text:
    Herschel Glen MURRY v. STATE of Arkansas
    CR 81-117
    635 S.W.2d 237
    Supreme Court of Arkansas
    Opinion delivered June 21, 1982

      Damon Young and James E. Davis, for appellant.

      Steve Clark, Atty. Gen., by; William C. Mann, III, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Herschel Glen Murry was convicted of killing his mother and sentenced to life imprisonment. He denied the act and the case against Murry was circumstantial. On appeal it is argued the conviction should be reversed because there was no substantial evidence to support the verdict and because the trial court erred in permitting law enforcement officers to testify regarding statements Murry made to them at the initial stage of the investigation.

Actually, Murry convicted himself when he admitted writing a letter that was mailed to the Chief of Police of Ashdown, Arkansas, two weeks after the murder, and when it became obvious that Murry’s first statements to the law enforcement officers could not be reconciled with an autopsy report. Those statements placed him at home with his mother at the time of the murder — not elsewhere as he testified at his trial.

Murry, seventeen, and his mother lived alone in a house trailer in Little River County near the Oklahoma state line. His mother, Nedra Sharp, who had been married twice before and was single at the time, worked as a licensed practical nurse in a nursing home in Ashdown, Arkansas. Murry had finished the eleventh grade in high school, had dropped out of school, and was working as a welder for a local man. He said he got off work about 3:00 or 3:30 p.m. on Friday afternoon, January 11,1980, and went home. Shortly thereafter his mother arrived home. He left to check on some animal traps he had set nearby, went on into Foreman, washed his pickup truck and returned home. He told two officers his mother was eating supper when he left and he specifically recalled she was eating fish sticks. He said he did not eat. He said his mother mentioned that she was going to meet an old friend that evening from Shreveport and he did not recall the man’s full name but thought he was called Lane. He said after he returned from washing his truck, he took a shower, changed his clothes, and left in his mother’s Pontiac Trans Am for Betty’s Place which is located in nearby Oklahoma; Betty’s is a local establishment that sold beer and is frequented by young people. He and a friend played pool, later went to his friend’s home and in the early morning hours of the next day he returned to the trailer. He said the lights were on, the television was on, there was blood all over the trailer, and his mother was missing. He awakened a relative of his who lived about a mile away and brought him to the trailer. The relative called the local deputy sheriff. The deputy got to the trailer at 4:09 a.m. He made a preliminary investigation. He left and then returned with several other officers about 8:00 a.m. The officers questioned Murry about his whereabouts that night, his mother’s activities and friends and what he knew about the possibility of her death. A crime scene investigation was made of the trailer and as one officer testified, it was obvious there had been a fierce struggle. Blood was on the carpet, walls, and door steps; large chunks of hair were found in the trailer and two small pieces of what appeared to be a human skull. The officers were told about the man named Lane and found that name in Mrs. Sharp’s telephone book. Indeed such a man lived in Shreveport who had dated Mrs. Sharp. He was Lane Barmore. He was not her regular boyfriend; he was married, but had dated Mrs. Sharp. Several Arkansas officers went to Shreveport and with Louisiana authorities conducted an investigation. The officers were satisfied that Mr. Barmore had an honest alibi. His vehicle had been searched and inspected. Evidence of blood was found in the trunk and examined but it proved to be animal blood. He was no longer a suspect. It was not until January 24th, two weeks after the incident, that the officers said they suspected Herschel Glen Murry. That day a letter was received at the police department in Ashdown which was printed in large letters. It read:

NEDRA WAS A GOOD PIRSON BUT SHE HAD TO DIE FOR SHE DID NOT WONT TO MARY ME. I LOVED HER BUT I HAD TO DO IT I HAIF TO KILL THE BOY TO HE WILL DIE TO I NO WHERE HE IS
I PUT NEDRA UNDER SOME TREE TOPS ABOUT 1000 YARDS EAST OF THE OLD HOUSE PLACE AT PINNEY
THE BOY IS DID TO

The sheriff’s office called Murry to the office. He was warned of his rights and asked to give them ten samples of his handwriting. The officers directed that he write out the contents of the letter they had received. Murry was not shown the letter; an officer read it to him. Shortly thereafter an expert concluded that Murry had written the letter. Murry was asked about the letter, and after about two hours he admitted he had written it. He said when he was in Louisiana with relatives during the past week, a man stopped him on the road, got in his pickup truck, held a pistol on him and threatened to shoot Murry if he did not do exactly as the man said. He said the man told him he had his mother and unless he did what he was told he would kill her. He could only give a general description of the man but he said the man was very upset and crying. He said he wrote down exactly what he was told and later mailed the letter. He did not tell anyone of this incident. He still denied killing his mother or knowing anything about her disappearance. On the basis of the letter, a search was conducted in the area and eventually the body of Nedra Sharp was found on the 31st of January in a shallow grave near the old Piney Cemetery. It was near an old home place approximately one-half mile from the home of Murry and his mother. The grave was covered with dead pine tree tops and located at the edge of a sage grass field.

Other critical circumstantial evidence in this case was that Murry in conversations with at least two of the officers told them that he left the trailer at 4:30 or 5:00 p.m. to wash the truck and his mother had prepared some fish sticks before he left. He said that his mother ate her supper but that he did not. The medical examiner conducting the autopsy said that because of the weather conditions in January, the body of the deceased was well preserved and he was able to determine that Mrs. Sharp died within thirty minutes or an hour after she ate supper. He said he was able to determine this because he found undigested fish in her stomach and therefore he could estimate accurately her time of death. If Murry’s first version given to the police was true, he was at the trailer when she was killed which would have been well before 8:00 p.m., which was about the time that he left the trailer that evening. He was seen in town washing his truck by his friend, Don Cleghorn. His friend testified that he saw Murry at the car wash between 6:30 and 7:00 p.m., January 11th. He said he saw what appeared to be some tufts of hair that looked like animal hair in the back of the pickup truck which Murry was washing. Murry told him he had killed a deer. Murry testified that he did tell this acquaintance that he had killed a deer, and that he was washing out his pickup truck because he did not want to get caught by the Game and Fish people. Actually, at the trial he said he had not killed a deer that day but had killed one several days before. Murry testified that he was at the car wash between 5:30 and 6:00 p.m.

A distant relative of Murry’s who lived in the vicinity said that he saw Murry as he drove by the trailer that evening shortly between 6:00 and 6:20 p.m.; it was dark. He saw Murry pull out from the trailer in his pickup truck. He said that Murry was going very slowly behind him 75 to 100 yards, and this aroused his attention because Murry usually drove fast. He said that he continued on down the road and after he topped a hill, Murry’s vehicle did not follow him. Between Murry’s place and the hill was the turnoff to the Piney Cemetery. This witness, Mr. John Oglesby, testified that the next day when he learned of the incident and the investigation of the possible murder, he went down the road towards the cemetery. He drove into a sage grass field near the cemetery and saw that tracks had been left by a vehicle which had large mud grip tires and it appeared that a “short gauge” vehicle had made a circle in this field. Murry owned a four-wheel drive Chevrolet Luv pickup truck which had extra large mud grip tires. The evidence showed that his mother’s body was found not many feet from the tracks this vehicle had made as it turned in the field.

The medical examiner who performed the autopsy testified that Mrs. Sharp had been killed by strangulation, numerous knife wounds, and blows to her head. The pieces of skull found at the trailer came from her skull. Her voice box had been crushed in one blow when she was strangled by someone right-handed. Murry was right-handed. She had at one point been impaled on the trailer floor by a large knife. A knife which matched the wounds and cut in the floor was found about twelve feet from the body. It was identified by Murry as an old “antique” knife his former stepfather had found while working on a pipeline. The body was found wrapped in bed clothes and tied with the belt to Mrs. Sharp’s robe. There was a shovel, located outside the trailer where they lived, in a hole which was being dug to house a foundation for a C.B. radio antenna. After the body was found, one of the officers had the shovel examined and in a splintered part of the handle, was found a thread which was proven to be consistent with the fabric of the belt to Mrs. Sharp’s robe. Blood specks found in the cab of Murry’s truck were determined to be human blood.

On the 12th of January when Murry was asked what was missing from the place, he said that the day before he had given his mother two fifty dollar bills which she placed in her purse. The purse was evidently rifled and the money was not there. He said she had a twenty-five caliber automatic pistol which was missing. It was discovered in the pocket of a jacket found in his pickup truck the day after the murder. He said he must have carried it with him to run his traps. He said his cowboy boots with metal toe tips that he wore home from work that day, and the clothes he wore that evening were missing, as well as some bed clothes.

When Murry testified, he denied that he told the officers that his mother had eaten early that evening when he came home. He said she did not eat until he left that evening about 7:45 or 8:00 p.m. This was critical testimony, of course, because the medical examiner testified that she died shortly after she ate. Obviously the jury refused to believe Murry in his sworn testimony and chose to believe that he told the officers the truth on the morning after the murder about when she ate supper. It is also obvious that the jury rejected Murry’s explanation of the letter that described where his mother was buried.

Another bizarre event occurred on June 1, 1980. Murry, while staying alone at the trailer, reported that an unidentified intruder had tried to kill him. He said he was shot at several times and had a bullet hole in the webbing of his left hand and a wound in his shoulder. An officer investigating the incident testified that he was of the opinion it was self inflicted.

It is argued that the State was unable to show Murry’s motive for the killing. There was no evidence that there were serious problems between him and his mother or that Murry had ever been in trouble. While there was no eyewitness to the murder and he never admitted the killing, certainly the evidence in this case would support a finding that Murry killed his mother. The law is incapable of looking into the minds of everyone accused of a crime and determining their exact thoughts, and that is particularly true in a family situation. But the jury could easily conclude that Murry became enraged that evening and murdered his mother. He testified that when he questioned her about the man named Lane she refused to tell him his name and that she had refused at previous times to tell him about things he wanted to know about her work. He admitted that she had struck him before, but that he had never struck her; he said she had cursed him before, but he had never cursed her. He said that, in effect, he had become the head of the household in recent years, taking on the responsibility of doing things that his mother could not do. It was and is, of course, a tragic case, but Murry was afforded a fair trial and there is evidence sufficient to support his conviction.

Where circumstantial evidence, alone, is relied upon, it must indicate the accused’s guilt and exclude every other reasonable hypothesis. Darville v. State, 271 Ark. 580, 609 S.W.2d 50 (1980). Whether circumstantial evidence excludes every other reasonable hypothesis is usually a question for the jury. The test on appeal is whether there was substantial evidence to support the jury’s verdict. Substantial evidence was defined in Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980), as evidence of sufficient force and character to compel a verdict with reasonable certainty. It must compel the verdict without resort to speculation or conjecture. In this case it was for the jury to decide whether Murry was telling the truth about the evening of his mother’s death. There was substantial evidence to support its decision.

Murry argues that the statements that he made to the officers during the two days after his mother was killed were not admissible because he was a suspect at the time and was not warned of his rights before he made these statements. The officers testified that the investigation never focused on Murry until they received the letter and this is borne out by the evidence. When the police found Lane’s name and address in Mrs. Sharp’s telephone book and contacted the Louisiana authorities, an investigation was immediately conducted regarding the possibility of this man’s involvement in the murder or disappearance of Mrs. Sharp. Lane Barmore was brought into the Shreveport police station on the 13th of January and his vehicle was searched. The Louisiana and Arkansas authorities concluded that he had an alibi and could not have killed Mrs. Sharp.

These statements made by Murry were all made on the 12th and 13th of January while an investigation was being conducted to see if, in fact, there was a murder and they were routine questions. He was never placed under arrest or held in custody until the letter was received and at that time he was warned of his rights. The Miranda rights do not attach until an investigation is focused on a suspect. Lascano v. State, 275 Ark. 313, 631 S.W.2d 258 (1982); Miranda v. Arizona, 384 U.S. 436 (1966). We cannot say the trial judge was clearly wrong in finding that the investigation had not focused on Murry at the time he made these statements to the officers. Therefore, they were admissible.

We have reviewed the record and no error is shown by the abstract of other objections.

Affirmed.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Max EDWARDS, MAXCO, d/b/a CENTURY 21 EDWARDS & COMPANY v. Kathleen PENNINO
    82-50
    635 S.W.2d 246
    Supreme Court of Arkansas
    Opinion delivered June 21, 1982
    [Rehearing denied July 19, 1982.]

      Tom Donovan of Witt & Donovan and Stephen E. Whitwell of Hurley ¿r Whitwell, for appellants.

      House, Holmes & Jewell, P.A., by: Robert L. Robinson, Jr. and Scotty M. Shively, for appellee.

      Cearley, Gitchel, Mitchell & Roachell, for amicus curiae Arkansas Realtors Association.
   John I. Purtle, Justice.

The Pulaski County Chancery Court held appellant liable for damages to appellee resulting from the sale of appellee’s real estate by appellant. The court held that the appellant failed to exercise reasonable care and diligence in not selling the property for a better price than he did. This appeal is from the decree awarding damages to appellee. We disagree with the trial court and reverse and remand the case for purposes stated later in this opinion.

The appellee and her husband purchased 20 acres of land from the trust department of Worthen Bank. The land had been a part of the Gannaway estate prior to the sale by Worthen to the appellee and her husband. Two deeds were executed by Worthen, at the request of the appellee. A house was situated upon a 5-acre tract which was deeded separately from the 15-acre tract of vacant land. The total purchase price was $60,000 but the appellee requested that the sale be broken down to indicate payments of $18,000 for the 15 acres and $42,000 for the 5 acres and the house. Appellee borrowed the full purchase price of the entire tract, $33,600 on the 5-acre tract and $26,400 on the 15-acre tract.

Very shortly after the purchase the appellee contacted the appellant, a licensed real estate broker, about selling the property for her. She had previously worked for appellant as a real estate salesman; however, she had not been active within the past five years. The property was listed for a total sale price of $75,000. The listing also had the two parcels as separate properties and if sold separately the price of the 15-acre tract was to be $35,000 and the 5-acre tract, including the house, was to be $45,000. The listing was dated September 4,1979, following appellee’s purchase of the property on August 21,1979. Therefore, she listed the property at a price of $15,000 or $20,000 above what she had purchased it for two weeks earlier. The record reveals that the appellee called the appellant and asked him to look at the property and handle the sale. The appellant went out and looked at the property and informed the appellee and her husband that in his opinion it was worth between $800 and $1,200 per acre. Neither the appellant nor appellee consulted an appraiser or any other person relative to the value of the property at the time of the listing.

On September 28,1979, appellant procured a prospective buyer who offered $27,500 for the 15 acres. The appellee rejected the offer and countered with an offer of $30,000 for the property. The proposed buyer rejected the counter offer. On October 3,1979, the same buyer renewed his interest and made an offer of $28,500 for the 15 acres which was accepted by appellee and her husband. However, the appellee decided not to close the deal stating that her husband coerced her into agreeing to the sale and later alleging that the appellant failed to represent her properly in the matter. The purchasers sued for specific performance on November 7, 1979. Several other parties became involved in the litigation but we will restrict ourselves to the pertinent pleadings. The appellee filed a cross-complaint against the appellant alleging he caused her to list and sell the property at a price well below the market value. The appellant counterclaimed for a commission on the sale and alleged the appellee cancelled the listing thereby depriving him of commission on the sale of both parcels of land. The trial was a protracted one and involved more than one chancellor but the final result was that the trial court ruled the purchasers were entitled to specific performance on the contract relating to the 15 acres. At a later date the hearing on the present proceedings was conducted. On March 16, 1981, the special chancellor entered a decree awarding appellee judgment in the amount of $16,500 representing the difference between the sale price of $28,500 and the actual market value which the court placed at $45,000. In addition, the chancellor awarded the appellant judgment of $1,995 as a commission on the sale of the property for which he had decreed specific performance. He also awarded appellee a judgment of $16,500 because of appellant’s breach of duty to exercise reasonable care and diligence on behalf of the appellee.

There was testimony from a number of appraisers and other people relating to the market value of this property on the date of the sale. We do not deem it relevant to set forth this information in view of the decision we have made.

We agree with the parties that this is a case of first impression in this court. Therefore, we must determine the standard to be utilized in situations similar to this. There are three standards of care which we could adopt in this case: first, is the standard for intentional misrepresentation or other acts of fraud committed by the listing agent or his representative; second, that liability would rest on the negligent acts of the broker or his agents; and, third, the theory of strict liability. An annotation in 94 A.L.R. 2d 468 (1964) contains a statement relating to the standard of care with which real estate brokers are charged. It is as follows:

It is the well-established rule that a real-estate broker,

who is not a mere middleman, but is employed by a principal to act as agent in a real-estate transaction, is under a duty to exercise reasonable care and skill, or that degree of care and skill ordinarily employed by persons of common capacity engaged in the same business, and that a broker is liable to his principal for all consequences directly flowing from his failure to exercise such degreee or ordinary care and skill in the handling of the matter entrusted to him.

The above standard of care was adopted by the Arkansas Court of Appeals in Townsend v. Doss, 2 Ark. App. 195, 618 S.W.2d 173 (1981). We think this is the proper standard to be adopted by this court. Therefore, we must examine the record to determine whether the appellant breached his duty of ordinary care and skill in the handling of this sale on behalf of the appellee. The record reveals that the appellee, a former salesman for appellant, initiated the listing in this case. At her request the appellant came to the property and looked at it and informed her he thought it was worth between $800 and $1,200 per acre. There had been no appraisal of the property and none was done at this time. There is no indication that the appellant indicated to the appellee that he knew the real value of the property or that he was working for the interest of any other person. Certainly, if the appellant had assured the appellee that he would get the full market value for the property, he would be held responsible for his representations. That is not the issue. She knowingly and voluntarily listed the property at the prices previously mentioned. She subsequently turned down an offer of $27,500 and made a counter-offer of $30,000. The buyer rejected the counter-offer and nothing further happened until October 3 when the same buyer submitted a second offer for $28,500. The appellant recommended that she accept this price. She did accept the offer but subsequently refused to close with the purchasers. The trial court ordered her to specifically perform the contract and there does not appear to have been an appeal from that decree.

To adopt the standard of care urged by the appellee would in effect put all real estate transactions in limbo for a period of five years. Also, it would render the former seller of this property liable to the owner for the sale in which appellee purchased the property. We think neither the law nor public policy demands such a strict standard.

The question before us is not establishing the fair market value of the property at the time of the sale but whether the appellant breached his duty to the appellee. Under the circumstances and facts of the present case we find neither substantial evidence nor a preponderance of the evidence to support the decree of the trial court. The trial court apparently adhered to the rule which we have quoted above but found from the facts that the appellant had breached his duty of ordinary care and skill in handling the matter entrusted to him. We do not imply by this decision that a broker or salesman would never be liable for failure to determine the fair market value of real estate listed by him for sale. Certainly, the parties may agree or contract to do or not do any number of things. We are stating that the standard of performance under an arm’s length real estate transaction is the standard set out previously. This case is reversed and remanded to the trial court with directions to enter a judgment on behalf of the appellant for $1,995 which represents the sales commission on the 15-acre tract of land.

Reversed and remanded.


author: Robert H. Dudley, Justice.

text:
    Charles McVAY and Patricia A. McVAY, Husband and Wife v. J. B. COWGER
    82-93
    635 S.W.2d 249
    Supreme Court of Arkansas
    Opinion delivered June 21, 1982
    [Rehearing denied July 19, 1982.]
    /. L. Hendren, for appellants.

      Laws é Swain, P.A., by: William S. Swain, for appellee.
   Robert H. Dudley, Justice.

Appellee was burning stumps on his land when the fire got out of control and destroyed appellants’ house and most of their possessions. The appellants brought suit asking $75,000 in damages but the jury gave them a verdict for only $7,500. Their motion for a new trial alleging insufficiency of damages was denied. This appeal is from that denial and comes to this court as a tort action pursuant to Rule 29 (1) (o). Appellants’s sole point of appeal is stated as follows:

The trial court erred, as a matter of law, in denying appellants’ motion to set aside the jury’s verdict on damages and in denying appellants a new trial on the issue of damages. [Emphasis supplied.]

Appellants’ opening sentence in their statement of the case is:

This is an appeal from the lower Court’s denial of appellants’ motion to set aside that portion of a jury verdict relating to damages and for a new trial on the issues of damages alone. [Emphasis supplied.]

The final paragraph of their conclusion is:

Appellants urge this Court to reverse the decision of the lower Court in which the motion for new trial was denied, and to enter its order setting aside that portion of the jury verdict awarding damages of $7,500.00 and order a new trial on that issue alone. [Emphasis supplied.]

Thus, appellants do not ask for a new trial but seek to limit the scope of appellate review in order that they can avoid the hazards of a complete new trial and, if remanded upon the condition asked, have the jury only assess damages with the law of the case being that $7,500 is an inadequate verdict. We do not allow such a course. Because we cannot grant the relief asked, the lower court must be affirmed.

“ ... In law cases the verdict is an entity which we cannot divide by affirming the finding of liability and yet remanding the cause upon the issue of damages.” Manzo v. Boulet, 220 Ark. 106, 246 S.W.2d 126 (1952), citing Martin v. Street Improvement District No. 349, 180 Ark. 298, 21 S.W.2d 430 (1929). This has long been our law. Krummen Motor Bus & Taxi Co. v. Mechanics’ Lumber Co., 175 Ark. 750, 300 S.W. 389 (1927); Martin v. Kraemer, 172 Ark. 397, 288 S.W. 903 (1926); Bothe v. Morris, 103 Ark. 370, 146 S.W. 1184 (1912); Carroll v. Texarkana Gas & Electric Co., 102 Ark. 137, 142 S.W. 586 (1912); and Dunbar v. Cowger, 68 Ark. 444, 59 S.W. 951 (1900).

As a matter of law we cannot grant the only relief asked on appeal and, therefore, the lower court is affirmed.


author: Steele Hays, Justice.

text:
    DR. J. F. COOLEY v. FIRST NATIONAL BANK OF LITTLE ROCK, ARKANSAS
    82-68
    635 S.W.2d 250
    Supreme Court of Arkansas
    Opinion delivered June 21, 1982

      James E. Smedley, for appellant.

      Joe D. Bell of Friday, Eldredge ir Clark, for appellee.
   Steele Hays, Justice.

This suit was brought on behalf of the Committee for Peaceful Co-Existence, Inc. by appellant, Dr. J. F. Cooley, alleging negligence and breach of contract by First National Bank in the handling of a joint checking account. After hearing the evidence, the Chancery Court held the claim was barred by the three-year statute of limitations (Ark. Stat. Ann. § 37-206 [Repl. 1962]), and the only issue on appeal is whether the chancellor’s ruling is clearly erroneous. We find no basis for a reversal of his ruling.

On August 29 of 1969, Dr. J. F. Cooley, Rev. Cato Brooks, as co-chairmen, and Rev. V. Castle Stewart, as a board member, opened a checking account in the name of the Committee for Peaceful Co-Existence. The signature card authorized the bank to honor checks drawn by any two of the three authorized signatures. All bank statements were to be sent to post office box no. 1787, the Little Rock address of the Committee for Peaceful Co-Existence. Dr. Cooley insists he never received a bank statement until after this suit was filed in December, 1976, but he concedes that three other persons, including Rev. Brooks, had access to the post office box. On February 16, 1970, the account name on the signature card was changed, apparently by Rev. Brooks and Rev. Roy L. Laird, to the Mobile Section of the Committee for Peaceful Co-Existence. Withdrawals required both signatures. In March 1970, some 22 checks totaling over $4,000 were drawn on the account by Rev. Brooks and either Rev. Stewart or Rev. Laird.

As early as November 1969, Dr. Cooley suspected that unauthorized withdrawals were being made from the account. He notified the bank verbally in November 1969 and by letter on March 26, 1970. He asked that copies of past statements and cancelled checks be sent to him, to no avail.

Dr. Cooley testified that around April 1, 1971, he went to the bank and demanded the records; he was told to come the next day to pick them up, but when he returned a bank officer told him someone from the committee had already claimed the. records earlier that morning. The bank then refused to give him the records because of the conflict within the committee and the bank’s uncertainty as to who was actually authorized to receive the records; Dr. Cooley said he made numerous inquiries and hired three attorneys between 1969 and 1976, and after this suit was filed the chancellor entered an order directing the bank to provide the committee with all records and documents relative to the disputed account.

Appellant argues the statute of limitations was tolled by his letter of March 26,1980, requesting records and directing the bank to stop honoring drafts on this account. He relies on Ark. Stat. Ann. § 85-4-406 (Add. 1961), which requires a bank to make statements reasonably available to customers. Dr. Cooley maintains he never received a bank statement nor was one ever made available to him.

Dr. Cooley’s only argument on appeal is the statute of limitations never started to run because the bank failed to make bank statements available. But whether the bank statements were sent was, of course, a question of fact. The chancellor resolved the issue in the bank’s favor and his finding will not be set aside unless clearly erroneous. ARCP Rule 52. The bank offered credible evidence at trial that the statements were mailed to post office box no. 1787, as designated on the signature card. Even after the signature card was changed, the mailing address for the bank statements continued to be post office box 1787. Joy Greer, a senior vice president in charge of the bank’s communications division, testified the only monthly statement addressed to the post office box which was returned to the bank was not until after the post office box had been closed out. Where bank statements are mailed to the address provided by the depositors as reflected on the signature card, we believe they are “available” within the meaning of Ark. Stat. Ann. § 85-4-406. Further, the usage and custom of a bank in delivering statements and cancelled checks to its depositors is competent evidence to prove delivery was effectuated. England Nat’l Bank v. United States, 282 F. 121 (8th Cir. 1922).

The bank’s payment of a check or withdrawal on less than the required number of signatures renders the signature “unauthorized” within the meaning of Ark. Stat. Ann. § 85-4-406 and requires the customer to discover and report it within one year from the time the statement and items are made available. Pine Bluff Nat’l Bank v. Kesterson, 257 Ark. 813, 520 S.W.2d 253 (1975); First National Bánk of Springdale v. Hobbs, 248 Ark. 76, 450 S.W.2d 298 (1980); Ark. Stat. Ann. § 85-4-406 (4).

Dr. Cooley’s testimony reveals he believed there were unauthorized withdrawals of money as early as November of 1969, yet he did not bring suit until December, 1976. In conclusion, we believe the evidence in the record is more than sufficient to support the chancellor’s conclusion that Dr. Cooley had knowledge of unauthorized withdrawals and yet failed to act within the time allowed under the statute of limitations.

Affirmed.

Adkisson, C.J., not participating.


author: Thomas M. Bramhall, Special Justice.

text:
    HOLIDAY INNS, INC. v. Mary DREW
    82-57
    635 S.W.2d 252
    Supreme Court of Arkansas
    Opinion delivered June 21, 1982

      Bridges, Young, Matthews, Holmes & Drake, for appellant.

      Holloway & Bridewell, for appellee.
   Thomas M. Bramhall, Special Justice.

On the morning of November 14,1975, Appellee, Mary Drew, drove from her home in Lake Village, Arkansas, to Appellant, Holiday Inn, in West Memphis, Arkansas, to join some friends who were registered there and attending a teacher’s conference in one of Appellant’s meeting rooms. She and one of her friends planned to leave the Holiday Inn as soon as the conference was over and travel to Memphis to do some personal shopping. Mrs. Drew arrived in West Memphis on the morning of the day in question and she and her friends had lunch at an unspecified location. Her friend had another meeting to attend that afternoon and they planned to leave for Memphis immediately thereafter. Mrs. Drew decided to attend the meeting with her friend rather than sit in the lobby and wait for her. In order to effect a quick departure, she was going to reserve some seats at the back of the meeting room while her friend checked out of the motel.

The room in which the meeting was held was immediately adjacent to the lobby. In route to the meeting room she noticed an employee of the motel vacuuming the lobby, and she also saw some acquaintances sitting on a couch. This couch was in the lobby and the furniture was arranged in such a way that one of the couches was away from the wall and it made sort of an entry to the meeting room. Near the wall was a table, and Mrs. Drew was heading between the couch and the table. As she turned to speak to her friends, her leg became entangled in the vacuum cleaner cord causing her to trip and fall. She hit her chest on a table and her knees on the floor. The jury returned a verdict of $75,000.00 against Holiday Inn which promptly appealed.

Approximately six weeks after the trial, the parties were notified that the court reporter’s recording equipment had malfunctioned, and it was uncertain how much, if any, of the transcript would be reproducible. In November of 1981, more than six months after the trial, the incomplete transcript was given to the parties. The bench conferences, arguments concerning jury instructions, all motions made outside the hearing of the jury, some objections by counsel, and parts of the testimony of the witnesses were not recorded and thus not available to the attorneys or this court.

The parties and the trial judge attempted to reconstruct what occurred during the periods of time not recorded pursuant to Rule 6 of the Arkansas Rules of Appellate Procedure. Suffice it to say, substantial disagreement as to the events that transpired and statements made has evolved. The most notable disagreement centers around the events which surround the proffering of proposed jury instructions by the parties and the subsequent reading of the instructions to the jury.

On March 5,1982, eleven months after the trial, the trial judge entered an order pursuant to Rule 6 of the Arkansas Rules of Appellate Procedure, which order provides in part as follows:

After all evidence has been presented, the Court and counsel retired to chambers to consider instructions. Counsel for Appellant attempted to offer certain instructions presumably AMI 206, 602 and 1106. The Court told counsel that the standard preliminary instructions should be selected and agreed upon and told counsel for Appellant that the Court would consider his proffered instructions after the standard instructions had been approved by the Court. At this point, counsel for Appellant stated these exact words or words to this effect, ‘I don’t care if you give these instructions or not.’ The Court proceeded to assemble the instructions which were given and counsel for Appellee submitted his but counsel for Appellant failed to resubmit his instructions to the Court for the Court’s acceptance or rejection.
Before counsel and the Court returned to the courtroom, it was agreed by the parties and the Court that the parties would be able to make any and all objections to the giving or rejection of instructions after the case was submitted to the jury.
Instructions were read to the jury and the case was argued. After the Court had instructed the jury, counsel for Appellant approached the bench and complained that the Court had not given Appellant’s instructions. The Court at this time informed counsel for Appellant that the instructions in question had not been resubmitted in accordance with the Court’s directions after having been withdrawn. (S 1-2)

Appellant argues, inter alia, that the record is defective and does not afford proper review by this court and the inadequate record is a ground for reversal. We agree.

The trial court, in its effort to settle the record, said that Appellant had not resubmitted its instructions in accordance with the court’s direction after the instructions had been withdrawn. The finding that Appellant’s instructions had been withdrawn is a conclusion reached by the trial court as distinguished from a recitation of the events which occurred and the facts surrounding the proffering of proposed jury instructions by the attorneys. The trial court did say that counsel for Appellant “attempted to offer” certain instructions, at which time the court told counsel for Appellant that the court would consider his proffered instructions after the standard instructions had been approved by the court. At that point the Appellant is quoted by the trial court to have said, “I don’t care if you give these instructions or not.” Based upon this statement, the trial court reached the conclusion that Appellant’s counsel had withdrawn his proffered instructions and this court is of the opinion that this conclusion is erroneous.

Ark. Stats. Ann. 22-351 and 22-352 place an affirmative duty on the trial court to provide an adequate record for review by the appellate courts of this state. Therefore, in a case such as this where there is virtually no record of the proceedings conducted out of the presence of the jury due to a malfuncton of a recording device and the record is inadequate for appellate review, this court can do nothing other than remand the case for a new trial. By this ruling we do not wish to imply that Rule 6 of the Arkansas Rules of Appellate Procedure is not an effective tool with which to correct or reconstruct a record. We are saying that when a record cannot be settled pursuant to that rule, reversible error exists.

There is other error which forms a basis for reversal of this case which this court feels should be discussed since the case is remanded and these issues probably will again arise in the trial court.

Appellant contends the failure of the court to give AMI 206, which instructs the jury on the issue of negligence on the part of Appellee, is error. As stated above, this court is of the opinion that counsel for the Appellant did in fact offer certain instructions, including AMI 206, and the statement attributed to Appellant’s counsel to the effect that he did not care if the court gives these instructions or not does not constitute a withdrawal or a waiver of the giving of this instruction. It should be noted that the instructions proffered by Appellant were described by the court reporter as having been offered and the only issue was whether the instructions had been refused by the trial court or had been withdrawn by Appellant. The negligence of Appellee was specifically pled as a defense in Appellant’s answer and the Appellant in its examination of the witnesses at the trial generated some testimony that would allow a jury to find that Appellee was guilty of negligence in failing to see the vacuum cleaner cord so as to avoid tripping on it. However, the jury only received AMI 203, which placed the negligence of the Appellant in issue without the corresponding issue of the Appellee’s own negligence as a proximate cause of her injuries. The bracketed paragraph at the end of AMI 203 was not given. This paragraph is only given when affirmative defenses such as negligence of a claimant or assumption of the risks are not in issue. It is at this point that AMI 206 pertaining to affirmative defenses such as negligence on the part of a party claiming damages should be given. However, based upon the record in this case the instruction was refused by the trial court.

In its argument that the court’s refusal to give AMI 206 was error, Appellant relies on Beevers, Adm’x. v. Miller, 242 Ark. 541, 414 S.W.2d 603 (1967), which was a wrongful death action brought on behalf of a decedent who was a passenger in a truck driven by Goodwin. The Administratrix alleged that Appellee drove his truck negligently, forcing Goodwin to swerve his vehicle off the road to avoid a collision with him, thereby causing the death of the decedent. Appellee defended on the grounds that Goodwin was negligent, and there was some evidence to support that defense. Appellant contended the trial court erred in failing to give AMI 502, which is the instruction on concurring proximate causes and Appellee contends there was no error because the content of AMI 502 was covered by the Court’s instructions AMI 501 and AMI 503. This court said:

As earlier pointed out, the pleadings show clearly that appellee’s defense was largely based on a contention that appellant’s damage was caused solely by the negligence of Goodwin. He did not plead negligence by her decedent, nor did he assert that negligence of Goodwin should be imputed to him. Consequently, the jury should understand clearly that appellant was entitled to a verdict if it found appellee guilty of negligence which contributed as a cause, however slightly, to appellant’s damage, even though they might have thought that the negligence of Goodwin was a far greater contributing cause. With the issues so presented, Goodwin not having been made a third party defendant, it was imperative that the jury be told that Goodwin’s negligence constituted no defense unless they found it to be the sole proximate cause. We do not think that the instructions given by the court made this clear. It was essential to do so in order to give the jury a clear understanding of the governing legal principles, particularly in a case submitted for a general verdict. Speculation as to the failure to make Goodwin a party would have been eliminated as a possible factor in the verdict.
Even if the court’s general instructions could be said technically to have covered the matter in a general way, it is error to refuse to give a specific instruction correctly and clearly applying the law to the facts of the case, even though the law in a general way is covered by the charge given, unless it appears that prejudice has not resulted. (Emphasis added.)

Beever, supra, at 546-47 (citing past Arkansas cases).

In the case at bar the issue of negligence on the part of Mary Drew was raised in the pleadings and developed by the testimony. However, as previously stated, the jury simply received AMI 203, which required that the jury find: First, that Appellee sustained damages, second, that Appellant was negligent, and third,' that such negligence was a proximate cause of Appellee’s damages. Thereafter, the jury was instructed by the giving of AMI 2102, which is the comparative negligence instruction. The Appellee argues that the giving of AMI 2102 to the jury covered the issue of the Appellee’s negligence and therefore the Appellant was not prej udiced by the j ury not receiving AMI 206. We cannot agree. Although AMI 2102 does explain what the jury should do after it has determined if one or both of the parties are negligent, this court feels the failure to give AMI 206 constitutes reversible error for the reason that nowhere throughout the other instructions can be found an explanation by the court that one of the issues involved in the case is the affirmative defense of negligence on the part of Appellee.

This Court in Beevers, supra, stated that a lawyer, of course, understands that the charge of the judge was intended to convey a particular idea; but the jurors are not usually learned in the law, and that in the absence of the specific instruction covering the particular point, the jury may become confused. The court stated that it was not saying the jury did take the confused view of the law, but simply that they might have so concluded.

Another argument that presents itself is that during the argument of this case to the jury, Appellant’s counsel would have well covered this point. We feel certain counsel for Appellant would have argued this point since without the court having given the proper instruction this would be Appellant’s only recourse. We said in Beevers, supra, at 548-49, quoting St. Louis & S.F.R Co. v. Crabtree, 69 Ark. 134, 62 S.W. 64 (1901),

[J]urors are not required to take the law from counsel, and it was putting an undue burden upon the defendant company to compel it to rely upon convincing the jury as to the proper view of the law by an argument of its attorney. If the sympathies of the jury happen to be with the other side, that might be difficult to do, and might be too heavy of a task even for the most gifted attorney. It is a burden that the law does not impose, for it is the duty of the judge to instruct; and each party has the right to have the jury instructed upon the law of the case clearly and pointedly, so as to leave no ground for misapprehension or mistake.

Beevers, supra, at 549, then cites numerous past decisions of this court for our declaration that:

A reversal must follow the refusal of a proper instruction, unless it affirmatively appears that no injury resulted. ... Although the court is not required to give correct instruction offered when the instructions given explicitly, clearly, fully and fairly cover the matter requested, we cannot say that prejudice to Appellant did not result in this situation.

For the reasons set out above, the trial court’s refusal to give AMI 206 was erroneous.

Appellant contends the trial court erred by finding as a matter of law that Mary Drew was a business invitee. Testimony at the trial established the fact that Appellee was not a registered guest at the Holiday Inn and not a registered participant at the meeting conducted on the Holiday Inn premises. There is testimony in the record of this case that Appellee had lunch with her friends, but there is no testimony in the record to tell us whether Appellee and her friends ate lunch on the premises of the Holiday Inn. Suffice it to say, there are facts that would support a finding by the jury that Appellee was a licensee on Appellant’s premises. Conversely, there are also facts that would seem to indicate Appellee was an invitee. We are aware of the decision in Little Rock Land Company v. Raper, 245 Ark. 641, 433 S.W.2d 836 (1968), in which case we held a wife who was accompanying her husband to a doctor’s office in a building was an invitee. Mrs. Raper was unquestionably in the building for a purpose benefiting the owner. In the present case, there is some evidence that Mary Drew was on the premises for her own personal convenience, and we find this evidence is sufficient to warrant submission of this issue to the jury. We are simply not willing to say that one lawfully on the premises of an innkeeper is an invitee as a matter of law under every conceivable circumstance.

Finally, appellant contends it was error for the court to submit the issue of whether the injury of appellee was temporary or permanent to the jury. This court has repeatedly held that evidence must tend to establish permanency with reasonable certainty. It must not leave the jury to speculation or conjecture. Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976); Midwest Bus Lines v. Williams, 243 Ark. 854, 422 S.W.2d 869 (1968); Missouri Pacific Transp. Co. v. Kinney, 199 Ark. 512, 135 S.W.2d 56 (1939). None of the physicians who testified in this case indicated appellee’s injuries were permanent in nature. We have held on occasions that a particular injury in and of itself may be sufficient to submit the issue of permanency to a jury even in the absence of medical testimony to that effect. Duckworth v. Stephens, 182 Ark. 161, 30 S.W.2d 840 (1930). The injuries of appellee do not meet that criterion.

Reversed and remanded for a new trial.

Holt, J., not participating.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Robert James WILLIAMS v. STATE of Arkansas
    CR 81-137
    635 S.W.2d 265
    Supreme Court of Arkansas
    Opinion delivered June 28, 1982

      William R. Simpson, Jr., Public Defender and Jeff Rosenzweig and Sandra Berry, Deputy Public Defenders, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant Williams was found guilty of murder in the first degree, having shot and killed Pravin Patel in the perpetration of robbery at the Ritz Motel in Little Rock on November 28, 1980. The jury, finding that Williams was an habitual criminal with four or more previous felony convictions, sentenced him to life imprisonment. The two principal arguments for reversal stem from the trial court’s having permitted the State, in its refutation of Williams’s alibi defense, to prove on rebuttal that Williams had held up another person in the same vicinity a short time before the robbery at the Ritz Motel.

Patel was shot at the motel at about 10:30 or 11:00 p.m. A witness for the State saw Williams running from the motel with a gun in one hand and the cash drawer in the other. The witness noted the license number and other identifying features of Williams’s get-away car. That information led the police to Williams. The witness recognized the car when the police took him to it and also identified Williams in a line-up and at the trial. The sufficiency of the evidence is not in question.

In support of an alibi defense both Williams and his wife testified that he came home at about eight o’clock on the evening of the murder and remained there during the night except for a quick trip to buy beer at about nine o’clock. At an omnibus hearing the prosecution had announced its intention to call John Martin as a witness, but the judge did not then rule on the admissibility of Martin’s testimony.

The State, after the defense had rested, was allowed to introduce Martin’s testimony in rebuttal. Martin testified that at about ten o’clock on the evening of the murder, as he was closing up his place of employment seven or eight blocks from the Ritz Motel, Williams held him up at gunpoint and demanded that Martin hand over the money in the safe. Martin convinced Williams that he did not have a key to the safe nor any money on his person. Williams then said he was a policeman, just checking Martin out, and left. Thus the Martin incident and the murder took place in the same vicinity and during the time when Williams and his wife testified he was at home.

The admissibility of Martin’s testimony is not open to serious question. It was clearly relevant to disprove the alibi. In Nash v. State, 120 Ark. 157, 179 S.W. 159 (1915), we upheld the admissibility of evidence, introduced as part of the State’s case in chief to refute an alibi, that the defendant had committed another robbery at about the same time and in the same vicinity as the robbery on trial. There the trial judge gave a limiting instruction, explaining the purpose for which the testimony was presented. There was no request for such an instruction in this case; so the court was not required to give one. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). The admissibility of testimony about another crime, to rebut a defense of alibi, is uniformly recognized. Wharton’s Criminal Evidence, § 258 (13th ed., 1972); People v. Appleton, 1 Ill. App. 3d 9, 272 N.E.2d 397 (1971); Reed v. State, 481 S.W.2d 814 (Tex. Cr. App., 1972). Uniform Evidence Rule 404 (b), Ark. Stat. Ann. § 28-1001 (Repl. 1979), is to the same effect, because Martin’s testimony was relevant to disprove the alibi and was not offered merely to show Williams’s bad character.

It is argued that Martin should have been permitted to testify only that he saw Williams at the specified time and place, without saying that Williams confronted him with a gun. This argument is totally unrealistic. Had the testimony been so watered down, the jury would have received a false impression about the incident and might well have doubted whether Martin could identify a stranger whom he saw casually as he was closing up for the night. It was the very fact that Williams used a weapon in an attempt at robbery that would fix the incident in Martin’s memory and strongly support his identification of Williams. The probative value of that important fact heavily outweighed any prejudice to Williams from the proof that he had drawn a gun on Martin.

Second, in a related point it is argued that the prosecution should not have been allowed to ask Williams on cross-examination if he had not pulled a gun on Martin at about ten o’clock that evening. In view of the admissibility of Martin’s testimony, the question was within the broad latitude allowed on cross-examination to elicit facts contradicting Williams’s testimony on direct examination and therefore to attack his credibility. Huffman v. City of Hot Springs, 237 Ark. 756, 375 S.W.2d 795 (1964). Indeed, had the question not been asked, the jury might have thought that the prosecution had indicated some weakness in its position by failing to give Williams an opportunity to deny or explain the incident to be described by Martin on rebuttal.

Third, before the trial expert testimony was heard for a day and a half on the question whether a death-qualified jury is more likely to convict than one not so qualified. We agree with the trial judge’s conclusion that the expert testimony was not conclusive, and we adhere to our earlier position on this issue. Neal v. State, 270 Ark. 442, 447, 605 S.W.2d 421 (1980).

We find no reversible error in the points argued nor in the other rulings brought to our attention.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. It is undisputed that the appellant used a gun in the crime with which he was charged. He was also found to have committed the crime of murder in the perpetration of a robbery. Any evidence of him pulling a gun for the purpose of robbing another individual would be seen by a jury as similar conduct to that for which he was being tried. Under our Uniform Rules of Evidence, Rule 404 (b), evidence of other crimes is not admissible to either show the character of a person or to show that someone acted in conformity with certain criminal actions. I think it was prejudicial error to admit John Martin’s testimony that appellant pulled a gun on him at a time very close to the robbery and murder in question. The appellant’s alibi was that he was not in the neighborhood at the time of the commission of the murder. Mr. Martin could easily have been asked, without prejudicial effect, whether he observed the appellant near his place of business and at what time. He also could have been asked whether he had a conversation with the appellant at that time. This would be all thát would be needed to disprove appellant’s alibi theory. No mention would have to be made of any prior criminal acts of the appellant. The single effect of the testimony that the appellant pulled a gun on Martin was to prejudice the jury. It had absolutely no probative value beyond the fact that it placed the appellant near the robbery scene. In the case of Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), we stated:

We do not permit the State to bolster its appeal to the jury by proof of prior convictions, with their conclusive presumption of verity, and still less is there reason to allow the jury to be prejudiced by mere accusations of earlier misconduct on the part of the defendant.

This clearly shows that our standards in the past and up until now have been to disallow evidence of prior misconduct on the part of a defendant being charged with a crime. In Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979), we stated:

There are circumstances where it is possible for the State to introduce into a criminal trial evidence that the defendant has committed crimes unrelated to those with which he is charged. One circumstance is in its case in chief, where, in very limited circumstances, the State may offer evidence of other offenses. Ordinarily, such evidence is not permitted. It is prejudicial by nature and should only be used against a defendant in a criminal action in rare cases.

I cannot see where this is a rare case coming under the exception stated in Gustafson because evidence of the physical presence of the appellant could have been introduced without evidence of the appellant’s prior bad acts.

In response to the majority opinion that no limiting instruction was requested by the appellant, he filed a motion in limine to prevent the exact testimony which was twice presented in this case, once on cross-examination and a second time on rebuttal. Objections were also made at the time the testimony was presented and a motion for mistrial was made. Every effort was made to prevent this prejudicial material from being used against the appellant. A limiting instruction at this point would have been useless even if it had been given.

I believe the appellant has furnished proof that a “death qualified” jury is more apt to convict than a jury not so qualified. The record on this point is quite persuasive and voluminous. I will not repeat any of it here because my opinion comprises such a distinct minority on this issue. It appears to me the only way to solve this continuous and troublesome problem is to have a “non-death qualified” jury determine the guilt or innocence of an accused and then allow a “death qualified” jury to determine the sentence.


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

text:
    MADISON BANK AND TRUST et al v. FIRST NATIONAL BANK OF HUNTSVILLE, Arkansas et al
    81-267
    635 S.W.2d 268
    Supreme Court of Arkansas
    Opinion delivered June 28, 1982

      Rose Law Firm, by: Vincent Foster, Jr., for appellant.

      Friday, Eldredge ér Clark, by: Robert K. Walsh, for appellees.
   Frank Holt, Justice.

In October, 1980, following approximately one year of negotiations, the appellants purchased substantially all of the outstanding shares of the Bank of Kingston, a state bank, now named Madison Bank and Trust. The buyer under the agreement was James E. McDougal, Agent. The sellers, the Hargis family trust and members of the Bunch family, were also the majority shareholders in the only other bank in Madison County, the appellee First National Bank of Huntsville. The purchase agreement provided for a cash purchase price which exceeded $500,000, plus a restrictive covenant. The contract provides in pertinent part:

WHEREAS, as an inducement to each of the SHAREHOLDERS to enter into this Agreement for the Sale and Purchase of Bank Stock, the BANK has agreed that during the ensuing ten (10) year period it will not move its main office or establish a branch bank or a teller’s window in the Cities of Huntsville and Hindsville, the Town or Community of Marble, Madison County, Arkansas, and otherwise within a ten (10) highway mile radius of Huntsville, Madison County, Arkansas ... .

Thereafter, paragraph 7 (b) provides:

As a part of the consideration to each of the SHAREHOLDERS and the essence of this Agreement for the Sale and Purchase of Bank Stock is the agreement of the BANK and the BUYER that the BANK shall not within a period of ten (10) years after this date establish its main office, or a branch office or a teller’s window in the Cities of Huntsville and Hindsville, and the Town or Community of Marble, Madison County, Arkansas, and within a ten (10) highway mile radius of Huntsville, Arkansas ....

About three months after the purchase or in the early part of 1981, the Board of Directors of the Bank of Kingston changed the name to Madison Bank and Trust and shortly thereafter initiated applications to the State Bank Department and the Federal Deposit Insurance Corporation (FDIC) for authority to amend its charter to permit moving its main office from Kingston to Huntsville and establish a full service branch at Kingston. After an investigation by the Bank Department staff and before the application was heard, the appellee bank and two of the sellers filed this action seeking specific performance of paragraph 7 (b) of the agreement and an injunction against the appellants to prohibit them from proceeding with their application or acting contrary to the provisions of paragraph 7 (b) in the purchase agreement. In response the appellants-contended that the restrictive covenant was void and unenforceable under state law and violated antitrust laws. Following a hearing the trial court ordered specific performance of the agreement and granted the injunction.

The court found that the agreement was freely and voluntarily entered into by the parties on equal footing; that McDougal was expressly acting as agent for certain named appellants with the remaining appellants committed to be buyers at the time of closing; that the individual appellants knew of Paragraph 7 (b) by the time of the closing; that the individual appellants as shareholders and directors of the Bank of Kingston ratified the purchase agreement; that the application to move the bank from Kingston to Huntsville would be in direct violation of Paragraph 7 (b) of the agreement; that it was the intent of the parties that the Bank of Kingston be bound thereby and the National Bank of Huntsville be a third party beneficiary to the contract; that paragraph 7 (b) serves a legitimate purpose by protecting the residents of Kingston by limiting the ability of the bank to move its assets from that community and its people; that paragraph 7 (b) was an essential part of the consideration for the sale or transfer of stock and sale and transfer of the bank would not have occurred without paragraph 7 (b); that paragraph 7 (b) is not in violation of the Sherman Act since appellants are not prohibited from commencing a new bank or engaging in the business of banking in Huntsville or from otherwise competing for customers with any other financial institution; that paragraph 7 (b) is a limited restraint, reasonable in scope, duration, and geographical extent; that the agreement is enforceable and binding on the individual appellants and the Bank of Kingston now Madison Bank and Trust. Hence this appeal.

Appellants first contend that the trial court erred in finding paragraph 7 (b) of the agreement has a legitimate, protectable purpose and is reasonable in scope and geographic exent. The general rule is that a contract in restraint of trade ancillary to a sale or a business transaction, which is reasonably limited as to time and place, is not against public policy and is not invalid. See Bloom v. Home Insurance Agency, 91 Ark. 367, 121 S.W. 293 (1909); Webster v. Williams, 62 Ark. 101, 34 S.W. 537 (1896); United States v. Empire Gas Corp., 537 F.2d 296 (8th Cir. 1976), cert. den. 429 U.S. 1122 (1976); 17 C.J.S. Contracts § 238, p. 1107; 54 Am. Jur. 2d, Monopolies, Etc., § 103.

There are two types of these contracts — one, the employer/employee and two, the sale or transaction involving an established business. The courts view a restraint of trade agreement ancillary to the transfer of a business with greater liberality, being “more prone to uphold restrictive clauses” than employer/employee covenants. McLeod v. Meyer, 237 Ark. 173, 372 S.W.2d 220 (1963); see also 42 Am. Jur. 2d, Injunctions, § 115; and 54 Am. Jur. 2d, Monopolies, Etc., § 543. In Little Rock Towel and Linen Supply Co. v. Independent Linen Service Co. of Ark., 237 Ark. 877, 377 S.W.2d 34 (1964), we said: “Owing to the possibility that a person may be deprived of his livelihood the courts are less disposed to uphold restraints in contracts of employment than to uphold them in contracts of sale.” Whether a restraint provision is reasonable or unreasonable is a question to be determined under the facts of each case. McLeod v. Meyer, supra. The burden is on the party challenging the validity of the covenant to show it is unreasonable and against public policy. See United States v. Empire Gas Corp., supra. The trial court’s findings will not be reversed unless clearly erroneous. Ford Motor Credit v. Yarbrough, 266 Ark. 457, 587 S.W.2d 68 (1979); A.R.C.P. Rule 52 (a), Ark. Stat. Ann. Vol. 3A (Repl. 1979).

McDougal began negotiations to purchase the Bank of Kingston from the appellees in the summer of 1979. An offer to purchase was tendered to an officer and shareholder of the bank. The offer was not acted upon by appellees and in early 1980, because of a “no progress” report, McDougal told the officer and part owner that he had decided to forget the deal. In April, 1980, this bank official contacted McDougal and said that he and the other owners of the bank wanted to sell. Negotiations were resumed. One shareholder was a nonresident. By letter addressed to him dated April 21, 1980, McDougal offered $1,500 cash per share for his stock and to sign an agreement not to move the bank to Huntsville during the next ten years. Considerable discussion ensued with appellees. However, McDougal withdrew his offer by letter dated July 25, 1980. In August, appellees’ attorney contacted McDougal and informed him he could close a deal on the bank. On August 21, 1980, McDougal signed an agreement to purchase the bank stock as “James B. McDougal, Agent.” McDougal stated he signed as agent to make the sellers aware they could be expected to deliver the shares to persons other than himself. He knew about the restrictive covenant before he signed the agreement. There was conflicting testimony as to whether he or the sellers initiated the idea for the restriction. It appears that the other parties who purchased the stock knew of the existence of paragraph 7 (b) before the October closing. It was stipulated that each stock certificate issued to appellants was endorsed, stating it was subject to the provisions of paragraph 7 (b) of the agreement. In April, 1981, the Board of Directors of the appellant bank voted to amend its charter and make application to the State Bank Department to move its main office to Huntsville. In June, 1981, the Board of Directors rescinded the agreement or consent not to move its office to Huntsville on the basis that paragraph 7 (b) was invalid and unenforceble.

The contract clearly provides and the testimony indicates, as the court found, that paragraph 7 (b) was an essential part of the consideration for the sale, and the transaction would not have occurred but for appellants’ covenant in paragraph 7 (b). Appellees’ expert witness testified that the purpose of such a restriction was to make transfers such as this possible. In United States v. Addyston Pipe and Steel Co., 85 F. 271 (8th Cir. 1898), aff’d 175 U.S. 211, 44 L. Ed. 136, 20 S. Ct. 96, the court said with respect to a buyer-seller covenant:

Again, when one in business sold property with which the buyer might set up a rival business, it was certainly reasonable that the seller should be able to restrain the buyer from doing him an inj ury which, but for the sale, the buyer would be unable to inflict. This was not reducing competition, but was only securing the seller against an increase of competition of his own creating. Such an exception was necessary to promote the free purchase and sale of property.

See also 14 Williston on Contracts, 3d, § 1637 (1972) and 54 Am. Jur. 2d, § 528. Here, we cannot say that the chancellor’s finding that paragraph 7 (b) had a legitimate and protect-able purpose is clearly erroneous, nor that its sole object, as argued by appellants, is to prevent competition and is too broad with respect to the public interest.

We also feel the chancellor’s finding that the restriction was reasonable in scope, geographic extent and duration was supported by the evidence. The general rule is that, in order to be reasonable, the territory included in the covenant must be necessary for the protection of the promisee’s interest. 46 A.L.R. § 5 [e], p. 149 (Enforceability of covenant against competition, ancillary to sale or other transfer of business, practice, or property, as affected by territorial extent of restriction). The annotation, § 181, p. 363, shows the overwhelming majority of jurisdictions uphold a ten mile restriction ancillary to a sale or transaction involving a business as being reasonable in territorial extent. Similarly, a duration of ten years is also upheld as being reasonable. See 45 A.L.R.2d § 158, p. 238. See also Robins v. Plant, 174 Ark. 639, 297 S.W. 1027 (1927). Further, good will is not a necessary element in this transaction. Colby v. McLaughlin, 210 P.2d 527 (Wash. 1957).

Appellants next argue that enforcement of paragraph 7 (b) is injurious to the citizens of Madison County. The investigation by the State Bank Department staff revealed that another bank in Huntsville would stimulate growth and create new jobs. It would benefit the local economy and not have an adverse impact on competing banks. The First National Bank of Huntsville presently does not provide many of the banking services which the appellants propose to bring to Huntsville. Appellants assert that the restraint, if enforced, would deprive the public of its services until the ten year period terminates. We cannot agree. Appellants are not prohibited from servicing customers or engaging in the banking business within the ten mile radius. It appears they are doing so, although it would be more convenient for all concerned if they had their main office in Huntsville. Furthermore, there is nothing to prevent the appellants from applying to the State Bank Department for a new charter in order to establish a new bank in Huntsville if the Department deems its findings so justify. In doing so, it can consider and assure the fulfillment of the need for a banking facility in Kingston. Ark. Stat. Ann. § 67-205 (Repl. 1980). Further, the action here is based upon an alleged breach of contract.

Appellants next contend paragraph 7 (b) constitutes a horizontal division of markets and of customers in violation of the Sherman Act. We cannot agree. In Syntex Laboratories, Inc. v. Norwich Pharmacal Co., 315 F. Supp. 45 (S.D.N.Y. 1970), aff’d 437 F.2d 566 (2nd Cir. 1971), the court stated at p. 56:

It is hornbook law that a covenant not to compete ancillary to the sale of a business (or a part of a business), when reasonably limited as to time and territory, does not fall within the prohibition of the Sherman Act.

See also Goldberg v. Tri-States Theatre Corporation, 126 F.2d 28 (8th Cir. 1942). Further, it is apparent that presently the appellants are vigorously competing with the appellees for customers. Also, the appellants, as previously stated, are not prohibited from applying for a charter to establish a new bank in Huntsville.

Appellants insist that paragraph 7 (b) is unenforceable against Madison Bank and Trust, as the officer, the president who signed the agreement on behalf of the Kingston Bank was acting outside the scope of his authority and there was no consideration. The chancellor correctly found, as the contract provided, that it was the intent of the parties that the Bank of Kingston (now Madison Bank and Trust) and each of the individual appellants as shareholders and members of the Board of Directors be bound by the agreement and by the provisions of paragraph 7 (b); further, the individual appellants as shareholders and directors ratified the agreement and paragraph 7 (b) of the agreement was an essential part of the consideration of the sale or transfer of the stock. The Bank of Kingston, as a legal entity, can only act through its agents, and the acts of its corporate officers are regarded as its acts. Kull v. Dierks Lumber & Coal Co., 173 Ark. 445, 292 S.W. 695 (1927).

Appellants finally assert that the court erred in enjoining the individual appellants from exercising their discretion as bank directors. We find no merit in this contention. The agreement is binding upon the appellants as individuals and directors, as the court held, and they cannot be allowed to act contrary to paragraph 7 (b). See Bloom v. Home Insurance Agency, supra.

Affirmed.

Hickman and Purtle, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I find the duration of ten years is unreasonable. The cotton gin case of Robins v. Plant, 174 Ark. 639, 297 S.W. 1027 (1927), used by the majority, is, in my judgment, somewhat out of date in today’s commercial market. Ten years is simply too long to restrict any kind of trade.

There is no doubt that the community of Madison County will suffer unless the appellees receive fair competition and that is essentially what the appellees propose to prevent. I expect the majority may be deeply influenced in its judgment by the fact that the appellants were knowledgeable, well informed businessmen who should have known what they were signing when they made and entered into the written agreement, and should not readily be able to break it. But to me that is a moral and not a legal consideration. The appellants cannot be bound by such an agreement in a court of law because the contract is an unreasonable restraint on trade. We cannot make it reasonable in time because to do so would be to draw a new contract for the parties, which we do not have the power to do. Rector-Phillips-Morse, Inc. v. Vroman, 253 Ark. 750, 489 S.W.2d 1 (1973). Therefore, I would declare it void.

John I. Purtle, Justice,

dissenting. In my opinion, the Arkansas General Assembly has, through Ark. Stat. Ann. § 67-205 (Repl. 1980), delegated to the State Bank Commissioner and the State Banking Board the authority to approve or disapprove the creation and transfer of banks and their branches. The statute reads in part:

All applications for charters for the new banks and for approval of amendments of the charters of existing banks shall, immediately upon their filing with the State Bank Commissioner, be submitted to the board for investigation and for approval or disapproval by it. The board shall, immediately upon the submission to it of each application for a charter or each certificate of amendment of a charter make such investigation as shall enable it to determine the fitness of the applicants, the need, from the public standpoint, for the proposed institution or the change to be effected by the proposed charter amendment and all other questions, whether or not of like kind with those herein referred to, bearing directly or indirectly upon the need or desirability from the public standpoint of the proposed institution or charter amendment, and shall then without delay approve or disapprove the application ... No bank or trust company shall change or remove the location of its banking house, office or place of business from one [1] town or city to another save by charter amendment first approved by the Bank Commissioner and the State Banking Board in the manner herein required in respect of charter amendments generally.

Only the State Banking Board has the authority to determine whether the public needs are met by the establishment of a bank or branch bank in a particular community. In the present case the investigation by the State Banking Board and the commissioner’s staff found that it would be beneficial to the local economy to have appellants establish a bank in Huntsville. It was also found that it would not have an adverse impact on the competing bank. The investigation established clearly that the existing bank does not provide many of the banking services which appellants proposed to bring to Huntsville. Therefore, if the existing bank refuses to bring full and adequate services to the people it serves, it is only logical that a competing bank should be allowed to provide these services. The majority opinion agreed that the State Banking Board might well approve the establishment of a new bank charter in Huntsville. According to the above-quoted statute, the board and commissioner also have the exclusive right to approve or disapprove of a transfer of an existing bank’s office to another town.

In my opinion, paragraph 7 (b) of the purchase agreement is unenforceable because it is an attempt to evade provisions of the law as established by the people of the state of Arkansas through the General Assembly in establishing the State Banking Board and the office of Bank Commissioner. It should be noted that the Madison Bank did not include any of its “good will” with the sale of its stock in the Kingston Bank. It seems that the provisions of paragraph 7 (b) were included specifically to stifle competition and promote an existing monopoly. In the case of Shapard v. Lesser, 127 Ark. 590, 193 S.W. 262 (1917), we held that an agreement to prevent attempts to buy a competitive gin and to stay out of the gin and cotton seed business in competition with an existing corporation was an unenforceable contract. It seems to me that in the great majority of cases where a restraint of personal services or trade has been enforced the grantor has conveyed at least a portion of its good will and services to the purchaser. No such items were purchased by the appellants and none were granted by the appellee bank.

There is no doubt in my mind that the State Banking Board is in a much better position as an administrative agency to determine and resolve the issues of this case than is a chancery court or the supreme court. In the case of Gordon v. Cummings, 262 Ark. 737, 561 S.W.2d 285 (1978), this court recognized that administrative agencies are in a better position to resolve such issues than are the courts. Such agencies are by nature specialists and they have greater experience and insight and are more able to determine and analyze the legal principles and facts involved than we are. The courts should not substitute their opinion for that of state agencies unless there has been an obvious failure to comply with the legal requirements in making such decisions.

For the foregoing reasons, I respectfully dissent.


author: Darrell Hickman, Justice.

text:
    Doris Bowden FOWLER et al v. John HOGUE, Trustee et al
    82-55
    635 S.W.2d 274
    Supreme Court of Arkansas
    Opinion delivered June 28, 1982

      Frierson, Walker, Snellgr ove ér Laser, by: G. D. Walker, for appellants.

      Sam Boyce, for appellees.
   Darrell Hickman, Justice.

The question before us involves the interpretation of the language in a testamentary trust. We affirm the trial court’s determination which essentially was that the plain and ordinary meaning of the language controls.

Delphia Wilson, whose estate consisted primarily of farm land in Poinsett County, created a trust in her will for certain beneficiaries who were to receive during their respective lives the following income from the trust:

1. Juanita Bowden, 30% of the net annual income;
2. Dale Thomas Bowden, 30% of the net annual income;
3. George Milburn Bowden, 20% of the net annual income;
4. Doris Bowden, 20% of the net annual income;
5. George Carlyle Bowden, 10% of the net annual income.

Besides that provision the only other relevant language in the will reads:

VI.
Upon the death of George Milburn Bowden, his interest shall pass to his two sons, Mike Bowden and Timmy Bowden, who shall receive one-half (1/2) each of the said George Milburn Bowden’s share. Provided, that if at any time the said Juanita Bowden shall remarry, then her interest in the trust shall terminate. Upon death of any of the beneficiaries above named, with exception of George Milburn Bowden, the deceased beneficiaries’ share shall be divided equally between the remaining beneficiaries of the trust. This trust shall terminate upon the death of the last beneficiary herein named and all assets of the trust and any accumulated income shall be divided equally between my then existing heirs at law.

The will was admitted to probate in 1969. In March, 1976, Juanita Bowden died and a petition was filed to construe the trust. It was found that her 30% share of the income would be equally divided between the remaining living beneficiaries. So each received an additional 7.5% of the income of the trust. No appeal was taken from that decision.

In May, 1981, George Milburn Bowden died and another petition was filed to construe the trust. The question this time was whether George Milburn Bowden’s two sons, Mike and Timmy, should receive only the original 20% granted to their father by the provisions in the trust or whether they were entitled to the 27.5% share their father was receiving at his death.

The trial court held that the two sons would receive 27.5% for the duration of the trust.

George Milburn Bowden’s sons were favored by the trust; only his sons were granted a share in the income from the trust. It is possible that George Milburn Bowden could have died first and, if so, his sons would have only received 20% of the income from the trust. As it turned out, he died later and his sons’ share is greater because, according to the plain language of the trust, they were to receive his share at his death. That is the interpretation the trial court gave the language and that is the only reasonable interpretation we can give the language in view of the law. The words and sentences used in a will are to be construed in their ordinary sense in order to arrive at the true intention of the testator. Morgan v. Green, 263 Ark. 125, 562 S.W.2d 612 (1978).

Affirmed.


text:
    Sue Stewart RAGLAND v. THE COMMERCIAL NATIONAL BANK OF ARKANSAS
    82-117
    635 S.W.2d 258
    Supreme Court of Arkansas
    Opinion delivered June 28, 1982

      Tommy H. Russell, for appellant.

      Everett O. Martindale, for appellee.
   Robert H. Dudley, Justice.

The testatrix, Halley S. Desvernine, executed a will bequeathing her diamond solitaire ring and her diamond wedding ring to her stepdaughter, Donna Desvernine Kiyotoki. Later she executed a codicil in which she removed the diamond wedding ring from the list of bequests to her step-daughter and bequeathed the diamond wedding ring, instead, to her niece, appellant Sue Stewart Ragland. After Mrs. Desvernine’s -death, the appellee bank, as co-executor of the will, inventoried the decedent’s safety deposit box and found the diamond solitaire ring and the diamond wedding ring taped together. The diamond wedding ring is described as a ring with diamond chips on it. The executors delivered both rings to the appellant. Shortly thereafter the step-daughter’s attorney notified the executors that she questioned the disposition of the rings. A petition was filed in probate court asking , the return of the rings to the bank during probate proceedings. The appellant, Sue Stewart Ragland, contended that the rings had previously been given to her by the decedent. The probate judge held there was insufficient evidence to sustain the finding of a gift of the solitaire diamond ring to the appellant and held that the diamond wedding ring referred to in the codicil, and bequeathed to appellant, was the wedding band with diamond chips on it and not the diamond solitaire ring. Jurisdiction is in the Supreme Court pursuant to Rule 29 (1) (p). We affirm.

Appellant’s first point for reversal is that the probate judge erred in holding that there had not been a prior gift of the diamond solitaire ring. Appellant testified that the decedent, who was appellant’s aunt, came to live with appellant, her husband and brother in Fayetteville in early 1977. Her husband was discovered to have a fatal illness and she testified that her aunt gave her the diamond solitaire ring, consisting of a 1 to 2 carat diamond, to sell if she needed to pay medical bills or else to keep. She kept the ring for one and one-half years and during that time had it sized to fit her finger but testified that after her husband’s death she gave the ring back to her aunt for safekeeping. Appellant’s brother, also an interested witness, testified that the decedent had made a gift of the ring. The testimony of a good friend of the brother tended to corroborate their testimony. On the other side, a bank trust officer testified that the decedent repeatedly stated that the ring had'been loaned, not given away, and that the person who had used it was not the same person to whom she wanted to bequeath it. The ring was in the possession of the testatrix at the time of her death.

The requirements for an effective inter vivos gift have been stated by this court as: an actual delivery of the subject matter of the gift to the donee with a clear intent to make an immediate, unconditional and final gift beyond recall, accompanied by an unconditional release by the donor of all future dominion and control over the property so delivered. Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979). And these elements must be shown by clear and convincing evidence. Porterfield v. Porterfield, 253 Ark. 1073, 491 S.W.2d 48 (1973). Appellant’s evidence that a gift had been made consisted almost entirely of testimony by interested witnesses. The credibility of the witnesses is for the trial court to determine and we will not reverse the findings|of a probate j udge unless they are clearly erroneous. ARCP Rule 52. We cannot state that the findings of the trial judge on this issue are dearly erroneous.

Appellant’s second point for reversal is that the probate judge found that the codicil referred only to the wedding band and not the diamond solitaire ring. In the will the decedent bequeathed both her diamond solitaire ring and her diamond wedding ring to her step-daughter. Then, in the codicil, the decedent removed the diamond wedding ring from the list of bequests to her step-daughter and added it to the items intended for appellant. Appellant argues that the wedding band only had chips in it and the probate judge erred in classifying it as a diamond wedding ring. It is true that when there is any inconsistency between any portion of a will and a codicil then the codicil will control. McLaren v. Cross, 236 Ark. 648, 370 S. W.2d 59 (1963). But here there does not appear to be any inconsistency. There were two rings found in the bank box and the terminology concerning two rings remained consistent in the will and codicil. The probate judge determined that the decedent ¿nly intended to change the bequest of the diamond wedding ring and to leave the bequest of the diamond solitaire ring unchanged. A will and a codicil must be construed together in order to ascertain the intent of the testator. Garnett v. Clayton, 222 Ark. 324, 260 S.W.2d 441 (1953). That is what the probate judge did and his finding will not be disturbed.

The appellee has requested that this court order appellant to pay appellee’s costs incurred in ordering a transcript. Appellant only ordered a transcript of the proceedings of the temporary hearing and did not set out with clarity the points of appeal. Appellee maintains appellant should have paid for the cost of the complete transcript of the final hearing. Rule 6 (b) of the Rules of Appellate Procedure provides:

... If the appellant has designated less than the entire record or proceeding, the appellee, if he deems a transcript of other parts of the proceedings to be necessary, shall, within ten (10) days after the filing of the notice of appeal, file and serve upon the appellant (and upon the court reporter if additional testimony is designated) a designation of the additional parts to be included. The appellant shall then direct the reporter to include in the transcript all testimony designated by appellee.

The appellee did not notify the appellant that it deemed a transcript of other parts of the proceedings to be necessary. Instead, it ordered a transcript of all other proceedings and asks reimbursement for those costs. We make only the proper adjustment to costs. Those parts of the transcript supplied by appellee which contain the deposition of the bank trust officer and the findings of fact by the trial court, found at transcript pages 95 and 96, were necessary for the decision of this appeal. Costs are ordered awarded for these parts of the transcript. Costs are denied for the remainder of the transcript because it concerns the mental capacity of the testatrix, which is not on appeal, and could not have been thought by appellee to be on appeal after reading the designated points of appeal.

Affirmed.


author: Steele Hays, Justice. Richard B. Adkisson, Chief Justice,

text:
    Wanda Lee CALAMESE v. STATE of Arkansas
    CR 82-15
    635 S.W.2d 261
    Supreme Court of Arkansas
    Opinion delivered June 28, 1982

      Vashti O. Varnado, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant was charged with 22 counts of theft of property and 22 counts of first degree forgery by information filed on October 3, 1980. She was convicted in a jury trial on September 28, 1981, and sentenced to 26 years in the Department of Correction.

Appellant argues two points for reversal, neither of which has merit and, therefore, we affirm the judgment. Appellant first contends that the trial court erred in permitting her to represent herself at trial. The only support for her argument is a notation dictated by the trial judge several days after the trial, stating appellant had appeared without counsel on the morning of trial and asked to proceed pro se. But the record itself demonstrates the appellant did not represent herself and was not without the benefit of counsel. The proceedings with respect to appointment of defense counsel were erratic from the outset. Initially, Mr. Robert Lamb was appointed and he secured appellant’s immediate release from custody on her own recognizance, conditioned on weekly deposits by the appellant to be applied to retained counsel. In November, appellant filed her first motion for a continuance and requested that other counsel be appointed. Her motion was granted and Mr. David Hodges was named to represent her. In February, Mr. Hodges was relieved and Mr. Lamb was substituted and on appellant’s motion trial was continued to the next term of court. In May, appellant again moved for a continuance of the trial then scheduled for June 1, this time on the basis of her daughter’s tonsilectomy which conflicted with the trial date. This motion was either denied or not acted upon and on May 29 appellant renewed her motion, stating that she did not wish to proceed with Mr. Lamb as counsel but intended to obtain other counsel, unnamed, who would be out of the state until after the June 1 trial date. On the morning of trial a hearing was conducted in chambers and the court granted yet a third continuance in order for appellant to hire other counsel, which she stated she had the resources to do. Appellant assured the court she was not seeking to delay the progress of the case and understood the case would be set for trial during the September term.

On September 28, 1981, the case was called for a jury trial and appellant appeared without having retained counsel. At that point the trial judge appointed Messrs. Steven G. Howard and Stanley Montgomery to assist appellant. While they were ostensibly appointed merely to assist in trial, it is clear that Mr. Howard, who seems to have been appellant’s lawyer in a similar case, immediately assumed a fully active role as trial attorney, conducting the entire interrogation, cross-examination, making objections to evidence and exhibits, presenting a defense with numerous exhibits and four defense witnesses, including lengthy testimony from the defendant and making a forceful closing argument, all of which was done with evident familiarity.

Appellant’s defense was that she was an employee of the City of Diaz paid with CETA funds; that at times her CETA checks would not arrive and with the approval of the city clerk, Mrs. Jean Sullins, appellant would sign Mrs. Sullins’ name to checks from the city for the amount of her salary, refunding the amount to the city when her CETA checks arrived; that she was at times instructed to sign Jean Sullins’ name to checks, cash them and give the money to Mrs. Sullins, which she did. This explanation was directly disputed by Mrs. Sullins and our concern here is not with credibility but with the adequacy of appellant’s defense. The record satisfies us that she had sufficient opportunity to present her case, and we note an absence of any argument that she was deprived of an adequate defense. In sum, she argues that though she asked to be allowed to represent herself, the court erred in permitting her to do so, as the record fails to reflect a voluntary and intelligent waiver. It is true there is nothing in the record showing the trial court made any inquiry into appellant’s attempted waiver of counsel, and if she had been permitted to act as her own counsel we would be hard-pressed to deny the argument, as the State has the burden of showing a voluntary and intelligent waiver of counsel. Jackson v. State, 249 Ark. 653, 460 S.W.2d 319 (1970), and United States v. Dujanovic, 486 F.2d 182 (1973). But we are unwilling to sustain the argument where the appellant was not left to represent herself, but was capably represented throughout the trial. Nowhere in the record does it appear that she was called on to represent herself or left unrepresented at any stage of the proceedings, trial or pretrial. Thus, the only conceivable impediment to the appellant is the fact that trial counsel were appointed for her on the morning of trial. However, no argument is offered on that score and in view of the repeated opportunities given her to employ her own counsel, which she had the means and disposition to do, we find no prejudicial error mandating another trial. The circumstances of each case must be examined in their entirety in determining whether a defendant has been adequately represented and on that basis we can reject appellant’s argument. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975); Jackson v. State, supra; Johnson v. Zerbst, 304 U.S. 458 (1938).

Appellant’s second point is that she was unfairly prejudiced by the verdict forms used in her trial. We find no prejudice. Appellant was charged with 22 counts of theft of property, carrying a minimum sentence on each count of two years where the property exceeds $100.00 in value, and 22 counts of first degree forgery, which carries a minimum sentence of three years on each count. During trial, the State and the defense stipulated that instead of submitting the verdict forms to the jury on each of the 44 counts, only three verdict forms would be given the jury — one for felony theft of property, one for misdemeanor theft of property and one for first degree forgery, on the understanding that if the jury found appellant guilty of felony theft of property and first degree forgery she would enter a plea of guilty to one year on each remaining forgery charge, to be added to the sentence recommended by the jury. Further, if the jury found her guilty on the misdemeanor charge only, then she would be sentenced to one year on each of four misdemeanor thefts.

The jury found appellant guilty on all three verdict forms submitted to it and fixed her punishment at two years on felony theft, three years on first degree forgery, and one year on misdemeanor theft, a total of six years. Thus, on the stipulation she was sentenced to one year on each of the remaining 21 forgery counts, for a total of 26 years, leaving one forgery charge unaccounted for.

We find no merit to appellant’s argument that she was prejudiced by this stipulation, to which she and counsel agreed. The obvious fact is she benefited by it. By the stipulation the State agreed to a sentence of only one year on each remaining 21 forgery charges, which carried a minimum sentence of three years on each charge, thus benefiting appellant from that standpoint. Too, the stipulation must have included a dismissal of the 20 remaining charges of theft of property, giving her an additional advantage. Furthermore, if the jury convicted her only on misdemeanor theft it appears that under the stipulation she would have been sentenced only on the four misdemeanor charges, with all remaining forgery and felony theft charges dismissed. Clearly, the stipulation offered a more attractive option to appellant than that of submitting all 44 counts to the jury with instructions as to the minimum sentences of two and three years each and, hence, we find no prejudice in the stipulation.

Affirmed.

Adkissqn, C.J., and Purtle, J., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. On the first point argued I dissent because the record does not reflect that appellant knowingly waived her right to counsel as is required to be shown by the State. See Carnley v. Cochran, 369 U.S. 506 (1962); Miranda v. Arizona, 384 U.S. 436 (1966).

On the second point argued I dissent because the record does not reflect that appellant knowingly and intelligently entered a plea of guilty to 21 forgery counts for which she was sentenced to one year each to be served consecutively. See Boykin v. Alabama, 395 U.S. 238 (1966); North Carolina v. Alford, 400 U.S. 25 (1970); Deason v. State, 263 Ark. 56, 562 S.W.2d 79 (1978); Byler v. State, 257 Ark. 15, 513 S.W.2d 801 (1974); A.R.Cr.P., Article VII, Pleas of Guilty and Nolo Contendere (Repl. 1977). The arrangement made for a plea of guilty to certain offenses conditioned on being found guilty of other certain offenses amounts to no more than a wager on the outcome of the jury verdict.

I am hereby authorized to state that Purtle, J., joins in this dissent.