author: Frank Holt, Justice.

text:
    Roger MEARS, County Judge, Pulaski County, Arkansas v. ARKANSAS STATE HOSPITAL
    79-5
    581 S.W. 2d 339
    Opinion delivered May 29, 1979
    (Division II)

      Wilbur C. “Dub” Bentley, Pros. Atty., by: John Wesley Hall, Deputy. Pros. Atty., for appellant.

      Hall, Tucker, Lovell & Alsobrook, for appellee.
   Frank Holt, Justice.

The issue on this appeal is the interpretation of Ark. Grim. Code § 41-605 (9) (1976). Before its amendment in 1977, it read in pertinent part: “The compensation of persons making or assisting in the examination . . . . shall be paid by the state.” This statute was in effect between January, 1976, and June, 1977. During this time the appellee hospital billed Pulaski County for the “necessary maintenance costs of room and board” for 54 criminal defendants committed to it for mental examinations. The county refused to remit payment. The trial court held that the claims should be paid by the county, and we agree.

For reversal appellant argues that this statute should be interpreted to require the state and not the county to pay these costs for these criminal commitments. He argues that § 41-605 (9) is ambiguous and, therefore, should be construed as requiring the state to pay all costs of the commitments rather than merely the compensation of the persons who made or assisted in the examinations. A statute must be given its usual and ordinary meaning. City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W. 2d 154 (1977). We have no authority to construe a statute to mean other than what it says, if it is unambiguous. Weston v. State, 258 Ark. 707, 528 S.W. 2d 412 (1975). The commentary to a statute does not control its plain meaning. Britt v. State, 261 Ark. 488, 549 S.W. 2d 84 (1977). Here the statute requires only that the state pay for the “persons making or assisting in the examination. ” It says nothing about the maintenance costs of room and board. In our view the statute is plain and unambiguous as to the extent of the state’s responsibility.

Neither do we think that the enactment of § 41-605 (9) impliedly repealed the provisions of Ark. Stat. Ann. § 43-1301 (Repl. 1977) and Ark. Stat. Ann. § 59-404 (Repl. 1971), which provide that the county is to bear the costs of mental examinations of criminal defendants. Implied repeals are not favored. Selig v. Powell, 253 Ark. 555, 489 S.W. 2d 484 (1972). To ascertain the intent of the legislature, we examine the statute historically, as well as the contemporaneous conditions at the time of its enactment, consequences of interpretation, and other matters of common knowledge within the limits of our jurisdiction. Prewitt v. Warfield, 203 Ark. 137, 156 S.W. 2d 238 (1941). Counties historically have borne the costs of mental examinations when criminal defendants are committed for observation. §§ 43-1301 and 59-404. Also Campbell, County Judge v. Arkansas State Hospital, 228 Ark. 205, 306 S.W. 2d 313 (1957). Counties are obligated to pay for costs of the administration of justice where required to do so by the legislature. Mears v. Hall, 263 Ark. 827, 569 S.W. 2d 91 (1978). The legislature, by enacting § 41-605 (9), as evidenced by the commentary, sought to “minimize” those costs to the county as a factor influencing the decision by a trial judge to commit a criminal defendant for a mental examination. It did not eliminate payments by the county of all cost factors. Here, as indicated, we interpret § 41-605 (9), as originally enacted, as mandating the state to pay only the costs of personnel making or assisting in the mental examination. That leaves the unassigned costs to the county for payment. Consequently, if the legislature intended for § 41-605 (9) to be a complete substitute for §§ 43-1301 and 59-404, then there would be no provision for the assignment of responsibility for the remainder of the costs of examination; i.e., the “necessary maintenance costs of room and board” as sought here. This would be an impractical result which we think the legislature did not intend. The court was correct in its interpretation of the statutes involved.

Affirmed.

We agree: Harris, C.J., and Fogleman and Purtle, JJ.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Dan ROSELL v. PULASKI BANK & TRUST CO.
    79-9
    582 S.W. 2d 1
    Opinion delivered May 29, 1979
    (Division I)

      Moses, McClellan, Owen & McDermott, by: Harry E. McDermott, Jr., for appellant.

      Cearley, Gitchell, Bogard, Mitchell & Bryant, R.A., by: Michael W. Mitchell, for appellee.
   Darrell Hickman, Justice.

Dan Rosell, the appellant, sued the Pulaski Bank and Trust Company for $10,000 actual, and $50,000 punitive damages. The theory of Rosell’s suit was that the bank had allowed a third party, Larry Coulter, to cash a $10,000 certificate of deposit that was being held by the bank for the benefit of Rosell. The chancellor held there was insufficient evidence of a valid escrow agreement or trust relationship between the bank and Rosell, and denied any relief to the appellant.

The facts of this case, mainly the actions of a bank employee, Mrs. Mary Terry, bound the bank to honor the agreement between Rosell and Coulter, and the bank is es-topped to deny liability. We reverse the chancellor’s decree.

Rosell sold his rental business to Coulter in February, 1975, for $57,600.00. It was sold according to a written agreement and one of the terms of the agreement was that a $10,-000 certificate of deposit issued by the appellee bank would be assigned as security to Rosell for four years. The assignment and a copy of the contract were delivered to Mrs. Terry, a branch manager for the bank. The assignment is reproduced:

ASSIGNMENT OF BANK DEPOSIT

FOR .VALUE RECEIVED the undersigned hereby conditionally assigns a $10,000.00 savings account in the Pulaski Heights Bank, being Account No. ¿«P ?4~ / . The conditions of this assignment are that in the event the undersigned fails to make payments or defaults under the contract dated February 1, 1975, a copy of which is attached hereto, during the first four years of the contract, the $10,000.00 shall be paid to the assignee, Dan Rosell, to be applied against the purchase price.

If there is no default for a period of four years, the .$10,000.00 and interest earned shall be the sole property of the undersigned. Undersigned further agrees that the $10,000.00 balance will be maintained and without any encumbrance, assignment, or lien except to Dan Resell.

Undersigned agrees to execute any additional assignment that may be necessary to effectuate this assignment.

WITNESS my hand and seal this _ day of February, 1975.

LÁ^RY C/CÍ0ULJER- /

STATE ÓF ARKANSAS ) ) COUNT! OF PULASKI )

SUBSCRIBED AND SWORN Co before me this 1st day of

February, 1975.

Notary Public

My Commission Expires:

2-15-77

Mrs. Terry received the assignment and a copy of the contract with a cover letter which reads:

Pulaski Bank & Trust Co.

Attn: Mrs. Terry

Grant at Kavanaugh

Little Rock, Arkansas 72207

Re: Certificate of Deposit #A1

Larry C. Coulter

Gentlemen:

Enclosed is an Assignment executed by Larry C. Coulter concerning a Certificate of Deposit at your bank. Please place this Assignment in Mr. Coulter’s file.

If you have any questions, please do not hesitate to call me.

Yours very truly,

harry e. McDermott, jr.

Several months later, without any notice to Rosell, Mrs. Terry released the certificate of deposit to Coulter; Coulter defaulted on the contract with Rosell and there is no evidence of his whereabouts in the record.

Although Mrs. Terry testified she told Coulter the bank would not be a party to an assignment of a certificate of deposit between two individuals, her actions are totally inconsistent with that testimony. For example, part of her testimony is as follows:

Q. Well, then what happened?
A. Well, let’s see. Let’s see, Larry [Coulter] brought me in — it was two legal sized pages, some sort of an agreement between Mr. Rosell and Mr. Coulter, two legal sized typed pages that did require, you know, an officer of the bank’s signature.
And I had been advised at the bank, don’t sign anything. Do not acknowledge an assignment because we are not going to get involved.
So before I signed it, I read through it and all the legal jargon, you know, meant nothing to me. So I showed it to my boss George Loftus and he read through it. And he said, “It’s okay, Lulu, they’re not asking us to do anything. You can sign it. So l did. . . . [Emphasis added.]

First, she admitted receiving the assignment and contract. She knew it provided the certificate of deposit was to be held as security for the benefit of Rosell. Although she said she was instructed not to agree to act as an escrow agent or be a party to the agreement, she said she signed some instruments. In fact, she wrote the number of the certificate on the assignment. She said she did these acts after being assured by her superiors the bank was not bound. She placed the certificate of deposit in Larry Coulter’s file, in an envelope with the other papers of Coulter, including the assignment and contract. She said she did this as a favor to Coulter after she had told him he should place it in a safety deposit box at the main branch.

She testified she was told not to acknowledge the receipt of the assignment in writing because it might bind the bank. It is undisputed the bank never notified any party in writing it would not honor the assignment after it was received. The lawyer was never notified the assignment would not be recognized.

The appellee argues the appellant tried to make it an escrow agent without its consent. All of the disclaimers testified to by bank employees are inconsistent with the actions of Mrs. Terry. It is a classic case of equitable estoppel. Equitable estoppel, as it applies to this case, was defined in the case of First National Bank v. Godbey & Sons, 181 Ark. 1004, 29 S.W. 2d 272 (1930).

While mere silence may operate as an estoppel in equity, in order to constitute such silence as an estoppel, there must be both the opportunity and the duty to speak, and the action of the person asserting the estoppel must be the natural result of the silence, and the party maintaining the silence must have been in a situation to know that some one was relying thereon to his injury.

All the bank had to do was to return the assignment and reject it. Instead, it kept it, filled in a blank space, and received the benefits of the certificate of deposit. But, more than that, it caused the certificate to be placed in Larry Coulter’s file, with the assignment, thereby acknowledging the validity of the assignment. For these reasons, the bank is liable for later releasing the certificate to Coulter.

The decree of the chancellor is reversed and the cause is remanded with instructions to enter judgment in favor of Rosell for $10,000.00.

Reversed and remanded.

We agree. Harris, C.J., and George Rose Smith and Byrd, JJ.


author: John I. Purtle, Justice.

text:
    Johnny Wayne KIRKENDALL v. STATE of Arkansas
    CR 78-181
    581 S.W. 2d 341
    Opinion delivered May 29, 1979
    (In Banc)

      Roy E. Danuser and Hardin, Jesson & Dawson, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was charged with Manslaughter, Ark. Stat. Ann. § 41-1504 (Repl. 1977), and Failure to Stop and Render Aid, Ark. Stat. Ann. § 75-901 (Repl. 1957), as a result of the death of Gale Wayne Stahl in an automobile accident on February 25, 1978, in Marion County. The deceased was riding in an automobile with appellant when it left the highway and crashed. A jury trial in the Marion Circuit Court resulted in appellant’s conviction on both charges. The jury fixed punishment on the manslaughter conviction at 5 years and 30 days for failure to stop and render aid. The court suspended two-and-a-half years of the felony conviction and further provided the misdemeanor conviction would run concurrently with the other sentence. Appellant appeals from both convictions.

Four grounds for reversal are alleged on appeal.

I.

THE CIRCUIT COURT ERRED IN FAILING TO GRANT APPELLANT’S MOTION FOR CHANGE OF VENUE.

Appellant bases his motion for a change of venue upon Ark. Stat. Ann. § 43-1501 (Repl. 1977) which reads as follows:

Any criminal cause pending in any circuit court may be removed by the order of such court, or by the judge thereof in vacation, to the circuit court of another county, whenever it shall appear, in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein.

The burden of proof is upon the appellant on a motion to change the venue. Maxwell v. State, 236 Ark. 694, 370 S.W. 2d 113 (1963). The decision of the trial court will be upheld unless it is shown there was an abuse of discretion in denying the motion. Wood v. State, 248 Ark. 109, 450 S.W. 2d 537 (1970).

The trial court conducted a hearing on appellant’s motion for a change of venue and denied it. Two affidavits were offered in support of the motion and the affiants testified personally before the court. They testified that in their opinion appellant could not receive a fair trial in Marion County. Evidence of a pending wet-dry election was presented with the allegation that the public was aroused about the use of intoxicating beverages and since the evidence would show appellant had been drinking the wet-dry issue would prevent the appellant from receiving a fair and impartial trial. On the other hand, the state introduced six affidavits that the appellant would, in their opinion, receive a fair trial. These affiants did not appear to testify in person at the hearing. Appellant contends more weight should be given his witnesses because they appeared in person.

It was not necessary for the affiants to appear and testify at the hearing. DuBois v. State, 258 Ark. 459, 527 S.W. 2d 595 (1975). If every accused who moved for a change of venue were granted his request because he offered affidavits and testimony to support the motion, few cases would be held in the county where the alleged criminal act occurred. No doubt every accused could muster some support for a change of venue. A change of venue should be granted only when it is clearly shown that a fair trial is likely not to be had in the county. For these reasons such matters are left to the sound discretion of the trial court who is in a much better position to evaluate the situation than we are. We have carefully examined the record and are unable to say the trial court abused its discretion in this case.

II.

THE STATEMENT GIVEN BY THE APPELLANT TO THE STATE TROOPER IN THE EARLY MORNING HOURS FOLLOWING THE ACCIDENT SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.

The supreme court is required to make an independent examination regarding the voluntariness of a confession when it is questioned. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974); Davis v. North Carolina, 384 U.S. 737 (1966). The trial court conducted the required hearing and determined the inculpatory statement was voluntary. Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968); Payne v. State, 231 Ark. 727, 332 S.W. 2d 233 (1960). The supreme court’s decision must be based upon the totality of the circumstances. Degler, supra. The Denno hearing was held on April 21, 1978, and the trial was held on June 20, 1978. Apparently this is the reason appellant did not abstract the separate hearing. However, the appellee has supplemented this portion of the record and it reveals the court heard the testimony of officers Harvey George, Herbert Hinsley and George Mann, as well as witnesses for appellant. Without setting out the details of this testimony, we find that the state met its burden of proof on voluntariness. The evidence included a waiver of rights form signed by appellant. We cannot say the finding of the court was clearly erroneous and therefore find no error.

III.

THE VERDICT OF THE JURY BELOW IS NOT SUPPORTED BY ANY SUBSTANTIAL EVIDENCE AND THEREFORE MUST BE REVERSED

Ark. Stat. Ann. § 41-1504 (Repl. 1977) states a person commits manslaughter if he recklessly causes the death of another person. “Recklessly” is defined in Ark. Stat. Ann. § 41-203(3) (Repl. 1977) as follows:

(3) “Recklessly.” A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

Ark. Stat. Ann. § 75-901 (Repl. 1957) provides:

(a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 38 (§ 75-903). Every such stop shall be made without obstructing traffic more than is necessary.
(b) Any person failing to stop or to comply with said requirements under such circumstances shall upon conviction be punished by imprisonment for not less than 30 days nor more than 1 year or by fine of not less than $100 nor more than $5,000, or by both such fine and imprisonment.

The evidence presented at the trial was to the effect that appellant was so intoxicated that his friends called Wayne Stahl to drive appellant home because they thought appellant was unable to drive. It was testified that appellant and two others consumed a case of beer between 8:00 a.m. and 4:00 p.m. on the date of the accident and further that appellant helped several others drink another case or two of beer and some wine after 5:30 p.m. on the same day. One witness testified appellant drank two six-packs of beer that night and was fairly intoxicated. Others testified he was unable to walk straight before he was sent home. Two witnesses testified appellant drove the fatal vehicle away with Stahl as a passenger shortly before the accident. One witness testified she heard a noise near her house about 8:30 p.m. on the date of the accident and went outside and discovered her mailbox had been knocked down. Witnesses testified appellant left the Walters’ mobile home about 8:30 p.m. The mailbox which had been knocked down was about a quarter-mile from the Walters’ place. About 11:30 p.m. the wrecked automobile and the body of Stahl were found in the yard of the house where the mailbox had been knocked down. Appellant had not reported the accident although the accident occurred within a few feet of the home of one of the witnesses who had heard the crash about 8:30 p.m. !t was testified appellant went to the house of Ron Mintzel about 9:30 p.m. and told Mintzel he had “flipped” his car. Mintzel further testified appellant was staggering and could hardly walk and he could smell alcohol on his breath.

Viewing the evidence most favorably on behalf of appellee, we must state that the evidence was sufficient to support the verdict and judgment.

IV.

THE MOTION BY THE APPELLANT FOR NEW TRIAL IN THE CIRCUIT COURT BELOW SHOULD HAVE BEEN GRANTED. IN REFUSING NEW TRIAL, THE CIRCUIT COURT ABUSED ITS DISCRETION, AND THIS COURT SHOULD THEREFORE REVERSE THE CONVICTION OF THE APPELLANT.

Appellant contends a new trial should have been granted on grounds (6) and (7) of Ark. Stat. Ann. § 43-2203 (Repl. 1977). The newly discovered evidence was that one of the witnesses allegedly gave perjured testimony at the trial. Also, an affidavit by appellant’s trial attorney stated the perjured testimony of the state’s witness was not discovered until after the trial and that it was not possible to discover it until the trial was over.

The court conducted a hearing and took testimony on the motion for a new trial. The state’s witness who allegedly gave false testimony at the trial was called to testify at the hearing on the motion for a new trial. Other witnesses also testified at this time. All of this testimony related to the defective condition of the brakes or steering on the automobile involved in the fatality. After hearing all the evidence the court denied the motion for a new trial. No evidence was presented which tended to show the accident was caused by defective brakes or steering.

A new trial is left to the sound discretion of the trial court when newly discovered evidence is argued. Treat v. State, 253 Ark. 367, 486 S.W. 2d 16 (1972). Newly discovered evidence is one of the least favored grounds for a new trial. Williams v. State, 252 Ark. 1289, 482 S.W. 2d 810 (1972). The trial court gave appellant every opportunity he requested to present evidence and offer testimony. The trial court heard the witness, and others, at the trial and at the motion for a new trial, and was of the opinion a new trial was not required under the circumstances. Had there been any evidence that the brakes and/or steering contributed to the cause of the accident, which occurred on a straight stretch of the road, appellant’s argument would have been more persuasive. However, we do not find the trial court abused its discretion in denying a new trial.

After a review of all four points advanced for reversal and examining the entire record, we are unable to find any reversible error. Therefore, the verdict and judgment are affirmed.

Affirmed.

Harris, C.J., concurs in result.


text:
    ARKADELPHIA FEDERAL SAVINGS & LOAN ASSOCIATION and ARKANSAS SAVINGS & LOAN ASSOCIATION BOARD v. MID-SOUTH SAVINGS & LOAN ASSOCIATION
    78-126
    581 S.W. 2d 345
    Opinion delivered May 29, 1979
    (In Banc)

      Lookadoo, Gooch & Ashby, by: James T. Gooch; Friday, Eldredge & Clark, by: Hermann Ivesler; and Roger Giles, for appellants.

      Crouch, Blair, Cypert & Wallers, by: James B. Blair and William M. Clark, Jr., for appellee.
   Herman L. Hamilton, Jr., Special Justice.

Appellants, Arkadelphia Federal Savings & Loan Association and Arkansas Savings & Loan Association Board, appeal from the Clark Circuit Court order directing issuance of a charter to Mid-South Savings & Loan Association for a new savings and loan in Arkadelphia, Arkansas. The Circuit Court reversed the Arkansas Savings & Loan Association Board decision denying the application, in its decision the Board stated:

“There is not a public need for the proposed association and the volume of business in the area in which the proposed association would conduct its business is not such as to indicate a successful operation.”

The Board also stated in its decision 45 underlying findings of fact as it viewed the record, and which it found to support denial of the application.

Appellee, Mid-South Savings & Loan Association, had applied for a charter to establish a state savings and loan association in Arkadelphia. Appellant, Arkadelphia Federal had opposed the charter. The voluminous record of proceedings included economic reports, population growth charts, depositions of numerous witnesses for the applicant and for Arkadelphia Federal and proof presented at the Board hearing. Testimony was also presented at the Board hearing by a number of witnesses.

In reviewing an application for charter as in this case, the Arkansas Savings & Loan Association Board is required by Ark. Stat. Ann. § 67-1824 (Supp. 1977) to make certain enumerated findings before approving the application. Among those required findings are, “There is a public need for the proposed association and the volume of business in the area in which the proposed association will conduct its business is such as to indicate a successful operation”. Ark. Stat. Ann. § 67-1824 (3), supra. Additional affirmative findings are required, and the statute provides “The Board shall not approve any charter unless the incorporators establish and the board shall have affirmatively found . ...” all those elements to exist. Thus, the Board’s failure to make any of the required affirmative findings prohibits its approval of a charter. The Board expressly found that there was not a public need in the proposed service area and denied the charter as required by Ark. Stat. Ann. § 67-1824 (3), supra. Having found against the existence of one of the required elements of the statute, the charter could not be granted.

In reviewing the actions of the Board, in approving or denying a charter, we adopted the “substantial evidence rule”, reviewing the record as a whole, as set forth in Universal Camera Corp. v. National L.R. Bd., 340 U.S. 474, 71 S. Ct. 456 (1950). See Ark. Savings & Loan Board et al v. Central Arkansas Savings & Loan Assn., 260 Ark. 58, 538 S.W. 2d 505 (1976); While County Guaranty Savings & Loan Assn. et al v. Farmers & Merchants Bank of Des Arc, 262 Ark. 894, 562 S.W. 2d 582 (1978).

In reviewing this record, the Circuit Court correctly stated the rule that the reviewing Court cannot substitute its judgment for that of the Board and must affirm the Board unless it finds no substantial evidence to support the Board. See Ark. Savings & Loan Board v. Sutherland, 256 Ark. 445, 508 S.W. 2d 326 (1974); Northwest Savings and Loan Assn. et al v. Fayetteville Savings & Loan Assn. et al, 262 Ark. 840, 562 S.W. 2d 49 (1978).

We recently applied the substantial evidence rule in reviewing Board action relating to an application for a branch office for an existing savings institution. Independence Savings & Loan Assn. v. Citizens Federal Savings & Loan Assn. et al, 265 Ark. 203, 577 S.W. 2d 390 (1979).

A review of the record in this case indicates that there was substantial evidence to support the decision of the Board, though we might have reached a different result. It would serve no useful purpose to review all of the evidence in this record, however, some of the factors which the Board could have considered as substantial evidence against granting this charter, reflected in the record, were as follows:

(a) That Mid-South was not representative of the black community, having no black officers or directors and a minimum of black depositors and deposits pledged;

(b) That Arkadelphia Federal was operating for a number of years on a slim profit margin and that its profit picture on that margin only resulted from the substantial size of its overall operations;

(c) That evidence of substandard housing in the proposed service area was not proof of Arkadelphia Federal’s failure to meet the public need;

(d) That interest rates paid by Arkadelphia Federal to depositors and interest rates charged by Arkadelphia Federal to borrowers did not materially differ from other institutions of comparable size;

(e) That the population growth in Clark County and the proposed service area was not up to the State average and did not indicate substantial future growth;

(f) That banking and savings institutions in the proposed service area had a surplus of savings deposits over the long term real estate loan requirements.

We also note that the credibility and weight to be accorded to the witnesses is also the prerogative of the Board and not that of the reviewing Court.

We are, therefore, unable to hold that the Board’s decision was not supported by substantial evidence in the record. The question of whether the Board’s action was arbitrary and capricious is a narrow one, more restrictive than the “substantial evidence” test, and is only applicable where the Board decision is not supported on any rational basis. To set aside a Board decision on that basis, it must be wilful and unreasoning and in disregard of the facts and circumstances of the case. White County Guaranty Savings & Loan Assn. et al v. Farmers & Merchants Bank of Des Arc, supra; Independence Savings & Loan Assn. v. Citizens Federal Savings & Loan Assn., supra. In view of the fact that the Board decision in this instance was supported by substantial evidence, we need not address that issue further.

The Circuit Court judgment is therefore REVERSED.

Hickman, J., not participating.


author: George Rose Smith, Justice.

text:
    Don FINK v. STATE of Arkansas
    CR 79-37
    582 S.W. 2d 3
    Opinion delivered June 4, 1979
    (Division I)
    [Rehearing denied July 9, 1979.]

      James E. Davis, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The Criminal Code definition of rape includes deviate sexual activity, which encompasses the penetration of the anus of one person by the penis of another. Ark. Stat. Ann. §§ 41-1801 (1) and 41-1803 (Repl. 1977). In this prosecution of the appellant for the crime of rape the State’s proof showed that he had engaged for some months in such deviate sexual activity with his son and daughter, aged 13 and 11 at the time of trial. The jury returned a verdict of guilty and sentenced the appellant to life imprisonment.

The only argument for reversal is that the State failed to prove the required element of forcible compulsion, which is defined to include physical force or an express or implied threat of physical injury. § 41-1801 (2). Physical injury means the impairment of physical condition or the infliction of substantial pain. § 41-115 (14).

Here one or both of the children testified that the conduct occurred a number of times, that they did not want to engage in it, that they were afraid of their father, that he would threaten to whip them with a belt, and that if they didn’t “mess around” with him he would give them a whipping. A physician testified that the rectum of each child was stretched and inflamed and that in his opinion the conditions had been caused by the insertion of an adult penis many times. Thus there was an abundance of substantial evidence from which the jury could conclude that the accused had achieved his purpose by forcible compulsion.

Affirmed.

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


text:
    Jeff Edward HIGNITE v. STATE of Arkansas
    CR 79-41
    581 S.W. 2d 552
    Opinion delivered June 4, 1979
    (Division I)

      W. R. Riddell, for appellant.

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

Hignite was convicted of rape and was sentenced to imprisonment for 22 years. His three points for reversal all relate to the voluntariness of his statements to the investigating officers.

At a Denno hearing outside the presence of the jury three officers testified. Their testimony was to the effect that Hignite’s Miranda rights were explained to him, that he appeared to understand the explanations, and that no force or threats were used during the interrogation. There was also a written statement by a State Hospital psychiatrist to the effect that Hignite had been examined and found to be without psychosis, to have mild mental retardation, and to have the mental capacity to understand the proceedings against him and to assist effectively in his own defense. On the other hand Dr. Tuft, a psychologist testifying for the accused, was of the opinion that Hignite could understand the proceedings against him, but owing to his mental retardation did not have the capacity to understand his Miranda rights to the extent of being able to protect his own interest (as by refusing to make a statement or by requesting the assistance of counsel).

At the end of the Denno hearing the trial judge found the accused’s statements to the officers to have been voluntary. When trial before the jury was resumed, there was additional testimony that might have a bearing upon whether the statements were voluntary. Hignite himself testified that in school he had been moved along up to the seventh grade, but he actually made all F’s and never passed any grade. He said he can read only words of two or three letters. He said that he did not understand his rights when the officers explained them, adding “I do know what it means now.” The State, in rebuttal, called a State Hospital psychiatrist, who testified that despite Hignite’s mild mental retardation he could understand his rights and assist his counsel.

First, it is argued that in reviewing the trial judge’s Denno determination that the statements were voluntary we should not consider the rebuttal testimony of the State psychiatrist, because it was not introduced at the Denno hearing. We have held, however, that in reviewing the voluntariness of a statement or confession we make an independent determination based upon our consideration of “the entire record. ” Tucker v. State, 261 Ark. 505, 549 S.W. 2d 285 (1977); Watson v. State, 255 Ark. 631, 501 S.W. 2d 609 (1973). That rule is sound. At the Denno hearing the State’s burden is to make a prima facie showing that the statements were voluntarily made, but the whole case need not be tried in chambers, even though other testimony may also be relevant to the question of voluntariness. See Kagebein v. State, 254 Ark. 904, 496 S.W. 2d 534 (1973). On appeal, however, we review the entire record. If we then find, for example, that later testimony before the jury shows that the statements were not voluntary, and the point was properly raised below, we rule them to be inadmissible, even though the trial judge found to the contrary at the Denno hearing. On the other hand, if the later testimony shows beyond question that the statements were voluntary, any error in the trial judge’s original ruling would not be prejudicial; so we would not order a new trial, since the confession heard by the jury was actually admissible.

The appellant’s second and third arguments are that the statements made by him should be held to be involuntary both upon the record made at the Demo hearing and upon the entire record in the case. We do not agree with either contention. At the Demo hearing the court had before it the written findings made at the State Hospital and the testimony of three officers, who explained that the statements were voluntarily made. We cannot say that Dr. Tuft’s opinion outweighs the proof introduced by the State; so the trial judge’s finding tha the statements were admissible is not clearly against the preponderance of the evidence. We reach the same conclusion in reviewing the entire record, because much of the substance of Hignite’s own testimony had already been given in Dr. Tuft’s testimony.

Affirmed.

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


author: John A. Fogleman, Justice.

text:
    Jimmy D. BAUGHMAN v. STATE of Arkansas
    CR 79-1
    582 S.W. 2d 4
    Opinion delivered June 4, 1979
    (Division II)
    [Rehearing denied July 9, 1979.]

      Jeff Duty, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

As a result of a search of his motel room on April 24, 1978, Jimmy D. Baughman was charged with possession of LSD, a schedule I controlled substance [Ark. Stat. Ann. § 82-2605 (Repl. 1976)] and possession of marijuana, a schedule VI controlled substance [Ark. Stat. Ann. § 82-2614 (Repl. 1976)], both in violation of Ark. Stat. Ann. § 82-2617 (Repl. 1976). Appellant was found guilty in a jury trial held on September 18, 1978, fined S250 on the misdemeanor charge and sentenced to five years (three of which were suspended) on the felony on October 6,1978. We find no error in respect to either of appellant’s two points for reversal and therefore affirm the judgment.

Appellant first contends that the prosecution did not establish a sufficient chain of custody to allow introduction of the state’s exhibits numbers 2, 3 and 4, which are, respectively, a piece of blotter paper containing LSD, a plastic prescription bottle and a plastic film can, both containing marijuana. The LSD was found in the appellant’s wallet and one of the containers of marijuana was found on a nightstand in the room while the remainder of the marijuana was found in a jacket in the room. Detective Robert Post of the Harrison Police Department testified that he participated in the search of the appellant’s motel room and that the evidence was turned over to him as evidence custodian. Post placed each item in a plastic envelope and attached an evidence marker to each of the three envelopes. This marker tape contained the initials of both Post and Detective Hamilton, another member of the Harrison Police Department, and the date the items were seized, April 24, 1978. Each item was given a number by Post, the blotter paper being /E6, the prescription bottle being #E2 and the film can being #E3. Post placed the three items in the “evidence locker,” a locked room at police headquarters, where they remained until April 27, 1978, when he personally delivered the evidence to James Speeker, who at that time was employed as a chemist by the Arkansas State Crime Laboratory.

Speeker testified that he received the samples from Post and completed his analysis on the same day. After analysis, Speeker placed the items in an envelope which he secured with a seal bearing his signature. The envelope was then placed in a locked evidence room, to which only the chemists employed by the State Crime Laboratory have access, and remained there until the items were removed for introduction at appellant’s trial. A certified copy of a “Record of Drug Analysis,” signed by Speeker, was also introduced into evidence. It verified the circumstances related by Post and Speeker concerning the marking of the items and the date and method of delivery of the items to Speeker. This document indicated that LSD and marijuana were found in the sample.

The main thrust of the appellant’s argument relating to the chain of custody is based on the fact that James Speeker was not employed by the State Crime Laboratory at the time he testified at the appellant’s trial. Speeker’s testimony revealed that he had terminated his employment with the State Crime Laboratory in May or June of 1978, three to four months before appellant’s trial. Appellant is apparently contending that the fact that Speeker was not employed by the State Crime Laboratory during the entire interval between the analyses of the samples and the appellant’s trial in and of itself makes the chain of custody inadequate to allow introduction of the evidence. In establishing a chain of custody prior to the introduction of evidence at trial, it is not necessary to eliminate every conceivable possibility that the evidence has been tampered with; it is only necessary that the trial judge be satisfied that the evidence is genuine and, in reasonable probability, has not been tampered with. See Munnerlyn v. State, 264 Ark. 928, 576 S.W. 2d 714 (1979), and cases cited therein.

Speeker testified that the evidence was sealed in an envelope as soon as the analysis was complete. The envelope was then placed under lock and key, where it remained until the appellant’s trial. Only chemists employed by the State Crime Laboratory had access to the area where the envelope was kept and the seal Speeker placed on the envelope was intact at the time the evidence was offered for introduction at the trial. Speeker estimated that, in the seven to eight months he had been employed by the crime lab prior to April 27, 1978, he had conducted tests on about five hundred samples submitted by various law enforcement agencies. It would be unreasonable to require each chemist to maintain exclusive possession of, and control over, each and every sample he or she has analyzed, until its introduction into evidence or its return to the submitting agency. Under the procedure adopted by the State Crime Laboratory, all of the tested samples are placed in a storage room, with access restricted to the chemists who are employed there. The prospective evidence remains in this locked area until the chemist who tested it retrieves it for final disposition. Under such a system, we are not persuaded by the argument that the termination of the employment of the examining chemist necessarily increases the possibility that a particular sample has been tampered with. The sample would be accessible to the same people regardless of the employment status of the chemist who performed the analysis. The termination of the employment of Speeker did not destroy the chain of evidence in this case and the trial judge did not err in allowing state’s exhibits numbers 2, 3, and 4 to be introduced into evidence.

Appellant also contends that it was error for the trial judge to give the state’s requested instruction number three, over the appellant’s objection. The instruction read as follows: *

Voluntary or self-induced intoxication is no defense to the commission of a crime.
Self-induced intoxication means intoxication caused by a substance which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know.

This instruction was apparently requested in response to the issue of voluntary intoxication repeatedly raised by the appellant’s attorney, not only by cross-examination of the officers who participated in the search of the appellant’s motel room, but by examination of appellant when he testified.

Through appellant’s testimony it was shown that he had spent the day at Lead Hill Lake and had taken a supply of beer and whiskey. Appellant said that he had “passed out” when the officers came to his room, and that he did not remember very much until he awakened the next morning. When asked about his knowledge of the white blotter paper in his billfold, Baughman said that he was drunk and didn’t know how it got there and that, because of his drunken condition, he wouldn’t have remembered seeing the “roach clip,” hemostat and scissors picked up by the officers, if he had actually seen them. Each of the officers testified, on cross-examination, that Baughman was drunk, “passed out,” or comatose when they entered his room. One of them admitted that, from appearances, there had been a real drinking party in the room.

After such deliberate accentuation of the appellant’s intoxication, it is now argued that it was error to give the instruction because intent was not an element of the possession charges and that to so instruct the jury foreclosed the jury’s consideration of the possibility that the appellant was in fact so intoxicated that he was not aware that someone placed the blotter paper in his wallet and the film canister in his room. (Appellant admitted possession of the prescription bottle containing marijuana, but denied possession of the other two items.) This instruction appears to have been a proper statement of the law relating to voluntary intoxication. See Varnedare v. State, 264 Ark. 596, 573 S.W. 2d 57 (1978). Appellant does not contend that it was not. We cannot agree that it had the effect appellant contends it had. Rather, the effect of an instruction such as the state’s requested instruction number three was to inform the jury that the appellant was not relieved of criminal responsibility for the possession of controlled substances simply because he was intoxicated at the time the contraband was found in his possession, and it was appropriate in view of the proper trial tactics of appellant’s attorney. The jury was free to find, in light of the other instructions given by the trial judge, that the appellant was not in possession of the controlled substances and was, because of his intoxication, unaware of the presence of the substances. If the jury should have been instructed further on the subject, it was incumbent upon appellant to request an appropriate instruction. Murphy v. State, 248 Ark. 794, 454 S.W. 2d 302.

Additionally, it appears from the record that the appellant’s attorney did not object to the state’s requested instruction number three until after all of the instructions had been given and the jury had been charged, and even then, only made a general objection, not specifying the reasons for his objection. An objection to an instruction must specify the grounds for the objection and afford the trial judge an opportunity to properly instruct the jury, and a general objection will not suffice, even if the instruction is inherently erroneous. Rule 13, Uniform Rules for Circuit and Chancery Courts, Ark. Stat. Ann. Vol. 3A (Supp. 1977), 251 Ark. 1117; Cassidy v. State, 254 Ark. 814, 496 S.W. 2d 376; Rogers v. State, 258 Ark. 314, 524 S.W. 2d 227, cert. den. 423 U.S. 995, 96 S. Ct. 423, 46 L. Ed. 2d 369 (1975).

The judgment is affirmed.

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


text:
    Paul RUIZ and Earl VAN DENTON v. STATE of Arkansas
    CR 78-193
    582 S.W. 2d 915
    Opinion delivered June 4, 1979
    (In Banc)

      Don Langston and Robert S. Blatt, for appellants.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

On November 18, 1977, the appellants, Paul Ruiz and Earl Van Denton, were charged by information with the offense of capital murder of Marvin Ritchie and Opal James and that they also robbed and kidnapped the victims. The trial commenced on April 17, 1978, and after four days of voir dire examination 13 jurors were selected. The trial lasted until April 27, 1978, at which time the jury found the appellants guilty of capital murder and sentenced them to death by electrocution.

Appellants had moved for a change of venue prior to the trial, alleging that pretrial publicity and ill feelings toward them made it impossible for them to receive a fair and impartial trial in Logan County. A two-day hearing was held on this motion after which it was overruled by the trial court. The motion for change of venue was renewed several times up through the actual trial of the case.

Appellants argue 16 points for reversal. Many of the points are rather long and will be condensed to state the essential error claimed in each point. The points are:

I.

THE TRIAL COURT ERRED IN DENYING A CHANGE OF VENUE.

II.

THE TRIAL COURT ERRED IN DENYING A MOTION TO QUASH A SUBPOENA DUCES TECUM FOR THE ASSOCIATED PRESS.

III.

THE COURT ERRED IN OVERRULING APPELLANTS’ OBJECTION TO JURORS FOR CAUSE.

IV.

THE COURT ERRED IN EXCUSING A JUROR WHO OPPOSED THE DEATH PENALTY.

V.

THE COURT ERRED IN REFUSING TO REDUCE THE CHARGE.

VI.

THE COURT ERRED IN NOT HOLDING THE DEATH PENALTY, BY ELECTROCUTION, AS CRUEL AND UNUSUAL PUNISHMENT.

VII.

THE COURT ERRED IN REFUSING TO ORDER PAYMENT OF FEES AND EXPENSES OF EXPERT WITNESSES FOR APPELLANTS.

VIII.

THE COURT ERRED IN ADMITTING CERTAIN EXHIBITS INTO EVIDENCE.

IX.

THE COURT ERRED IN FAILING TO DIRECT A VERDICT FOR THE APPELLANTS.

X.

THE COURT ERRED IN OVERRULING APPELLANTS’ OBJECTION TO INSTRUCTION NO. 7A.

XI.

THE COURT ERRED IN OVERRULING APPELLANTS’ OBJECTION TO INSTRUCTION NOS. 8 AND 9.

XII.

THE COURT ERRED IN OVERRULING APPELLANTS’ OBJECTION TO INSTRUCTION NO. 10.

XIII.

THE COURT ERRED IN OVERRULING APPELLANTS’ OBJECTION TO THE STATE’S CLOSING ARGUMENT DURING THE PENALTY PHASE OF THE TRIAL.

XIV.

THE COURT ERRED IN REFUSING TO GIVE APPELLANTS’ OFFERED INSTRUCTION NO. 1.

XV.

THE COURT ERRED IN OVERRULING APPELLANTS’ OBJECTION TO THE INSTRUCTION WHICH PERMITTED THE JURY TO FIND THE APPELLANTS COMMITTED THE CAPITAL MURDER FOR PECUNIARY GAIN.

XVI.

THE COURT ERRED IN REFUSING TO GIVE APPELLANTS’ REQUESTED INSTRUCTION ON MITIGATING CIRCUMSTANCES.

Each of appellants’ contentions will be taken up separately although more than one may be considered during a particular phase of this opinion.

I.

The United States has survived as a nation through the centuries primarily because it is a nation of laws. From the beginning we have recognized that in order to maintain law and order we must be guided by principles of law which are expressly stated. The First Amendment to the Constitution of the United States requires that Congress shall make no laws prohibiting the exercise of free speech and free press. The Sixth Amendment requires that in all criminal prosecutions the accused shall have the right to an “impartial” jury trial. The Fourteenth Amendment to the United States Constitution states:

. . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Art. 2, § 6, of the Constitution of Arkansas states that the liberty of the press shall forever remain inviolate and that the free communication of thoughts and opinion is one of the individual rights of man and further that all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse of such right. Art. 2, § 8, provides that no person shall be deprived of life, liberty, or property, without due process of law. Art. 2, § 10, states:

In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed; provided that the venue may be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, in such manner as now is, or may be, prescribed by law; . . .

In order that these principles may be maintained as intended from their inception it is necessary that the application of these provisions, and the laws pursuant thereto, be pursued in a manner which shows no partiality to any person regardless of the nature of the offense or his station in life. It is not within the province of this Court to decide whether there should be exceptions to the constitutional requirements set out above. Therefore, regardless of the appearance of the guilt or innocence of an accused, we must abide by the spirit and intent of these principles of law. Neither this Court nor any other court is permitted to abridge the guarantees set out in the constitution to the citizens of the State of Arkansas and the United States. Even in an unpopular situation we must adhere strictly to the constitution and laws and not pay mere lip service to these guiding and controlling principles. It is our duty and responsibility to the people of this state and nation to apply the laws with an even hand and see to it that the rights of all citizens are fully protected. We cannot give way to expediency in order to achieve what we perceive as justice if in the process we deprive any individual of his guaranteed rights. With this understanding we will continue the examination of the trial record in this case to see whether or not the appellants have been deprived of any rights guaranteed to them by the Constitution, or laws, of the State of Arkansas or the United States.

A hearing was held on November 17 and 18,1977, on the motion for a change of venue. The following evidence was presented:

1. Affidavits of 7 citizens of Logan County stating the appellants could not receive a fair trial in the county.
2. Testimony of these same witnesses to the same effect.
3. Hundreds of newspaper articles concerning the case printed in the Southwest Times Record, Arkansas Gazette, A Kansas Democrat and the Booneville Democrat. All of these publications had extensive circulation in Logan County.
4. News reel coverages from KFSM-TV and KFPWTV, Fort Smith, KARK-TV, KTHV and KATV, Little Rock, plus many written scripts of telecast.
5. Radio logs showing coverage by KCCL, Paris, KARV, Russellville, KWHN, KFPW, KTCS, KFSA, Fort Smith.
6. November, 1977, issue of Inside Detective Magazine.
7. Testimony of 10 witnesses for the state who stated that in their opinion the appellants could receive a fair trial in Logan County.

Perhaps no episode in the history of Arkansas received more publicity than the one involved in this case. The Associated Press released between 250 and 300 stories which went out to more than 100 newspapers. Practically all of the media stories included information that the appellants were escapees from the Oklahoma State Penitentiary at McAlester; that they were suspected of killing two people in Louisiana; that they had probably killed a taxi driver in Oklahoma; and that they were captured in Portland, Oregon. No person testified either at the change of venue hearing or during the jury selection that he had no knowledge concerning at least part of the alleged crimes attributed to the appellants. With one possible exception, no one had heard anyone state he believed the appellants were not guilty. As will be shown later, all of the jury panel was aware of most of this information. Much of the evidence received at the motion for a change of venue was in the form of news stories, some of which covered the entire front page of a paper, and were of an inflammatory nature. The various articles described the alleged escape, homicide, man hunt, apprehension, and even showed that the appellants were originally in the Oklahoma penitentiary after one being convicted of robbery and the other of murder.

The problem presented here is that of the right to a fair trial and the freedom of the press. Both are guaranteed by the Constitution of the United States and the State of Arkansas. The press has obviously rendered an invaluable service to the community, the state, and the nation in alerting the public to the situation which existed at the time. It is not inconceivable that the media may have in fact aided in the apprehension of the appellants. Certainly the court could not if it so desired, which it does not, curb the privilege of the free press. We are then left with the proposition of whether we can protect the right of a fair and impartial trial guaranteed to appellants by the constitutions. It is necessary for us to examine other cases which have dealt with this situation. The United States Supreme Court held in Irvin v. Dowd, 366 U.S. 717 (1961), that in some cases publicity may be so widespread that courts can presume actual malice. The court also dealt with this situation in Bloeth v. Denno, 313 F. 2d 364, cert. denied 372 U.S. 978 (1963). There it was held that the issue of a jury’s impartiality must be determined from a review of the entire voir dire and must include the extent and nature of publicity covering the crime. In Denno it was held that the jury could not honestly be found to be impartial in spite of the fact that the jurors gave assurance of impartiality. The decision went on to say that the failure to provide an unbiased trier of facts in the criminal prosecution constituted lack of “due process.” In the case of Shephard v. Maxwell, 384 U.S. 333 (1966), the court stated that when a high proportion of the prospective jurors believed the defendant guilty or the voir dire examination suggested a pattern of prejudice actual bias may be presumed. It was held in Murphy v. Florida, 421 U.S. 794 (1975) that among persons who had learned from the media of the defendant’s prior criminal record there was a presumption of prejudice. We believe that this Court has dealt with essentially the same situation in the case of Swindler v. State, 264 Ark. 107, 569 S.W. 2d 120 (1978). We granted the change of venue in Swindler when the matter was reviewed on appeal. There we stated:

. . . The proof showed, without contradiction, that the news media had saturated the public with the fact that appellant had been released from Leavenworth prison just a week before killing Officer Basnett and that at the time of the killing he was wanted in South Carolina for the recent murder of two teenagers. The fact that appellant had been interviewed by the South Carolina authorities was also given widespread publicity. In addition to the publicity involving the killing and subsequent funeral of Officer Basnett, the Concerned Policemen’s Wives Organization, some 45 strong, circulated petitions requesting two policemen to each patrol car. This organization wearing black arm bands collected between nine and ten thousand signatures. The people who signed the petition mentioned the policeman that was killed by appellant, and were told that the black arm band was worn in mounting and respect of the fallen officer.

On the motion for a change of venue in Swindler, supra, the trial court heard 6 witnesses state on behalf of the appellant that he could not get a fair trial and 24 witnesses for the state who stated that he could get a fair trial. In the present case we have 7 witnesses testifying that appellants could not get a fair trial in Logan County and 9 witnesses testifying that they would be able to get a fair trial. Additionally, the evidence in Swindler showed that he was an escaped convict, was thought to have committed murders in another state, and many other facts almost identical with those in the case before us. The facts are so strikingly similar between Swindler and the present case that we are unable to distinguish between them insofar as the change of venue question is concerned.

We fully recognize that the burden of proof is on the movant when a change of venue is requested and need not cite cases in support of this statement. Such a motion is directed to the sound discretion of the trial court and is not subject to reversal except for an abuse of that discretion. Rusk v. State, 238 Ark. 149, 379 S.W. 2d 29 (1964).

This judicial district is composed of three counties. The site of the trial could have been changed to any courthouse in the district and would have been more distant from the actual scene of the crime and the center of the publicity and the resentment which naturally built around this case than the site where the trial was held. Therefore, we are of the opinion that the appellants would have been more likely to have received a more fair and impartial trial had the change of venue been granted. We recognize the trial court did the best possible job that could have been done under the circumstances before him. However, the patience of Job, or the wisdom of Solomon, would have not been sufficient to erase the predetermined facts and opinions of these people who included friends or acquaintances of one or both of the murdered men.

Therefore, we hold that in this situation the trial court abused its discretion in refusing to grant the motion for a change of venue and that it constituted prejudicial error.

II.

We see no error in the court granting the motion to quash the subpoena for the Associated Press. The evidence shows the AP issued between 250 and 300 stories. All of the news sources in circulation in Logan County were subpoenaed and responded and revealed the coverage they had given this episode. If AP released stories to other sections of the state, it would have no bearing in this case and should properly have been denied. Additionally, it was testified that it would take at least 40 hours to gather the material requested in the subpoena. This we feel is too much of a burden to place upon a witness. At any rate, it would have only been repetitious and of no real value to the court or the jury. Therefore, we do not believe the court erred in quashing the subpoena.

III.

The appellants were guaranteed the right of an impartial jury at their trial if they were entitled to full benefits of the Constitutions of Arkansas and the United States. It cannot be said that they were not entitled to these constitutional guarantees. We must now examine the record to determine, to the best of our ability, whether they did in fact receive a trial by a completely impartial jury. Unquestionably, the prospective jurors in Logan County are as intelligent and informed as any to be found at any other place in the country. However, human minds are subject to being impressed with information which cannot be completely eradicated. It is important that in this decision we consider each juror who was selected to try this case.

Juror No. 1 was informed about this episode, as he said, “Well, I had read like everybody else that they had escaped from McAlester.” He also had read accounts, viewed television, listened to radio, and talked to members of the community about these appellants having been involved in the incident of a taxi driver in Oklahoma and that they were apprehended in Oregon. He stated he had wondered about the situation and could not help but wonder if they were not guilty. He later stated that he could set aside any opinion he had formed and judge the matter on a fair and impartial basis.

Juror No. 2 expressed an opinion that she had formed from discussing the matter with friends, neighbors, and acquaintances that they had expressed an opinion that the appellants were guilty. She stated that she had not formed a definite opinion but that the appellants would have to offer proof of their innocence. She was aware that they had escaped from the Oklahoma State Penitentiary, that they were supposed to have killed two people in Louisiana, and that they were apprehended in Oregon. She eventually stated that she could lay aside any opinion she had already formed and give the appellants a fair and impartial trial.

Juror No. 3 was one of two on the entire panel who had not heard much about the case and had formed no particular opinion. She also stated she could give the appellants a fair and impartial trial. Neither side objected to this juror. Therefore, there is no question concerning her eligibility or qualifications.

Juror No. 4 thought the appellants left Arkansas and “got a cab driver in Oklahoma.” The juror thought they had been in the penitentiary at McAlester but was unaware of the Louisiana episode. Finally, the juror stated the appellants would be afforded a fair and impartial trial.

Juror No. 5 had heard and seen quite a lot concerning this case. She was aware that they had escaped from the Oklahoma prison where she understood they were serving life sentences for robbery and murder. Also, she knew they went to Louisiana and understood they killed two people before they came back to Arkansas. She thought they had killed a taxi driver in Oklahoma and stole a vehicle. She stated the appellants would have to be proven guilty or innocent and that it was up to someone to prove their innocence. Eventually, she also stated she could give a fair and impartial trial based upon the evidence presented.

Juror No. 6 was accepted by both parties without objection and will not be discussed further.

Juror No. 7 stated that some people she had talked to thought appellants did not deserve a fair trial. She also possessed the same type of information which other jurors had expressed. Again, her final statement was that she could lay aside any preconceived ideas and grant appellants a fair and impartial trial.

Juror No. 8 had been subjected to the same type of media coverage as the others. He was aware that they had escaped from the Oklahoma penitentiary, that they had abducted two fishermen in Louisiana, and that they were involved in the disappearance and death of a cab driver in Purcell, Oklahoma. He had heard a lot of people say they were guilty beyond question. He stated he could give a fair and impartial trial.

Juror No. 9 had served on a jury the previous year. Both sides attempted to waive this disqualification. At this time we should note that Ark. Stat. Ann. § 39-103 (Supp. 1977) states:

Any person who is sworn as a member of a grand or petit jury shall be ineligible to serve on another grand or petit jury in the same county for a period of two (2) years from the date such person is excused from further jury service by the Court or by operation of law.

She was also aware of the escape from Oklahoma, the Louisiana fishermen, and the Oklahoma taxi driver, who she understood was murdered. She was a Sunday school teacher and one of the victim’s daughters was a member of the Sunday school class which she taught at the time. Like the others, she stated she could disregard this information and give appellants a fair and impartial trial.

Juror No. 10 had heard that they had killed two people in Louisiana, and had previously escaped from the Oklahoma penitentiary. He was aware that they had been back in Oklahoma and that a taxi driver was killed there, allegedly by appellants. On direct examination he would definitely have required the appellants to prove their innocence. He, too, finally stated he could put all of this out of his mind and give the appellants a fair and impartial trial.

Juror No. 11 had been exposed to the same type publicity the others had revealed. He had heard people express the opinion that the appellants were guilty. He was aware that they allegedly killed the taxi driver in Oklahoma. He also would be able to give a fair and impartial trial to the appellants.

Juror No. 12 had formed an opinion at least in a slight degree. He stated he had no hard core opinion and that the state would be required to prove beyond a reasonable doubt that the appellants were guilty. He thought he was like any normal average person who had been exposed to the same information and would have some opinion, however slight. He possessed the same knowledge of other criminal incidents, including the missing fishermen in Louisiana and the killing of the taxi driver in Oklahoma. He worked at the same place with two nephews of one of the victims. The victim’s nephews had told this juror that if they were in his shoes they would try to get out of serving on this jury. The nephews had visited in the juror’s home and he had visited in the home of one of them. He eventually stated he could serve in the manner required of an impartial juror.

The original jury panel consisted of 179 names. 121 appeared at the beginning of the trial. 66 jurors actually were subjected to voir dire examination. All of them but two were challenged for cause by appellants. After the eighth juror was selected appellants had exhausted their pre-emptory challenges. Although the court excused 37 for cause during the voir dire, appellants still were forced to use 10 jurors whom they had challenged for cause but were seated over their objections. We do not mention the alternate juror because he was never used.

The discussion under appellants’ Point No. I is necessarily interwoven with this point. Therefore, the matters stated under Point No. I are equally applicable to the present case. It is true that all of the jurors who served stated they believed they could give the appellants a fair and impartial trial. Nevertheless, 10 of those 12 had been subjected to extensive media coverage and several of them had formed an opinion that the appellants were guilty or would require proof of their innocence. We realize that the jurors were being honest when they stated they thought they could give the appellants a fair and impartial trial. However, due to the deep and prolonged exposure to frontpage newspaper stories and lead stories by the radio and television, giving saturation point coverage to the other alleged crimes, it would be almost impossible for any person to completely remove these materials from his mind while serving as a juror in this case. The material presented during the hearing on the motion for a change of venue and during the voir dire examination revealed that there were wide spread beliefs in the community that the appellants were guilty before the trial actually started. There seems to be a pattern of ill feeling toward the appellants in the community and under these circumstances we believe bias or prejudice may be presumed. Although the exact question was not put, no juror stated that he was 100% sure that he could lay aside his previous impressions or opinions. This case is very much like Irvin v. Dowd, 366 U.S. 717 (1961), which held that where there was a pattern of deep and bitter prejudice shown to be present throughout the community, which was clearly reflected in the sum total of the voir dire examination of the jurors, wherein the court held that a fair trial was not had. The facts are also quite similar to those in the Denno case wherein it was held that a jury at the first degree murder prosecution did not meet standards of impartiality required by the Fourteenth Amendment where publicity was highly inflammatory, of great volume and universally accessible and entered consciences of overwhelming majority of the average talesman. Denno also held that the jurors giving assurances of fairness and impartiality was insufficient to overcome the presumption that under the circumstances the appellant could not receive a fair and impartial trial.

Considering the totality of the circumstances, including the voluminous adverse publicity and the general feeling in Logan County concerning the guilt of the appellants, we are of the opinion that the trial jury, as selected, did not meet the requirements of the Fourteenth Amendment to the Constitution of the United States nor the provisions of Art. 2, § 10, of the Constitution of Arkansas.

We have no right to disregard these basic requirements, regardless of the circumstances, and hold that the seating of this jury constituted reversible error.

IV.

We agree with the trial court in excusing this juror for cause for the reason that he stated he could not under any circumstances render the death penalty. We do not believe that Witherspoon v. Illinois, 391 U.S. 510 (1968), is controlling in this case. We think that Witherspoon would not prohibit the excusal of a venireman who stated unequivocally that he could not vote for the death penalty under any circumstances.

V.

We have held the death penalty to be constitutional as the statute is now written. Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977), and Swindler v. State, 264 Ark. 107, 569 S.W. 2d 120 (1978). Therefore, this point is not considered valid and will not be discussed further except as it appears under other points later herein.

VI.

We realize that the appellants desired the presence and testimony of a witness who would have testified that he thought that death by electrocution was cruel and unusual punishment. However, the court did allow the expert witness’s testimony, given in another case, to be introduced and considered by the court. Aside from the fact that we do not feel the state is under any obligation to bring in an expert witness, at its expense, on behalf of the appellants, we feel that the request of the appellants was essentially complied with in this case. Death in any manner may be considered cruel and unusual by some people. Certainly a death caused by disease or accident can be very cruel. The State of Arkansas, through the General Assembly, which represents the people, has elected to use the electric chair in death sentences. If a death sentence is constitutional at all, and we have held that it is, the method of enforcing the sentence must be left to the people, acting through the General Assembly. Some method must be used and the appellants have not offered one which they consider suitable. In view of our ruling on prior points, we do not deem it necessary to discuss this point further.

VII.

This matter was discussed under Point No. VI. We think the appellants have no standing to argue this point in view of the fact that their expert witness’s testimony in another case was at least partially accepted into the record by the court. We do not construe Ark. Stat. Ann. § 41-1301, et seq., (Repl. 1977), to require the state to famish such expert testimony as requested in this case. We refer to our prior situations holding the death penalty as imposed is not cruel and unusual punishment. See also Pickens v. State, 261 Ark. 756, 551 S.W. 2d 212 (1977); Neal v. State, 261 Ark. 336, 548 S.W. 2d 135 (1977); and Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977). These cases were decided subsequent to Gregg v. Georgia, 428 U.S. 153 (1976).

We do not feel the trial court erred in admitting into evidence the exhibits which were objected to by appellants. The bullet from David Small’s aim was fired into him while he lay handcuffed to Marvin Ritchie in the trunk of an automobile. It was fired about the same time that Marvin Ritchie was killed. State’s Exhibit No. 2 was a picture of the body of Marvin Ritchie in the trank of the vehicle where he was murdered. It is true that David Small had been unhand-cuffed from Ritchie’s body before the picture was made. However, that does not change the circumstances sufficiently to render the photograph inadmissible as not depicting the scene and the circumstances as they existed when discovered. This was explained to the jury and the photograph may have been some help to them in reaching a decision in this matter. It is noted that the photograph is not one which would be calculated to arouse the passion of the jury. State’s Exhibit No. 10 was a closeup picture of the bullet wound in the body of Marvin Ritchie. Again, this photograph does not appear one which would inflame the passion of the jurors any more than a statement of the fact that he had beera murdered. The location of this wound on the body of the victim, coupled with the testimony of David Small, certainly could have been of some assistance to the jury in their deliberations. Admittedly, it is of little probative value. Nevertheless, we cannot say it was prejudicial. So far as the statement of the prosecuting attorney that he was “merely getting at the truth” is concerned, We feel that any error caused by such statement was cured by the court’s instruction to the jury in telling them to disregard the remark made by the prosecuting attorney. We do not thfnk the court erred in overruling the appellants’ motions and objections concerning the testimony and exhibits relating to the death of Opal James. Although the death of James was a day later and in another county, it, nevertheless, was a part of the continuing episode in which these appellants were engaged at the time.

We do not agree that it was error for the court to admit into evidence State’s Exhibit No. 24 which was a copper jacket of a bullet found at the scene of the body of Opal James. It was testified that the jacket was fired from the same weapon which was taken from the appellants. It was apparently the same gun which fired at least some of the bullets at the time Ritchie and Small were shot. Certainly there is evidence to connect the jacket with a gun found in the possession of the appellants.

Neither do we agree that the testimony of the ballistics expert was inadmissible. The weakest part of his testimony was that he could not identify a bullet as having been fired from the pistol found in appellants’ vehicle when they were arrested. However, he did testify that it was from the same type of weapon which was found in appellants’ vehicle. We think this is corroborative of other' testimony and it was proper for the court to allow the jury to hear it. Again, it may be of little probative value but, nevertheless, it was not improper to allow it to be considered by the jury.

IX.

We fail to understand why appellants would seriously ask us to declare that the evidence in this case was insufficient to support the verdict rendered by the jury. The fact that Marvin Ritchie was killed on the morning of June 29, 1977, and that Opal James was killed 13 to 14 hours later, in Montgomery County or Scott County, does not prove that these two men were not killed in the same criminal episode. Even if we were to consider the two homicides as separate crimes, it would not change the results as each was involved in both. We must consider all of the circumstances and in so doing we cannot say that there was not evidence to show this was part of one continuing criminal episode. The fact that the victims were robbed during the time they were held captive does not prove that robbery was not the motive for the entire episode. This fact is a matter that is clearly within the domain of the jury when considering all the evidence. The information itself stated that Paul Ruiz and Earl Van Denton were charged with the premeditated and deliberated murder of Marvin Ritchie and Opal James and with the crimes of robbery and kidnapping. From the beginning the state contended this was one continuing episode. We must consider the matter in the light most favorable to the state and we hold that all of the evidence objected to was properly admitted. See Grigsby v. State, 260 Ark. 499, 542 S.W. 2d 275 (1976).

X.

Instruction No. 7A was given over the objection of appellants. The instruction is simply a standard instruction on circumstantial evidence. It is the contention of appellants that the only evidence properly admitted was direct. We disagree. Practically all of the evidence relating to the Opal James portion of this episode was circumstantial. It is obvious that both direct and circumstantial evidence were presented during the course of the trial. In the case of Murray v. State, 249 Ark. 887, 462 S.W. 2d 438 (1971), cited by appellant, we stated:

... Of course, the direct evidence from the state’s witnesses, and even of appellant himself, established that Morgan was killed during the perpetration of the robbery. In other words, it was not necessary to show that Murray actually fired the shots that killed Morgan. For that matter, we have held that the refusal to give instructions on circumstantial evidence even where the case depends wholly upon such evidence, is not error if the court has already fully and correctly instructed the jury upon the credibility of witnesses, the weight of the evidence, the presumption of innocence, and reasonable doubt. Ridenhour v. State, 184 Ark. 475, 43 S.W. 2d 60. . .

The request in Murray was for the instruction on circumstantial evidence. In the present case there is an objection to the instruction. In Covey v. State, 232 Ark. 79, 334 S.W. 2d 648 (1960), and quoted with approval in Harris v. State, 239 Ark. 771, 394 S.W. 2d 135 (1965), we stated that such instruction was correct in a situation such as we have here. Certainly both men could not have driven the vehicle at the same time and neither could both men have fired the same weapon at the same time. It does not make any difference in the final result whether they were accomplices or principals because the punishment is the same for either.

XI.

Since the effective date of the Arkansas Criminal Code in 1976, we have essentially done away with the distinction of an accomplice. Under the Code we find no essential difference in an accomplice and the principal. Each participant in a crime is liable for his own conduct but he cannot disclaim responsibility for all of the conduct in a particular episode because he did not personally take part in every act which it took to accomplish the crime.

In Andrews & Goodman v. State, 262 Ark. 190, 555 S.W. 2d 224 (1977), in discussing accomplice we stated:

. . . The word “accomplice” does not imply (as “accessory” once did) that either is subordinate to the other. It is simply a shorthand way of saying that both are responsible. That point is made clear by § 301 of the Code, which reads:
“A person may commit an offense either by his own conduct or that of another person. ” Ark. Stat. Ann. § 41-301. Thus each participant is criminally liable, ultimately, only for his own conduct, but he cannot disclaim responsibility merely because he did not personally take part in every act that went to make up the crime as a whole.

There is no distinction between principals on the one hand and accomplices on the other hand, insofar as criminal liability is concerned. Ark. Stat. Ann. § 41-301 and § 41-303 (Repl. 1977). In Parker v. State, 265 Ark. 315, 578 S.W. 2d 206 (1979), we discussed the propriety of charging one as a principal and subsequently giving an instruction on accomplice. The prosecuting attorney had informed the trial court during the voir dire that the state would request an instruction to the jury on accomplice’s liability although the information had charged the accused as a principal. In Parker we stated:

At the conclusion of all the evidence, the trial judge gave a correct instruction stating that a person is criminally liable for the conduct of another, when he is an accomplice to the other in the commission of a crime and defining an accomplice in the language of Ark. Stat. Ann. § 41-303 (Repl. 1977). This definition includes one who solicits another to commit an offense, or who aids or attempts to aid another in planning or committing it. This instruction was given over the objection of appellant on the grounds heretofore stated and on the ground that the instruction did not require that it be shown that the defendant must have received something of value before he could be found guilty as an accomplice.

Appellants attempt to distinguish between Andrews & Goodman v. State, supra, and the present case. We are unable to find such a distinction that would prevent the court from properly giving the instruction concerning an accomplice. Therefore, it was not error for the court to give Instruction Nos. 8 and 9 concerning an accomplice.

XII.

Both appellants and appellee treated this instruction under the argument in Point No. XI. We do likewise and hold it was proper to give Instruction No. 10 for the reasons stated in Andrews & Goodman v. State, supra.

XIII.

Counsel for appellants first argued to the jury the issue of what ‘life without parole’ means. In reply the prosecuting attorney stated:

Life can be commuted sometimes, and generally is. But that is not a hard and fast law. They were serving life sentences, ladies and gentlemen, at the penitentiary which is built just as good as ours is, and they sure weren’t there on the 29th, or two days later when they were busy killing off our local citizens around here. . . .

There is no question that the clemency remarks by the prosecuting attorney would have been improper had the matter not been invited by appellants. Appellants opened up this subject and we cannot say under the particular circumstances that this was reversible error in this case. We have stated that it is permissible for the state, in its concluding argument, to comment upon the matters which were discussed or invited by appellants preceding closing argument. Rooks v. State, 250 Ark. 561, 466 S.W. 2d 478 (1971). Upon retrial this situation is not likely to arise.

XIV.

This argument has been at least partially considered in prior points of this opinion. However, we will discuss it a little further at this time. Appellants’ Instruction No. 1 would have made it a fact question for the jury to determine whether the death penalty by electrocution was cruel and unusual punishment. The court properly rejected this instruction because it is not a fact issue for the jury to determine.

Appellants contend that this Court held in Collins v. State, 259 Ark. 8, 531 S.W. 2d 13 (1975), that the absence of evidence in the record about the cruel nature of electrocution prevented this Court from ruling on the matter. We do not agree with this argument. In Collins we stated:

In a related point for reversal the appellant argues that death by electrocution is unconstitutionally cruel. Counsel concedes that the Supreme Court has upheld this method of capital punishment. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); In re Kimmler, 136 U.S. 436 (1890). It is insisted, however, on the basis of books or articles having to do with capital punishment, that death by electrocution is not necessarily instantaneous and may subject the condemned person to extreme pain.
We are not convinced by this argument. As the court indicated in Kimmler, supra, the constitution prohibits punishments involving torture and other unnecessary cruelty. It is doubtless true that some pain may attend any form of execution, whether by electrocution, hanging, the gas chamber, or the firing squad. But the record contains no proof on the subject, as it did in Kimmler, and we certainly cannot take judicial notice that electrocution is needlessly cruel.

We did state that the record in Collins, supra, did not contain evidence concerning death by electrocution and the effects thereof on the person being electrocuted. However, in the present case evidence relating to the physical reaction of death by electrocution has been considered by the trial court. The court obviously ruled that this type of execution is not cruel and unusual. We agree with the ruling by the court. There is no satisfactory method of putting a person to death. No method yet devised guarantees there will be no pain or discomfort during the process of execution. Since the United States Supreme Court has ruled that death by electrocution is not prohibited by the constitution, we must hold that the trial court was correct. See Pickens v. State, supra; Neal v. State, supra; Giles v. State, supra; and Gregg v. Georgia, supra.

XV.

The aggravating circumstances presented on form A as instruction F were taken directly from the Arkansas statute. It is a proper statement of the law. The evidence in this case shows that appellants held Opal James and David Small at gunpoint and ordered them to hand over their wallets. Nothing could more clearly indicate robbery than this action. No one argues that robbery is not ordinarily committed for pecuniary gain. Appellants contend, that the robbery was committed for the purpose of keeping their location hidden. There is no reason to believe that the money or wallets would have revealed anything concerning the location of the appellants. We cannot accept the argument that the robberies were just committed for no particular reasons. It has been held that where the robbery and the murder are so closely connected in point of time, place and continuity of action, as to constitute one continuous episode, it is proper to consider them as a single transaction and that the homicide is a part of the res gestae of the robbery. Bizup v. People, 150 Col. 214, 371 Pa. 2d 786, cert. denied, 371 U.S. 873 (1962). Opal James was killed subsequent to the robbery and the jury could well have found that it was for the purpose of keeping him from telling about the robbery. We see no reversible error by giving this instruction in view of the circumstances which were presented to the jury. Grigsby v. State, supra.

XVI.

We agree with the appellants that if there was any evidence in the record to support the giving of requested mitigating instructions A, C and D that such instructions should have been given. However, it stretches one’s imagination to believe that an accused is entitled to an instruction on mental or emotional disturbance based upon their escape from the Oklahoma penitentiary or the fact that they were accused of murdering people in Louisiana and Oklahoma in addition to those for which they were being tried. This evidence, if it sheds any light at all on the subject, would indicate that there certainly was a lack of mental or emotional pressure. In fact, it shows a lack of conscience of any kind. We do not agree that the evidence justifies a mitigating instruction concerning extreme mental and emotional disturbance. We also consider the fact that appellants were given a psychiatric evaluation and determined to be without psychosis. The record does not reveal any evidence of intoxication at all concerning the period of time in which this episode occurred. The fact that beer cans were found around an area where they had stopped in Arkansas and that alcoholic beverages, and empty containers, were found in their vehicle many days later when they were apprehended in Oregon does not rise to the level of evidence at all.

As far as the third request, requested instruction D, the appellants admit that they were 27 and 29 years of age, respectively. It would stretch one’s imagination indeed to treat these appellants as youthful offenders. Appellants rely on Collins, supra, to support their claim for instruction on the youth of the appellants. Collins was 20 years old when he was convicted. We held that Collins was entitled to this instruction because of his age but stated he was entitled to very little consideration. However, we do not agree that appellants were entitled to such instruction and it, therefore, was not error to refuse to give it.

Reversed and remanded.


text:
    STEBBINS & ROBERTS, INC. v. John T. HALSEY
    79-22
    582 S.W. 2d 266
    Opinion delivered June 11, 1979
    (Division I)
    [Rehearing denied July 9, 1979.]

      Spitzberg, Mitchell & Hays, for appellant.

      Hamilton, O’Hara & Hays, P.A., by. James E. O’Hara, for appellee.
   George Rose Smith, Justice.

Ever since the decision in Lumley v. Oye, 2 El. & Bl. 216, 118 Eng. Rep. 749 (1853), the courts have recognized as a tort wrongful interference with a contractual relationship between third persons. In this case the appellee, John T. Halsey, seeks redress for that tort. His complaint alleges that he was employed by PPG Industries, Inc., and lost his job as a result of wrongful conduct by the appellant, his former employer. The verdict and judgment awarded Halsey $30,000 in damages. For reversal the appellant contends primarily that it was entitled to a directed verdict.

In the fall of 1976 PPG and the appellant Stebbins & Roberts were rival paint companies in Little Rock. Halsey-had worked as a paint salesman for the appellant for more than a year. His written contract of employment provided that if he ceased to be an employee of Stebbins & Roberts, he would not for a period of one year compete with the company by selling paint products as an employee of a competitor within any territory he had worked for Stebbins & Roberts during one year before his termination. Halsey, in working for Stebbins & Roberts, had been assigned as his “territory” a list of 165 substantial paint customers such as contractors, apartments, and factories.

Halsey decided to leave Stebbins & Roberts and go to work for PPG. On November 1 he submitted a letter of resignation, to be effective in 30 days. The company made no objection to his leaving, but preferred to accept his resignation immediately. Halsey went to work for PPG on November 2.

Within a day or so Thomas J. Bonner, the president of Stebbins & Roberts, telephoned Larry Bixler, the manager of PPG. Bonner had a law degree and had practiced law for 24 years. The jury could have found, from somewhat conflicting testimony, that Bonner told Bixler that Halsey had a contract with Stebbins & Roberts and could not legally work for PPG. Bonner did not threaten to sue PPG, but he said that he was going to have to make an example of Halsey. Another witness, who had been working at the time for Stebbins & Roberts in a management capacity, quoted Bonner as having said with reference to Halsey: “I’ll teach him and the other salesmen a lesson. I’ll sue the little bastard and I will name the company that he goes with.”

Bixler discussed the matter with his superiors. It was decided that if Halsey could not legally work for PPG in the territory he would have to be terminated. Halsey was given two weeks in which to settle the matter; but Bonner refused to release him from the Stebbins & Roberts contract, and Halsey lost his job with PPG.

The appellant, in arguing that it was entitled to a directed verdict, presents what is really a twofold contention: First, Halsey failed to prove that Bonner’s interference was wrongful; and second, Bonner, simply because the appellant had the employment contract with Halsey, was entitled to make the statements that he did in his conversation with Bixler.

Prosser’s discussion of the applicable principles of law is applicable to both the appellant’s contentions:

Given the intention to interfere with the contract, liability usually will turn upon the ultimate purpose or object which the defendant is seeking to advance. The early cases, with their emphasis upon “malice,” regarded proof of an improper motive as an essential part of the plaintiff’s cause of action. As the tort became more firmly established, there was a gradual shift of emphasis, until today it is generally agreed that an intentional interference with the existing contractual relations of another is prima facie sufficient for liability, and that the burden of proving that it is “justified” rests upon the defendant. Otherwise stated, and perhaps more accurately, the defendant may show that the interference is privileged by reason of the interests furthered by his conduct, but the burden rests upon him to do so.
* * *
Where the defendant acts to further his own advantage, other distinctions have been made. If he has a present, existing economic interest to protect, such as the ownership or condition of property, or a prior contract of his own, or a financial interest in the affairs of the person persuaded, he is privileged to prevent performance of the contract of another which threatens it.
* * *
But where his interest is merely one of prospective advantage, not yet realized, he has no such privilege. The typical case is that of business competition. The courts have held that the sanctity of the existing contract relation takes precedence over any interest in unrestricted competition, and have enforced as law the ethical precept that one competitor must keep his hands off the contracts of another. This is true of contracts of employment, where workmen are hired away from an employer, as well as competitive business dealings in general.

Prosser, Torts, § 129 (4th ed., 1971).

Thus Halsey made a prima facie case when he proved that he had a contract of employment with PPG, that the appellant intentionally interfered with that contract, and that Halsey suffered damages as a result of that interference. (That theory of liability was embodied in the court’s instructions to the jury.) The burden, as Prosser points out, then passed to Stebbins & Roberts to show that its interference was justified.

An effort might have been made by Stebbins & Roberts to rely upon the restrictive clause in Halsey’s contract as giving rise to a valid economic interest which the company was entitled to protect, but no such theory was asserted below or has been argued here. To the contrary, all the witnesses who touched upon the point said that, although there may be secrets in the manufacture of paint, there are none in the selling of it. All potential customers are known throughout the trade. The price lists of competitors are readily obtainable.

instead, Stebbins & Roberts argues that the mere existence of its contract with Halsey, despite its apparent invalidity, created a privilege that justified Bonner’s statements to PPG. The authorities cited, however, consist merely of generalizations, such as a statement that “it is not an actionable wrong for one in good faith to make plain to whomsoever he will that it is his purpose to insist upon what he believes to be his legal rights, even though he may misconceive what those rights are.” Kaplan v. Helenhart Novelty Corp,, 182 F. 2d 311 (2d Cir., 1950). But here Bonner went far beyond an academic statement of what he thought his company’s rights to be. The jury was justified in believing that he called Bixler for the express purpose of seeing that Halsey was discharged, an attitude that was confirmed by Bonner’s refusal to release Halsey from the obligation of an apparently void promise. St cannot be said that the appellant’s attempted justification for its interference with the Halsey-PPG contract was established by undisputed proof; so a directed verdict was not proper.

It is also argued that the trial court’s principal instruction was erroneous, but the only objection made was that the defendant had a right or privilege to interfere with the plaintiff’s contract. We have already discussed that point. The other defects that are now asserted were not supported by a specific objection below, as required by Rule 13 of the Uniform Rules For Circuit and Chancery Courts.

Affirmed.

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