her credibility.”

We do not seem to have passed on the question of whether a bond forfeiture constitutes a conviction in a misdemeanor case, and no cases are cited to us. However, there is no necessity to discuss that specific question for it is apparent that the objections made do not reach the question of whether it was proper or improper to question appellant about the bond forfeiture. The objection made by counsel (really not an objection) is only that questions are being asked about matters other than burglary and grand larceny. The second objection was simply a renewal of the first. Of course, it was entirely proper to interrogate Mrs. Sims about previous convictions as a matter of going to the credibility of the witness — but the objection that a bond forfeiture did not constitute a conviction, and appellant was thus only being asked about a charge against her, was not made. We find no merit in this contention.

Because of the error in refusing to grant the mistrial, the judgment is reversed, and the cause remanded.

It is so ordered.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I respectfully dissent. I would affirm this judgment. To begin with, I am of the opinion that the testimony proffered by the prosecuting attorney was admissible in evidence, even though it tended to prove other offenses by appellant. I do not agree with the majority characterization of the proffered testimony as suspicious circumstances only, apparently made because the owners of the lost property believed that their baby-sitter had stolen their missing property found in her possession. This was more than suspicion; it was evidence of larceny, at the most, and possession of stolen property, at the least. The proffered testimony was sufficient to have made a prima facie case of larceny, and to support a jury verdict. Holcombe v. State, 217 Ark. 407, 230 S.W. 2d 487; Lee v. State, 200 Ark. 964, 141 S.W. 2d 842; Lee v. State, 200 Ark. 1189, 141 S.W. 2d 845; Holland v. State, 198 Ark. 933, 132 S.W. 2d 190; Riley v. State, 184 Ark. 227, 42 S.W. 2d 15; Dennis v. State, 169 Ark. 505, 275 S.W. 739; McDonald v. State, 165 Ark. 411, 264 S.W. 961; Wiley v. State, 92 Ark. 586, 124 S.W. 249.

That evidences of offenses or acts similar to the one charged may be competent for the purpose of showing knowledge, intent or design is as thoroughly established as the general proposition that other crimes or offenses cannot be shown in evidence against a defendant charged with a particular crime, because it is not proof of other crimes, but evidence of other acts which are from their nature competent as showing knowledge, intent or design. State v. Dulaney, 87 Ark. 17, 112 S.W. 158. There we approved the principle that evidence of other crimes is competent to prove the specific crime charged when it tends to establish, inter alia, intent, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, or the identity of the person charged with the commission of the crime on trial. We also spoke approvingly of the idea that one facet of common plan or scheme is the commission of two or more crimes by the same person in pursuance of a single design, i.e., a system between the offense on trial and the one sought to be introduced, a connection as parts of a general and composite plan or scheme, or offenses so related to each other as to show a common motive or intent running through both. We accepted the exception to the rule against evidence of a collateral crime, when it is so linked to the crime under trial as to show that it is part of the same scheme or understanding or in some way has a logical connection with the crime charged.

In Nash v. State, 120 Ark. 157, 179 S.W. 159, we held that testimony concerning two other robberies was clearly competent, saying that such proof is not to be excluded if it tends, in a material way, to prove guilt of the crime charged. We later said that such evidence was admissible to establish a defendant’s guilt of the crime charged, or some essential ingredient thereof, when it discloses criminal intent or guilty knowledge, identifies the defendant, or is part of a common scheme or plan embracing two or more crimes so related to each other that the proof of one tends to establish the other. In Cain v. State, 149 Ark. 616, 233 S.W. 779, the evidence showed that one charged with operating a gambling house had discharged an employee who was running a crooked game in the basement of the Pastime place and that he was interested in running gaming houses at other places in the city as tending to show that he was operating a gaming house in the Pastime place, and that he had knowledge of it.

We have also held that a check not related to the charge of possession of forged and counterfeit instruments was properly offered by the State to show criminal intent, design or part of a common scheme or plan of the defendants. Keese and Pilgreen v. State, 223 Ark. 261, 265 S.W. 2d 542. We repeated that evidence of the commission of other crimes of a similar nature about the same time tends to show guilt of the accused when it discloses a criminal intent or guilty knowledge. Soon thereafter, we reviewed various holdings on the subject and restated our position on admissibility of evidence of other offenses. We said that evidence of other conduct on the part of the accused was admissible, with a proper cautionary instruction by the court, if relevant to prove some material point in issue, as when it sheds light on the defendant’s intent. Alford v. State, 233 Ark. 330, 266 S.W. 2d 804.

More recently we sustained a trial court’s permitting proof of attempts to defraud by the “green money press racket” other than the one charged as tending to show the defendant’s identity, scheme, purpose, intent, design and motive. Kurck v. State, 242 Ark. 742, 415 S.W. 2d 61. Still more recently, in a rape case, we held that evidence of a similar approach to an attempt to commit rape was relevant as tending to prove a material point in issue, such as mode or methods of operation, habits and practices of the defendant and to identify him as the person who committed the crime charged. Tarkington v. State, 250 Ark. 972, 469 S.W. 2d 93. We noted that testimony of prior acts was admissible where the modus operandi tended to establish identity, and that if the crime has been committed in a particular manner, and the identity of the perpetrator is in issue and not otherwise conclusively established, evidence of defendant’s commission of a similar offense in such manner is admissible when the similarity of the manner employed logically operates to set the offense apart from other crimes of the same general variety and tends to suggest that the perpetrator of one was the perpetrator of the other.

I think that the proffered testimony was admissible as tending to show appellant’s guilty knowledge, intent, motive, design, identity, her common plan, scheme, design, or system, and method of operation.

While the admissibility of the testimony is not essential to the sustaining of the trial court’s action with reference to the jury argument, it certainly strengthens my position. In any event, the prosecuting attorney’s statements in closing argument were clearly invited.

Appellant’s attorney’s statement challenged the state to answer the very strong implication that appellant, on many occasions, had the same opportunity to steal under circumstances similar to those outlined by the evidence. The prosecuting attorney had attempted to prove that appellant had availed herself of this very opportunity on other occasions. Actually, the remarks tended, at that stage of the proceedings to put the character of the defendant in issue. In any event, any jury hearing this argument would be alert to hear what response the prosecuting attorney could make to the argument, and the very response he made should have been anticipated.

In Rose v. State, 122 Ark. 509, 184 S.W. 60, we held that an improper argument cannot be complained of if it necessitated by what was said in an argument of an adversary. In that case, involving a charge of criminal abuse, defense counsel stated that there was no evidence to show how the manager of the Orphan’s Home learned that the victim had been mistreated by the Roses, or why he sent for her and had her examined, or where the information had been obtained. The prosecuting attorney responded that the state, in effect, had evidence to show all these facts but that defendant had objected to the introduction of the evidence and thus closed the mouth of the state and prevented it from proving these facts. We held that the prosecuting attorney’s response was provoked, and that the error was invited and not reversible. It would be hard to find a closer parallel to the present case. See also, Pink v. State, 175 Ark. 396, 299 S.W. 391.

We have long recognized that a prosecuting attorney has a duty to see that trials are fair and impartial and that the innocent are protected from a conviction based on prejudice and caprice. See Holder v. State, 58 Ark. 473, 25 S.W. 279; Adams v. State, 176 Ark. 916, 5 S.W. 2d 946. The great emphasis which has recently been placed upon the importance of this responsibility of the prosecuting attorney as a minister of justice has tended to overshadow his duty to serve as the state’s (and society’s) only advocate in the courtroom, particularly in a closing argument to the jury. He cannot be expected to shirk his role as a zealous, vigorous and earnest advocate and not use every legitimate means to bring about a just conviction. See 23A C.J. S. 78, Criminal Law, § 1081; Homan v. United States, 279 F. 2d 767 (8th Cir. 1960), cert. denied, 364 U.S. 866, 81 S. Ct. 110, 5 L. Ed. 2d 88; Henderson v. U.S., 218 F. 2d 14 (6th Cir. 1955), 50 A.L.R. 2d 754, cert. denied, 349 U.S. 920, 99 L. Ed. 1253, 75 S. Ct. 660, reh. denied, 349 U.S. 969, 75 S. Ct. 879, 99 L. Ed. 1290. The champion of the people of this state should not be conducted into the arena with arms bound and without proper weapons.

If, indeed, there was error, I submit that any such error was adequately cured by the careful action of the trial court, which we have found to be an adequate prophylaxis in similar circumstances many times. Freeman v. State, 214 Ark. 359, 216 S.W. 2d 864; Cabe v. State, 182 Ark. 49, 30 S.W. 2d 855; Seaton v. State, 151 Ark. 240, 235 S.W. 794; Hicks v. State, 193 Ark. 46, 97 S.W. 2d 900; Blanton v. State, 249 Ark. 181, 458 S.W. 2d 373; McMillan v. State, 229 Ark. 249, 314 S.W. 2d 183; Tillman v. State, 228 Ark. 433, 307 S.W. 2d 886; Morton v. State, 207 Ark. 704, 182 S.W. 2d 675; Pratt v. State, 75 Ark. 350, 87 S.W. 651.

      In the Oklahoma case of Fox v. State, 331 P. 2d 964, the assistant county attorney asked the defendant whether she had forfeited a bond on a drunken driving charge and also forfeited a bond for reckless driving. The court instructed the jury that the evidence was admissible only for the purpose of affecting the credibility of the witness. The defendant contended that this question was in the nature of asking if she had been charged. The Oklahoma Supreme Court did not agree that error had been committed, stating that it had held adversely to that contention. However, the court seemed to limit the admissibility of the evidence, saying “that where police court bond forfeitures are deliberately made, in cases involving unlawful possession of intoxicating liquor, they are tantamount to a plea of guilty and should be so regarded”. However, as pointed out in 98 C.J.S. Witnesses § 507b, the contrary has also been held and is cited. The offense of vagrancy by prostitution apparently refers to a city or town ordinance, as there is no state offense so characterized.


source: Caselaw Access Project

author: George Rose Smith, Justice. Conley Byrd, Justice,

license: Public Domain

text:
    Mack CLARK and Mauritz E. FRIBERG v. A. F. MADEIRA et ux
    5-5778
    477 S.W. 2d 817
    Opinion delivered March 20, 1972

      Paul Jackson, J. E. Simpson and Thomas D. Led-better, for appellants.

      John O. Mayberry and Louis E. Epley Jr., for appellees.
   George Rose Smith, Justice.

In 1968 the appellees, A. F. Madeira and his wife, who were then living in Florida, bought a fairly old house in Eureka Springs, Arkansas They employed one of the appellants, Maruitz E. Friberg, an architect, to prepare plans and specifications for extensively remodeling the house and to supervise the actual remodeling job. The Madeiras employed the other appellant, Mack Clark, as the principal' contractor for the project. The architect, for his services, was to receive 6% of the total cost of the work. The contractor was to receive his actual expense for labor and material, plus 10%.

Written contracts were drawn by Friberg and were executed by the Madeiras with Clark and with three subcontractors. The contracts contemplated that the entire job would cost about $23,000 and would be completed in 90 days. The job eventually cost about $43,000 and was completed in about 15 months. The Madeiras brought this action for damages for breach of contract, asserting negligence, incompetence, poor workmanship, and unnecessary delay in the completion of the project. The jury returned a verdict for $5,000 against Friberg, the architect. The verdict against Clark, the contractor, was for $2,344.01, which was the same amount that the jury found to be still owed by the Madeiras to Clark upon his contract.

The parties have not brought up the complete record, but apparently the issues were submitted to the jury upon ten special interrogatories. For reversal Friberg first contends that the court erred in not submitting to the jury an interrogatory to determine the amount still due to Friberg upon his 6% fee. No error is shown, for the record before us does not indicate that there was any request for the court to submit such an interrogatory. Christensen v. Dady, 238 Ark. 577, 383 S.W. 2d 283 (1964); Mizell v. West, 299 Ark. 224, 314 S.W. 2d 216 (1958).

Alternatively, Friberg argues that the court should have granted his motion for judgment notwithstanding the verdict. Such a motion would have been proper if the undisputed testimony had established Friberg’s right to recover. Spink v. Mourton, 235 Ark. 919, 362 S.W. 2d 665 (1962). Friberg is mistaken, however, in arguing that he was in any event entitled to a 6% fee upon the total cost of the project. One cannot profit by his own wrong. Consequently an architect whose cost estimate is culpably below the actual cost of the job is not entitled to a commission upon the excess. Miller v. San Francisco Church Ext. Soc., 125 Cal. App. 85, 13 P. 2d 824 (1932); Edwards v. Hall, 293 Pa. 97, 141 A. 638 (1928); Headlund v. Daniels, 50 Utah 381, 167 P. 1170 (1917). Our decision in Almand v. Alexander, 180 Ark. 947, 23 S.W. 2d 611 (1930), is essentially to the same effect. We must conclude that the motion for judgment notwithstanding the verdict was correctly denied.

Clark, the contractor, insists that the jury’s verdict against him for $2,344.01 is not fully supported by the evidence. With that contention we agree. The Madeiras asserted causes of action against Clark both for his failure to perform the work according to the plans and specifications and for his failure to complete the work within the time fixed by the contract. Both issues were submitted to the jury by special interrogatories. In response to Interrogatory 6 the jury found that Clark had performed the work and furnished the materials, in compliance with the contract. Pursuant to that finding the jury further determined that the Madeiras still owed Clark $2,344.01 on the contract. By Interrogatory 10 the jury found that Clark did not perform the contract (as modified by the parties) within the time specified. Damages caused by that delay were fixed by the jury at $2,344.01.

We do not agree with the appellees’ argument that in response to Interrogatory 10 the jury could have awarded damages for breach of contract in addition to damages for delay. The jury had already determined, in response to Interrogatory 6, that Clark performed the contract according to the plans and specifications. That finding left in issue, under the interrogatories, only the possibility of damages for delay. Upon that question the proof as abstracted sustains only an award of $342.16 for the rental of accommodations occupied by the Madeiras while they were forced to wait for the completion of the remodeling project. No other compensable pecuniary loss is shown. Although there is proof that Clark was unnecessarily slow in completing the work, the jury apparently was not furnished with sufficient facts to support a determination of the pecuniary loss that resulted from Clark’s slowness. The judgment against Clark must therefore be reduced to $324.-16, which leaves a net award of $2,019.85 in Clarks favor.

In considering the case we have been handicapped by the fact that the parties have included in the record only the testimony adduced by the Madeiras. We have considered in conference the possibility of asking the Madeiras to supply the rest ot the testimony, but such a request would not be justified in the situation before us. The appellants at first designated for inclusion in the record only the Madeiras’ testimony on chief. The appellees then designated the rest of the testimony, but the appellants failed to comply with that designation when they lodged the record here. In that situation the appellees could have moved for a dismissal of the appeal, if the appellants refused to supply the deficiency. Ark. Farmers Assn. v. Towns, 232 Ark. 997, 342 S.W. 2d 83 (1961). Instead, the appellees aquiesced in the appellants’ failure to bring up the complete record, doubtless because the missing testimony would not have been beneficial to the appellees. Hence we must treat the record as having been abbreviated without objection, which precludes us from assuming that the jury’s verdict is supported by matter omitted from the record. Ark. Stat. Ann. § 27-2127.6 (Repl, 1962); Southern Farmers Assn. v. Wyatt, 234 Ark. 649, 353 S.W. 2d 531 (1962).

Modified and affirmed.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. I disagree with that part of the opinion that grants a judgment in favor of Clark.

Appellees brought this action for damages due to delay against both appellants Friberg and Clark. Clark cross complained for the balance due on his contract for cost plus ten percent of labor and materials. After judgment was entered Friberg and Clark appealed designating only that portion of the record as “the Plaintiff’s Case in Chief.” The Madeiras then cross appealed and designated the whole record. However, the only record before us contains only the plaintiff’s case in chief.

During the trial Madeira testified that Clark did not perform his work within the agreed 90 days and that during that time the house had not been roofed, the doors were left open and the floors and subfloors buckled from water damage. Other testimony by Madeira shows that Clark took two to three times as many hours to perform the task he contracted to do as a carpenter should have taken. Mr. Madeira’s testimony as abstracted is as follows:

“I was there and watched Mr. Clark start to put the siding on that east side. He had a ladder on the terrace. He had a ladder on this side of the building, this end of the building. He had another one down on the ground on that end of the building. He got up and took his measurements. Well, a measurement out here and a measurement down there and added them together and came back down. Forgot the measurements, went back and took them again and this time wrote them down on a little piece of wood because he had made the statement several times he has trouble remembering measurements, that’s the reason he writes them down. He went back and he sawed. He, of course, made a bevel on the edge like this. Now, he climbed the middle ladder with this board and he took one end in over here, but this end was too long. Now, he had to climb down again, go across over here to the carport, get the radial saw and cut off a little bit more, brought it back, came up here, put it in here on this side. It was a little long still. He went back the second time and he cut it. This time it fit when he got up there. Now, he’s climbing up in the middle, and this time he put a nail in the middle, and down that ladder, across over here, up this ladder and another nail over here, and down off of that ladder over here to this side of the building, up that ladder to put a nail in over there. Then, to nail that, he had to keep moving that ladder across this way to get the nails in. This was every board. Now, this takes time. There are people that, in this work, that, I suppose, are known as fast workers, and there are those that are not known as fast workers; and I’m afraid Mr. Clark, to me, is a man that is not a fast worker. And the weeks went by and the weeks went by and the money went on.”

Before Clark could show to the jury on his counterclaim that he had $2,344.01 due under his cost plus contract he would have been forced to show the number of hours worked and the material purchased including that to correct the buckled subfloor. When the jury saw the number of hours worked on the project involved, they with a little common sense could have calculated that Clark’s excessive hours exceeded or equaled the amount of money he still thought was due him on the contract (Clark’s counterclaim does not allege any specific sum as due).

It has been suggested that we must rule on the record before us because of Ark. Stat. Ann. § 27-2127.6 (Repl. 1962), which provides:

“All matters not essential to the decision of the questions presented by the appeal shall be omitted. Formal parts of all exhibits and more than one copy of any document shall be excluded. Documents shall be abridged by omitting all irrelevant and formal portions thereof. For any infraction of this rule or for the unnecessary substitution by one party of evidence in question and answer form for a fair narrative statement proposed by another, the appellate court may withhold or impose costs as the circumstances of the case and discouragement of like conduct in the future may require; and costs may be imposed upon offending attorneys or parties. Where parties in good faith abbreviate the record by agreement or without objection from opposing parties, the appellate court shall not affirm or dismiss the appeal on account of any deficiency in the record without notice to appellant and reasonable opportunity to supply the deficiency. Where the record has been abbreviated by agreement or without objection from opposing parties, no presumption shall be indulged that the findings of the trial court are supported by any matter omitted from the record.”

If we must jettison our common sense and presume that the jury’s findings are not supported by anything not in the record, then we should at least give the Madeiras, who also appealed, the opportunity to supply any deficiencies in the record in accordance with that portion of the above statute that provides:

“. . .Where parties in good faith abbreviate the record by agreement or without objection from opposing parties, the appellate court shall not affirm or dismiss the appeal on account of any deficiency in the record without notice to appellant and reasonable opportunity to supply the deficiency. . . .”

Where as here common sense dictates that the record is deficient, surely we ought to apply the foregoing.

For these reasons I respectfully dissent.


author: Lyle Brown, Justice.

text:
    Jim PROTHRO et al v. Marian Pauline HOLDER, EX’X
    5-5808
    479 S.W. 2d 248
    Opinion delivered March 20, 1972
    [As amended on Denial of Rehearing May 8, 1972.]
    G. E. Snuggs, for appellant.

      Graves ir Graves, for appellee.
   Lyle Brown, Justice.

The question in this case is whether 120 acres of land which was originally a part of the estate of William tí. Prothro belongs to his heirs, or whether it is a part of the estate of Florence Hatley Prothro. The judge of the probate court held with the executrix of the Florence Hatley Prothro estate and the heirs of William H. Prothro appeal.

The chancellor found the following facts from the testimony and exhibits. William H. Prothro died intestate in 1922, survived by his widow and twelve heirs. His widow died in 1927. In 1928 there was a family settlement among the twelve heirs. The land was divided into twelve tracts and each tract was appraised, apparently so that each heir could buy a tract of land and make a cash adjustment if any tract exceeded the appraised value. Each of the twelve heirs had an interest valued at $1,687.21. Four of the heirs did not want any land so they were each paid $1,687.21 out of the adjustment monies paid in by the other heirs. On the basis of the platted division a deed was prepared and signed by all twelve heirs. The grantees to the tract designated as the 120 acres homesite were listed as Ben S. Prothro and Florence Hatley Prothro, his wife. Those grantees paid into the adjustment fund $4,123.79 by check signed by both parties drawn on their joint account. That sum represented the difference between the appraised value of the 120 acres and the valued interest in the William H. Prothro estate held by Ben (the valued interest being $1,687.21.) Ben S. Prothro died in 1960. His widow remained in possession of the 120 acres, she being considered the owner thereof bv virtue of the grant to her and her late husband.

The widow of Ben S. Prothro died testate in 1970. The designated executrix, appellee Marian Pauline Holder, who incidentally was the beneficiary of the bulk of the estate, listed the 120 acres in the inventory of the estate of Florence Hatley Prothro. The bodily heirs of William H. Prothro filed an objection to the listing of the 120 acres, they contending that the title was in the ancestral heirs of William H. Prothro.

Appellants contend that there was a partition of the William H. Prothro lands and therefore an estate by the entirety could not legally have been created by a partition deed. They cite such cases as McGraw v. Berry, 152 Ark. 452, 238 S.W. 618 (1922), and Weir v. Brigham, 218 Ark. 354, 236 S. W. 2d 435 (1951). Appellants misconceive the nature of the transaction; it was not a partition but a purchase. The acreage was divided into tracts and a value was placed on each tract. Each heir was privileged to buy in whatever tract he desired. Ben Prothro selected the 120 acre tract and paid therefore over $4,000. The tract on the plat was marked “sold to Ben Prothro and wife.” He was free to have his deed of purchase made to his wife and himself.

AMENDMENT TO OPINION

We held as late as Brown v. Smith, 240 Ark. 1042, 405 S.W. 2d 249 (1966), that a partition deed does not create any new title. That holding was based upon Johnson v. Ford, 233 Ark. 504, 345 S.W. 2d 604 (1961), and Hutchison v. Sheppard, 225 Ark. 14, 279 S.W. 2d 33 (1955). In Johnson there were factors not present here. Its holding is applicable only where there is a mere partition of land among cotenants by the exchange of partition deeds without any consideration other than the mutual agreement to divide their interests. Even under appellants’ theory much more was involved than a mere partition of lands. Accepting their theory, the distribution of an estate was involved, and those who were to receive more land than would constitute an equal share in the real estate were required to pay a differential to the agent (sometimes called “treasurer” but not the administrator) of the estate (actually of the Prothro heirs). Whether there was a distribution of the estate or not, there was not any exchange of partition deeds. For example, no property was deeded to Henry B. Prothro, Allie Prothro Brown, or John E. Prothro. But even if it could be said that there was an exchange of deeds, there was a consideration other than the mutual agreement to divide their interests in the real estate. Ben S. Prothro and Florence Hatley Prothro paid $4,123.79 to the agent of the heirs by a check signed by both and drawn on a joint bank account from which withdrawals could not be made without both signing. Doubtless this was the “other” consideration mentioned in the deed, which, incidentally, does not mention the division as a consideration at all. In a designation of tracts prior to the making of the deeds, the twelve proposed tracts were of unequal value. The name of Henry Prothro appeared opposite Tract 3, valued at $1,462, along with the notation “sold to Ben and wife,” Tract No. 4 of the value of $1,271, with a house valued at $1,167, appeared opposite Ben Prothro’s name, followed by the parenthetical notation “assigned to Ben.” “Ben and wife” appeared opposite Tract No. 11 valued at $1,911. Another exhibit provides that the middle three forties, 120 acres, go to Ben S. Prothro and wife. The finding of the probate judge was that Ben Prothro and wife paid $4,123.79 for the 120 acres of land. This finding is not against the preponderance of the evidence. The payment made by Ben Prothro and wife is not the same as owelty paid in a partition of real estate only since owelty merely equalizes values among co-tenants.

A deed in partition operates upon the possession of an estate only, converting the common possession of each cotenant in the whole to a possession in severalty. McGraw v. Berry, 152 Ark. 452, 238 S.W. 618 (1922). A voluntary partition is effected by mutual conveyances or releases to each person of the share he is to hold, executed by the other owners. Rowland v. McAlester Fuel Company, 211 Ark. 599, 201 S.W. 2d 742, 202 S.W. 2d 204 (1947). It cannot be seriously argued that the deed involved here under which nothing was transferred to some heirs did not convey title, but possession only.

Appellant relies upon McGraw v. Berry, supra, as authority for the proposition that a partition deed cannot create a new estate by the entirety. But the application of that holding has previously been limited to the ordinary partition, either by suit or deed, in Rowland v. McAlester Fuel Company, supra. As above pointed out, this was not the case here. The most that Ben Prothro could have been said to own in the lands conveyed by the deed here was an undivided one-twelfth. When he directed that the deed be made to him and his wife, it should be presumed that the parties, particularly Ben Prothro, wanted it that way, and Ben Prothro’s widow and her heirs should not now be deprived of the estate by the entirety clearly intended to be created by the conveyance. See Row land v. Me A lester Fuel Company, supra.

The decree is affirmed.


author: John A. Fogleman, Justice.

text:
    Fay M. BARNHARD v. Howard J. BARNHARD
    5-5807
    477 S.W. 2d 845
    Opinion delivered March 20, 1972

      Cockrill, Laser, McGehee, Sharp & Boswell, for appellant.

      House, Holmes ir Jewell, for appellee.
   John A. Fogleman, Justice.

Appellant asks that we reverse a decree denying her petition for modification of agreement for the payment of child support entered into in a divorce proceeding she brought against appellee. We find no error in the holding of the chancery court, so we affirm the decree.

Appellant is an anesthesiologist. Her annual income at the time of the divorce was $42,000. Appellee is Chairman of the Radiology Department at the University of Arkansas Medical Center. He was earning between $20,000 and $25,000 annually. The parties had three children, aged 17, 15, and 14. They owned a dwelling house. Appellant testified that she had been contemplating divorce for 10 to 15 years. In 1969, when her husband returned home from a trip on which she did not accompany him, she told him that she had made up her mind to proceed with a divorce suit. She consulted the attorney who later filed the divorce suit in November of that year. After her initial visit to this lawyer, she consulted with him, both with and without her husband being present. It seems to have been agreed between the parties that negotiations would be carried on toward settlement of property rights, alimony and child support without any other attorney’s participation. An agreement was reached and a formal written document executed by the parties on January 29, 1970. On December 29, 1969, appellant, through the attorney consulted, had filed a divorce complaint alleging indignities to the person as grounds. She also alleged that the parties desired a joint custodial arrangement for the children on terms to be mutually agreed upon, giving due considerations to the desires of the children.

A decree of divorce was entered on the day following the execution of the agreement by the parties upon appellee’s default. The decree made no provision for child support or for property division, and did not incorporate the agreement. It did mention that the parties had made a joint child custody arrangement, and the court approved that arrangement.

The preamble to the agreement recites the mutual desire of the parties to reach an accord in order to avoid the expense, inconvenience and embarrassment of litigation. The agreement, in essence, provided:

1. For the present, the children were to reside with the father, with visitation and periodic custody in Fay M. Barnhard at reasonable times and intervals to be determined by the parties, giving due weight and consideration to the preferences expressed by the children.
2. Until there was a change of circumstances, Fay M. Barnhard was to pay her ex-husband $500.00 per month as child support.
3. Appellant was to claim the daughter Ann as a dependent for income tax purposes and appellee was to claim the other two children.
4. Each party was to maintain specific amounts of life insurance.
5. Fay M. Barnhard was to convey her equity in the parties’ residence to her ex-husband which "represents a contribution of Six Thousand and 00/ 100 ($6,000.00) toward the expense of a college education for the children.” Any additional contribution of appellant was specifically made voluntary on her part.
6. Other provisions related to the division of personal property including a $10,000.00 savings account, certain stocks and bonds, automobiles, paintings, library, household effects and furnishings and a stamp collections. (The value of none of the items, except the savings account, was given).

On August 11, 1970, appellant filed her petition for modification of the agreement, seeking relief from the payments for child support and restoration of her one-half interest in the dwelling house. The petition alleged as changed circumstances that appellee had exclusive custody of the children, and had allowed her only limited visitation rights, and that she will incur additional and increased living expenses because she is not living with appellees. She also alleged that appellee had an annual income of $35,000 and the primary obligation for the support of the children, that the agreement was inequitable, unconscionable and contrary to the laws and public policy of the state and that she signed the agreement when she was under great emotional stress and duress due to the divorce.

The chancellor found that the appellant had made the support payments until August 1, 1970, but not after that date, that all other agreements between the parties had been carried out, that there had been no material change in the circumstances to warrant the modification of the agreement, and that no testimony was offered to the effect that appellant was under duress when she executed the agreement. He gave judgment for the amount of the arrearages.

We have carefully reviewed the evidence as abstracted and do not find the chancellor’s findings to be contrary to the preponderance of the evidence, as appellant contends. The evidence shows that appellant’s income has increased to $46,000 per year, that appellee’s net income is $2,062.43 • per month, that appellee had remarried and that his present wife’s income was $10,500 or “take home” pay of $719.19 per month. The apartment now occupied by the appellant is too small to be adequate for her to have the children for extended visits, but it does not appear that financially, or otherwise, she is compelled to occupy an apartment this small, for which she pays only $182.50 rent. Appellant testified that one of the “changes” about which she was complaining was that she was not seeing as much of her children as she thought she would when the decree was entered, all the while admitting that she has never been denied the right to have them with her, that she is very much welcome in their home, that she has been to her former husband’s home for meals and visitation of the children at his invitation, and that she would buy a house only if the children would come live with her. Appellee testified that the title to the dwelling house was placed with him pursuant to an agreement that the parent with whom the children chose to live would have the house. The only real change in circumstances here is appellant’s retrospective disenchantment with the agreement between the parties and her disappointment at limitations on the company of her children for causes more within her control than not.

Appellant’s argument that the agreement was inequitable and contrary to public policy is three-fold, i.e., the primary obligation is upon the father to support the minor children of a marriage if he is financially able to do so, that the agreement results in relieving him of this obligation, and that she was under great emotional stress at the time she entered into the agreement. We find no merit in any facet of the argument. Even though the father may have the primary obligation for the support of his children, the mother is in nowise exempt from any obligation in this regard. A policy determination bearing on parental obligations was made by our General Assembly as early as Act 257 of 1921, whereby the support of unmarried minor children was made chargeable to the property of father and mother, jointly and severally, and the courts empowered to adjudicate the powers, rights and duties of parents living apart with respect to the persons and property of their unmarried minor children. Ark. Stat. Ann. §§ 57-104 — 108 (1947). When the Probate Code was adopted in 1949, the joint obligation of the parents was again recognized. Ark. Stat. Ann. § 57-653 (Repl. 1971). Even if it be said that these statutes simply impose liability in favor of third persons furnishing necessaries to a minor, it cannot be said that they are indicative of a policy that a mother has obligations to her child for his support which only come into existence when the father is impoverished. We think such statutes mean that when parents are divorced the proper contribution of the parents may be determined by the courts on an equitable basis taking into consideration the condition and means of each spouse, a view taken in other jurisdictions. Brooks v. Brooks, 166Tenn. 255, 61 S.W. 2d 654 (1933); Rose Funeral Home v. Julian, 176 Tenn. 534, 144 S.W. 2d 755, 131 A.L. R. 858 (1940); Pieretti v. Pieretti, 13 N. J. Misc. 98, 176A. 589 (1935); Addy v. Addy, 240 Iowa 255, 36 N.W. 2d 352 (1949); State v. Haworth, 66 Wyo. 238, 208 P. 2d 279 (1949). The fact that the father actually has custody of the children does not relieve the mother of any obligation, and she may even be required to contribute toward a college education for her children. Beasley v. Beasley, 159 N.W. 2d 449 (Iowa 1968).

Our statutes relating to divorce also recognize that the court may make such order touching the care of children of a dissolved marriage as “from the circumstances of the parties and the nature of the case shall be reasonable” and to require the “person ordered to make payments” to furnish security in compliance therewith. Ark. Stat. Ann. § 34-1211 (Repl. 1962). Similar statutes have properly been held to mean that the court shall consider the financial ability of the parties jointly and to apply to whichever party shall be decreed to educate and maintain the children, so that the mother’s financial ability and status is given the same consideration as the father’s. Pieretti v. Pieretti, supra; Beasley v. Beasley, supra.

In considering amounts to be contributed for child support, the court should consider the needs of the children, the assets of each parent, their respective ages, earning capacities, incomes and indebtedness, state of health, future prospects and any other factors which will aid the court in reaching a just and equitable result. Stillmunkes v. Stillmunkes, 245 Iowa 1082, 65 N.W. 2d 366 (1954). While we would not go so far as to say that a mother could not recover from the child’s father contributions for child support furnished by her, as some jurisdictions have said, we find the above constructions of the effect of similar statutes to be sound and in keeping with the policy considerations stated by them. Such constructions are also in keeping with considerations entering into our own treatment of child support cases. We have said that modifications of amounts allowed for child support are to be made according to the necessity of one parent and the ability of the other. McCutcheon v. McCutcheon, 226 Ark. 276, 289 S.W. 2d 521. See also, Dixon v. Dixon, 251 Ark. 927, 475 S. W. 2d 695. We have also said that in awarding child support, as well as alimony, the courts should give proper consideration to the financial condition of the parties. Hoyt v. Hoyt, 249 Ark. 266, 459 S.W. 2d 65.

If the courts may require a mother to contribute to her child’s support, there is no sound policy reason why she may not enter into a contract with her husband governing such contributions, just as he may enter into such a contract with her under the same conditions, so long as the agreement is not adverse to the welfare of the child, subject, of course, to the same limitations as to enforcement by the courts because of changed conditions.

When we consider the appropriate factors, we find no basis for holding that the agreement is void. The evidence clearly shows that appellant’s decision to sue for divorce was not a hasty one, that she was the first to consult the attorney who drafted the agreement, that she had moved out of the home shared by the parties before the divorce suit was filed, that she felt a responsibility for the support of the children, that, as appellant’s contribution to their college education, appellee received the equity in the house because the children, all over 14 years of age, chose to live with him, that appellant consulted with the attorney on several occasions, some with appellee and some without him, that a change as to dependents to be claimed for income tax purposes was made for her benefit upon the suggestion of this attorney, that appellant read the agreement several times before it was executed, and was aware of, and understood, all its contents when she signed it. We can accord little weight to her present lament that the agreement is grossly unfair, based principally upon her giving up a $6,000 equity in the house, in view of the testimony heretofore outlined. Even though appellant says that she was under great emotional stress at the time and that she would probably still be negotiating had she not accepted the agreement made, there is no evidence of duress or overreaching. Appellee testified, without being contradicted, that appellant herself suggested the amount of $500 as a monthly child support contribution. It should be noted that appellee testified that he was paying $257.44 monthly on house mortgage installments, total house costs of $327.29 per month, and utility bills of $96.50. He testified that his monthly expenses for himself and the three children before his remarriage, including expenses» for the child in college, were $2,321.45.

We find no justification for reduction of the child support payments sought by appellant. If she were otherwise entitled to such a modification, her failure to show a sufficient change of circumstances subsequent to the execution of the agreement and entry of the divorce decree would bar this relief.

What we have already said disposes of appellant’s argument that there was error in decreeing a judgment for arrearages on appellant’s child support payments.

The decree is affirmed.

      While these Tennessee cases recognize and apply the principle, a Tennessee Court of Appeals has held that a mother cannot be required to make payments for future support, because the Tennessee divorce statutes, unlike ours, only authorize allowances for future support to be paid by the father. Full recognition is accorded the doctrine of the cases cited. Hilton v. Hilton, 463 S.W. 2d 955 (1970).


author: Fred Jones Justice.

text:
    FIRST NATIONAL BANK of De WITT v. H & M LUMBER Company
    5-5803
    477 S.W. 2d 850
    Opinion delivered March 20, 1972

      Garland Q. Ridenour, for appellant.

      Anderson & Anderson, for appellee.
   Fred Jones Justice.

This is an appeal by the First National Bank of De Witt from a judgment of the Phillips County Circuit Court wherein the court overruled the bank’s motion to quash service of a writ of garnishment upon it which was sued out by the appellee, H & M Lumber Company, on a default judgment rendered against its debtor, C. B. Shannon.

The H & M Lumber Company obtained a judgment by default in the amount of $574.52 against C. B. Shannon on February 27, 1970. A writ of garnishment was subsequently sued out by the lumber company against First National Bank of De Witt and was delivered to the sheriff of Arkansas County for service upon the bank. The sheriff made his return on the writ of garnishment bearing the notation that it was served on the First National Bank of De Witt on the 16th day of March, 1970, at 1:30 p.m.

The Bank failed to answer within the time prescribed by law, but on September 2, 1970, filed its motion to quash service of the writ of garnishment upon it for the reason that the writ was not served within the time and in the manner prescribed by law.

On March 23, 1971, a hearing was had on the motion at which time it was stipulated that Mr. C. P. Chaney, president of the bank, would testify that he was present in the bank on the day of alleged service and that he had no recollection of the writ being served on him personally or on any other officer of the bank. It was stipulated that Mr. Thomas R. Smith, cashier of the bank, would testify that he was present in the bank on the same date and that no recollection of the writ being served on that date and that he would further testify that C. B. Shannon had no funds on deposit with the bank. It was also stipulated that Mr. Ray Hambrick is vice-president of the ebank and was present in the bank on the day in question, but that he would testify that he had no recollection of the writ being seerved on him or any other officer of the bank or on any employee of the bank.

Sheriff Garrison testified that he served the writ on the First National Bank of De Witt at 1:30 p.m. by delivering a copy of the writ to Mr. Ray Hambrick who was an officer of the bank. The sheriff testified that he erroneously failed to insert Mr. Ray Hambrick’s name in his return as the person to whom he delivered the copy of the writ. Under questioning by the court the sheriff testified that he was positive he served the writ on Mr. Hambrick.

On cross-examination the sheriff testified that he was acquainted with Mr. C. P. Chaney in De Witt, but was not aware that he was president of the bank or chairman of the board of directors of the bank. He testified that when he served the writ on Mr. Hambrick, Mr. C. P. Chaney was not in the bank at that time and he made no effort to determine whether Mr. Chaney was in the county.

The trial court permitted the sheriff to amend his return showing that he served the writ upon “Mr. Ray Hambrick, vice-president.” The court then refused to permit the First National Bank to file its answer to the interrogatories propounded in the writ of garnishment and rendered default judgment against the bank for the full amount of $574.52

Ark. Stat. Ann. § 51-504 (Repl. 1962) provides that writs of garnishment shall be served in the same manner as writs of summons, and Ark. Stat. Ann. § 27-346 (Bepl. 1962) pertaining to the service of writs of summons provides as follows:

“When the defendent is a corporation, created by the laws of this state, the service of the summons may be upon the president, mayor or chairman of the board of trustees, and in case of the absence of the above officers, then it may be served upon the cashier, treasurer, secretary, clerk or agent of such corporation. . .”

The appellee contends that the above statue does not govern service of summons on an incorporated bank, but that the service on an incorporated bank is governed by Arek. Stat. Ann. § 27-351 (Repl. 1962) which reads as follows:

“Where the defendent is an incorporated bank, and the action is in a county in which there is a branch thereof, the service may be upon the president or cashier of that branch.”

We do not pass upon the queestion of which statute applies in the case at bar for the reason that proper service was not had under either statute. We agree with the appellant that this case is controlled by our deciseion in Nutrena Mills, Inc. v. Parsons Feed & Farm Supply, Inc., 234 Ark. 1058, 356 S. W. 2d 421. That case also involved a garnishment after judgment and the garnishee failed to answer within the proper time prescribed by law. The return on the service recited that the writ was served by delivering a copy to Shorty Parsons, vice-president of the appellee. In sustaining the trial court’s finding that the attempted service was invalid, we said:

“The governing statute requires that the service be had upon the president of the corporation or, in his absence, upon certain other officers, but there is no authority for serving a vice president not in control of the business. Ark. Stats. 1947, § 27-346. The return did not recite, and the evidence does not show, that the president of the corporation was unavailable. The purported service was therefore void. Ark. Coal, Gas, etc., Co. v. Haley, 62 Ark. 144, 34 S.W. 545; Brick v. Sovereign Grand Lodge, 196 Ark. 372, 117 S.W. 2d 1060.”

See also Knights Honor of the World v. Epps, 123 Ark. 371, 185 S. W. 809.

We, therefore, hold that the service was void in the case at bar and that the trial court should have granted the bank’s motion to quash service.

Reversed and remanded.

Harris, C. J., concurs.


author: J. Fred Jones Justice.

text:
    CIVIL SERVICE COMMISSION, City of Malvern, Arkansas v. Arthur BASS
    5-5823
    477 S.W. 2d 842
    Opinion delivered March 20, 1972

      Wendell O. Epperson, for appellant.

      Joe W. McCoy, for appellee.
   J. Fred Jones Justice.

This is an appeal by the Civil Service Commission of the City of Malvern from an order of the Hot Spring County Circuit Court reversing an order of the Civil' Service Commission of Malvern for want of jurisdiction in the discharge of a member of the Malvern City Police Department for conduct unbecoming an officer. On appeal to this court the Civil Service Commission relies on the following points for reversal:

“The decision of the trial court was contrary to law.

The decision of the trial court was contrary to the evidence.”

We conclude the decision of the trial court must be reversed on the appellant’s first point, so we do not reach the appellant’s second point.

The facts as they appear in the record are to the effect that the chief of police of the City of Malvern had resigned and the appellee, Sgt. Arthur Bass, was appointed as acting chief. He was so acting when a citizen of Malvern preferred charges against him with the Civil Service Commission of the City of Malvern, and on June 14, 1971, Service Commission that he had been dismissed from the Malvern Police Department for conduct unbecoming an officer.

On June 15, 1971, Sgt. Bass advised the Malvern Civil Service Commission in writing that he requested a trial before the Civil Service Commission on the charges alleged as the grounds for his dismissal. On June 30, 1971, a hearing was conducted by the Civil Service Commission at which time Sgt. Bass appeared and considerable testimony was heard by the Commission on both sides of the issue. Following the hearing the Commission refused to reinstate Sgt. Bass, but reaffirmed his dismissal and Sgt. Bass appealed to the Hot Spring County Circuit Court. The case was set for trial in the circuit court at 1:00 p.m. on August 11, 1971, and Sgt. Bass and the prosecuting witness were advised of the trial and of their right to produce additional evidence if they desired to do so. The record indicates, however, that no further or additional evidence was produced at the trial in circuit court, but that the trial court entered an order finding that the Civil Service Commission was without authority to dismiss Sgt. Bass and that its action in attempting to do so was void for want of jurisdiction. The trial court reversed the order of the Commission and remanded the matter to the police department with instructions that Sgt. Bass be reinstated as of the 14th day of June, 1971

We are of the opinion that the trial court erred in interpreting the authority vested in the Civil Service Commission under Ark. Stat. Ann. § 19-1603 (Repl. 1968). This section of the statute provides that the board of Civil Service Commissioners shall prescribe, amend and enforce rules and regulations governing the fire and police departments of their respective cities. The statute then sets out various matters for which the rules should provide, beginning with the eleventh one as follows:

"11th. For discharge or reduction in rank or compensation after promotion or appointment is complete, only after the person to discharged, or reduced, has been presented with the reasons for such discharge or reduction in writing.

The person so discharged or reduced shall have the right within ten (10) days from the date of notice or discharge or reduction to reply in writing and should said person deny the truth of such reasons upon which such discharge or reduction is predicated and shall demand a trial, said Commission shall grant a trial as provided hereinafter.The reasons and the reply shall constitute a part of said trial and be filed with the record.

12th. For the adoption and amendment of rules after public notice and hearing.

13th. For the preparation of a record of all hearings and other proceedings before it, which hearings or proceedings shall be stenographically reported.

The Commission shall adopt such rules not inconsistent with the act for the necessary enforcement of the Act.”

These provisions of the statute are derived from Act 28 of the Acts of 1933 and the same Act also provides for employees to be governed by department rules and regulations. Ark. Stat. Ann. § 19-1604 (Repl. 1968) appears as follows:

“All employees, in any fire or police department, affected by this act §§ 19-1601.1 — 19-1618, shall be governed by rules and regulations set out by the chief of their respective police or fire departments after such rules and regulations have been adopted by the governing bodies of their respective municipalities.”

The rules and regulations adopted by the Civil Service Commission of Malvern, and the rules and regulations setout by the police department are not in the record, but apparently the trial judge concluded that this section of the statute, § 19-1604, supra, applied to the situation in the case at bar rather than the provisions under § 19-1603, supra. We are of the opinion, however, that these two sections of the statute apply with equal force to different rules and regulations; those promulgated by the Civil Service Commission under § 19-1603 and those promulgated by the various departments under § 19-1604.

We conclude that the question presented here was settled by our decision in Civil Service Commission of North Little Rock v. McDougal, 198 Ark. 388, 129 S. W. 2d 589. In that case a citizen filed charges with the Civil Service Commission of North Little Rock alleging that police officer, McDougal, was found drunk while on duty in violation of the regulations of the Commission. The Commission in that case notified the chief of police that such charges had been filed and directed that McDougal be immediately suspended. The order was complied with by the chief of police but a few days later he informed the Commission that he had restored McDougal to his former status. McDougal was promptly told by the Commission that charges against him had not been disposed of, and he was directed not to return to work. McDougal then demanded a hearing before the Commission and a hearing was granted. After hearing testimony on both sides of the issue, the Commission notified McDougal that he had been found guilty and that he was dismissed from the service.

On appeal to the circuit court McDougal contended that the right to discipline rested entirely with the chief of police. He contended that disciplinary measures had been fully exercised by the chief through the prior order of suspension and that after his reinstatement, the Commission was without authority to proceed further in the matter. McDougal contended the Commission acted in a quasi-judicial capacity; that its jurisdiction was appellate and not original; that at the time the hearing was conducted there was nothing before the Commission for determination, the matter having been disposed of by the chief of police. The circuit court found that the Commissioners had exceed their authority and the order of the Commission was set aside. The Commission appealed to this court and in reversing the judgment of the circuit court, we said:

“We do not agree with the trial court’s declaration of the law.

The Commission, and not the chief of police, is the responsible agency. By § 3 of Act 28, the Commission is expressly charged with the duty of prescribing, amending, and enforcing its rules. The Commission is required to investigate the enforcement and effect of Act 28. An .exception to the Commission’s power is found in Mandatory Rule No. 7, which authorizes the chief of police, during the six months period of probationary employment, to ‘discharge, in case of an appointment, dr reduce, in case of promotion.’

Mandatory Rule No. 11 authorizes the Commission to provide for discharge or reduction in rank . . .only after the person so discharged, or reduced, has been presented with the reasons for such discharge or reduction,’ the notice to be in writing. It then becomes the duty of the Commission, when demand is made, to grant a trial.

It is true § 4 provides that all' employees in the department shall be governed by rules and regulations set out by the chief, ‘. . . after' such rules and regulations have been adopted by the governing bodies,’ etc., but this does not mean that when the Commission has approved expressed standards of conduct, as to which the chief of police has a duty of enforcement; the Commission is deprived of all authority, and must supinely adquiesce in any policy of discipline the chief may determine is proper. Certainly that official’s power of supervision cannot rise above the source ■ from which it was derived.”

We are of the opinion that the trial court erred in concluding that the Civil Service Sommission of Malvern did not have the jurisdictional authority to discharge Sgt. Bass. The Commission did not first discharge Sgt. Bass on its own accusation but did so on the accusation of a citizen of Malvern as it had a right to do under proper rules and regulations promulgated by it. Sgt. Bass was entitled to be confronted by his accuser and present testimony himself, if he so desired, before the Commission, and he had the same right and privilege on his trial de novo in the circuit court.

We conclude, therefore, that the order of the circuit court should be reversed and this case remanded to the circuit court for trial de novo at which time additional evidence may be taken by the court as provided by statute, and in the absence of additional evidence the trial court should decide the case on its merits in a trial de novo on the record before it.

Reversed and remanded.

Harris, C. J., not participating.


author: J. Fred Jones, Justice.

text:
    Fred YOUNG v. STATE of Arkansas
    5691
    477 S.W. 2d 823
    Opinion delivered March 20, 1972

      Carpenter, Finch ir McArthur, for appellant.

      Ray Thornton, Attorney General; James A. Neal, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

This is an appeal by Fred Young from a judgment of the Pulaski County Circuit Court denying post-covviction relief following a hearing on petition therefore under Criminal Procedure Rule No. 1.

On January 19, 1966, the appellant entered pleas of guilty in the Pulaski County Circuit Court to separate charges of grand larceny filed on March 22, 1965; possession of narcotics filed of May 22, 1965, and burglary and grand larceny filed on October 6, 1965. He was sentenced to 10 years on each of the aforesaid charges but an order was entered by the trial court to hold him for federal authorities.

While free on bond awaiting trial in connection with the above charges, the appellant was arrested on or about November 1, 1965, by federal officers and charged with the federal offense of unlawfully dispensing narcotics. On January 25, 1966, he entered a plea of guilty to the federal charge and was sentenced to seven years in a federal institution. After serving four years of the federal court sentence, he was released to the State of Arkansas on September 28, 1970, and was committed to the state penitentiary to begin serving the concurrent 10 year sentences imposed by the state court on January 19, 1966.

In the meantime, by Act No. 50 of 1968 (Ark. Stat. Ann. | 43-2813 [Supp. 1971]) the Pardons and Paroles Law was amended by the Arkansas Legislature to provide as follows:

“Time served shall be deemed to begin on the day sentence is imposed, not on the day a prisoner is received by the Department of Correction and shall continue only during the time or times in which a prisoner is actually confined in a county jail or other local place of lawful confinement or while under the custody and supervision of the Department of Correction; provided, however, that the sentencing judge may in his discretion direct, when he imposes sentence, that time already served by the defendant in jail or other place of detention, shall be credited against the sentence.”

So the question presented to the trial court on the appellant’s petition for post-conviction relief, was whether his sentence to the Arkansas State Penitentiary should begin on January 19, 1966, when it was imposed, or on September 28, 1970, when he was actually placed in the Arkansas State Penitentiary to begin serving his sentence.

Under Ark. Stat. Ann. § 43-2311 (Repl. 1964) when a defendant is convicted of two or more offenses arid the punishment for each is confinement, the statute provides that:

“The judgment shall be so rendered that the punishment in one case shall commence after the termination of it in the others.”

We have held, however, that unless the judgment specifically directs that one sentence shall commence upon the expiration of the other, the sentences will run concurrently. Williams v State, 229 Ark. 42, 313 S. W. 2d 242. It is recognized by the parties that the sentences imposed of the appellant in the case at bar were to run concurrently, but certainly the trial court could have imposed one to begin following the conclusion of the others under § 43-2311, supra.

The appellant recognizes that the statute he relies on, § 43-2813, supra, was enacted following his convictions and is not retroactive in its terms. It will also be noted that § 43-2311, supra, follows Ark. Stat. Ann. § 43-2812 (Supp. 1971) which provides as follows:

“The provisions of this Act are hereby extended to all persons who, as of the effective date hereof [March 1, 1868], may be on parole or eligible to be placed on parole under existing laws, with the same force and effect as if this Act had been in operation at the time they were placed on parole, or became eligible to be placed thereon, as the case may be.”

So it is unnecessary to determine in this case whether § 43-2813, supra, applies to one in appellant’s position who is incarcerated under the sentence and not released or eligible to be released on parole. The appellant states the point he relies on for reversal as follows:

“The court erred in ruling that appellant’s sentence commenced on the date he was physically placed in the Arkansas State Penitentiary rather than on the date of sentencing. Arkansas Statutes Anno. 43-2813.”

We are of the opinion that the trial coun did not err in this respect and that the appellant’s remedy lies in the provision of the Pardons and Paroles Statute, Ark. Stat. Ann. § 43-2813 (Supp. 1971), rather than § 43-2813, supra. Section 43-2811 reads as follows:

“All applications for pardon, commutation of sentence, reprieve, respite, or remission of fine or forfeiture shall be referred to the Parole Board for investigation. The Parole Board shall thereupon investigate each such case and shall submit to the Governor its recommendation, a report of the investigation, and all other information the Parole Board may have regarding the applicant.”

In 24B C. J. S. under § 1996 (6) pertaining to sentences imposed in different jurisdictions, on page 677, is found the following:

“The rule laid down supra § 1996 (2), to the effect that two or more sentences silent as to their consecutive character will ordinarily be construed as concurrent, does not apply to sentences imposed at different times by courts of different sovereignties, and sentencing accused to two different places of confinement. Thus, except where the later sentence expressly provides otherwise, two or more sentences imposed by different sovereignties, such as two states, or a state and the United States, are ordinarily regarded as cumulative. Accordingly, a sentence by a federal court to imprisonment in a federal penitentiary, while accused is serving a sentence of a state court in a state penitentiary, does not, in the absence of any express provision in the sentence, run concurrently with the state sentence; and similarly, in the absence of a statement to the contrary in the sentence, a state court sentence will not run concurrently with a federal court sentence.”

The federal court in Baker v United States, 271 F. 2d 190, was confronted with practically the same situation as in the case at bar. In that case the appellant pleaded guilty before Judge Lemley in the United States District Court for the Eastern District of Arkansas to three indictments charging mail theft, forgery and uttering. At the time of his trial the appellent was serving a two year sentence in the Arkansas State Penitentiary for similar offenses. There were also pending against the appellant detainers from Indiana and Wisconsin. The sentence imposed by Judge Lemley was that the appellant would be committed to the custody of the attorney general to be confined in an institution to be determined by him tor a period of five years,

“to begin at the expiration of your sentence that you are now serving in the Arkansas State Penitentiary.”

Following the completion of the appellant’s sentence in the Arkansas Penitentiary, he was released to Indiana and after serving his sentence in that state he was released to Wisconsin, where after serving some time on his sentence in that state he was paroled on May 1, 1958, and turned over to federal officials and was committed to the federal penitentiary in Leavenworth, Kansas, to serve the sentences imposed by Judge Lemley. While the federal statutes in that case provided that the sentence should commence to run from the date on which the person is received at the penitentiary for service of the sentence and Arkansas has no such statute, we adhere to the general rule set out in C. J. S., supra, and hold that the appellant’s sentence started running in the case at bar on the date he was delivered to the state penitentiary to start serving his sentence.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Talmadge HOWARD v. Pauline S. HOWARD
    5-5829
    477 S.W. 2d 838
    Opinion delivered March 20, 1972

      Bailey, Trimble, Holt & Thomas, for appellant.

      Spitzberg, Mitchell 6- Hays, for appellee.
   Conley Byrd, Justice.

Appellant Talmadge Howard appeals from that portion of a divorce decree in favor of appellee Pauline S. Howard which awarded her $200 per month alimony and possession of the home owned by the entirety, and required him to make the monthly mortgage payments, including principal, interest, taxes and insurance, in the amount of $97.60.

The record shows that the parties had lived together as husband and wife for more than 30 years. They had three children, two of whom- were married and self sustaining. The other child, a girl age 20, was a student at Henderson College.

The husband testified that his gross monthly income, exclusive of an annual bonus, was $1,119J1 and that his take home pay was $850.00. His bonus' is based oh meeting company quotas. His last annual bonus was $1,217 with a net take home bonus of $843.77. In addition to his own personal expenses he spends approximately $2,000 per year on his daughter’s college education.

The wife testified that she had a gross income of $125 per week with a take home pay of approximately $450 per month. The wife also has some bonus income.^

We cannot say that the . chancellor erred in awarding appellee the possession of the family homestead so long as she remains unmarried and uses the same as her residence, Schaefer v. Schaefer, 235 Ark. 870, 326 S. W. 2d 444 (1962). However it appears to us that the alimony award was excessive.

When the $200 per month alimony and the $97.60 house payment are added to the wife’s $450 per month income, she will have a total of $747.60 for living purposes. When the same amounts are subtracted from the husband’s $850 per month income, he will be left with only $552.40 per month for living expenses, from which he is paying the daughter’s college education. Thus we conclude that an award of alimony in the amount of $150 per month is adequate and that the wife should assume the mortgage payments on the homestead as long as she remains in possession.

An award of $250 is awarded to appellee to be applied on counsel fees.

Affirmed as modified.


author: Frank Holt Justice.

text:
    Thelma HAGGANS v. JONESBORO CABLE TV, Inc
    5-5826
    477 S.W. 2d 840
    Opinion delivered March 20, 1972

      Lee Ward, for appellant.

      Branscum, Schmidt ir Mazzanti, for appellee.
   Frank Holt Justice.

This appeal results from a directed verdict. The appellant brought this action against the appellee to recover damages for injuries received by her when she tripped and fell because of a loose wire lying upon a public sidewalk. After appellant presented her case, the trial court granted appellee’s motion to dismiss on the basis that the appellant had not met the burden of proof to sustain her allegations of negligence as asserted in her complaint. For reversal of that judgment the appellant contends on appeal that: “The trial court erred in holding that the record in this cause contains no substantial evidence of negligence on the part of the appellee causing the injuries suffered by the appellant.” We cannot agree with appellant.

On appeal from a directed verdict we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party against whom the directed verdict was entered and reverse only where the evidence, although not in dispute, is of such a substantial nature that fair-minded men might draw different conclusions. Collett v. Loews, 203 Ark. 756, 158 S. W. 2d 658 (1942); Wortz v. Fort Smith Biscuit Co., 105 Ark. 526, 151 S. W. 691 (1912).

Appellant testified that the accident occurred near her residence between 7:30 and 8 p.m. when she tripped and fell on a loose wire lying across a sidewalk. About 3 o’clock that afternoon, as she walked by, she noticed the wire being loose and wrapped around a pole near the sidewalk. The accident was immediately reported to the local city water and light offices in the belief the wire was their property.

Appellant relies primarily upon the testimony of an employee of that city facility to establish negligence on the part of appellee. This witness testified that he had investigated the area and found a guy wire belonging to appellee lying across the sidewalk at the scene of the reported accident. One end of this 20-foot wire was connected to a pole at a point about 15 feet above the ground; the other end of this steel guy wire had been broken loose at the ground anchor. The anchor was positioned 3 or 4 feet from the uncurbed street and within an easement. According to this witness, normally the city water and light plant would put a protective guard around a guy wire anchor in areas where it was thought needed and while this guard would not actually protect the anchor from heavy objects, it would make the guy wire and anchor more visible. He did not recall any such protective guard around this broken guy wire.

On cross-examination this witness testified that the severed guy wire was constructed of material and of the width normally used in this type business or trade and that it was “a regular guy wire.” The anchor was constructed in a “manner which is reasonable and customary for the type of wire.” The anchor was bent and “looked like to me maybe a car had backed into it, broke it”. He could not recall the size but assumed that it was a quarter-inch steel cable. He testified that a person could not break the cable with his hands and that it would take something pretty heavy, “like a car or truck” to break it. He had not observed or had any knowledge of the broken cable before his office received the telephone call on the night of the accident. He knew of no city ordinance requiring a guard around a guy wire anchor.

When we review the evidence and all reasonable inferences in the light most favorable to appellant on appeal, as we have indicated, we agree with the trial court that the evidence is insubstantial to sustain appellant’s burden of proof as to her allegations of appellee’s negligence.

Appellant also contends that the doctrine of res ipsa loquitur applies in the case at bar. In Penny v. Gulf Refining Co, 217 Ark. 805, 233 S. W. 2d 372 (1950) we said: Res ipsa loquitur has no application unless the evidence in the particular case has a substantial tendency to show negligence in the defendant and in nobody else.” In Kapp v. Sullivan Chev. Co, 234 Ark. 395, 353 S. W. 2d 5 (1962) we cited with approval from 37 Words and Phrases, Res Ipsa Loquitur, page 488: “The mere happening of accident does not justify recourse to 'res ipsa loquitur’ rule in personal injury suit, but accident must further appear to be without explanation in light of ordinary experience, except on theory of defendant’s negligence to render rule applicable.” See, also, Dollins v. Hartford Acc. & Inc. Co., 252 Ark. 13, 477 S.W. 2d 179. In the case at bar we cannot agree with appellant that the doctrine of res ipsa loquitur can be invoked to establish a prima facie case that appellee was negligent and the proximate cause of appellant’s injuries.

Appellant also contends that appellee is a public utility and, therefore, governed by Ark. Stat. Ann. 73-267 (Repl. 1957). This statute requires that public utilities owning wires and equipment located along or across public or private ways shall maintain such wires in a reasonably adequate and safe manner. Assuming, without holding, that appellee is governed by the pertinent provisions of this statute, we cannot say that appellant has met the burden of proof that appellee was in violation of this statute or any city, state, or governmental regulation.

Affirmed.


author: E. J. Ball Special Justice.

text:
    ARKANSAS RELEASE GUIDANCE FOUNDATION v. R. J. NEEDLER, Chairman, “Halfway House Opposition Committee”
    5543
    477 S.W. 2d 821
    Opinion delivered March 20, 1972

      Jack Holt, Jr., for appellant.

      Roy Finch, for appellee.
   E. J. Ball Special Justice.

This appeal involves the question of whether the lower court correctly found by a preponderance of the evidence and upon competent evidence, that the operation of a. home for parolees and prisoners, known as a halfway house, apparently meaning a step between actual incarceration and full return to society, constituted a nuisance in fact of a private nature. The evidence established diminution in proterty values since the acquisition of the house by the appellant for the stated purpose plus apprehension and fear on the part of nearby residents for their safety because of the past criminal activity of the occupants of the halfway house.

While the appellant, in operating the New Life House, purported to exclude from residency there criminals whose crimes involved sex offenses, drug offenses or drug habituation and alcoholics, it appeared that during the course of the operation at least one of the residents of the halfway house had been convicted of carnal abuse, a sex offense, and another had been removed for activities relating to alcohol. The evidence further reflected that in operating the halfway house there was necessarily a technical violation of the rules of the Department of Corrections, State of Arkansas, in that such rules for parolees prohibited their association with convicts. This, however, was not thought by the department to be serious inasmuch as the purpose of the operation was to rehabilitate and not as a nexus for criminal activity. Police and law enforcement personnel testified that when and where convicts congregate it tends to become a problem area for tor the police and law enforcement in general. Persons of like disposition are attracted and criminal activity originates.

Considering the record as a whole, we believe the finding of the Chancellor that the operation of New Life House constituted a private nuisance in fact, is consistant with the preponderance of the evidence, and his action in enjoining its operation was proper.

A nuisance is an interference with the use and enjoyment of land and includes conduct on property disturbing the peaceful, quiet and undisturbed use and enjoyment of nearby property. The law is clear that equity will enjoin conduct that culminates in a private nuisance in fact where the resultant injury to the nearby property and residents is certain, substantial and beyond speculation and conjecture. Clark v. Hunt, 192 Ark. 865, 95 S.W. 2d 558 (1936); Cooper v. Whissen, 95 Ark. 545, 130 S.W. 703 (1910). The distinction between a private and public nuisance is simply the extent of the injury, i. e., the number suffering the effects of the nuisance. Fort Smith v. Western Hide and Fur Company, 153 Ark. 99, 239 S.W. 724 (1922).

Here we cannot say the Chancellor was in error as to the law, or that his findings were against the preponderance of the evidence of the evidence,, as to the existence of a private nuisance when the evidence supports the finding of diminution of property values in the area attributable to the operation of the New Life House, the real and reasonable fear and apprension for their safety by the nearby residents, coupled with the inclusion of a sex offender as a resident and incidents involving the use of alcohol by one parolee.

In Nicholson v. Connecticut Halfway House, 153 Conn. 507, 218 A. 2d (1958), strongly relied upon by the appellant, there were strikingly similar facts and the Connecticut court reached an opposite result. This case was instituted prior to operations, but the case was tried below upon a consideration of the operation of the property as a halfway house that had gone on for several months and after the filing of this action. Such was not the case in Nicholson, supra. Furthermore, in Nicholson there was only apprehension of decrease in property values and no evidence of any actual decrease in values of nearby property from the proposed use of the property. The Nicholson court did say that equity should not interfere with prospective operation and use of the property simply because of fears and apprehensions existing without substantial reason. Here the evidence supported the substantial reasons for the fear for safety of the residents and in property values. We think Nicho Ispn, supra, is completely distinguishable from the case presented here and therefore does not support appellant’s argument. Furthermore, our case of Howard v. Ethieson, 228 Ark. 809, 310 S.W. 2d 473 (1958) enjoining the erection of a funeral home in a residential area because it decreased property values, was depressive and a constant reminder of death, restricted the play and activity of children, and had an adverse effect upon the comfort and health of. its residents, seems to place our law in a different posture than Nicholson, supra. There we permitted the enjoining of a prospective private nuisance in fact which was certain to culminate. That, of course, is not the situation here because the court below had before it evidence relating to the operation of the halfway house reflecting significant decrease in property values in the mixed business and residential area and the fear and apprehension of the residents of the area because of the nature of the occupants of the halfway house. The findings of the Chancellor were not against the preponderance of the evidence and his findings should be sustained.

Affirmed.

Holt, J., not participating.


author: Carleton Harris, Chief Justice.

text:
    Virgil Lee DARROUGH Jr. v. STATE of Arkansas
    5681
    478 S.W. 2d 50
    Opinion delivered March 27, 1972

      Gibson Law Office, for appellant.

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

Appellant, Virgil Lee Darrough, Jr., was charged with the first degree murder of Ruben Davis by stabbing Davis to death with a pocket knife. On trial he was convicted of voluntary manslaughter, and was sentenced to serve seven years in the Department of- Corrections. From the judgment so entered, appellant brings this appeal. The sufficiency of the evidence to support the conviction is not here questioned, but four errors are asserted to have occurred during the trial of the case. We proceed to a discussion of each in the order listed by the appellant.

It is first contended that the court erred in permitting the prosecution to continuously lead the state’s witnesses. The 'prosecuting attorney asked Victor Doll, a .state’s witness, if he heard any words of the argument between the appellant and the deceased. The witness answered, "No — yeah, I heard some, but I can’t recall what they were”. He was then asked if he could recall any of the vulgar words and answered "No, I can’t recall, it has been quite awhile ago”. Perhaps it could be said that the word “vulgar” suggested an answer, but at any rate, the reply of the witness could not have damaged appellant. The second objection to an alleged leading question occurred during the re-re-direct examination of the same witness. Counsel for appellant had already inquired of Doll and had elicited the opinion of the witness to the effect that if Davis had not attempted to close the door, preventing Darrough from leaving, appellant would have departed peacefully, and the killing would not have' occurred. Thereafter, the prosecuting attorney asked “Now when he closed the door you say it hit him, he could have gone outside as well as inside, couldn’t he?” The witness did not respond to the question, and, even if it could be said that an answer to this question would have been prejudicial, there can be no merit in the contention since there was no reply.

It is next asserted that the court committed error in admitting into evidence testimony of statements obtained from the accused in violation of his constitutional privilege against self-incrimination. Officer Bobbie G. Dejarnette, Chief of Police of Star City, testified that he heard there had been a stabbing, and after talking to some witnesses, started out looking for appellant. Darrough was located at the front of the courthouse, and was with his father, who had brought him to the courthouse. The evidence reflects that Darrough voluntarily handed Dejarnette a pocket knife and told the officer what had happened. The Miranda warnings were not given, but Dejarnette stated that he did not ask Darrough any questions, and that the latter, on his own initiative, conveyed the information. It definitely appears that any statements made by appellant, who, as stated, was in the company of his father, were entirely voluntary. Be that as it may, no statement was introduced, and with the exception of identifying the weapon, Dejarnette did not testify about what Darrough said to him. There being no testimony of what was said, there could be no prejudice, and we find no merit in this contention.

It is next asserted that the court erred in refusing to permit Victor Doll to answer a question on cross-examination, the question being “If the deceased Davis had a let him alone it wouldn’t a nothing happened would it?” The state objected to this question and the objection was sustained by the court. There was no error. The answer to the question called for a conclusion, and we held such evidence to be incompetent in Blanton v. State, 249 Ark. October 12, 1970, 458 S.W. 2d 373.

Finally it is urged that the court erred in permitting the introduction of appellant’s pocket knife in evidence. Appellant says that the introduction of this weapon was designed to inflame the minds of the jurors and that it did prejudice and influence them against him. We do not agree. Officer Dejarnette was very fair in his testimony, and stated that the knife was just an ordinary pocket knife, and that the length was within the permitted use of an individual; “It’s legal to carry it”. The knife was very pertinent to the state’s case as Officer Dejarnette pointed out in his testimony. The record reveals the following:

“Q. I ask you if you noticed anything unusual about the opening or is anything in that knife?
A. Yes sir, there is.
Q. What is it?
A. It looks like a match stick.
Q. Can you see it in there?
A. Yes sir.
O. Do you know what purpose it serves in that knife?
A. Yes sir. It usually serves the purpose, it is kinda like a switch blade where you can just take your thumb and switch it open.
Q. Then it does not completely close when the stick in there?
A. No sir, it does not.
Q. Where you do not have to use the bevel there you can pull it with your hand?
A. Yes sir.
Q. It makes it quickly opened then?
A. Yes sir.”

While testifying, appellant admitted that he had placed a match stem in the groove of the handle where the blade rested in order to “hold that blade up”. From the record:

“Q. What do you want to hold the blade up for?
A. See, that makes it- so you can get it out a little faster.
A. Yes sir.”
We find no merit in appellant’s argument.

Finding no reversible error in the proceedings, it follows that the judgment should be, and hereby is, affirmed.

It is so ordered.

        Miranda v. Arizona, 384 US 436.


author: George Rose Smith, Justice.

text:
    Lowell BYRD v. Christine BYRD
    5-5828
    478 S.W. 2d 45
    Opinion delivered March 27, 1972

      FredA.Newth, Jr., for appellant.

      Hall, Tucker ir Lovell, for appellee.
   George Rose Smith, Justice.

In 1966 the appellant, Lowell Byrd, obtained a divorce from the appellee and was directed to pay alimony in the amount of $150 a month. Byrd v. Byrd, 241 Ark. 374, 407 S.W. 2d 731 (1966). In 1971 Byrd filed the present petition, asking that he be relieved from any further obligation to pay alimony, on the ground that Mrs. Byrd was assertedly living with another man as husband and wife. This appeal is from the chancellor’s refusal to modify the prior award.

Byrd relies for relief upon our cases holding that upon a divorced wife’s remarriage her former husband is entitled to apply to the court for an order terminating the alimony payments. The reason for the rule was stated in Wear v. Boydstone, 230 Ark. 580, 324 S.W. 2d 337 (1959): “We have no quarrel with the statement that alimony payments should cease upon the divorced wife’s remarriage, for we see no logic in requiring a first husband to contribute at regular intervals to an ex-wife whose care and maintenance has been assumed by a second husband.”

It is apparent that the reason for the rule which we have adopted in cases of remarriage does not apply in this instance, for there is no indication that Mrs. Byrd’s supposed paramour has assumed any responsibility for her care and maintenance. Nor is it shown by the weight of the proof in the case at bar that Mrs. Byrd has assumed the other man’s name and held herself out publicly as his wife. In that extreme situation at least two courts have approved a termination of the former husband’s obligation to pay alimony. Grant v. Grant, 52 Cal. App. 2d 359, 126 P. 2d 130 (1942); Coggins v. Coggins, 289 Ky. 570, 159 S.W. 2d 4 (1942). In New York the same result has been reached by statute. Waddey v. Waddey, 290 N.Y. 251, 49 N. E. 2d 8 (1943).

In the court below the evidence was in sharp conflict. Even if we should accept Byrd’s contention that he and his supporting witnesses established instances of immorality on the part of Mrs. Byrd, we are not prepared to say that a former husband is entitled to sit in judgment of his divorced wife’s conduct, any more than she is entitled to take such a position with respect to his conduct. Upon the former appeal we increased the chancellor’s award of alimony because Mrs. Byrd was shown to be a hopeless cripple who was incapable of supporting herself. There is no showing that her condition has changed. To the contrary, Mrs. Byrd’s sister testified that she had given money to Mrs. Byrd for years: “I gave it to her because she had to have it. She had no money to live [on] and nothing to eat and nothing [with which] to buy any clothes.” Upon the proof as a whole we cannot say that the chancellor’s decision to deny Byrd’s application for relief is against the preponderance of the evidence.

Affirmed.

Byrd, J., not participating.