author: Marian F. Penix, Judge.

text:
    RANDALL, BURKART/RANDALL DIVISION OF TEXTRON, INC. v. Charles L. DANIELS, Director, Arkansas Department of Labor; Henry L. McHENRY, Administrator, Arkansas Employment Security Division; and Ricky WILKERSON et al

    CA 79-76
    _ S.W. 2d_
    Opinion delivered September 26, 1979
    and released for publication May 7, 1980

      Oscar Fendler and Michael W. Hawkins of Dinsmore, Shohl, Coates & Deupree, for appellant.

      Toungdahl. Harrison & Agee, for appellees.

       Affirmed by Arkansas Supreme Court April 14, 1980, 268 Ark. 375, 597 S.W. 2d 71 (1980).

   Marian F. Penix, Judge.

This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

The question to be resolved in this case is whether the claimants-appellees, who participated in a strike against the appellant-company, are precluded from unemployment compensation benefits because of the “labor dispute” disqualification provision of the Arkansas Employment Security Act [Ark. Stat. Ann. §81-1105(f) (Repl. 1976)] .

Collective bargaining negotiations over a new contract between the company and the United Auto Workers (UAW) were begun in July of 1977. By September 8,1977 a new contract had not been produced, and the union called a strike, setting up a picket line. Negotiations continued during the strike. On September 27 the company made a contract offer which they stated would remain on the table until October 5 at 12:01 a.m. after which time the offer would be withdrawn. This offer was rejected October 2. On October 16, 1977, the picket line was removed.

Also on October 16, 1977, the appellees sent the following mailgram to appellant:

The United Auto Workers hereby accept the company’s last contract offer and ends the strike effective October 16, 1977.
All Strikers hereby apply unconditionally for reinstatement to their old jobs or for maximum job rights legally available.
This is a continuing application for employment. The Union will assist in contacting strikers in any way possible.

During the strike the company had hired permanent replacements for the striking employees. As of October 16, 1977, there were no available jobs for the strikers who wished to return to work. These then unemployed workers filed claims for unemployment compensation benefits. The Special Examiner found the workers to be ineligible for benefits from September 8, 1977 to October 16, 1977, due to the labor dispute disqualification of Ark. Stat. Ann. § 81-1105(f). As of October 16, 1977, however, he found them to be eligible for benefits because they were no longer unemployed by “reason of a labor dispute.” the labor dispute having-ended on October 16, 1977, with the unconditional offer to return to work. On appeal the Board of Review reached the same conclusion, ruling the workers were entitled to unemployment benefits beginning October 16, 1977. The decision was affirmed by the Circuit Court.

The appellant contends a labor dispute continued because the appellant’s offer had not been accepted by the appellees by the October 5 deadline imposed by the appellant-company. Appellant relied heavily on Guinn v. Arkla Chemical Corp., 253 Ark. 1029, 490 S.W.2d 442 (1973). Guinn is distinguishable from this case. There the employer company closed its plant and the employee-claimants never made themselves available for returning to work. Claimants were denied unemployment compensation. An unconditional offer to return to work was absent in Guinn. Therefore, we feel Guinn is not applicable here. The appellant cites cases from other states. However, because the statutes from such other states are not identical to the Arkansas Employment Security Act we feel these cases are not of benefit to us.

The appellees rely on Little Rock Furniture Manufacturing Co. v. Commissioner of Labor, 227 Ark. 288, 298 S.W. 2d 56 (1957) and Rainfair, Inc. v. Cobb, 229 Ark. 37, 312 S.W. 2d 906 (1958). These cases, while factually on point, were decided prior to 1959. Until 1959 the disqualification section of the Arkansas Employment Security Law read:

An individual shall not be eligible for benefits for any week with respect to which it is found that his unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed

An offer by strikers to return to work would terminate the stoppage of work. An offer to return would certainly be material. The 1959 change in the law deleted the words stoppage of work. We cannot accept the appellees’ argument that the Little Rock Furniture and Rainfair cases were dispositive in the present case. We feel the wording change in the statute affects the validity of these cases.

Under the present wording of Ark. Stat. Ann. § 81-1105(f):

If so found by the Commissioner, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment if he lost his employment or has left his employment by reason of a labor dispute other than a lockout at the factory, establishment, or other premises at which he was employed (regardless of whether or not such labor dispute causes any reduction or cessation of operations at such factory, establishment or other premises of the employer), as long as such labor dispute continues, and thereafter for such reasonable period of time (if any) as may be necessary for such factory, establishment, or other premises to resume normal operation. [Emphasis added]

The crucial term is “labor dispute”. This term has not been specifically defined in Arkansas by statute nor by court decisions. The appellant company would have us adopt the definition given by Section 2(9) of the National Labor Relations Act:

[A]ny controversy concerning terms, tenure or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

The definition of “labor dispute” in the National Labor Relations Act was not adopted in the Arkansas Employment Security Act. We believe all of the facts and circumstances in each case must be considered in determining whether a “labor dispute” exists or has terminated within the meaning of the Arkansas Act. We hold that the collective and unconditional offer by the striking employees to return to work terminated the “labor dispute” within the meaning of Ark. Stat. Ann. § 81-1105(f).

The lower court held as a matter of fact the labor dispute had ended. The appellant asserts this holding to be an erroneous conclusion of law. We hold the decision to be a correct conclusion of law.

This court need not address the issue raised by appellees that a broad definition of § 4(f), supra, conflicts with the NLRA and would therefore be pre-empted by the NLRA.

Affirmed.


source: Caselaw Access Project

author: Ernie E. Wright, Chief Judge. Marian F. Penix, Judge,

license: Public Domain

text:
    Shirley Ann COUNCE v. M.B.M. COMPANY, INC.
    CA 79-124
    597 S.W. 2d 92
    Opinion delivered October 17, 1979
    and released for publication April 16, 1980

      Parker & Haney, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   Ernie E. Wright, Chief Judge.

This is an appeal from a judgment of the Crittenden County Circuit Court granting appellee’s motion for summary judgment and dismissing appellant’s complaint with prejudice.

Neither the judgment nor the record reflect that the court made a finding there were no material issues of material fact. The complaint alleged appellant was a counter helper in the employ of appellee on February 2, 1977 and on the following day she was contacted by telephone by the manager of the appellee’s eating establishment where she was employed and informed she was laid off, and was told some checks were missing from the previous night. In a later telephone conversation it was alleged the manager told her some money was missing and she would have to submit to a polygraph test. It was alleged upon submitting to the test it was determined she was innocent in connection with the missing funds, that she had difficulty obtaining the balance of her wages, thirty-three dollars was withheld from her check, and this was later paid after investigation by some federal or state agency. The complaint alleged the summary dismissal under the circumstances and refusal to pay wages due her was an outrageous course of conduct, designed and intended to cause severe emotional distress to appellant and the actions were in retaliation for alleged stealing, despite lack of evidence of theft by the appellant. It was further alleged that the dismissal of the plaintiff in such a manner breached the employment relationship in violation of public policy, and also caused a tortious injury to appellant because of severe emotional distress and damages to her reputation. It was further alleged appellee sought to prevent her from receiving unemployment benefits by reporting to the Employment Security Division that appellant was laid off due to numerous customer complaints, her bad attitude and her violation of company policies. The complaint sought damages for pain and mental suffering and exemplary damages for alleged willful and wanton action of the appellee.

Respective counsel stipulated that in addition to the pleadings the discovery depositions of Shirley Ann Counce, George Earl Counce, Jerrell Coleman Moss and Porter Moss, and also appellant’s application for unemployment benefits would be included in the record on appeal.

The depositions reflect appellant was working with one other employee on the night shift on February 2, 1977 and had responsibility for the cash register, including inventory of funds in the register at the time of closing. The other employee had the key to the eating establishment and was responsible for locking up. The following day the manager called appellant and told her there was a shortage in monies in the register. Later in the day the manager called appellant and told her she was laid off because she had too much counter help. There was evidence there was no excess counter help. The appellee withheld $33.00 in excess of normal deductions from appellant’s last pay. She took a polygraph test at the request of the appellee and it showed she had no connection with the money shortage. Notwithstanding this, appellee did not re-employ appellant or pay her the $33.00 withheld from her wages. The $33.00 was paid after an investigation by a federal or state agency.

Appellant applied for unemployment benefits and appellee sent a report to the Employment Security Division showing appellant was terminated “because of numerous customer complaints and that she failed to follow company policy”.

Jerrell Moss, supervisor for the appellee owner of the food outlet, testified that he had telephone complaints from two customers about the service of a waitress meeting the description of appellant. The witness could not give the names of either of the parties making complaint. Appellant testified she called Mr. Moss and asked why he had withheld her money and explained that she had passed the polygraph test and needed the money. He said, “I need mine, too.”

Appellant filed a motion that appellee be required to permit appellant to inspect and copy non-privileged written statements of appellee taken by its liability insurance carrier incident to the claim pursuant to Ark. Stat. Ann. § 28-356. The appellee filed a response opposing the motion. The record discloses no disposition of the motion.

Appellant testified in her deposition that she was upset and hurt over the way the appellee had done her, that it had made her nervous and she had headaches and hurt all over, and that she felt humiliated in the presence of citizens of the community. The record does not disclose how many had keys to the place of business.

For reversal appellant contends the facts alleged in her complaint, if proven, constitute a cause of action in that the actions of the appellee constituted a breach of the employment relationship in violation of public policy; and that appellant suffered a tortious injury by the alleged wrongful acts of the appellee.

The cases cited by appellant in support of the allegation of a breach of the employment contract are cases from other jurisdictions in which there was held to be a breach of the employment contract, even though it was an employment at will, because the circumstances of the discharge involved violation of some right of the employee secured by statute. The case at bar does not involve the infringement of a right secured by statute and therefore we hold the complaint does not state a good cause of action for breach of contract.

However, on the allegation of a tort injury, a case of first impression in Arkansas appears to be posed on the question as to whether intentional infliction of emotional distress and damages to reputation by a wrongful discharge under such circumstances as to cast a shadow upon a worker’s integrity can be a basis for damages in a tort action. We do not find that the Arkansas Supreme Court has been called upon to determine whether an employee at will who suffers emotional distress or damages to reputation because of wrongful firing has a cause of action for damages. We do find the Massachusetts Supreme Court in the case of Agis v. Howard Johnson Co., 335 N.E.2d 315 (1976) has approved the award of damages for emotional distress under circumstances similar to the allegations here involved, and in doing so announced the following rule which we hold to be sound:

One who, by extreme and outrageous conduct and without privilege, causes severe emotional distress to another is subject to liability for such emotional distress, even though no bodily harm may result. However, in order for a plaintiff to prevail in a case for liability under this tort, four elements must be established. It must be shown (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct, .. .; (2) that the conduct was “extreme and outrageous”, was “beyond all possible bounds of decency” and was “utterly intolerable in a civilized community”, . . .; (3) that the actions of the defendant were the cause of the plaintiff’s distress, . . .; and (4) that the emotional distress sustained by the plaintiff was “severe” and of a. nature “that no reasonable man could be expected to endure it.”

Restatement (Second) of Torts § 46 (1965) and decisions from several states are cited in that decision in support of the above rule.

We approve the above rule as proper and reasonable, and appellant should have been permitted to fully develop her case. Summary judgment should not have been granted. There were material factual issues in dispute, and even if there had been no material dispute as to facts where the facts permit inconsistent hypotheses to reasonably be drawn and reasonable men might differ, then a motion for summary judgment is not proper. Deltic Farm & Timber Co. v. Manning, Adm’x., 239 Ark. 264, 389 S.W.2d 435 (1965).

The pleadings show a justifiable issue and it was the duty of the court to view the evidence in the discovery depositions in the light most favorable to the appellant in considering the motion for summary judgment. Jones v. Halliburton Co., 240 Ark. 919 (1966).

Reversed and remanded.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. I would affirm the granting of the summary judgment by the trial court. I find there to be no material issue of fact.

It is basic in tort law that a plaintiff must prove 1) a duty owed, 2) a breach of that duty and, 3) damages proximately caused by that breach. Jonesboro Coca-Cola Bottling Co. v. Young, 198 Ark. 1032, 132 S.W.2d 382 (1939).

Even if we adopt the rule outlined in Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E. 2d 315 (1976) and make it applicable in Arkansas, the plaintiff’s case could not stand — she has suffered no damages. The tort of wrongful discharge, a new cause of action, is nevertheless a tort and must meet the tort test.

Does an employer owe an employee the duty not to fire? In our system of free enterprise does an employee have an automatic intrinsic interest in his or her particular job? All of the actions taken by the employer were agreed to by the employee at time of employment. No one enjoys losing her job, but an employer is not required to retain an unsatisfactory employee, nor is the employer responsible for hurt feelings because of the discharge which was within the employer’s right. The employer owed appellant no duty to retain, therefore, how can we say the employer is responsible for the appellant’s unhappiness following such discharge.

Where no right has been violated there is no injury for which the law affords compensation. McCoy v. Board of Directors of Plum Bayou Levee District, 95 Ark. 345, 129 S.W. 1097 (1910).

The manner of the discharge may be subject to dispute. This, however, does not require a reversal, for the appellant’s testimony reflects no damage nor injury.

Q. Did Jan Highlander ever accuse you of stealing.
A. No, she didn’t.
Q. According to you you don’t have any information, MBM or Coleman’s or anybody said anything to you about you being suspicioned of taking anything or participating in taking anything as far as you know nobody said anything like that to the unemployment people?
A. Not that I know of.
Q, ... I want to know to your knowledge has anybody at Coleman’s ever told anybody else that you had either taken, stolen or participated in stealing or misappropriation of anything?
A. Not that I know of. I don’t know if I understood that question or not.

The trial judge considered the depositions filed, the arguments of counsel and the applicable law and granted a summary judgment for the appellee. I would affirm the judgment. Therefore, I respectfully dissent.


author: George Rose Smith, Justice.

text:
    Donny BOBO and Michael FORREST v. STATE of Arkansas
    CR 79-146
    289 S.W. 2d 5
    Opinion delivered October 29, 1979
    (In Banc)
    [Rehearing denied December 3, 1979.]

      John W. Walker and James P. Massie and Ball & Mourton, by: Kenneth Mourton, for appellants.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The two appellants were charged with rape, allegedly committed in the early morning hours of December 12, 1978, at the Wilson Sharp athletic dormitory in Fayetteville. Before the trial, which has not yet been held, the defendants filed a motion pursuant to Ark. Stat. Ann. § 41-1810.2 (Repl. 1977), asking that evidence of the proxecutrix’s prior sexual conduct with the defendants and with other persons be declared to be admissible.

At the ensuing hearing, in camera, the court held admissible (a) evidence of the prosecutrix’s prior sexual relations with the defendants during the 18 months preceding the date of the offense charged and (b) evidence of the prosecutrix’s alleged sexual relations with one Bobby Duckworth on the same evening and in the same room as the alleged rape. The court’s order provided that the testimony as to item (b) might be developed by direct or cross examination of the prosecutrix, of Duckworth, and of the defendants.

On this interlocutory appeal the defendants contend that three additional trial procedures should have been approved: (1) Introduction of proof of Duckworth’s prior sexual relations with the prosecutrix; (2) cross-examination of the prosecutrix about her prior sexual relations with some 15 other persons, at least four of whom were athletes; and (3) introduction in evidence of a nude picture of the prosecutrix published in 1977 in the magazine “Gallery.”

The exact language of the controlling act, passed in 1977, is important to our decision. We quote Sections 1 and 2 of the act:

Section 1. In any criminal prosecution under Arkansas Statutes Annotated 41-1803 through 41-1810, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of these sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
Section 2. Notwithstanding the prohibition contained in Section 1 [§ 41-1810.1], evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim’s prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of such evidence is determined in the following manner:
(a) A written motion shall be filed by the defendant with the Court at any time prior to the time the defense rests stating that the defendant has an offer of relevant evidence of the victim’s prior sexual conduct and the purpose for which the evidence is believed relevant.
(b) A hearing on the motion shall be held in camera no later than three (3) days before the trial is scheduled to begin, or at such later time as the Court may for good cause permit. A written record shall be made of such in camera hearing, and shall be furnished to the Arkansas Supreme Court on appeal. If, following the hearing, the Court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, the Court shall make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence.
(c) If the Court determines that some or all of the offered proof is relevant to a fact in issue, the victim shall be told of the Court’s order and given the opportunity to consult in private with the Prosecuting Attorney. If the Prosecuting Attorney is satisfied that the order substantially prejudices the prosecution of the case, an interlocutory appeal on behalf of the State may be taken in accordance with Rule 36.10(a) and (c), Arkansas Rules of Criminal Procedure. The defense may appeal such court order in like manner if such order is deemed by the defense to be prejudicial. Further proceedings in the trial court shall be stayed pending a determination of the appeal. Provided, a decision by the Arkansas Supreme Court sustaining in its entirety the order appealed shall not bar further proceedings against the defendant on the charge. [Ark. Stat. Ann. §§ 41-1810.1 and -1810.2.]

It will be seen that Section 1 broadly excludes opinion evidence, reputation evidence, and evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person, for all purposes. Section 2 then creates an exception to the general exclusionary rule by permitting the defendant to file a motion to be allowed to offer relevant evidence of “the victim’s prior sexual conduct.” After an in camera hearing the court is to make a written order determining what evidence is relevant to a fact in issue and has probative value outweighing its inflammatory or prejudicial nature. With the statute in mind, we turn to the appellant’s three contentions.

(1) The court correctly excluded evidence of Duck-worth’s alleged prior sexual relations with the prosecutrix. We have said, in applying this same statute, that information about the prosecutrix’s complete sexual history “is usually totally irrelevant to the charge of rape.” Duncan v. State, 263 Ark. 242, 565 S.W. 2d 1 (1978). We cannot say that the trial court erred in holding that,the mere fact that Duckworth may have had sexual relations with the prosecutrix on the same evening and in the same room as the alleged rape established the relevancy of any other relations that Duckworth may have had with her.

(2) The court was right in limiting the scope of the cross examination of the prosecutrix at the forthcoming trial. The court held, properly, that she might be questioned about her prior sexual relations with the two defendants. See Brown v. State, 264 Ark. 944, 581 S.W. 2d 549 (1979). The court also held that she might be cross-examined about the incident with Duckworth that occurred almost as part of the same episode. But, again, we cannot say that the court erred in holding that the prosecutrix’s prior relations with third persons were inadmissible with respect to the central issue of whether she consented to what the State asserts to have been rape. Indeed, if that broad range of inquiry were permissible without a special showing of relevancy, the basic exclusionary rule laid down in Section 1 of the 1977 statute, with respect to proof of specific instances of prior conduct, would pretty well go by the board. The intent of the act, as we said in Duncan v. State, supra, was to protect the victim from unnecessary humiliation.

(3) We also agree with the trial court’s exclusion of the published picture of the prosecutrix. The proof was that she had privately posed for a nude photograph, but she did not send it to the magazine, consent to its publication, or receive pay for it. Thus all that was actually shown was that about a year and a half before the alleged rape, when the prosecutrix was 17, she posed in the nude. The court did not abuse its discretion in holding that the probative value of the exhibit was outweighed by its inflammatory or prejudicial nature. Moreover, Section 2 of the act relates only to proof of the victim’s prior “sexual conduct,” which in turn is defined in Section 3, § 41-1810.3. Since posing in the nude for a photograph does not fall within that statutory definition of sexual conduct, we are not convinced that the act was meant to permit the introduction of such evidence.

Affirmed.

Harris, C.J., not participating.

Byrd, J., dissents.


author: John A. Fogelman, Justice.

text:
    J. L. CHAVIERS v. STATE of Arkansas
    CR 79-148
    588 S.W. 2d 434
    Opinion delivered October 29, 1979
    (Division I)

      Drake, Bynum & Dennis, Ltd., for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   John A. Fogelman, Justice.

Appellant J. L. Chaviers, the operator of Chaviers Insurance Agency, Inc., an insurance agency in Pine Bluff, Arkansas, was found guilty of eight counts of theft of property and sentenced to two years and a fine of $1,000 on each count with the sentences to run consecutively. He asserts four points for reversal. They are:

I
THE TRIAL COURT COMMITTED ERROR IN REFUSING TO GRANT APPELLANT’S MOTION FOR A MISTRIAL.
II
THE EVIDENCE BEING WHOLLY INSUFFICIENT, THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO GRANT APPELLANT’S MOTION FOR A DIRECTED VERDICT FOR APPELLANT ON COUNT 1, COUNT 2, COUNT 4, COUNT 5, COUNT 6, COUNT 7, COUNT 8 AND COUNT 9.
III
THE TRIAL COURT COMMITTED ERROR IN REFUSING TO GRANT APPELLANT’S MOTION TO SET ASIDE THE VERDICT OF THE JURY ON COUNT 7 AND COUNT 8.
IV
THE SENTENCE PRONOUNCED BY THE COURT WAS EXCESSIVE AND CONSTITUTED CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF APPELLANT’S CONSTITUTIONAL RIGHTS.

We find no merit in points I and IV. We do find merit in Point III and in that portion of Point II relating to Counts 7 and 8 of the nine counts in the information on which Chaviers was tried. We affirm the judgment of the trial court as to Counts 1, 2, 4,5, 6 and 9 of that information. Chaviers was acquitted on Count 3. The judgment is reversed as to Counts 7 and 8.

I

Appellant moved the court to declare a mistrial because of conversations between witnesses under sequestration and a spectator who was interested in the trial. Mr. Patrick Lee, an employee of Southwestern Insurance Group, a group of companies represented by the Chaviers Agency, was present at the trial. Some of the charges against Chaviers were based upon contentions that he had accepted and taken control of premiums paid to him for the issuance or renewal of policies by Southwestern Insurance Company, without having obtained the policies or renewals or without remitting the premiums for them to the company. Robert Malcomb, the underwriting manager for the Southwestern Insurance Group, was a witness for the state. James A. Fecho, a branch manager with Transamerica Insurance Company, was also a witness called by the state. Appellant’s motion for a mistrial was made after Fecho had testified, but before Malcomb’s testimony was given.

Appellant’s wife testified at the hearing on the motion. She said that each time a witness had left the stand, all of the witnesses, who were sitting together, had discussions and looked and pointed and apparently discussed what had been said in the courtroom. She said that she did not hear what Lee said to Malcomb or any other witness to whom he had talked, but that they all stood in front of Lee and appeared to be giving information as to their testimony. At that time, an independent insurance agent had testified as to practices of insurance companies in billing agencies and an insurance salesman for another insurance company had testified about placing liability insurance coverage for one of the complaining witnesses with the Chaviers agency. In addition to these witnesses, Mary E. Johnson, Ray Heaslip and Bobby Davis, who were complaining witnesses, had testified.

Sandra Masters, appellant’s daughter, testified that she had been sworn as a witness and had seen Lee going in and coming out of the courtroom and had seen him talking to some man and others who were witnesses. She did not know what Lee was saying or what kind of conversation was going on. She had been sitting with Mrs. Chaviers.

Lee testified that his major purpose in being present was to visit with Malcomb, and that he had lunch with Malcomb and Fecho. He said that he had not discussed the case with the state’s witnesses. Mrs. Taylor, one of the complaining witnesses, testified that she had spoken with some of the witnesses when they left the courtroom after testifying, but not about the case nor about their testimony or anything that took place in the courtroom and that she did not hear anything about the testimony. Doris Weaver, a complaining witness, said she had spoken to some of the witnesses who had testified and that she had asked one of the insurance agents what had happened and had been told that it was only routine. Jimmy Ragsdale, a complaining witness, said that the witnesses who were sitting in the hall had engaged in general conversations, but that he did not know who had testified and who had not. He had observed that some of the witnesses, after they had testified and left the courtroom, had spoken with the other witnesses, but he did not hear the conversations.

Malcomb testified that some of the witnesses who had testified had talked with witnesses who had not, but that he had not talked with any witnesses who had testified. He said that he had talked to Lee about what had happened between Chaviers and their company, but not about what went on in the trial. He said that he did talk about the facts of the case as he knew them. Malcomb recalled that Lee had told him about testimony that had been given in the courtroom in regard to a question about the difference between an account current agent and a direct bill agent.

After hearing this testimony, the trial judge stated that there had been no request to sequester the witnesses or to give a cautionary instruction to them, but that he had probably erred in failing to request that the witnesses not discuss the case or visit with each other during the course of the trial. In denying the motion for mistrial, the circuit judge remarked that granting a motion for mistrial was pretty drastic action and that, from what he had heard, he doubted that any harm to either side had really been done.

We have many times said that declaring a mistrial is an extreme and drastic remedy which should be resorted to only when there has been an error so prejudicial that justice could not be served by continuing the trial. Holmes v. State, 262 Ark. 683, 561 S.W. 2d 56; Limber v. State, 264 Ark. 479, 572 S.W. 2d 402; Wilson v. State, 261 Ark. 820, 552 S.W. 2d 223; Shackleford v. State, 261 Ark. 721, 551 S.W. 2d 205; Foots v. State, 258 Ark. 507, 528 S.W. 2d 135. The granting or denial of a motion for mistrial lies within the sound discretion of the trial judge and the exercise of that discretion should not be disturbed on appeal unless an abuse of that discretion is shown. Parrott v. State, 246 Ark. 672, 439 S.W. 2d 924; Jackson v. State, 245 Ark. 331, 432 S.W. 2d 876. The facts revealed here do not afford any basis for our saying that the trial judge abused his discretion in denying this motion for mistrial. See Hutcherson v. State, 262 Ark. 535, 558 S.W. 2d 156.

II

In each count of which he was convicted, Chaviers was charged with having committed the crime of theft of property by unlawfully and knowingly taking unauthorized control of property of another in excess of $ 100. Each count named the alleged victim. They were: Count 1, Mary J. Ragsdale; Count 2, Eugene Morgan; Count 4, Doris Weaver; Count 5, Anthony D. Johnson; Count 6, Arthur Lee Bradley; Count 7, Transamerica Insurance Group; Count 8, Mrs. Jack Taylor; and Count 9, Bobby Davis.

The statute under which Chaviers was charged, Ark. Stat. Ann. § 41-2203 (Repl. 1977), provides that one commits theft of property if he knowingly takes or exercises unauthorized control over the property of another with the purpose of depriving the owner thereof. Under that section there is a wrongful appropriation when the actor either takes or exercises unauthorized control over the property of another. The term “exercises unauthorized control” is directed at the bailee who lawfully takes control of the property, but subsequently appropriates it to his own use. But the term must be read in conjunction with the clause ‘ ‘purpose of depriving the owner thereof.” A deviation from the terms of bailment is theft only if done with the requisite purpose to deprive the bailor. See Commentary, § 41-2203.

The word “property” includes any paper or document that represents or embodies anything of value. “Deprive,” in the statute, according to Ark. Stat. Ann. § 41-2201 (4) (a) and (c) means:

(a) to withhold property or to cause it to be withheld either permanently or under circumstances such that a major portion of its economic value, use, or benefit is appropriated to the actor or lost to the owner; or
(c) to dispose of property or use it or transfer any interest in it under circumstances that make its restoration unlikely.

The offenses were alleged to have occurred during the years 1975, 1976 and 1977. There seems to be no doubt that Chaviers or employees of his agency took control of checks tendered for payment of premiums on insurance policies to be issued or renewed. The question is whether Chaviers purposely withheld or used these payments in a manner that their use or benefit was appropriated to Chaviers’ benefit or lost to the owner. One acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Stat. Ann. § 41-203 (1) (Repl. 1977). Thus, the purpose required is not significantly different from the previous requirement of specific intent in cases of larceny and embezzlement. See Gilcoat v. State, 155 Ark. 455, 244 S.W. 723; Mason v. State, 32 Ark. 238; Heath v. State, 207 Ark. 425, 181 S.W. 2d 231; State v. Guthrie, 176 Ark. 1041, 5 S.W. 2d 306. By the nature of things, one’s intent or purpose, being a state of mind, can seldom be positively known to others, so it ordinarily cannot be shown by direct evidence, but may be inferred from the facts and circumstances shown in evidence. Smith v. State, 264 Ark. 874, 575 S.W. 2d 677; Shell v. State, 184 Ark. 248, 42 S.W. 2d 19. We have uniformly held that intent might be inferred from the circumstances connected with the transaction in larceny and embezzlement cases. Mason v. State, supra; Bond v. State, 230 Ark. 962, 328 S.W. 2d 369; Collins v. State, 184 Ark. 20, 41 S.W. 2d 781; State v. Guthrie, supra. We have also held that the criminal intent to embezzle may be inferred from the act of wrongful conversion of a fund. Heath v. State, supra; Smith v. State, 219 Ark. 829, 245 S.W. 2d 226; Gurley v. State, 157 Ark. 413, 248 S.W. 902. There is no sound reason why the kind of evidence or quantum of proof required to show “a conscious object” should be different from that required to show specific intent.

In pointing put the pertinent testimony on the question of sufficiency of the evidence, we will view the evidence in the light most favorable to the state, considering only that testimony that lends support to the jury verdict and disregarding any conflicting testimony which could have been rejected by the jury on the basis of credibility.

Chaviers had operated the agency until his license was revoked in August or September, 1976. All moneys paid to the agency were deposited in a bank account which was totally depleted on August 9, 1977. After the license was revoked, Chaviers, in February, 1977, began to bid on demolition contracts in Little Rock. Thereafter, he spent not more than one or two hours per day in the insurance office and devoted considerable time to the demolition business, leaving the handling of matters pertaining to his insurance business to his wife and daughter, who had been employed in the agency since 1973. They were paid salaries throughout their employment. The new business was so unsuccessful that Chaviers discontinued it in July, 1977, after having suffered a loss of approximately $6,000. Chaviers testified that he utilized the agency bank account to pay expenses of his demolition business.

J. L. Stone worked with Chaviers occasionally and Chaviers compensated Stone by giving him the premium for the first year on any policy solicited by Stone. Among the insurance companies represented by the Chaviers agency were: Southwestern Insurance Company, Cavalier Insurance Company, New Hampshire Insurance Company, and Transamerica Insurance Group. Southwestern Insurance Company terminated the Chaviers agency by letter dated January 24, 1977. An officer of Southwestern wrote Chaviers on March 12, 1977, advising him that his attempts to renew policies of the company would not be carried through and returned seven renéwal requests with that letter. Chaviers acknowledged that his authority to act, even on renewals, was then terminated. It is possible that Chaviers had an agreement with the company to renew policies that terminated in February, 1977. On renewals, this company’s billing procedures were such that a lapse of two or three months between the company’s receipt of a request for renewal and a statement calling for payment of the renewal premium was not unusual. Chaviers’ agency for New Hampshire Insurance Company was terminated in October, 1975.

Chaviers’ agency for Transamerica extended from August, 1973, until April 26, 1976. He had no authority to write new business after July 26, 1976 or renewals after July 26, 1977. His contract with that company was terminated May 15, 1977.

The agency received a letter from the insurance commissioner around July 1, 1977, but, having had her “fill” of this official, Mrs. Chaviers put the unopened letter in a desk drawer where it remained unopened until November, 1977, after Chaviers had been arrested on the original charge contained in the information filed against him, i.e., the Ragsdale transaction. When the letter was opened, complaints of Mrs. Weaver and Mrs. Ragsdale about the handling of their transactions were attached.

The evidence on all counts followed a similar pattern, particularly those in Counts 1, 2, 4, 6 and 9. In each case, a customer of the agency issued a check to the Chaviers agency for an insurance policy or a renewal of an existing policy. All seem to have been automobile insurance. The checks were dated on various dates between January 27, 1977 and March 12, 1977. The proceeds of the checks went into the agency bank account. Receipts for the premium payments were issued by the Chaviers agency, but the policies were not renewed. These customers learned that the policies had not been renewed. Some of them learned they had no coverage after claims had arisen. None of them received a refund of the money paid for the insurance premium, although all except Mrs. Ragsdale and Mrs. Weaver had sought a refund.

Eugene Morgan (Count 2) talked with Mrs. Chaviers after a claim had arisen prior to the date he gave the check for renewal and was told by her that he would be advised as soon as the agency heard from the company. Finally, on June 15, 1977, he learned by inquiry of Southwestern Insurance Company that his policy had not been renewed and had expired in February, 1977. When his automobile was repaired in July or August, 1977, Chaviers advised Morgan that $200 was deductible under the policy. Morgan checked the policy and found that only $100 was deductible. Nothing was ever said to Morgan by anyone connected with the Chaviers agency about the non-renewal of the policy. Chaviers admitted that Morgan was entitled to a refund of $176, but sought to excuse the failure to make it by saying that the agency had not received any notice of rejection of the request for renewal mailed by him to the company on March 9, 1977 (three days before the date of Morgan’s check). He said that no remittance had been made to the company because the agency was never billed for the premium.

Doris Weaver (Count 4) received a notice from Southwestern Insurance Company, two weeks after she had given her check to the Chaviers agency, that her policy had been cancelled for non-payment of premium. When she inquired of Chaviers, he told her that “it was shuffled up in paper work,” that she was insured and that she should not worry. When she had a collision in June, 1977, approximately four months after she had paid the renewal premium, Chaviers promised to send in an accident report showing her coverage, but apparently did not. About two weeks later, after she had been involved in another collision, Chaviers told her that she had nothing to worry about, but did not tell her that she had no coverage. She also made a later payment for another renewal. Her request for a refund in June, 1977, was postponed by Chaviers because of unavailability of his records.

When Arthur Lee Bradley (Count 6) had not received a policy two weeks after he had given his check on March 3, 1977, a secretary in the agency office told him the policy would be mailed. About two months later, he called the agency office and was told that it had “folded.” The insurance company had nothing in its records pertaining to Arthur Bradley or any payment from Chaviers on Bradley’s account, and its underwriting manager said that Chaviers had no authority on the date the agency took Bradley’s check to send in a premium for a policy for Bradley.

Payments made by Bobby Davis (Count 9) in January and February, 1977, were for renewal of a Transamerica policy which had expired on December 19, 1976. On December 20, 1976, there had been a theft of some items from the Davis car. Chaviers told Davis to send an estimate, but that there might be some difficulty because the policy had terminated. After Davis had been in an accident following his premium payments, he learned that his policy had been cancelled for non-payment. He had received no notice that his policy would not be renewed. Chaviers testified that the agency records showed that a refund check had been mailed to Davis, but admitted that there was no cancelled check on the agency account for this refund.

The transaction involved in Count 5 was slightly different. Mary E. (Mrs. Anthony D.) Johnson applied to Stone for farm liability insurance to be procured through the Chaviers agency on June 7,1975, and gave Stone a check for $160. Stone cashed the check and paid Chaviers for the policy in cash, for which a receipt was issued. The money was deposited in the agency bank account. Stone did not receive any refund of this premium and did not receive a letter dated July 26, 1975 from Chaviers enclosing a check for a refund of the premium. It is admitted that no refund check ever cleared the Chaviers agency bank account. On June 16, 1975, Chaviers assured Mrs. Johnson that the Johnsons were covered by insurance. On August 6,1975, he told her he had mailed the policy to them. The Johnsons never received a policy or a refund. The branch manager of New Hampshire Insurance Company, on which the Johnson policy was to have been written, said that sometime in September, 1975 , before Chaviers’ agency for that company was terminated in October, 1975, he had spoken with Chaviers about the Johnson policy and that Chaviers had stated that he had received no money from Stone for that policy and he had so advised the Johnsons, but mentioned no refund to Stone. Chaviers made no offer to refund the premium to the Johnsons until May 20, 1976, when a hearing was being held by the insurance commission on a complaint against Chaviers.

Appellant says that the evidence is wholly circumstantial, so it must exclude every other reasonable hypothesis other than his guilt. He enumerates several circumstances upon which he relies as being consistent only with innocence as to his intent and purpose. They are: his authority to accept and process renewals for Southwestern Insurance Company up through March 24, 1977 and for Transamerica through May 15, 1977; his lack of personal knowledge of the erroneous receipt of premium payments on the Ragsdale and Taylor accounts; the billing system of these two companies, which permitted a lapse of two or three months between initial submission of a policy renewal and request for payment by the agency; the fact that an agent was justified, in the absence of notice from a company of refusal to renew or issue a policy, in assuming acceptance by the company and anticipating subsequent billing; acceptance of renewals from the Chaviers agency which were billed as late as May, 1977; aborted attempts of Chaviers to sell his agency between March, 1977 and June, 1977 and the transfer of files and records to prospective purchasers on two occasions; the absence of Chaviers from his agency office between February, 1977, and July, 1977, except for one to two hours per day; inability of Chaviers to recover files and records after May 26,1977; the chaotic and turbulent state of his business during the period in which most of the questioned premium payments were made; Mrs. Chaviers’ description of appellant as being emotionally disturbed, distraught and subject to physical ailments during the period from February to August, 1977; the fact that 80 checks of policyholders for a total of approximately $6,000 were issued and 60 premium refunds totalling $10,000 were made up until August 9, 1977, when the agency account funds were exhausted; the failure of Ragsdale, Morgan, Bradley and Heaslip to communicate their complaints to appellant; the fact that Chaviers knew of only one charge at the time of his arrest in October, 1977, and the subsequent addition of the other counts one year after his arrest and 11 days before trial; appellant’s candid acknowledgement that refunds were due prosecuting witnesses, even though he could only rely upon his agency records; the fact that agency records indicated that refunds had been made in the Weaver, Heaslip, Taylor and Davis accounts and that the Weaver, Heaslip and Taylor checks were never deposited to the agency account.

We do not agree with appellant that the evidence was only sufficient to arouse suspicion and the jury was left only to speculation and conjecture in arriving at its verdict, except as to Counts 7 and 8. We certainly disagree with appellant’s statement that there was a failure of proof tending to show that appellant converted any insurance payments to his own use, in view of the fact that there was evidence that he paid expenses of his demolition business from the agency bank account, and that this account was depleted before refunds could be made in some instances.

Where circumstantial evidence does more than arouse suspicion, and is properly connected, and, viewing the evidence in the light most favorable to the state, the jury is not left to speculation and conjecture alone in arriving at its conclusion, it is basically a question for the jury to determine whether the evidence excludes every other reasonable hypothesis. Upton v. State, 257 Ark. 424, 516 S.W. 2d 904. This is such a case, and the jury’s verdict is conclusive on this question.

We conclude, however, that the trial judge should have granted appellant’s motion to set aside the verdict as to Counts 7 and 8. There is no evidence that either the Heaslip or Taylor checks ever went into the agency account. There was positive testimony that the Heaslip check had not. There was testimony that the Heaslip check had been voided and returned to Heaslip by letter, even though Heaslip denied having received it.

Mrs. T ay lor felt sure that her check had been charged to her account but did not have any cancelled check or any record to support her statement. Chaviers testified that, had she produced her cancelled check, a refund would have been made. Mrs. Chaviers testified that she had noted on the copy of the receipt issued to Mrs. Taylor that the check in question had been returned. She had been unable to find any file on this account.

In June, July or August, 1977, Transamerica refunded the Heaslip payment without ever soliciting any explanation from Chaviers or his agency. The evidence that the Taylor check had been cashed was far from satisfactory. Appellant exhibited photographic copies of both the Heaslip and Taylor checks with the word “void’ ’ written thereon with his post-trial motion to set aside the verdict. He alleged that these copies of the checks had been found in the books and records of the agency in the state of Alabama, where they had been stored, and were received by him three days after the trial. We do not see how the jury could have done more than engage in speculation as to appellant’s purpose in regard to these transactions if this evidence had been before it. For this reason, we feel that the trial court should have set aside the verdict of these two counts.

The motion to set aside the verdict must be viewed as a motion for a new trial. It incorporated an attack on the sufficiency of the evidence to support the verdict and newly discovered evidence. It might easily be said that there was no abuse of discretion in denial of this motion, were it not for the fact that the Heaslip and Taylor accounts were among eight counts added to the information in this case just 11 days prior to trial. The evidence that Chaviers was living at Boaz, Alabama, and that his wife was working as a nurse there was undisputed. In the peculiar circumstances of this case, we find no lack of diligence and feel that the motion should have been granted as to these two counts. This means only that appellant is entitled to a new trial on these counts, because we cannot say that, without the new evidence as to the checks of Heaslip and Taylor, the evidence would have been insufficient to present a question for the jury. With that evidence before it, the jury could have only speculated as to two equally plausible conclusions as to Chaviers’ purpose in these transactions, unless the state was able to rebut this new evidence.

Appellant contends that his sentence of 16 years’ imprisonment and $8,000 in fines is so patently severe, when related to the facts and circumstances brought out at trial, that it should be regarded as cruel and unusual and constitutionally impermissible. Of course, that sentence may be reduced because of the reversals on two counts. Appellant contends that the punishment is cruel and unusual because it is so disproportionate to the nature of the offense as to shock the moral sense of the community.

Appellant’s convictions on six counts of theft of property still stand. The jury found that six different people had lost property through theft by Chaviers. None of these offenses involved more than $2,500, but each involved more than$100. Thus, they were Class Cfelonies. Ark. Stat. Ann. § 41-2203 (2) (b) (i) (Repl. 1977). The minimum punishment on each offense was two years. Ark. Stat. Ann. § 41-901 (1) (c) (Repl. 1977). A fine of as much as $10,000 could have been imposed on each count. Ark. Stat. Ann. § 41-803 (3) (c) (Repl. 1977). An argument that the minimum prison sentence permissible under the applicable statute is cruel and unusual is rather strange. No punishment prescribed by statute is cruel and unusual unless it is barbarous, or unknown to the law, or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Carter v. State, 255 Ark. 225, 500 S.W. 2d 368. We cannot say that the sentence in this case was cruel and unusual under this test.

The judgment is affirmed as to Counts 1,2,4, 5,6 and 9. As to Counts 7 and 8, the judgment is reversed and the cause remanded for a new trial.

We agree. George Rose Smith and Holt and Hickman, JJ.

       We treat this matter as if the witnesses had been excluded from the courtroom without any request having been made by either party and without any admonition having been given by the circuit judge. Although the record is not clear on this point, appellant states in his brief that the witnesses involved in the alleged conversations had been excluded under the rule. Mrs. Chaviers testified that she saw the spectator in question coming out of the courtroom and coversing with witnesses who were sitting outside. She must have been outside the courtroom herself in order to observe any such conversations. It seems highly improbable that she would have been in a position to observe unless she had been excluded from the courtroom.


author: Conley Byrd, Justice.

text:
    Carry W. and Allie Lucille CHANDLER v. Rosie Lillian PALMER et al
    79-216
    588 S.W. 2d 444
    Opinion delivered October 29, 1979

      Acchione & King, for appellants.

      Blackmon & Zakrzewski, for appellees.
   Conley Byrd, Justice.

This is a boundary dispute between appellants Carry W. and Allie Lucille Chandler who claim title to the strip in question by a deed from Buell Teer and appellees Rosie Lillian Palmer, et al who claim by adverse possession to an old fence erected in 1932 by their predecessor in title. The trial court found the issue of adverse possession in favor of appellees and fixed the boundary between the parties along a new fence erected by appellees some two feet inside of the old fence. For reversal appellants raise essentially fact issues contending that the trial court’s findings are against a preponderance of the evidence in that appellees failed to establish: (1) pedal possession; (2) hostile possession; for the statutory period of seven years (3) the location of the old fence; and (4) the sufficiency of the character of the old fence to give notice to the true owner. We affirm the trial court.

Lillian Palmer testified that she had been acquainted with the property since 1932 when her mother-in-law acquired the title to 12 acres and erected a hog wire fence with two barbed wires around the entire 12 acres. She and her husband acquired the six something acres that she and the other appellees now own from her mother-in-law in 1945. She states that she and her husband used the area up to the old fence for gardening and pasture. Her husband, who died in 1971, repaired the fence from time to time to keep in the livestock they owned. The new fence was erected just inside the old fence after appellants’ complained about the clearing out of the old fence.

H. S. McDonald testified that he had lived across the street from the Palmers since 1959 and that there had always been an old fence through the area along the back property line. He stated that Mr. Palmer always maintained a garden and a pasture up to the old fence.

Gorden Palmer testified that he had lived in the area for 32 years except for a few years when he was gone and got married. However, he testified that for 15 years he farmed and pastured up to the old fence line.

Appellant Carry W. Chandler does not deny the existence of an old fence. He admits that his predecessor in title strung some barbed wire along the old fence line to hold in his horses. On redirect he stated that the old fence that appellees’ counsel kept describing was where his predecessor straightened up the barbed wire to hold his horses. The old fence vaguely coincided with what is the red line on the survey and is approximately what the new fence coincides with.

Appellants point to Maney v. Dennison, 110 Ark. 571, 163 S.W. 783 (1914) and contend that the proof here is sufficient to show any particular portion of the lands that appellees have occupied for a sufficient length of time to ripen into title by limitation. We disagree with appellants, for, as we read the record, the area has either been in an enclosure or occupied by a garden since sometime in 1932. Furthermore, it appears that appellants’ predecessor in title by erecting the barbed wire fence along the old fence line for purposes of holding in his horses was acquiescing in the old fence as the boundary.

Neither can we agree with appellants’ position that the original entry by appellees and their predecessor in title was permissive. Such suggestion on the part of appellants is not supported by the record.

The assertion that the location of the old fence was not established with definiteness is not supported by the evidence. In fact appellants’ own proof tied the old fence in with the red line on the survey. Appellants are not in a position to complain about the fact that the trial court fixed the boundary line in accordance with the new fence since the proof on the part of appellees was more than ample to show their adverse possession to the old fence.

Finally appellants contend that the old fence was not of sufficient character to establish adverse possession. Needless to say the proof shows that the original fence consisted of hog wire and two barbed wires erected to posts. An exhibit shows the tops of some of the old posts sticking out through the honeysuckle vines covering the old fence. Such fences are ordinarily considered as sufficient to establish adverse possession, particularly where the person maintaining the fence maintains a garden and a pasture next to the fence. See Laney v. Arkansas Real Estate Co., Inc., 234 Ark. 187, 350 S.W. 2d 911 (1961) and Dierks v. Vaughn, 131 F. Supp. 219 (E.D. Ark. 1954).

Affirmed.

Harris, C.J. not participating.


text:
    Euna SCRITCHFIELD et al v. Ralph Robert LOYD, Executor
    79-270
    589 S.W. 2d 557
    Opinion delivered October 29, 1979

      Clark & McNeil, for appellants.

      Guy H. Jones, Phil Stratton, Guy H. Jones, Jr. and Casey Jones, by: Phil Stratton, for appellee.
   Conley Byrd, Justice.

By this appeal appellants, Euna Scritchfíeld, et al, collateral heirs of Johnnie D. Loyd, deceased, contend that the signature of Johnnie D. Loyd appearing in the attestation clause of his will does not meet the requirements of Ark. Stat. Ann. § 60-403 (Repl. 1971), requiring that the testator’s “signature must be at the end of the instrument.” The stipulation entered into by the parties shows the following:

‘ ‘ Marie Hutto, if called as a witness in this cause, would testify in substance as follows: ‘My name is Marie Hutto. I reside at Damascus, Arkansas, where my husband, Ray Hutto, and I operate a feed mill. On April 20, 1976, Johnnie David Loyd came to our place of business, bringing with him a blank form headed “Last Will and Testament” and asked me to help him make a will. I told Mr. Loyd I did not know anything about these matters and he then asked if I would write what he told me to in the various blanks in the form, as he requested. I did so. Under Mr. Loyd’s instructions, I filled in the blanks in the will form, and this is the instrument which has been tendered for probate as Mr. Loyd’s will. All handwritten portions of the will were written by me, except as hereinafter excepted. Mr. Loyd signed his name “Johnnie D. Loyd’ ’ in the upper left hand portion of the will, just below the printed words “Last Will and Testament” and just above the start of the printed portion of the form. He signed the name “Johnnie D. Loyd” in the attestation paragraph below the body of the will. I signed my name as a Notary Public on the line at the end of the will and inserted my commission expiration date to the left of my signature. Ray Hutto and Ralph Porter were also in our place of business at this time, and at Mr. Loyd’s request, they signed their respective names as witnesses to the will.

Based upon the foregoing facts the trial court ruled that the will was valid. We agree with the trial court.

There is a distinct conflict among the authorities as to whether a signature in an attestation clause qualifies as a signature “at the end.” See 44 A.L.R. 3d 701 § 14. Appellants rely upon In re Estate of George H. Glaze, Deceased, 413 Pa. 91, 196 A. 2d 297 (1964) and Sears v. Sears, 77 Ohio St. 104, 82 N.E. 1067 (1907), to support their contention that a signature in the attestation clause does not constitute a signature “at the end” of the instrument. However, we believe the better rule to be that where the testator places his signature in the attestation clause because he believes that it belongs there and with the requisite testamentary intent, it constitutes a sufficient compliance with the statute requiring the signature to be “at the end.” See In re Morey’s Estate, 75 Cal. App. 2d 628, 171 P. 2d 131 (1946) and In re Schiele’s Estate, 51 S. 2d 287 (Fla. 1951).

Affirmed.

Harris, C.J., not participating.

       Attached hereto as an appendix is a photostatic copy of the will.


author: Frank Holt, Justice.

text:
    John O. MAY v. Norma B. MAY
    79-242
    589 S.W. 2d 8
    Opinion delivered October 29, 1979
    [Rehearing denied December 3, 1979.]

      Warren H. Webster, for appellant.

      Dodds, Kidd & Ryan, by\Judson C. Kidd, for appellee.
   Frank Holt, Justice.

In May v. May, an unpublished per curiam order dated October 24, 1977, we affirmed appellant’s divorce decree because of his failure to comply with Supreme Court Rule 9(d), Ark. Stat. Ann. Yol. 3A (Repl. 1979). Thereupon, appellant filed a motion asking the chancellor to set aside the decree asserting that the property settlement contained therein was not reached by agreement of the parties but was ordered by the court in violation of Ark. Stat. Ann. § 34-1215 (Supp. 1979). The chancellor correctly concluded that all issues presented in the motion to set aside the decree were res judicata due to our prior affirmance of the decree. It is well established that a judgment on first appeal is conclusive as to every question of law or fact that was actually decided, or could have been decided, at that time. Gibson v. Gibson, 266 Ark. 622, 589 S.W. 2d 1 (1979); and Hollingsworth v. McAndrew, 79 Ark. 185, 95 S.W. 485 (1906).

Further, as noted by the appellee, appellant failed to abstract the allegedly defective divorce decree. Again, the appellant has failed to comply with Rule 9(d).

Affirmed.

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


author: Darrell Hickman, Justice.

text:
    Sharon Louise MORGAN v. STATE of Arkansas
    CR 78-184
    588 S.W. 2d 431
    Opinion delivered October 29, 1979

      McArthur & Lassiter, P.A., by: William C. McArthur, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Sharon Morgan’s three years suspended sentence was revoked by the Circuit Court of Pulaski County. She appeals alleging that the court’s finding that she inexcusably failed to comply with the conditions of her probation was clearly against the preponderance of the evidence.

We disagree and affirm the judgment of the trial court.

Sharon Morgan was charged with forgery in March of 1976. Her case was passed several times at the request of her attorney. In December of 1976, when she failed to appear in court, the court ordered a bond forfeiture and an alias warrant to be issued against her. Apparently nothing was done on this warrant because the case was passed several more times. Then in November, 1977, she pled guilty. She was sentenced to three years imprisonment but that sentence was suspended. However, she was placed on probation for one year. The conditions of that probation, which was not disputed, were generally that she was not to leave the area of Little Rock without permission from her probation officer; that she was to notify the probation officer of any change of address; that she should promptly report each month to her probation officer; and, that she should advise her probation officer if she had any unavoidable reason for being unable to report.

In January she requested and received permission from the court to go to California where she thought she had a job. However, it was provided that she report monthly, by letter, to her probation officer. She never went to California; instead she went to Missouri. She made no report for eight months. In September, 1978, she called her probation officer and said she was in Missouri. The officer testified it sounded like a local call. A petition to revoke her sentence was filed and a hearing was held on that petition.

Morgan offered no excuse whatsoever for her failure to report. She admitted that, because the job opportunity failed, she did not go to California; instead she said she went to Missouri, where she obtained employment.

Based on this information, the court revoked the sentence. We are asked to find that the court’s judgment was clearly against the preponderance of the evidence.

The applicable Arkansas law is found in Ark. Stat. Ann. § 41-1208(4) (Repl. 1977).

If the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.

There is no right to probation, rather it is a matter of judicial grace. People v. Williams, 93 Cal. App. 2d 777, 209 P. 2d 949 (1949). However, when a probationary sentence is revoked, due process requires following a proceeding designed to insure fair treatment of a defendant. Gagnon v. Scarpelli, 411 U.S. 778 (1973). In Cogburn v. State, 264 Ark. 183, 569 S.W. 2d 658 (1978), we reversed a revocation decision after reviewing in detail the conditions of the probation and the efforts that Cogburn made to comply with that probation. This case is in no way like that of Cogburn.

The condition of probation in this case, requiring Morgan to report monthly to her probation officer, was reasonable. Probation by its very nature implies some sort of supervision. If there is to be no supervision, then there is no sense in having probation. In this case, because Morgan offered no excuse whatsoever for her failure to contact her probation officer, we cannot say the judge’s findings are clearly against the preponderance of the evidence.

It is argued that the trial court had an inflexible policy of revoking all suspended sentences for similar violations of parole. Certainly, an inflexible policy is not desirable. However, we cannot say the court was wrong in this case simply because it had such a policy. Actually, the only evidence in the record is the testimony of Morgan. There was no corroboration offered as to her whereabouts, her employment of her conduct during this period of time.

Affirmed.

Purtle, J. dissents.


author: John I. Purtle, Justice.

text:
    NORTHWESTERN NATIONAL INSURANCE CO. (of Milwaukee, Wisconsin) v. Nan B. SULCER and The Estate of Clyde SULCER, deceased
    79-197
    588 S.W. 2d 442
    Opinion delivered October 29, 1979
    (Division II)

      Rieves, Rieves & Shelton, by; Elton A. Rieves, III, for appellant.
    No brief for appellee.
   John I. Purtle, Justice.

Northwestern National Insuranee Company, as surety for the widow who was the administratrix of her husband’s estate, paid a claim on her bond because of misuse of the estate funds. The insurance company, after paying the estate, obtained judgment against the administratrix and sought to execute against her dower rights. We upheld the trial court’s decision to permit Northwestern to levy upon her dower rights, but declined to advise on what the results would be so far as the general creditors were concerned. Sulcer v. Northwestern National Ins. Co., 263 Ark. 583, 566 S.W. 2d 397 (1978). Subsequently, the trial court assigned dower rights to the widow and granted Northwestern’s petition to execute upon the dower rights. However, the trial court held that the execution by petitioner on the dower rights broke the barrier of homestead exemption and the entire interest in the homestead was subject to execution by the other creditors. The house and lot were sold and the proceeds are being held pending this appeal.

On appeal, Northwestern argues the homestead exemption runs only in its favor and does not inure to the benefit of the creditors of decedent’s estate. We agree with appellant’s contention.

The facts are not in dispute. The widow misused the funds from her husband’s estate and the insurance company paid the estate $25,333.33 and obtained a judgment in this amount against the widow. When the surety attempted to execute against the widow’s interest, she claimed the homestead exemption. The trial court held the widow’s interest was subject to levy by the surety. On appeal we affirmed the trial court. Sulcer v. Northwestern, supra. Thereafter, the trial court assigned dower to the widow and ordered the entire property sold with the interest above the dower to be applied to the claims of the creditors of the estate. The court reasoned once the homestead barrier was removed in favor of Northwestern, it was removed for all purposes. The house was ordered sold with the proceeds to be distributed to costs, to Northwestern for the dower interest and the balance to estate’s general creditors. The court synchronized the probate and chancery powers and held a joint sale. The proceeds ($ 12,000) of the sale are being held pending this appeal.

We held in the first appeal that the homestead exemption granted in the Arkansas Constitution, Article 9, Section 6, did not preclude Northwestern from levying execution on the widow’s dower interest. This same provision specifically excludes from homestead exemption execution for purchase money, laborer’s and mechanic’s liens, taxes and claims against executors, administrators, guardians and receivers. The foregoing claims are in fact not exempt as homestead. However, general creditors of the estate are not authorized to execute against the estate. As executrix, the widow was not entitled to claim the homestead exemption against Northwestern.

Article 9, Section 6, allows the widow to have her dower interest for life in the home place. Additionally, Ark. Stat. Ann. § 62-2702 (Repl. 1971) exempts the homestead of a widow or minor children from sale by a personal representative for payments of the debts of the decedent. Therefore, there is a double exemption protecting the widow’s interest from sale by the general creditors. We fail to see any reason why the general creditors of the estate should be allowed to have the homestead sold simply because one authorized to claim against the homestead has done so. They are not authorized to levy execution because they are prohibited by the Constitution and the law.

When Northwestern paid the estate the monies which the widow took from the estate, it became the owner of that much of her interest. The sale as set up by the probate and chancery court did not produce enough money to satisfy the surety’s judgment. The effect of the sale as ordered would be an around about way of taking the homestead of the widow in direct controvention of express constitutional and statutory provisions. If the widow’s defalcation erased the exemption barrier, the general creditors would benefit at the expense of the surety who has already made the general creditors whole for the misapplication of the funds by the executrix. We do not believe this is the intent of the exemption provisions of the law.

It has been said by one text writer that the homestead is as completely beyond the reach of ordinary creditors as if it were on another planet. We have stated that the homestead exemption has no creditors except those mentioned in the Constitution. Bank of Dover v. Jones, 192 Ark. 740, 95 S.W. 2d 92 (1936); Stanley v. Snyder, 43 Ark. 429 (1884). The only way the exemption may be removed is by waiver or abandonment. Neither have occurred here except insofar as the claim of Northwestern is concerned.

Reversed and remanded.

We agree, Harris. C.J., Byrd and Holt, JJ.


author: John I. Purtle, Justice. Darrell Hickman, Justice,

text:
    Anne Kay VON LUCE v. Robert M. RANKIN, Commissioner of Mental Health Services, Arkansas State Hospital
    79-228
    588 S.W. 2d 445
    Opinion delivered October 29, 1979
    (In Banc)

      Griffin J. Stockley and James R. Cromwell of Central Arkansas Legal Services, Inc., for appellant.

      Steve Clark, Atty. Gen., by: Paul N. Means, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

This is an appeal from the denial of a Petition for Writ of Habeas Corpus in the Pulaski County Chancery Court. Appellant was admitted to the state hospital as a voluntary patient by her guardian and subsequently sought release through a petition for habeas corpus. The chancery court refused to grant the petition because the guardian was not a party to the proceeding.

The question to be determined is whether a guardian may voluntarily confine her ward as a patient in the state hospital against the wishes of the ward and without the ward’s consent or a probate court hearing. We do not believe a voluntary admission may be converted to an involuntary commitment without due process of law. Therefore, the writ should have been granted.

On May 10, 1979, Ute Patterson, the daughter of Anne Kay Von Luce, petitioned the Washington Probate Court for appointment of herself as guardian of her mother. On the same date an order appointing the daughter as temporary guardian was issued by the court. The order simply stated that petitioner was an “incompetent.” There was an unverified letter from a doctor to the effect that in his opinion Mrs. Von Luce was an “incompetent.” The court issued a summons on the same day but it was not served on Mrs. Von Luce until 5 days later. The summons contained the usual 20-day return provisions. However, 4 days after the order appointing the guardian she voluntarily admitted her mother into the state hospital in Little Rock. On June 6, 1979, the ward filed a petition in the Pulaski County Chancery Court seeking a writ of habeas corpus. A hearing was held on the petition the following day and the court, although finding the ward illegally detained, refused to grant the petition because the guardian was not a party to the action. At this hearing the only authorization for holding the incompetent as a patient was an application for voluntary commitment which had been executed by the guardian on behalf of the ward. On the face of this application were the following words:

NOTE: Arkansas statutes provide that a person may not be held on a voluntary statement against his/her will unless considered homicidal, suicidal, or gravely disabled as defined by law.

There was no order of commitment or any evidence or testimony indicating the petitioner had received notification or been granted a hearing. The order from the Washington Probate Court appointing the guardian was introduced into evidence along with the unverified statement of the doctor which had been presented to the Washington Probate Court. The state hospital did not offer any testimony or other evidence indicating a need for confinement.

On June 20,1979, this Court granted petitioner’s release from the state hospital on application for temporary relief. The ward was released to her guardian and subsequently returned to her home in Washington County. So far as we know, the temporary order of guardianship has expired. Ordinarily, we would consider this question moot; however, due to the likelihood of such incidents being repeated and the unlikelihood that a decision can be reached on appeal before a temporary guardianship is terminated, we treat the question as one to be considered on the merits as they existed at the time the petition for habeas corpus was heard.

Even if a guardian may voluntarily admit a ward without a hearing or order, when the ward expresses a desire to leave the hospital it is a different situation. If the guardian were permitted to refuse the ward’s wishes, then the voluntary admission would become an involuntary one as it relates to the ward. To allow such confinement would contravene the statutory and constitutional safeguards afforded to the mentally ill. The writ of habeas corpus is the primary means by which a detainee may test the legal authority of his custodian. Appellee frankly admits the Pulaski County Chancery Court is the proper forum for such proceedings. Also, it is tacitly admitted the probate order appointing the guardian was of doubtful validity. Since the order has expired, we will not examine that proceeding.

The fact that the custodian held authority to release petitioner was of little comfort in view of the fact that she was held until this Court ordered her release on June 20, 1979. 1979 Ark. Acts No. 817 provide that nothing in the act shall in any way restrict the rights of any person to attempt to secure their release by habeas corpus as provided by the current Arkansas law. The habeas corpus petition has been used to obtain the release of a confinee in the state hospital. Rowland v. Rogers, 199 Ark. 1041, 137 S.W. 2d 246 (1940). Ark. Stat. Ann. § 34-1733 (Repl. 1962) states:

If it appear that the prisoner is in custody by virtue of process from any court legally constituted, or issued by any officer in the exercise of judicial proceedings before him, such prisoner can only be discharged in one (1) of the following cases:
First. Where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person.
Second. Where, though the original imprisonment was lawful, yet, by some act, omission or event which has taken place afterward, the party has become entitled to his discharge.
Third. Where the process is defective in some matter or substance required by law, rendering such process void.
* * *
The state hospital held no order of any kind which authorized it to detain the petitioner. The only authorization at all was the application completed by the guardian. By no stretch of the imagination can it be said that this application was authority to hold the petitioner against her will. The Arkansas General Assembly treated this subject extensively in Act 817 of 1979. None of the provisions of this Act were followed. Section 3 (A)(B) of Act 817 states:
* *
(A) Any person who believes himself to be suffering from a mental illness, disease or disorder may make application in writing himself or by his guardian . . .
(B) If at any time the patient who has voluntarily admitted himself or herself to the hospital makes a request to leave, and the Commissioner or his designee or the official in charge of the hospital or his designee determines that the patient is at that time homicidal, suicidal or gravely disabled, then the patient shall be considered to be held involuntarily and the commitment procedures set forth herein shall apply.
* * *

In an involuntary case a hearing must be held within 7 days. The only hearing was on the petitioner’s request for habeas corpus.

Mental illness alone is not justification for a guardian or a state to lock a person up. There must be a meaningful hearing in accordance with due process before such action is authorized. Wessel v. Pryor, 461 F. Supp. 1144 (Ed. Ark. 1978); O’Connor v. Donaldson, 422 U.S. 563 (1975). It was stated on the face of the application for voluntary admission that a patient could not be held against his wishes unless the patient was considered homicidal, suicidal, or gravely disabled. In this case there has simply been no attempt on the part of anyone to comply with the provisions of any Arkansas law as it relates to involuntary commitment. Not even a mentally ill person may be confined against his will unless he is afforded due process of law. Act 817 provides that before a person may be committed for 30 days or more there must be a hearing at which clear and convincing evidence is presented to the effect that the ward or detainee is homicidal, suicidal, or gravely disabled. We are not unaware of the problem of society and the mentally ill. The welfare of the people and the mental patient must both be given careful attention. The best interest of both must be weighed and taken into consideration when the question of confinement is at issue. If we were not to require at least substantial compliance with the law to fully protect the rights of incompetents it would be possible for an unscrupulous person to have himself appointed as guardian and then lock his ward in a mental institution and proceed to waste the ward’s estate. If a state and the judiciary are not vigilant in the protection of the rights of incompetents it is likely to lead to the abuse of the person and estate of such incompetents. The mentally ill are unable to think and care for themselves in a normal manner and of necessity depend upon the state and the courts for protection. Although due process safeguards do not extend to the voluntary committee they most definitely extend to involuntary detainees. When a voluntary patient seeks relief he must be released or henceforth treated as an involuntary detainee in which case the due process safeguards most definitely apply. We have no choice on the record before us other than to treat petitioner as an involuntary detainee and must hold in this case that the ward was not afforded either procedural or substantive due process. Therefore, the court should have granted the petition for habeas corpus.

Reversed and remanded.

Harris, C.J. not participating.

Hickman, J. concurs.

Darrell Hickman, Justice,

concurring. The majority seem to be saying Section 3(A) (B) of Act 817 of 1979 could be interpreted to mean that a ward can be committed to the Arkansas State Hospital without a hearing.

Quite often a ward has a guardian because of minority. A guardian can be appointed for someone with a physical disability. In such a case it would not seem proper for a guardian to have someone “voluntarily” committed to the Arkansas State Hospital without any notice, without a hearing and without an opportunity to protest.

Ark. Stat. Ann. § 57-625(b) reads:

b. CARE, TREATMENT AND CONFINEMENT. If the ward be incompetent and for reasons other than minority and shall not have been committed to the State Hospital as otherwise provided by law, the court may, upon petition of the guardian of the person or other interested person, after such notice as the court shall direct, including notice to the guardian of the person if he is not the petitioner, authorize or direct the guardian of the person to take appropriate action for the commitment of the ward to the State Hospital or, while retaining control over and responsibility for the care of the person of the ward, to place the ward in some other suitable institution for treatment, care or safekeeping. Upon petition of the guardian or other interested person, after a hearing of which the guardian of the person and such other persons as the court may direct shall have notice, the court may, for good cause shown, modify, amend or revoke such order. If the condition of the ward be such as to endanger the person or property of himself or others, the guardian may, in an emergency, temporarily confine the ward in some suitable place or deliver him into the custody of the sheriff for safekeeping in the county jail until such time as the court may hear and act upon a petition, which shall be promptly filed by the guardian, with reference to the commitment of the ward to the State Hospital of for other appropriate provision for his treatment, care and safekeeping.

Act 817 does not expressly repeal Ark. Stat. Ann. § 57-625 and I believe that when the two acts are read together, weight must be given to Ark. Stat. Ann. § 57-625 as controlling in a situation where there is a commitment to the Arkansas State Hospital.

If the majority’s position is that a “voluntary” commitment is with the consent of the ward, this ignores the fact that a ward has a guardian because the ward is incompetent, and his power to consent has been removed.

It is my judgment any commitment without a hearing violates due process of law.

I agree with the result reached by the majority, but I respectfully concur with the majority’s opinion.


text:
    Harold Webster DUNCAN v. STATE of Arkansas
    CR 79-122
    588 S.W. 2d 432
    Opinion delivered October 29, 1979
    (In Banc)

      John W. Achor, Public Defender, by: William H. Patterson, Jr., Chief Deputy Public Defender, for appellant.

      Steve Clark, by: Joseph H. Purvis, Dep. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of four separate counts of aggravated robbery. Since he had three prior felony convictions, he was sentenced to four life sentences to run consecutively.

On appeal it is urged that the trial court erred in refusing to direct a verdict on two counts and that the four consecutive life sentences were an abuse of discretion and amounted to cruel and unusual punishment.

The sentences were individually within the limits set by Ark. Stat. Ann. § 41-1001 (Repl. 1977) and within the trial court’s discretion as set out in Ark. Stat. Ann. § 41-903 (Repl. 1977). Also, the sentencing was in accordance with Ark. Stat. Ann. § 51-1005 (Repl. 1977). Therefore, the sentences were not invalid. We have many times held that so long as a sentence is within the statutory limits, it is not ordinarily cruel and unusual. In our opinion the trial court did not commit error as alleged and we must affirm.

Appellant and a companion entered Brannen’s Fish Market in Little Rock on March 6, 1978, and pulled a handgun on one of the four persons present. They proceeded to take the money from the cash registers as well as from the individuals. It is true appellant pointed the gun only at the first victim and then became a sort of gentleman robber by standing back with the gun partially concealed under his arm while his confederate proceeded to round up the cash wherever he could find it. The four individuals were herded into another room where they stayed a few minutes. Upon their return to the original area, it was discovered the two ladies’ purses had been pilfered and money and other items were missing, as were the gentlemen robbers. Before having the victims leave the cafeteria area, the intruders had relieved the two men of their billfolds. The facts are hardly in dispute other than all of the victims described appellant in slightly different terms and perhaps did not agree precisely on the scenario as it progressed. He was positively identified by at least three of the victims.

Appellant contends that due to the fact that he was courteous and did not point his pistol at the ladies, there was no aggravated robbery. Ark. Stat. Ann. § 41-2102 (Repl. 1977) states:

(1) A person commits aggravated robbery if he commits robbery as defined in Section 2103 (§ 41-2103) and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or

Therefore, there is no validity to this contention. Also, see Rust v. State, 263 Ark. 350, 565 S.W. 2d 19 (1978). Circumstantial evidence is sufficient to support a conviction if it excludes every other reasonable hypothesis. Henley v. State, 255 Ark. 863, 503 S.W. 2d 478 (1974). We think the evidence here fits that category.

Four life sentences are not cruel and unusual if two death sentences are not, and we have so held. Clark v. State, 264 Ark. 630, 573 S.W. 2d 622 (1978). Appellant’s contentions are all fully answered in Hinton v. State, 260 Ark. 42, 537 S.W. 2d 800 (1965), where we held against all points argued here.

Affirmed.

Harris, C.J. not participating.


author: John A. Fogleman, Justice.

text:
    HOUSTON CONTRACTING COMPANY and CONTINENTAL INSURANCE COMPANY v. Jessie T. YOUNG
    79-297
    589 S.W. 2d 9
    October 29, 1979

      Jacob Sharp, Jr., for petitioners.

      Norwood Phillips, for respondent.
   John A. Fogleman, Justice.

The petition of Houston Contracting Company and Continental Insurance Company for review of the decision of the Court of Appeals rendered on September 19,1979, is granted pursuant to Rule 29, § 6 (a) and (b) and the mandate to the trial court issued on that decision is recalled.

The question involved is the application of the statute of limitations provided by Ark. Stat. Ann. § 81-1318 (Repl. 1976), a section of the Worker’s Compensation Law, when compensation for disability on account of an injury has been paid to the claimant under the laws of a sister state. It appears that the case is one of first impression in Arkansas and that there is a split of the authorities on the question in other jurisdictions. The question involves the interpretation and construction of an act of the General Assembly. The appeal was originally filed and docketed in this court as No. 79-221, under the style of Houston Contracting Company et al v. Jessie T. Young, but was transferred to the Court of Appeals, along with numerous other cases, by Per Curiam order of this court on July 9, 1979, prior to the filing of any briefs in the case. The appeal to this court was taken from the Circuit Court of Union County, which had affirmed the decision of the Workmen’s Compensation Commission.

The case is both excepted from the jurisdiction of the Court of Appeals under Rule 29(l)(c) and involves an issue of significant public interest on a legal principle of major importance. Had a brief or jurisdictional statement revealing these facts been filed prior to the date of our order of transfer, the transfer should not have been made.

The respondent, Jessie T. Young, advances the argument that, since petitioner acquiesced in the transfer by failing to object, it accepted the Court of Appeals as the appropriate forum for its appeal, and the petition for review should be denied. Although it is clear that any party to an appeal may move for a transfer of an appeal by this court under Rule 29(3) or for the certification of any appeal to this court by the Court of Appeals under Rule 29(4), the failure to do so is not a waiver of, or bar to, review under Rule 29(6) by this court. The reason is that the Court of Appeals may, and should, upon its own motion, certify to this court any appeal it finds to be excepted from its jurisdiction by Rule 29(1) or to involve an issue of significant public interest or a legal principle of major importance. If, however, the case had been appealed to the Court of Appeals from the Workmen’s Compensation Commission under Act 252 or 253 of 1979 [Ark. Stat. Ann. § 81-1323 (b) (Supp. 1979)], the case could not have been certified or transferred to this court prior to a decision having been made by the Court of Appeals. See Ward Manufacturing Company v. Fowler, 261 Ark. 100, 547 S.W. 2d 394.

Harris, C.J., not participating.


text:
    Charles Henry WILLIAMSON and Jerry MORRIS v. STATE of Arkansas
    CR 79-139
    590 S.W. 2d 847
    Opinion delivered November 5, 1979
    (In Banc)
    [Rehearing denied December 10, 1979.]

      William C. McArthur and C. E. Blackburn, for appellants.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The two defendants, Charles Henry Williamson and Jerry Morris, were charged with criminal conspiracy to commit capital felony murder. The State’s proof was that the defendants employed Tommy Lee Baker (a state police officer acting undercover) to murder Jimmy Dale Haney and paid Baker $1,000 in part payment for the contemplated murder. The court, sitting without a jury, found both defendants guilty and imposed sentences of life imprisonment. Five points for reversal are argued, but none has merit.

One of the defendants, Williamson, and the intended victim, Haney, were business associates. They had jointly insured their lives for $50,000, payable to either upon the death of the other. Apparently the other defendant, Morris, accompanied by Williamson, first made an attempt to kill Haney at a motel on September 10, 1977, but that attempt failed.

On September 19 Williamson arranged a meeting with J. O. Stewart, who had actually been working as a confidential informant for the Secret Service in counterfeit money cases. At that meeting, on September 20, Williamson told Stewart that he wanted to have a man killed and asked if Stewart knew anyone who could do it. Stewart said he thought he could get it done and would undertake to make arrangements.

Stewart reported the matter to the Secret Service. A plan was adopted by which Stewart was to introduce the two defendants to Officer Baker, who was to be presented as an out-of-state ‘ ‘hit man.’ ’ Those four men accordingly met at a truck stop in Pulaski county on September 24 to arrange for the murder. Officer Baker was wearing a concealed transmitter, which transmitted the conversation to a nearby recording device manned by two other police officers. The conversation (if it took place) leaves no possible doubt about the defendants’ guilt. The proposed murder of Haney in return for $2,000 was discussed in detail. Williamson and Baker arranged to meet again the next day. That conversation was also recorded. Williamson paid Baker $1,000 and also gave him a pistol, though it was left up to Baker whether he would use that particular weapon. Two days later the prosecuting attorney filed the present information charging the two defendants with a conspiracy to commit murder.

I. The State introduced the tapes of the two conversations and a typewritten transcription made from them. Officer Baker testified that on March 8, 1979 (two weeks before the trial), he had reviewed the transcript while he listened to the tapes and that it was an accurate recording of the conversations, though he could not remember them word for word. That testimony established admissibility. Webb v. State, 253 Ark. 448, 486 S.W. 2d 684 (1972); Uniform Rules of Evidence, Rule 901, Ark. Stat. Ann. § 28-1001 (Repl. 1979). There is actually no claim that the transcript is inaccurate. Nor is there any claim of surprise, it being indicated that the defense had been given an opportunity to copy the tapes before the trial.

It is argued, however, that a proper foundation for the introduction of the tapes was not laid, because the State did not call as witnesses the two officers who manned the recording device. In the first place, it is not shown what helpful testimony the officers could have supplied, because there is no indication that they could have known at the time whether or not the recording device was working. Second, Uniform Rule 901, supra, provides that the requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Analogously, we held before the adoption of the Uniform Rules that a photograph might be authenticated by a witness who neither took the picture nor was present when it was taken. Wheeler v. Delco Ben, 237 Ark. 55, 371 S.W. 2d 130 (1963). Here Officer Baker’s testimony was sufficient authentication, especially as there was no proof questioning the authenticity of the tapes.

II. It is argued that the gun which Williamson gave to Baker was not relevant and should not have been admitted in evidence. Suffice it to say that the production of the gun tended to corroborate Baker’s testimony.

III. Haney testified on direct examination that he and Williamson had taken out the $50,000 joint life insurance policy. On cross examination he said that the insurance agent, John Paul, had brought in the policy (apparently the application) and that Haney had signed it. He admitted, however, that he had never seen the policy and did not know whether it was in force at the time of the offense charged. Defense counsel then moved to strike “the direct testimony of Mr. Haney. ’ ’ It is now argued that the motion should have been granted.

There are two answers to this argument. One, the motion to strike all the witness’s direct testimony was too broad, because much of it was about other matters and was admissible. Martin v. State, 236 Ark. 409, 366 S.W. 2d 281 (1963). Second, the State was entitled to offer proof of motive, even though that proof is not essential in a prosecution for murder. Sneed v. State, 159 Ark. 65, 255 S.W. 895 (1923). The policy itself did not have to be produced, because it was not closely related to a controlling issue. Uniform Rules of Evidence, supra, Rule 1004(4). If the parties had applied for the policy and thought it was in force, those facts were admissible to show motive, their weight being for the trial judge to decide.

IV. It is argued that the court should not have permitted the State to prove that Morris apparently tried to kill Haney about two weeks before Williamson first sought to engage a professional killer. Inasmuch as Haney had already testified about the insurance coverage, the earlier attempt was admissible to show motive and ill will. Uniform Rule 404 (b); Freeman v. State, 238 Ark. 804, 385 S.W. 2d 156 (1964). Such an attempt only 14 days before the crime was certainly not too remote to be relevant.

V. Finally, Haney testified on direct examination about Morris’s first attempt on Haney’s life, though Haney was not then aware of Williamson’s complicity. On cross examination Haney admitted that it had been his expressed intention to find Morris and settle the matter himself rather than to appeal to the police for assistance. It is argued that the trial judge should have acquitted both defendants, on the theory that they acted under duress and were justified in plotting to murder Haney. The argument does not merit discussion.

We have examined the record for other possibly prejudicial errors, but find none.

Affirmed.

Harris, C.J., not participating.