author: Lyle Brown, Justice.

text:
    Joe Ann COX v. GULF UNION CORPORATION
    73-65
    499 S.W. 2d 63
    Opinion delivered September 24, 1973

      Acchione & King, by: Harold King, for appellant.

      Haley, Young, Bogard & Gitchel, P.A., for appellee.
   Lyle Brown, Justice.

Appellee, Gulf Union Corporation, is the record owner of a lot and improvements located at 144 1/2 Forrester Street in North Little Rock. On October 5, 1970, Gulf entered into an option to purchase agreement with Arnold Cox and Joe Ann Cox, husband and wife. Gulf instituted this suit, alleging that appellants had forfeited their option to purchase but nevertheless appellants were interfering with Gulf’s exercise of its ownership. Arnold Cox did not answer; in fact he was a mere nominal party to the contract. Joe Ann Cox resisted the complaint, alleging that she orally exercised the option and that Gulf waived the requirement of notice that she was exercising her option, that she was not delinquent in her monthly payments, and (on appeal) that the trial court erred in permitting the trial attorney for Gulf to testify.

We shall summarize the principal provisions of the written option agreement. Mrs. Cox paid $1000 and was granted possession and an exclusive option for approximately six months (to April 1, 1971) to purchase the property. During the option period she was to make monthly rental payments of $89.22 and during that period the status of landlord and tenant would exist between the parties. It was further provided that the option to purchase was conditioned on the payment of the monthly rentals and written notice by registered mail on or before April 1, 1971, to the effect that the Coxes were exercising the option. If the option was exercised as provided, optionor would convey the property to optionees and take a mortgage for $10,600, less credit for the initial $1000. The agreement stated that in case of default, the relation of landlord and tenant would exist and Gulf could demand possession of the property.

The trial court held that the Coxes failed to comply with the terms of the agreement and lost their option; that following April 1, 1971, the relation of landlord and tenant existed; that pursuant to a notice given by Gulf, the Coxes were obliged to vacate the property as of November 1, 1971; and that Gulf was from that time entitled to exclusive possession and use of the premises.

Gulf introduced the testimony of Louis Mashaw, Clay Hyde, and Attorney David Bogard. Mashaw is the “trouble-shooter” for Gulf in Arkansas and resides in Hot Springs. Gulf is headquartered in Louisiana. Ma-shaw testified that he met with the Coxes in Mr. Bogard’s office on September 28, 1970, and again on October 5; that at the first meeting the draft of the agreement was not satisfactory with the Coxes; that he took a check for $1000 but held it until another and more satisfactory agreement could be drafted and executed by the parties. Mashaw signed the October 5 agreement on behalf of Gulf. He said he took no part in receiving monthly payments.

Witness Clay Hyde, an assistant vice-president of Gulf, resides in Baton Rouge and is in charge of collections. We summarize his essential testimony. The account originated prior to the option to purchase agreement. The Coxes were at one time the owners of the property and they executed a mortgage to Gulf. Shortly after the mortgage was foreclosed the option to purchase was executed and Gulf left the mortgage account in the IBM machine and used it for entering payments made under the option to purchase. Hyde experienced difficulties with the collection of the agreed monthly rental payments which were to be made during the period of the option. The first payment was due November 1, 1970, and a check was sent dated November 20; the check was not paid because of insufficient funds. The check was eventually honored. During the ensuing period Gulf experienced similar difficulties in getting checks honored. During the months following, Mrs. Cox continued to make monthly payments on a belated basis. By September 1971, she was three months in arrears. Then in early October, Gulf received three payments and they were applied to the July, August and September payments. Those payments made her current through September. Just before she mailed the three payments Mrs. Cox had been sent a letter by Gulf’s attorney which instructed her to vacate the premises. That letter was dated September 29, 1971. Later, in October, Gulf received two money orders representing three payments. Those money orders were returned to Mrs. Cox. One more payment was received by Gulf and it was likewise refused. At no time prior to, or after, April 1, 1971, did Mrs. Cox give written notice that she was exercising her option to purchase the property.

On cross-examination Mr. Hyde explained that he could not say when payments were received but could tell the dates they were posted on the IBM machine. He detailed the dates as follows: The first payment was posted the latter part of October 1970; the next one, December 8, covering November; the third one was January 8, for December; on January 8, two payments were run through the machine, covering December and January; the February payment was posted on the 25th; the payment due in March was posted on April 15; the next payment was posted on June 10; and the last credit was made in October, when three payments were sent in for July, August and September. Toward the last of October three payments were made at one time and these funds were returned since Gulf had sent Mrs. Cox notice to vacate the premises.

Mr. Hyde conceded that under date of April 7, 1971, Mrs. Cox was requested to pay the insurance on the property. She responded by sending a check but it was returned “NSF” and was never cashed. Gulf proceeded to pay the premium. He also testified that under date of March 16, 1971, Mrs. Cox was sent four mortgage payment cards; that those cards would last her through the July payment, at which time some more cards would be sent. Then that procedure of sending payment cards was repeated on July 21, 1971. Mr. Hyde explained that those letters and cards went out automatically because the account had not been withdrawn from the IBM machine. A request for payment was also sent out on October 21, 1971. Again, Mr. Hyde said that was because the account was still in the IBM machine. The witness was also confronted with cancelled checks in the amount of the monthly payments, one being dated May 26, 1971, and the other July 26, 1971. Finally, Hyde was asked if he had a conversation with Mrs. Cox in July or August about her paying the property taxes and he replied that he did not so recall.

Over the objection of Mrs. Cox, Gulf’s attorney David Bogard was permitted to testify. The objection was on the basis that the rule on the witnesses had been granted at the beginning of the trial. He placed several letters in the record. The first one was dated December 22, 1970. The letter concerned the receipt of NSF checks. Mrs. Cox was reminded that she only held an option to purchase and one of the prerequisites for exercising the option was the prompt payment of monthly installments. The next letter was dated December 30, 1970, which was again in regard, to NSF checks, and stated that unless two payments, covering November and January, were in his hands by January 8, 1971, Gulf would reclaim the property. Then on June 1, 1971, Bogard wrote her that since she had not exercised her option to purchase in accordance with the terms of the agreement, Gulf was declaring a landlord-tenant relationship; and that they would expect monthly rental payments in order that she could occupy the premises as a tenant. Then on September 29, 1971, Bogard wrote her that Gulf was terminating the landlord-tenant relationship as of October 1, 1971. Finally, on October 12, 1971, Bogard returned by mail two money orders recently received. The letter came back undelivered, whereupon Bogard mailed the money orders by certified mail to Mrs. Cox’s attorney.

Mrs. Joe Ann Cox was the only witness for herself. She said that in August 1971 she discussed the taxes over the telephone with Mr. Hyde and that he asked her to send payment for the taxes. Before doing so she checked and found they had not been paid. She produced a tax receipt showing redemption for the 1969 and 1970 taxes. The receipt was dated September 1, 1971. She testified that the option to purchase was not the true agreement between the parties. She insisted that she first met with Mashaw and Bogard on September 28, 1970; that the instrument drawn at that time was not satisfactory; that she and Mashaw signed the last page and it was agreed that the other pages would be rewritten; that those pages were rewritten and she wás given her copy; that after she got home she read it and stopped payment on the $1000 check; and that Mr. Hyde called her about the check. She explained to Hyde that she was not satisfied with the agreement as drawn; that Hyde assured her a deed would be executed and delivered to her; and that she then sent Gulf another check for $1000.

On cross-examination she insisted that she did not receive any of the letters introduced by Mr. Bogard. She proclaimed ignorance about the contents of the option to purchase and insisted that she did not know what it meant to exercise an option. Mrs. Cox also introduced some records of payments for which Mr. Hyde did not give her credit in his testimony.

We have concluded that Mrs. Cox was entitled to prevail in this action. That is because we think the evidence is clear that Gulf waived the requirement of written notice by April 1. It is also evident that Gulf continuously accepted monthly payments made after the month in which they came into existence. In fact, the contract does not declare an exact day of the month as a deadline for payment. It does not even state that the monthly payments shall be paid during the month in which they are created. There were four significant factors which occurred after the April 1, deadline which justifiably led Mrs. Cox to believe that Gulf was treating her as a mortgagor:

(1) On April 7, 1971, Mrs. Cox was requested by Gulf’s home office to pay the insurance. “Enclosed please find a statement for the insurance coverage on your property. Since insurance payments are not included in your mortgage payments, please remit $121.00 to Benton & Owens, Inc.” (emphasis ours);

(2) In July 1971, Gulf’s home office sent Mrs. Cox four payment cards with instructions that one be used each month in making her mortgage payments (emphasis ours);

(5) The evidence is clear to us that in August 1971, Mrs. Cox was requested by Gulf to pay the property taxes, which she did; and,

(4) Under date of October 21, 1971, Gulf sent Mrs. Cox this written notice: “Just a friendly reminder your loan payment is past due. Please give this your immediate attention”, (emphasis ours.)

In the purchase option there was no mention made of payment of taxes and insurance. If Mrs. Cox, at the times she was asked to pay those items, was merely a tenant, the primary obligation for such payments was not on her but on Gulf. See 51C CJS Landlord and Tenant §§ 359 and 574.

It is true that during the period of the four recited transactions Mrs. Cox was being sent letters by Mr. Bo-gard which, if she received them, (which she says she did not) explained to her that she was merely a tenant. Mrs. Cox testified that in her state of confusion she called Mr. Hyde and he assured her that she would get her deed. Be that as it may, with the home office, by its actions enumerated above, assuring Mrs. Cox that she was a mortgagor rather than a tenant, it would be logical that she would rely on the home office actions rather than those of the attorney in Little Rock.

We think the enumerated acts of Gulf, occurring after April 1, were inconsistent with their right to written notice and any right they claimed to monthly payments being made on a day certain. In Keith v. City of Cave Springs, 233 Ark. 363, 344 S.W. 2d 591 (1961) is this statement on “waiver”:

Thus, ‘waiver’ occurs where one in possession of a right, whether conferred by law or contract, with full knowledge of the material facts, does or forbears to do something, the doing of which or the failure or forbearance to do which is inconsistent with the right or his intention to rely upon it.

Then in Sirmon v. Roberts, 209 Ark. 586, 191 S.W. 2d 824 (1946) we said in essence that one entitled to notice within a designated period cannot complain for want of the notice when, by his actions and conduct, he leads the adverse party to assume there was a waiver.

As to the effect of accepting tardy payments see Wade v. Texarkana Bldg. & Loan Ass’n., 150 Ark. 99, 233 S.W. 937 (1921). That case accords with our view.

We do not reach the question of the propriety of Mr. Bogard appearing as a witness when he was an attorney in the case. Assuming that the letters had been admitted through another procedure, the weight of the evidence was still on the side of Mrs. Cox. With respect to participating lawyers testifying, we have fairly recently discussed the subject in Montgomery v. The First Nat’l Bank of Newport, 246 Ark. 502, 439 S.W. 2d 299; Old American Life Ins. Co. v. Taylor, 244 Ark. 709, 427 S.W. 2d 23 (1968); and in Rushton v. First Nat’l Bank of Magnolia, 244 Ark. 503, 426 S.W. 2d 378 (1968).

The cause is reversed and remanded with directions that a decree be entered consistent with our findings.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    J. T. DAVIDSON v. COMMERCIAL CREDIT EQUIPMENT Corp.
    5-6243
    499 S.W. 2d 68
    Opinion delivered September 24, 1973

      Brown, Compton & Prewett, Ltd., for appellant.
    No brief for appellee.
   John A. Fogleman, Justice.

J. T. Davidson, appellant here, sought to cancel a chattel mortgage securing the payment of a $20,000 purchase money balance on an airplane he bought from Texas Aviation Service. As grounds for cancellation, he asserted the contract was usurious. Here he contends the chancery court erred in denying the relief he sought.

There is no dispute about the basic facts. The $20,-000 balance was to be paid in 60 monthly installments. In computing the finance charge, or time price differential, a chart prepared by Financial Publishing Company of Boston, Massachusetts, was used. It provided for an “add on” rate of $5.50 for a 60-month term at an annual actuarial interest rate of 10%, the maximum allowable in Arkansas. The parties stipulated that the application of this factor would result in a finance charge of $5,500 and equal monthly payments of $425 each.

The chancellor specifically found that: The Financial Publishing Company was a reputable financial publishing company; the rate chart was utilized without error or miscalculadon; accepting testimony on behalf of appellant at face value, the maximum overcharge would amount to five cents per month or $3.00 over the five year term; no evidence based upon an independent calculation of the correct interest charge had been made by any witness; the only witness who testified relied solely upon two financial publications, one of which was printed by Financial Publishing Company; appellant had failed to meet his burden of proving the contract usurious; any error made in calculating the interest resulted from a reliance, in good faith, upon a financial table published by a reputable financial publishing company, rather than from an intention to extract a usurious interest charge. Since we are unable to say the chancellor’s findings are clearly against the preponderance of the evidence, we affirm.

Only one witness testified. He was Marion R. Smith, Executive Vice President of the National Bank of Commerce of El Dorado. He stated his familiarity with various documents used for computing interest. He expressed the opinion that the monthly payments should have been $424.95 per month. He used a book prepared by Area Computer Services, Inc., and, by applying the appropriate factor for a 10% interest rate over a five-year term to the principal balance, arrived at a figure of $424,942 which he rounded off at $424.95. He stated that, if he were attempting to make the computation in the bank’s operations, he would use an equal monthly loan amortization table contained in a book published by Financial Publishing Company of Boston, and readily available to all banking institutions and lending agencies. By using that book he also arrived at a monthly payment of $424.95. He stated he was not familiar with the book containing the table or chart used in this case. Upon examination, the only differences he could find between the chart used by appellee and the books he relied upon were the necessity for mathematical calculation to determine the amount of the monthly payment when it was used and the fact that it did not carry seven digits to the right of the decimal point, as did the book to which he first referred.

We agree with appellant that one cannot purge a usurious contract by a retroactive correction or a subsequent disclaimer. We also agree that the validity of a contract attacked for usury does not turn upon the question of whether the alleged usurer has a specific intent to violate the usury laws. The intent required is an intent to receive or reserve a rate of interest that proves to be usurious. Still, we have long recognized that an honest error of calculation will not render a contract usurious. In Garvin v. Linton, 62 Ark. 370, 35 S.W. 430, we said:

There must be an intent to take unlawful interest, to constitute usury. There can be no usury when the amount taken in the contract for interest in excess of 10 per cent per annum was reserved through a mistake or ignorance of the fact that it was in such excess. If the lender, by mistake of fact, by error in calculation, or by inadvertence in the insertion of a date, contracts to receive an illegal rate of interest, “such mistake, error, or inadvertence will not stamp the taint of usury on such engagement, nor cause to be visited upon him, who did not knowingly and intentionally disregard the law in this behalf, the highly penal consequences of an usurious offense.” Moody v. Hawkins, 25 Ark. 191; Bank of De Shon, 41 Ark. 331.

The act of usury will not be presumed, or imputed to the parties, and will not be inferred if the opposite conclusion can be fairly and reasonably reached. Commercial Credit Plan v. Chandler, 218 Ark. 966, 239 S.W. 2d 1009; Cammack v. Runyan Creamery, 175 Ark. 601, 299 S.W. 1023; Briggs v. Steele, 91 Ark. 458, 121 S.W. 754. In Cox v. Darragh Company, 227 Ark. 399, 299 S.W. 2d 193, we held that a mistake in charging an illegal rate of interest would not stamp a transaction with the taint of usury, relying upon the quotation from Garvin v. Linton, supra; Hinton v. Brown, 174 Ark. 1025, 298 S.W. 198; and Temple v. Hamilton, 178 Ark. 355, 11 S. W. 2d 465. We affirmed the judgment of the trial judge, sitting as a jury, holding that evidence that payments were scheduled upon an erroneous calculation made and furnished by a banker, at the request of the creditor, constituted substantial evidence to sustain the holding that usury had not been shown. Later, we reversed a holding by a chancery court that a contract was usurious, on the ground the evidence showed that the excessive finance charge resulted from an honest mistake. Sammons-Pennington Company v. Norton, 241 Ark. 341, 408 S.W. 2d 487. There the president of the creditor corporation had testified that he called upon his finance company to furnish the amount of interest at the maximum legal rate to be added to the debt. The company used "Lake’s Monthly Installment and Interest Tables” to supply the figure, which was stipulated, at the trial, to be excessive by $57 to $60. We said:

It appears that, in determining whether a usurious charge has been made, all attendant circumstances must be taken into consideration. When this is done, we think it is plain that the overcharge in the instant litigation was the result of an error, made in good faith, rather than being based on an intent to violate the usury law.

One of the most important considerations in reaching our result was that the creditor had endeavored to follow our admonition in Holland v. Doan, 228 Ark. 340, 307 S.W. 2d 538, that one who does not know how to figure interest should have his calculations checked by one who is familiar with figuring interest. We also pointed out that an accountant who testified the interest exceeded the legal limit reached his conclusion after computations extending over the better part of a day and that, even in stipulating the excess, no definite figure was used. Even though we did not premise our result upon the fact, we observed that it seemed ridiculous to surmise that anyone would risk the cancellation of a principal debt of $16,000 in order to receive $57 to $60 in excess interest.

This case clearly falls within the pattern of Cox and Sammons-Pennington, rather than of Holland v. Doan, supra, relied upon by appellant. In Holland, the interest charged was 11.95%. No offer to remit the excess was made in that case until after all the evidence in the case had been presented on both sides, and we found no evidence of a mathematical miscalculation. The creditor had used a chart furnished by GMAC and apparently charged interest on the basis of one year, or 52 weeks, when the payments were to be made over only 48 weeks. We said the excessive amount was arrived at because the wrong formula was used in spite of the fact that the creditor must surely have known that a year consisted of 52, not 48 weeks. Here appellee, in its first pleading, offered to refund any overcharge. It used a chart furnished by the same publishing company that distributed a book that would have ordinarily been used by the National Bank of Commerce in El Dorado.

Slight variations in results may be reached by use of other methods. Use of a multiple of a factor from “Lake’s Monthly Installment and Interest Tables” (Sixth Edition) for $1,000 principal at 10% over 60 months would produce a payment of $424.92. This would indicate an excess of $4.80. The real test for usury, i.e., a comparison of the amount the borrower is required to pay with the total amount he could be required to pay at the maximum rate of interest for the term, is made by using the statutory system of applying payments first to interest and the excess to principal. McDougall v. Hachmeister, 184 Ark. 28, 41 S.W. 2d 1088, 76 A.L.R. 1463; Widmer v. J. I. Case Credit Corp., 243 Ark. 149, 419 S.W. 2d 617; Lyttle v. Mathews Investment Company, 193 Ark. 849, 103 S.W. 2d 47; Hare v. General Contract Purchase Corp., 220 Ark 601, 249 S.W. 2d 973; Commercial Credit Plan, Inc. v. Chandler, 218 Ark. 966, 239 S.W. 2d 1009; Ark. Stat. Ann. § 68-606 (Repl. 1957). If that test is used applying monthly payments of $425, the last payment would be slightly over $4.00 more than the legal limit. By use of the means hereinabove mentioned, range of the excess is from $3.00 to $4.80. If it were ridiculous to think one would deliberately risk cancellation of a $16,000 debt to extract an extra $57, it would be ludicrous to think one would risk $20,000 in an effort to collect $3.00 or $4.00 more.

Under all circumstances presented here, we affirm the chancellor’s decree, because we cannot say the conclusions he reached from the facts was not supported by a preponderance of the evidence.


author: Conley Byrd, Justice.

text:
    ASSEMBLY OF GOD CHURCH, Lambert, Arkansas v. Berl FORD et al
    73-86
    499 S.W. 2d 273
    Opinion delivered September 24, 1973

      Gannaway, Darrow ér Hanshaw, for appellant.

      Fenton Stanley, for appellee.
   Conley Byrd, Justice.

Appellant Assembly of God Church, Lambert, Arkansas, pursuant to Ark. Stat. Ann. § 82-401 (Repl. 1960), applied to the County Judge of Hot Spring County for a permit to establish a cemetery upon an acre of land adjoining its church building. Appellees and cross-appellants Berl Ford, et al, opposed the granting of the application. The county judge after hearing evidence denied the application. On appeal to the circuit court appellant took the position that under Ark. Stat. Ann. § 82-401, supra, the county judge had no discretion once the State Health Department approved the application. Appellees and cross-appellants took the position that the county judge had some discretion and that it was necessary for the court to hear evidence on the need and desirability of a cemetery on the desired site. After both parties announced that they were willing to stand on their respective propositions, the circuit court noted that the State Health Department had approved the site for a cemetery and ordered the county judge to issue the permit. In lieu of a supersedeas bond on appeal, the circuit judge ordered that no interments be made within one year from the date of the order. Although the church appealed from the “one year” moratorium, it now concedes that the issue is moot and asks us to affirm the circuit court. Cross-appellants raise several contentions including the contention that if the county judge had no discretion once the State Health Department approved the application then the church’s remedy should have been by mandamus instead of by appeal. Since we consider the stipulation in the trial court to waive all contentions except the principal one having to do with a construction of the statute, we consider only the issue which the parties stipulated to before the trial court.

The statute here involved provides:

“Whenever it is proposed to locate a cemetery, or to extend the boundaries of an existing cemetery, the party, or parties, so proposing shall make written application to the county judge, or to the mayor of an incorporated city or town, according to whether said cemetery, or extension of a cemetery, is to be located in the jurisdiction of one or the other of these authorities, describing accurately the location and boundaries of the proposed cemetery, or extension of a cemetery. Before acting upon the application the county judge, or the mayor, as the case may be, shall refer the application to the State Board of Health, for investigation from a sanitary standpoint. In making such investigation the State Board of Health shall take into consideration the proximity of the proposed cemetery, or extension of a cemetery, to human habitations, the nature of the soil, the drainage of the ground, the danger of pollution of valuable springs or streams of water, and such other conditions as would bear upon' the situation. Having completed its investigation as promptly as can be done, the State Board of Health shall submit a report to the judge, or to the mayor, as the case may be, and either approve or disapprove the. application. Having received the report from the State Board of Health, the judge, or the mayor, as the case may be, shall, as recommended by the State Board of Health, either grant, or deny, the application. Should the application be granted the judge, or the mayor, as the case may be, shall issue to the party, or parties, making the application, and in such form as may be prescribed by the State Board of Health, a permit to establish or extend the cemetery in question. The said permit shall be recorded in the office of the county judge, or the mayor, and a copy forwarded to the State Board of Health.

When this statute is construed together with Ark. Stat. Ann. §§ 82-411 through 82-426 (Repl. 1960), as amended (Supp. 1971), it at once becomes apparent that it applies only to cemeteries owned by a church, a municipal corporation, or a family or community not employing salesmen or paying sales commissions. Like, the trial court, we agree that the county judge has no discretion under the statute to refuse a permit once the State Health Department has given its approval.

Affirmed.


author: Frank Holt, Justice,

text:
    Harold ALEXANDER v. STATE of Arkansas
    CR 73-80
    499 S.W. 2d 849
    Opinion delivered September 24, 1973
    [Rehearing denied October 29, 1973.]

      Engeler ir Johnson, by -.James C. Johnson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice,

a jury found appellant guilty of possession of a controlled substance (marihuana) and assessed his punishment at one year in the penitentiary and a $750 fine. Before trial, appellant filed a motion to suppress the evidence which was seized as a result of a car search. Appellant contends the search was conducted without probable cause and, therefore, the court erred in overruling his motion.

The relevant facts are that the owner of a local drive-in restaurant complained to a policeman that drinking and littering on his parking lot were causing a continous problem and asked if anything could be done about it. Two policemen proceeded to his premises and found only one car in the vicinity which was parked at a phone booth next to the highway. The car had no license plate and the officers stopped to investigate. Appellant, a passenger, was observed leaving the car and using a phone booth. The officers talked with the driver-owner of the car and determined that since the automobile was recently purchased the time had not expired for licensing. However, the officers observed a portion of a brown paper sack protruding from underneath the seat on the passenger side of the automobile. The shape and size of the sack caused the officers to believe it contained a bottle of liquor. The driver-owner of the car was a minor. He had previously had encounters with the local police with respect to the illegal possession of intoxicants. The appellant, the passenger, had experienced a similar difficulty. The driver-owner was asked by one of the officers, after seeing the paper sack, if he had any “booze” or anything to drink in the car. The officers testified that he stated that he did not and gave his consent to search. The driver-owner himself testified “[N]o, you can look.” He further testified that he moved his coat that was in the car so that the officers could see under the coat. The coat, upon being moved, however, covered the exposed paper sack. One of the officers opened the car door, got the paper bag and found that it contained a quantity of marihuana. A paper box was observed in the rear part of the car and it also contained a quantity of marihuana.

Appellant’s only contention is that in these circumstances the officers did not have probable cause for a warrantless search of the automobile in which marihuana was discovered. Appellant makes the argument that the officers had insufficient facts within their knowledge upon which they “could have reasonably concluded that the automobile contained that which offended against the law.” We need not determine the existence of probable cause to justify a warrantless car search under the requirements of Carroll v. United States, 267 U.S. 132 (1925). A voluntary invitation or consent waives the immunity rule. Martin v. State, 251 Ark. 1025, 476 S.W. 2d 235 (1972).

In the very recent case of Schneckloth v. Bustamonte, 93 S. Ct. 2041 (1973), it was held that a well established exception “to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” See, also, State v. Barron, 395 P. 2d 158 (1964). In Schneckloth, supra, an exploratory, warrantless car search, without probable cause, was upheld since the search was conducted by consent. The vehicle was stopped by an officer who observed it had defective lights. Only one of the six occupants, a passenger named Alcala, had a license. He said the car was his brother’s. When the officer asked him if he could search the car, Alcala stated “[S]ure, go ahead.” The police found three stolen checks wadded up underneath the rear car seat. Appellant, a passenger in the car, was subsequently convicted of unlawfully possessing a check* with the intent to defraud.

There, as in the case at bar, a motion to suppress was made on the basis that the evidence was acquired through an unconstitutional search and seizure. The court upheld the validity of the search on the basis of Alcala’s voluntary consent. The court, inter alia, set the standard for voluntary consent as “a question of fact to be determined from the totality of all the circumstances.” However, there, as in this case, there was no evidence that the search was coerced or involuntary. In the case at bar, the driver-owner himself testified “[N]o, you can look.” The totality of the circumstances shows that the owner-driver freely gave his consent for the officer to search the car. Therefore, since the warrant-less search was by consent it was constitutionally permissible to search the car and seize any contents that offended against the law. All warrantless searches and seizures are not prohibited by the Fourth Amendment, U. S. Const., or Art. 2, § 15, Ark. Const. - only those which are unreasonable. As in Schneckloth, supra, we cannot say where one voluntarily consents to a warrant-less search that the search is unreasonable.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    William Wayne DECKER v. STATE of Arkansas
    CR 73-8
    499 S.W. 2d 612
    Opinion delivered October 1, 1973

      William C. McArthur, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves Deputy Atty. Gen., and Richard Mattison, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

William Wayne Decker, appellant herein, was convicted in the Pulaski County Circuit Court of robbery allegedly occurring on January 21, 1970. The jury, under the Habitual Criminal Act, fixed his punishment at twenty-one years confinement in the Arkansas Department of Correction. Two days later, Decker was convicted in the same court of the crime of grand larceny and his punishment was fixed by the jury at thirty years confinement. No appeal was taken from the judgment in either case. Attorney J. H. Cottrell represented Decker in both cases through appointment by the court. Thereafter, Decker filed a petition for a Writ of Habeas Corpus in the Pulaski County Circuit Court, and that court, treating the petition as a Criminal Procedure Rule I Petition, appointed new counsel to represent Decker. On hearing, the trial judge denied any relief, and from the judgment so entered, Decker appealed to this court. Three points were asserted for reversal as follows:

I.

The alleged confession of appellant was improperly admitted into evidence.

II.

The appellant was not denied adequate representation of counsel at trial insofar as a key witness was not called.

III.

Appellant was denied his constitutional right to appeal his case.

The original cases were tried by an assigned judge, and following the Rule I hearing and before judgment was entered, the regularly presiding judge of the Pulaski County Circuit Court caused the record of the two trials to be transcribed for his use and information in determining the Rule I Petition. These transcripts were filed with this court along • with the record of the Rule I hearing. On April 16, 1973, this court entered an order which inter alia provides as follows:

“Inasmuch as the complete record is now available, it is the order of this court that this appeal (from the denial of relief under Criminal Procedure Rule I) be treated as an appeal from the original convictions, and the clerk of the court is directed to notify counsel for appellant that he may . present and brief any additional points wherein it is felt that the trial court committed reversible error. The clerk shall likewise notify the Attorney General to reply to appellant’s brief, said briefs to be submitted in compliance with Rule Eleven of this court.”

These briefs have now been filed and the case is ready for disposition. The following additional points for reversal have been raised.

IV.

Defendant’s requested instruction re alibi was improperly refused.

V.

Defendant’s motion for dismissal of grand larceny charge (No. 72070) on grounds of double jeopardy was improperly denied.

<J H-t

Defendant’s motion for a directed verdict was improperly denied. (No. 72070).

VII.

Defendant’s objection to reference of the robbery in the trial for grand larceny was improperly overruled.

VIII.

Defendant’s confession was improperly admitted in rebuttal. (No. 72070).

IX.

Defendant’s confession was inadmissible and improperly admitted because he was not properly advised of his constitutional rights.

Two other points are raised but they are repetitious of the first two points asserted in the Rule I hearing.

We proceed to a discussion of the contentions for reversal.

HH

This allegation refers only to the trial of Decker on the charge of grand larceny as the confession was not used in the robbery case. The record reveals that appellant was arrested on July 16, 1971 by a North Little Rock policeman, subsequently brought to the Little Rock Police Department, and questioned by City Detectives Larry Dill and Bill Johnson. Decker testified that he had been wounded before his arrest and was suffering from gunshot wounds through his foot, side, and arm, and that he had been taken to Memorial Hospital in North Little Rock where he was treated, taken the next day to Medical Center where the gunshot wounds were cleansed and he was given a prescription to kill the pain. He said that he was beaten and “slapped around” by the officers before signing a waiver; that he was beaten with a pistol by Dill, and finally signed the rights waiver about 1:30 in the morning; subsequently he stated that it was about 10:00 P. M. Decker also said that he asked for an attorney but the request was denied. As for the statement made, appellant said that he signed his name on a blank sheet and initialed four blank pages, being told that the officers were getting a specimen of his signature. Decker’s statement is somewhat conflicting and accordingly confusing. Detective Dill testified that Decker was brought to the Littlé Rock Police Department and advised of his rights about 5:15 P.M.; that appellant stated he understood, and signed the waiver in the presence of the witness and Detectives Jones and Johnson. Dill stated that Decker was not beaten, threatened, nor mistreated in any manner; that the latter was entirely normal and aware of what he was doing when he signed the waiver. The witness said that when Decker would make a statement, the information given would be checked out and that, he was questioned, off and on, until approximately 1:45 A.M., at which time he made a complete statement which was reduced to writing by Dectective Jones. The witness then read the written statement to Decker who signed it at the bottom of the third pagé and initialed it at the top and bottom of the first and second- pages.

The court conducted a hearing in chambers on the question of whether the statement had been voluntarily given, and after hearing the evidence, ruled that it was admissible. In Mullins v. State, 240 Ark. 608, 401 S.W. 2d 9, this court, in passing on the same contention now raised by Decker, stated:

“All of appelfaht’s contentions as to the confession, including the advisement of his right to counsel, were examined by the trial court in its hearing in chambers. The conflicting testimony between appellant and the officers made a question of fact to be decided by the court pursuant to Act 489 of 1965. The court made a finding adverse to appellant and admitted appellant’s confession in evidence. We have concluded that there is substantial evidence in the record to support the trial court’s determination and said determination will not be disturbed here on appeal.”

We hold that there was substantial evidence to support this finding.

II.

Decker’s defense was based upon an alibi, i.e., he claimed to have been in Jackson, Mississippi at the home of a sister at the time the alleged crime occurred. However, when both the robbery and grand larceny cases were called, counsel for appellant announced that he was ready; no request was made for a continuance nor was there any contention that there was an important witness for the defense who could not be present. At the trial on the charge or robbery, Donald Decker, brother of appellant, testified that “around the 17th” (January, 1970), Decker, together with his wife and child, mother and father, went to Jackson, Mississippi to visit Decker’s sister and stayed five or six days.

At the trial on the charge of grand larceny, Effie Decker, mother of appellant, testified that she and her husband, appellant and his wife and baby, and David Bryant, all went to Jackson to visit her daughter and appellant’s sister, Charlene Graham, on January 17 and returned after staying there five days; that appellant was there the entire time, the family traveling in appellant’s automobile. David James Bryant, a cousin of appellant, also testified to those facts. The alleged error is based on the fact that the sister, Charlene Graham, who had in the meanwhile moved to California, was not present at either the robbery or grand larceny trials. In the Rule I hearing Mrs. Graham did testify, stating that the relatives heretofore mentioned came to her home on the 16 th or 17 th and remained there either five or six days. She said that appellant stayed there the entire period of time. The witness had since moved back from California to Little Rock.

We find no merit in this contention for several reasons. In the first place, no effort was made to obtain the witness and Decker himself testified that he really didn’t think it was necessary for her to be present since he had two other witnesses to. testify to the same facts. This apparently was a decision made by the appellant himself rather than by counsel. At any rate, no motion for continuance was made and Decker accordingly has waived any right to object. Not only that, but since the mother and other relatives did testify to the alibi, the evidence of the sister would only have been cumulative.

III.

As earlier stated, this appeal is being treated as an appeal from the original convictions.

IV.

This point relates to the alibi defense. In the robbery case, the trial court was requested to give an instruction offered by the defendant on the defense of alibi, which was refused; however, no error was committed for the jury was given an instruction (the court giving its own instruction), specifically mentioning the defense of alibi, and telling the jury that such a defense is as proper and legitimate if proved as any other and all the evidence bearing upon this point, along with all the evidence, should be carefully considered by the jury and “if the jury have a reasonable doubt as to whether the defendant was there when the crime was committed they should give the defendant the benefit of the doubt and find him not guilty.” This was a correct instruction and appellant can have no legitimate complaint that his own instruction was not given.

In the grand larceny case, no instruction was requested on this phase. We, of course, have held many times that where an accused desires an instruction on a particular issue not covered by the instructions given, he should request a correct instruction thereon and will not be heard to complain if he fails to do so. Lowmack v. State, 178 Ark. 928, 12 S.W. 2d 909.

V.

It is next asserted that the trial court committed error by failing to grant appellant’s motion for dismissal of the grand larceny charge on grounds of former jeopardy. To discuss this point, it is necessary that the background of the case be given. Alfred Williams, employed by Caldwell Oil Company in Little Rock, operated a service station. About 1:00 A.M. on January 21, Lawrence Hobbs, a regular customer, came into the station. About thirty or forty minutes later, two men came in looking for a set of jumper cables. While all were present, a truck driver came in to get change. After he left, the two men supposedly looking for jumper cables, pulled a knife and a gun and robbed the station, placing Hobbs and Williams in the rest room. After being placed in the rest room, they were again threatened, but each victim assured the robbers that they did not know the latter, stating, “I never seen you before.” The two heard a car start up. Hobbs testified:

“I heard something say, ‘Ugh’, like my car. You have to double clutch it to put it in low gear. So,' evidently, he didn’t know how to drive my car. I said, ‘Al, they got my car.’ And I was fixing to go out the door and Al pushed me back and we was peeping up under the crack in the door and we didn’t see no feet walking back and forth. So, he eased the door open and come on out. He was fixing to dial the police but the telephone wire was chopped loose. He took him a dime and went out on the outside to pay the phone and called the police.”

It is argued that all of the essential issues were litigated in the first trial for robbery, and that the grand larceny trial relitigated the same issue. Appellant chiefly relies upon the case of Turner v. Arkansas, 407 U.S. 366, where this was the question at issue. Turner had been tried for murder, it being alleged that he killed a man while robbing him. The jury returned an acquittal and Turner was then charged with robbery. He contended that a trial on this charge would constitute double jeopardy, but we disagreed. See Turner v. State, 248 Ark. 367, 452 S.W. 2d 317. A second appeal was taken from a trial court order denying the motion to dismiss the indictment for robbery, this time appellant presenting the complete transcript of the trial record in the murder charge. We held that our decision on the prior appeal was the law of the case. See Turner v. State, 251 Ark. 499, 473 S.W. 2d 904. In reversing, the United States Supreme Court said:

“In the present case, petitioner was not charged with robbery at the first trial, but the State has stipulated that the robbery and murder arose out of ‘the same set of facts, circumstances, and the same occasion.’ The crucial question, therefore, is what issues a general verdict of acquittal at the murder trial resolved. The jury was instructed that it must find petitioner guilty of first-degree murder if it found that he had killed the decedent Yates either with premeditation or unintentionally during the course of a robbery. The jury’s verdict thus necessarily means that it found petitioner not guilty of the killing. *** Had the jury found petitioner present at the crime scene, it would have been obligated to return a verdict of guilty of murder even if it believed that he had not actually pulled the trigger. The only logical conclusion is that the jury found him not present at the scene of the murder and robbery, a finding that negates the possibility of a constitutionally valid conviction for the robbery of Yates.”

In the case now before us, the circumstances are entirely different. The robbery of the service station and the stealing of the automobile were two separate crimes, and while to a degree related, certainly were not the same offense. The crime of robbery was over before the automobile was stolen. The proof offered in the robbery charge would not sustain the charge of stealing the automobile, and we accordingly find no merit in this alleged error.

It is then asserted that the evidence was insufficient to sustain the grand larceny conviction, the argument apparently being based on the fact that no one testified that he actually saw appellant and his companion take the car. Of course, circumstantial evidence is sufficient if the circumstances are such that no other reasonable hypothesis can be reached. Here, Hobbs had driven his car to the station. After the robbery, he was made to go into the rest room. His testimony quoted in the preceding point establishes that, because of a deficiency in the clutch, he recognized the sound of the car as it started off immediately after the men had warned the two victims to remain in the rest room. The car was gone when he returned. These circumstances cer-tinly presented a fact question for the jury, but in addition, Decker gave a written statement in which he said this car was used in the getaway.

VII.

It is next contended that references to the robbery were improperly admitted in the trial for grand larceny and that such testimony had a prejudicial effect. We do not agree. A logical explanation of the circumstances of the taking of the car could not have been given without testimony first being presented about the robbery; the jury would never have known why the two men were in the rest room together and afraid to come out unless the jury had also known that the two men were there by force and threats of what would happen if they did come out. Only one brief paragraph is allotted to this argument.

VIII.

It is then asserted that defendant’s confession was improperly admitted in rebuttal, and that the State should have offered its entire case when putting on its evidence. Thé statutes dealing with the manner of proceeding in a criminal case after the oath is given the'jury are Ark. Stat. Ann. §§ 45-2110 — 45-2114 (Repl. 1964). The first mentioned section provides that the prosecuting attorney shall make his opening statement; the next section provides that defendant or his counsel may then make a brief statement for the defense; the next section authorizes the state to offer evidence in support of its case; next, the defendant offers evidence in support of his defense, and § 43-2114 provides:

“The parties may then respectively offer rebutting evidence only, unless the court for good reason, in furtherance of justice, permit them to offer evidence upon their original case.”

In Lacy v. State, 240 Ark. 84, 398 S.W. 2d 508, it was contended that the court erred in permitting the prosecuting witness to testify on rebuttal relative to a jacket allegedly worn by the appellant. This court quoted the contention and stated its answer to that contention as follows:

. . the alleged victim, testified that her attacker had on a cream colored sweater and tight pants; she made no reference whatsoever about a coat or jacket. After the appellant and his witnesses had taken the stand and testified that on the night of November 12th, that appellant had worn a blue jacket, the trial court, over the objections and exception of appellant, permitted the prosecuting witness to testify on rebuttal to the effect that appellant was wearing a coat or a jacket.’
“Our statute (Ark. Stat. Ann. § 43-2114 (1947) says:
‘The parties may then respectively offer rebutting evidence only, unless the court for good reason, in furtherance of justice, permit them to offer evidence upon their original case.’
“This statute permits the Court, ‘for good reason, in furtherance of justice,’ to allow the State to reopen its case and offer new evidence. Even if the recalling of the prosecutrix to testify about the jacket which the defendant wore could be considered as new evidence, still the Court had a right to allow such to be offered; and the Court did not abuse judicial discretion in such ruling.”

See also Walker v. State, 100 Ark. 180, 139 S.W. 1139, where we said:

“Error of the court is assigned in permitting the State to introduce tesdmony not properly in rebuttal after defendant had rested his case. The statute (Kirby’s Digest, § 2378) authorizes the presentation of testimony in chief after the defendant has closed his case when that appears to be necessary ‘in furtherance of justice,’ and of that the trial court must be the judge. It rests within the sound discretion of trial courts to permit tesdmony to be adduced out of time, and the exercise of that discretion will not be distrubed by this court unless an abuse is shown.”
We hold the contention to be without merit.

► — I X

It is next argued that the confession was taken in the robbery case but was improperly used in trial for grand larceny, the brief on behalf of Decker stating, “There is no evidence he was advised he was a suspect for grand larceny.’’ The record reflects that Decker signed two “Rights Waivers” on July 16, one setting out that he had been advised that he was a suspect in an armed robbery and the other admitting that he had been advised that he was a suspect in a burglary and grand larceny case. It is not entirely clear whether the last mentioned waiver had reference to this particular instance of grand larceny, though it does appear that this is the case. Certainly, Decker knew that he was suspected of stealing the automobile at the service station since he included details in the written statement he signed. We find no prejudicial error.

The last two contentions deal with points raised in the Rule I hearing and have already been covered in this opinion.

Finding no reversible error, the judgment is affirmed. . .

It is so ordered.

      See Decker v. State, 251 Ark. 28, 471 S.W. 2d 343.

      This referred to the- “Miranda form’’, setting out constitutional rights, Decker acknowledging by signature that he had been explained these rights and told that any statement could be used against him.

      The officer testified that actual interrogation consumed three or four hours.

       This statute reads identically with § 43-2114.


author: George Rose Smith, Justice.

text:
    Ola Belle DOPIERALLA et ux v. ARKANSAS LOUISIANA GAS Company
    73-76
    499 S.W. 2d 610
    Opinion delivered October 1, 1973

      Shelby R. Blackmon, for appellants.

      Charles W. Baker, Baker ir Probst, P.A., for appellees.
   George Rose Smith, Justice.

The appellee brought this action to recover the unpaid balance of the purchase price of a combined heating and áir-conditioning system which the defendants, Mr. and Mrs. Dopieralla, bought for their beauty salon and beauty school, in North Little Rock. By answer and counterclaim the Dopierallas denied liability and sought damages, on the ground that the air-conditioner had broken down so repeatedly that they had finally been compelled to take out the entire system and replace it. At the close of the case the trial judge directed a verdict for the plaintiff. Whether the testimony presented an issue of fact is the only issue on appeal. ¡

The seller rested after establishing a prima facie case by proof that the buyers signed a purchase contract in October of 1967; that the contract called for 72 monthly payments of $45.18 each; and that the defendants bei-came delinquent after having made only 40 monthly payments.

The Dopierallas offered their own testimony and that of three other witnesses. According to their proof, they relied upon the seller to select an air-conditioner capable of cooling their place of business. The witnesses said that the unit which was installed never operated for more than a few days without breaking down. The seller, upon being called, would wait about a week before sending someone to work on the system. During the interruptions in service the Dopierallas lost customers owing to the excessive heat that was created by the steam, the hot water, and the driers in the beauty shop and school. Some of the girls fainted. According to Mrs. Dopieralla, she was assured by Charles Jackson, one of the seller’ls employees, “that they could make it work.” * * * “Every time they worked on it they kept assuring us that they would” make it work. According to Mrs. Dopieralla’s son, he was finally told by one of the seller’s repairmen, who had worked on the unit most of an afternoon, that “there’s not much I can do with it. It needs replacing.” The record is not completely clear as to dates, but apparently the purchasers stopped making payments and replaced the system soon after the incident just mentioned.

The defendants’ proof is uncontradicted. That is, after the defense rested its case the plaintiff did not call Charles Jackson or its repairmen or any witness at all to deny the defendants’ testimony. Thus the issue is whether the purchasers’ undisputed proof made a case for the jury.

We have concluded that it did. The controlling principles of law are not in dispute. Under the Uniform Commercial Code the buyer may revoke his acceptance of a commercial unit not conforming to the contract if his acceptance was reasonably induced by the seller’s assurances. Ark. Stat. Ann. § 85-2-608 (Add. 1961). The revocation must occur within a reasonable time after the buyer discovers or should discover the ground for revocation. Id. What is a reasonable time depends upon the circumstances. § 85-1-204. That question is ordinarily one of fact for the jury. Anderson, Uniform Commercial Code, § 1-204:4 (2d ed., 1970); Robinson v. Jonathan Logan Financial, 277 A. 2d 115 (App. D. C., 1971).

Counsel for the appellee argue, with no citation of authority, that it was simply not reasonable for the purchasers to keep the unit and make payments for 40 months in reliance upon the seller’s assurances that the air-conditioner would be made to work. That argument might well be addressed to a jury, but it does not justify our saying as a matter of law that the buyers’ reliance was unreasonable. We regard this case as being controlled by our decision in Gramling v. Baltz, 253 Ark. 361, 485 S.W. 2d 183 (1972), where the purchaser of a truck delayed his rejection of the vehicle for more than two years in reliance upon the seller’s assurances that repairs could be made. We held that a question of fact was presented and reversed the trial court’s action in directing a verdict against the buyer.

In Gramling the purchaser’s delay exceeded two years, while here it exceeded three years. That difference, however, is not controlling. If we were unable to say that a delay of more than two years was not unreasonable as a matter of law, there is nothing in the statute requiring such a declaration when the delay exceeds three years. Moreover, in the case at bar the air-conditioning unit was presumably used for not more than six months in each year. There was no occasion for the purchasers to complain or to seek rescission during the rest of the year. Consequently the delay of 40 months in the case at bar was actually not as significant as the delay of more than two years in the Gramling case.

Reversed and remanded for a new trial.

Jones, J., not participating.


text:
    Sheila STOKES et al v. RICHLAND HOMES MANUFACTURING Company et al
    73-147
    499 S.W. 2d 597
    Opinion delivered October 1, 1973

      Partlow ir Mayes and Oscar Fendler, for appellants.

      Reid, Burge &r Prevallet, for appellees.
   George Rose Smith, Justice.

This is a claim for death benefits under the workmen’s compensation law. The decedent, John Doyle Stokes, was employed by the appellee Richland Homes Manufacturing Company at the time of his death in a traffic accident in 1971. The commission, whose decision was upheld by the circuit court, denied compensation on the ground that Stokes’ death did not occur in the course of his employment. Whether that finding is sustained by substantial evidence is the question on appeal.

Richland manufactures, sells, and delivers mobile homes. Stokes was one of Richland’s three regular drivers, who were employed to drive Richland’s trucks in the delivery of mobile homes. The drivers were paid a minimum weekly wage, plus from 16 to 21 cents a mile for delivering the mobile homes.

Highway regulations, as they are pertinent to this case, required that a truck pulling a mobile home be accompanied by two specially equipped escort vehicles, one ahead of the truck and the other behind it. Richland did. not own any escort vehicles or directly employ any escort drivers. Instead, Richland required its truckdrivers to, arrange for their escorts. Richland did, however, pay its drivers an extra 30 cents a mile to enable the drivers in turn to pay the escorts.

: When the drivers reported for work at Richland’s plant in Manila on the morning of July 27, 1971,Rich-land had a delivery for one of its drivers, Tommy Horton, but did not have a delivery for Stokes. That meknt that Stokes was free to do anything he liked for the rest of the day. Stokes agreed to act as one of Horton’s escorts, driving an escort truck owned, by Horton. Stokes and Horton had escorted each other in the past, swapping their services rather than making payments to one another. Richland knew that its drivers worked as escorts when off duty and had no objection to that' practice; . ,

The other escort that day was W.H. Wallace, who drove his own vehicle, Stokes drove Horton’s escort truck and was accompanied by a friend, Melyin Girdley, wh<j> went along for the swimming and water skiing that the ¡men planned for later in the day.

| The caravan of three vehicles proceeded' from Manila to Hebér Springs, where the mobile home Was delivered to Richland’s consignee. On the way the group were stopped by a Commerce Commission agent, and Stokes rewired some lights on the mobile home. Stokes bought a case of beer during the trip.

jThe mobile home was delivered at about 3:00 p.m. The escort drivers then had no further responsibilities ánd¡ were at liberty to gq their own way. The four men actually went to Greers Ferry Lake and swam, skied, and drank beer until about 8:00 p.m. When they started back to Manila, Horton drove the Richland truck, with. Girdley as his passenger; Wallace drove his. car; and Stokes drove' Horton’s escort truck.

The party met again at Newport to get something to eat. Horton thought that*Stokes had had enough to drink. When the group left Newport, Stokes was riding as a passenger in the Richland truck with Horton, and Girdley was driving Horton’s smaller truck. On the way Horton dozed off and ran off the -road, the Richland truck overturned, and Stokes was killed.

Counsel for the claimants argue that Stokes’ death occurred either in the course of his regular employment by Richland or in the course of his special employment as an escort driver. We hold that there is substantial evidence to support the commission’s finding that Stokes’ death did not take place in the course of his employment in either capacity.

We first consider Stokes’ status as a special employee. Stokes had no responsibilities as an escort driver after the mobile home -was delivered to its consignee. We may assume, without so deciding, that if Stokes had been injured or killed while driving Horton’s escort truck back to Manila, the commission might have found the occurrence to have been within the course of Stokes’ special employment. But that did not happen. Stokes had been replaced by Girdley as the driver of the escort vehicle. If Horton had the authority to bind Richland by employing Stókes as an escort, then Horton necessarily had the correlative authority to replace Stokes when that action became advisable. Girdley then became the special employee. To hold that Stokes was still a special employee while riding as a passenger with Horton would mean that Richland and its insurance carrier were responsible for a total of three escort drivers at the same time, although no such situation was ever contemplated by anyone.

There remains Stokes’ status as a regular employee. The difficulty here is that Stokes did not undertake the trip in his capacity as a regular employee and was not performing any services as such at the time of the fatal accident. It is undisputed that on the day in question Stokes had no duties as a regular Richland driver after he was told in the morning that the employer had no delivery for him that day. Counsel argue, however, that. Stokes resumed his status as a regular employee when he got in the company truck to ride back to his home in Manila with Horton, because he had to report for' work at Manila the next morning. Richland, however, had no duty to provide Stokes with return, transportation to Manila in the circumstances of this case. To the contrary, in the normal course of events there would have been three drivers on the road with three véhicles, so that Stokes would not have had any occasion to ride with Horton as a passenger. He certainly was performing no duties for Richland. Larson points out that “an isolated and unauthorized ride in the employer’s conveyance has usually been held to be outside the course of employment.” Larson, Workmen’s Compensation, § 17.30 (1972). We cannot say that the commission was without any substantial basis in the proof in concluding that Stokes was not serving Richland in his capacity as a truckdriver at the time of his death.

Affirmed.


text:
    MEMBERS MUTUAL INSURANCE Co. v. Margie Lee BENEFIELD
    73-77
    499 S.W. 2d 608
    Opinion delivered October 1, 1973
    [Rehearing denied October 29, 1973.]

      Atchley, Russell, Waldrop & Hlavinka, for appellant.

      Spencer & Spencer, for appellee.
   Lyle Brown, Justice.

Appellee, Margie Lee Benefield, obtained a default judgment in a personal injury case against O. B. Brown. Members Mutual Insurance Company was the liability insurance carrier for O. B. Brown. Margie Lee Benefield, after the judgment, proceeded against Members Mutual to recover upon Brown’s liability insurance policy. Members Mutual appeals from the judgment obtained against it. It is appellant’s position that Brown failed to notify it of filing of suit and service of process and that he failed to immediately forward summons to appellant insurer, all as required by the policy.

Most of the facts were stipulated. The accident occurred in Lafayette County on February 21, 1970. A few days thereafter, Brown, who resided in Dallas, went to the Dallas office of Members Mutual and reported the collision. Members Mutual immediately assigned investigation to Beaubouef Claim Service in Shreveport. Suit was filed on August 18, 1970, and a copy of the complaint was forthwith mailed by appellee’s counsel to Beaubouef. The latter promptly forwarded the complaint to Members Mutual. On September 30, 1970, non-resident service was had on Brown in Dallas. A week thereafter, Brown called Members Mutual and relayed the information that he had received another letter about the suit; he did not specifically tell them that he had received a summons. On October 21, 1970, Beaubouef was notified by appel-lee’s counsel that service was complete, that Brown was in default, and that appellee expected to obtain judgment as soon as court convened. On November 6, 1970, default judgment was entered. At no time did Members Mutual take any formal action to defend the suit.

Condition 3 of Brown’s policy provided: “If claim is made or suit is brought against the insured, he shall immediately forward to the company every demand, notice, summons or other process received by him or his representative”. Condition 6 provided that no action would lie against the company unless, as a condition precedent, the insured shall have fully complied with the terms of the policy.

We have laid down a principle which we think to be controlling in the case before us. We said in Kealy v. Lum bermen’s Mutual.Ins. Co., 239 Ark. 766, 394 S.W. 2d 629 (1965):

It is our opinion that if appellee did in fact receive notice in ample time to properly defend the suit against the company, then it should not be allowed to escape liability merely because the provisions of section 11 of the policy were not strictly complied with.

Section 11 mentioned in Kealy is identical with Condition 3 in Brown’s policy.

The trial court in essence instructed the jury that if Members Mutual received notice of the filing of the suit in ample time to provide reasonable opportunity to defend, then appellee was entitled to a verdict. We hold that to be the law as pronounced in the Kealy case. When that law is applied to the unchallenged record in this case it is abundantly clear that appellee was entitled to recover from Members Mutual.

Affirmed.


author: J. Fred Jones, Justice.

text:
    Ivan C. WRIGHT v. ARKANSAS STATE HIGHWAY COMMISSION
    73-82
    499 S.W. 2d 606
    Opinion delivered October 1, 1973

      Burris Berry, for appellant.

      Thomas B. Keys and David P. Saxon, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Ivan C. Wright from a mandatory injunction issued by the Chancery Court of Clay County requiring Mr. Wright to effectively screen his junkyard located on Highway No. 1, or in the alternative remove all junk 1,000 feet from the right-of-way óf Highway No. 1 under the provisions of Act 640 of 1967, Ark. Stat. Ann. §§ 76-2513 — 76-2519 (Supp. 1971).

On his appeal to this court Mr. Wright first contends that the chancellor erred in finding that he was operating a junkyard within the meaning of the statute. He next contends that Act 640 of 1967 is unconstitutional as applied to him in that it constitutes a taking of his property without just compensation. He then contends that aesthetic considerations alone are not sufficient for the exercise of the police power of the state in the taking or damaging of property for public use without just compensation.

We find no merit to the first contention and we do not reach Mr. Wright’s second and third contentions because they are raised for the first time on this appeal and were not alleged or argued before the chancellor. Ragge v. Bryan, 249 Ark. 164, 458 S.W. 2d 403.

Mr. Wright first demurred to the petition filed in chancery court by the Arkansas State Highway Commission and alleged that the petition did not state by what authority the Highway Commission sought to regulate the establishment, use and maintenance, of junkyards; that the petition did not state what lands, if any, he owned abutting on the highway upon which the alleged junkyard was maintained. The petition was amended to supply the deficiency complained of in the demurrer. Mr. Wright filed an additional demurrer to the complaint alleging that the Highway Commission was created under Amendment 42 to the Arkansas Constitution; that the Amendment vested the Highway Commission with all the powers and duties thereafter imposed by law for the administration of the State Highway Department with full power to enable the Commission, its officers and employees to clearly use the laws and regulations of the.State Highway Department. He alleged that the petition filed by the Commission was filed under Act 640 of 1967 and seeks to confer on the Commission powers and duties not provided for or authorized under Amendment 42; that the Act seeks to confer on the Highway Commission authority to regulate property not on the highway and property within 1,000 feet of the highway, and that the Commission would have no authority to act outside of the right-of-way along which the highway travels. He then prayed that the petition be dismissed as “being without authority of law.” This demurrer was filed on November 19, 1971, and on the same date Mr. Wright filed an answer denying the Commission’s authority under existing law to regulate the use, establishment and maintenance of junkyards adjacent to highways; admitting that he owned the property involved but denying that he was operating, or had established, a junkyard on the property within 1,000 feet of the right-of-way of Highway No. 1. On February 29, 1972, the demurrers were overruled and, although Wright reserved the right to rely on the demurrers when he filed his answer, he proceeded to trial on the merits.

At the trial on the issues before the chancellor, Larry Long, an employee of the State Highway Environmental Development Section, testified that he inspected the property involved; that the conditions found on the premises did not comply with Act 640. He said that the property contained junk and dismantled automotive vehicles and was located in the City of Rector at the junction of Highway No. 1 and Arkansas 90, both public highways with Highway No. 1 being a primary highway. Mr. Long was then cross-examined at length as to the general location of the property and whether or not the automobiles could be restored as antique automobiles.

Mr. Wright simply contended, and attempted to prove, that his operation did not come within the definition of a junkyard or automobile graveyard under the Act and was, therefore, not subject to regulations under the Act. The statutory definition under § 76-2514 reads as follows:

“a. The term 'junk’ means , . . waste, or junked, dismantled, or wrecked automobiles, or parts thereof. . . b. The term ‘automobile graveyard’ shall mean any establishment or place of business which is maintained, used, or operated, for storing, keeping, buying or selling wrecked, scrapped, ruined, or dismantled motor vehicles or motor vehicle parts. c. The term ‘junkyard’ shall mean an establishment or place of business which is maintained, used or operated for storing, keeping, or selling junk, or for the maintenance or operation of an automobile graveyard. ...”

Mr. Wright contended at the trial that he was simply conducting an antique automobile business and was storing 175 old automobiles on his property adjacent to the highway so that prospective purchasers could view his display of antique automobiles from the highway. He testified that he has not purchased or sold any automobiles from the premises in 10 years since he ceased operating an automobile salvage business on the premises. He said he still maintains an automobile junkyard on the backside of the lots involved, but that it is screened from view from the highway by a building on the premises. He said that automobiles become antiques when they are 20 years of age; that the automobiles displayed to the traveling public on his premises adjacent to the highway are all more than 20 years of age and becoming more valuable as antiques each day.

Photographs of the automobiles and the premises on which they were located were placed in evidence. From viewing the photographs, the chancellor remarked in his findings as follows:

“I can’t see how they could possibly be referred to as antiques until they are operable and restored, they are nothing but old skeletons of automobiles. * * * [T]his is the most incredible testimony I have ever heard as a defense.”

We have also examined the photographs and are inclined to agree with the chancellor. From the photographs in evidence some of the old automobiles and trucks appear to be without wheels; some appear to have the doors off, windshields and window glasses out, and some appear to have their wheels buried in the ground halfway to the axle. Even though Mr. Wright testified that he mowed between the automobiles at regular intervals, the pictures clearly indicate that such intervals were a long way apart. In plaintiff’s pictorial exhibits No. 4 and 5 appear a sign “Welcome to Rector Business District” and immediately behind this sign is one of the appellant’s old automobiles turned up on its side and covered with vines which have grown up over it and another old automobile adjacent to it.

We find it unnecessary to detail the remaining testimony in this case because it had to do with the supply, demand and value of antique automobiles. The picture exhibits in the record simply show a jumbled collection of old automobiles and automobile bodies, and we conclude that the chancellor did not err in finding that the appellant was maintaining a junkyard within the meaning of the statute.

There is no evidence in the entire record as to just compensation or to what extent, and in what manner, Mr. Wright’s property would be damaged by removal or screening the automobiles from highway view, except that it would prevent him from displaying the old automobiles to view from the highway. The chancellor’s opinion was based in part upon findings recited in the opinion as follows:

“The testimony is these old automobiles were being stored until somebody comes along and maybe buys them. He says he has not sold any for over a period of ten years and I assume he probably likes to collect old automobiles. He is not too anxious to sell them, otherwise he would have turned these over a ten year period of time. I can assume from these pictures here that they are going to cause rats and mice and anything that wants to collect in these old carcasses. That’s what I would refer to them as. I can’t see how they could possibly be referred to as antiques until they are operable and restored, they are nothing but old skeletons of automobiles. Under this theory here, if I were to adopt the theory that they are antiques, any junk dealer in the country could say, 1 am saving these for antiques.’ Some of the windshields are broken, some of the windows knocked out, some of those in the pictures may not have been in a wreck but they sure hit something that was very steady.”

We are unable to say that the chancellor’s finding is against the preponderance of the evidence. The decree is affirmed.

Affirmed.

      The appellant’s attorney on this appeal did not represent him at the trial.


text:
    Virginia Louise KENNEDY v. STATE of Arkansas
    CR 73-88
    499 S.W. 2d 842
    Opinion delivered October 1, 1973
    [Rehearing denied October 29, 1973.]

      Fred M. Pickens Jr., James A. McLarty ir Pickens, Boyce, McLarty ir Watson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Virginia Louise Kennedy was charged with first degree murder in the killing of George Henry Duty. She was convicted at a jury trial for voluntary manslaughter and sentenced to six years in the penitentiary. She contends on appeal that the trial court erred in admitting into evidence a statement she made during interrogation by police officers because she was physically and mentally unable to comprehend her constitutional rights as given to her by Lieutenant Wilson prior to making the statement.

There is no question that the appellant fired the fatal shot that killed George Henry Duty. She was well-known to the law enforcement officers having been previously convicted for grand larceny, prostitution, forgery and uttering, assault with intent to kill, and having been arrested on numerous occasions for public drunkenness.

The facts in the case at bar briefly are these: The deceased was an old boyfriend of the appellant and after he was sentenced to the penitentiary, the appellant started living with Donald Crawford in a housetrailer, or converted bus, near her mother’s home. Paul Burns had been living with the appellant’s mother. The deceased had recently been released from the penitentiary and he and Paul Burns and the appellant went to the house-trailer where the appellant and Crawford had been living, Crawford was already at the trailer. It appears that all the parties were drinking beer and the appellant shot and killed Duty with a .22 rifle. The appellant, Crawford, and Burns then took Duty to a hospital but he was dead upon arrival. The appellant was taken into custody at the hospital by a municipal policeman, Gary Wilson, who transported her to the county jail where she made the statement here in question about three and a half hours after she was taken into custody. The statement was taken on a tape recorder in question and answer form and was reduced verbatim to a typed transcription. The state offered the statement in evidence at the trial and the appellant objected to its introduction, contending that it was not admissible under Miranda. The appellant’s contention seems to be that she was intoxicated and was too drunk to understand her constitutional rights if they were explained to her, and too drunk to intelligently waive her right to the services of an attorney when she was first arrested by Officer Wilson and subsequently questioned by Officer Young. The court announced that they would have a “Miranda hearing” and proceeded to a hearing in chambers.

At the in-chambers hearing Officer Wilson testified that at the time he took the appellant into custody at the hospital, he told her she had a right to remain silent and anything she said could be used against her in a court of law; that she had the right to an attorney and have him present while she was being questioned and if she could not afford to hire an attorney, one would be appointed for her. He said that he asked her if she understood the warning and she said that she did. He said the arrest was made and warning given at approximately 7:00 p.m.; that the case being a “county case” Sheriff Henderson was handling the investigation and he simply transported the appellant to the county jail where she was questioned about 10:50 p.m. when Sheriff Henderson returned from the scene of the homicide. He said he was present when the appellant was questioned by state police Officer Young and that Officer Young again advised her of her constitutional rights. He said the warning given her was recorded along with her statement and was included in the written transcript.

At the in-chambers hearing Officer Wilson testified that the appellant “was kindly shook up” at the time of her arrest. He said she had a strong odor of intoxicants on her breath but that she was not swaying, unsteady or staggering. He said that she was crying, but appeared to be in complete control of her faculties. He said that immediately after he arrested the appellant, he gave her an intoximeter test which registered .22. Officer Wilson then testified that he had known the appellant for three or four years; that he had arrested her on previous occasions for public drunkenness, and had observed her when she was sober. He said that in his opinion the appellant was not drunk when he arrested her at the hospital. He said she responded immediately to all questions asked her at the time of her arrest; that he had had numerous dealings with the appellant in the past years and that there was no doubt in his mind that she comprehended the questions he asked and statements he made to her in giving the Miranda warning.

At the in-chambers hearing Officer Young testified that when he questioned the appellant she seemed to understand every question asked her and everything said to her; that she answered all questions in a manner which would indicate she knew what she was talking about. He said the appellant had obviously been drinking but that she was not drunk. He said she would have been considered as driving while intoxicated had she been driving an automobile, but that she was' coherent and able to walk and talk in a satisfactory manner.

Sheriff Henderson had tesdfied in open court prior to the in-chambers hearing and his testimony was considered by the trial judge on the voluntariness of the statement made by the appellant. Sheriff Henderson said that he first went to the Newport Hospital when advised of the homicide. He said he talked to some of the witnesses including the appellant and then went out in the county where the homicide occurred. He said he later talked to the appellant at the county jail. He said that when he first talked to the appellant at the hospital, she was crying; that she had been drinking some but was not in a drunken condition. He said “she knew what she was doing.” Sheriff Henderson testified that he had been sheriff of the county for 10 years and had seen the appellant drunk several times during that period. He said he believed he had only had her in the county jail once or twice for public drunkenness, but he had seen her in the city jail on several occasions. He said he had observed the appellant when she was very “staggery” and had no control of her faculties. In comparing the previous occasions when he had observed her while drunk, he said that when he talked with her at the hospital “She knew everything, knew me, talked with me; she wasn’t staggering.” He said that the appellant had known him for some time and, prior to the interrogation, she kept asking him to help her; that she didn’t mean to shoot Duty; that Duty begged her to shoot him but that she did not mean to do so. He said she indicated to him that the shooting was an accident and that during these statements he advised her to be quiet until she was advised of her rights, etc.

On cross-examination Sheriff Henderson testified that when he first went to the hospital, he talked to several witnesses and that the appellant probably did come to him and start telling her story of what had happened. He said he had seen “Cookie” (the appellant) drunk on many occasions. He then testified as follows:

“Q. Was she drunk this time?
A. No; no, she wasn’t what I would say a bad drunk; she had been drinking but she was not to the point of what I would call a drunken condition.
# * #
Q. It is your opinion then and you are saying then she was in an intoxicated condition that night when you saw her?
A. She was intoxicated, yes, sir, but she was far from being drunk.”

Gerald Carlyle, the deputy prosecuting attorney, testified at the in-chambers hearing. He testified that he was present when the appellant was questioned around 10:45 or 10:50 p.m.; that she appeared to be stable and did not appear to be under the influence of intoxicants. He said that she was responsive to all questions asked her and appeared to have complete control of her senses. He said that he is of the opinion that she was thoroughly able to comprehend the Miranda warning given her at the time she was questioned, and that she understood the warning. He said he knew nothing of the appellant’s condition at the hospital when she was first arrested and warned of her rights by Officer Wilson. He said that during the interrogation the appellant started crying at one point and the sheriff let her call her mother before she was questioned. He said that the appellant did call her mother and talk with her; that she told her mother she was in custody at the police department and was all right. He said she then settled down and gave her statement. He said that he was not present when Officer Wilson advised the appellant of her constitutional rights, but that he was present when Officer Young so advised her just prior to her statement. He said that he asked the appellant if she had been warned of her rights and she told him that she had.

The appellant testified at the in-chambers hearing. She said that she was acquainted with Officer Wilson and remembers him placing her under arrest at the hospital. She said that she knew what was meant by a warning of constitutional rights, but that she did not remember Officer Wilson warning her of her rights at the hospital. She was asked what she recalled as to her emotional state and her condition when she was arrested at the hospital and she responded, “I was just real nervous.” She said she does not. know whether she was crying or not but that she thinks that she was. She said she does not remember Officer Wilson telling her that she could have an attorney appointed for her if she couldn’t afford one. She said that she would have asked for an attorney at that time had she known one would have been appointed for her.

“Q. Your statement is that Mr. Gary Wilson did not tell you that?
A. He may have but if he did I forgot about it.”

On cross-examination the appellant testified:

“Q. Didn’t you know you had the right to have an attorney if you wanted one?
A. Yes, sir, but I didn’t have no way of getting hold of one.”

The appellant then testified that she was convicted in the Jackson County Circuit Court in 1964 for assault with intent to kill and was sentenced to two years in the state penitentiary with the sentence suspended; that in 1965 she was sent to the state penitentiary for violating the terms of the previous suspension; that in 1968 she was convicted of grand larceny and sentenced to ten years in the penitentiary to be suspended on good behavior, and that in 1968 she was convicted for prostitution. She said that in 1972, less than three months before Duty was killed, she was again convicted of forgery and uttering and sentenced to the penitentiary for three years which was suspended. She said she pleaded guilty to all of these charges. At the conclusion of the in-chambers hearing the trial court held the statement admissible.

In the statement offered in evidence the appellant gave her name and gave her age as 28 years. The statement as recorded then reads in part as follows:

“BUDDY YOUNG: You are presently under investigation on a murder charge. You know you have the right to remain silent.
VIRGINIA KENNEDY: Yes sir.
BUDDY YOUNG: And anything you say can be used against you in a court of law.
VIRGINIA KENNEDY: Yes sir.
BUDDY YOUNG: You have the right to consult with an attorney before you make any statement.
VIRGINIA KENNEDY: Yes sir.
BUDDY YOUNG: You have the right to stop answering questions at any time for the purpose of consulting an attorney.
VIRGINIA KENNEDY: Yes sir.
BUDDY YOUNG: Now, do you want' to go ahead and make a statement at this time, without an attorney present, you can waive your right to remain silent and make a statement. Do you wish to make a statement at this time?
VIRGINIA KENNEDY: Yes sir, I will.”

The appellant then proceeded to give direct and responsive answers to the questions asked her. She said that Duty took her and Paul Bums to her housetrailer. in his automobile and while there, Duty’s brother-in-law came out to repossess the automobile from Duty. She said that Duty had been drinking some beer and argued with his brother-in-law about the automobile. She said that when Duty came back into the trailer after talking with his brother-in-law about the automobile, he started cursing and blackguarding and told Donald Crawford who was there, that if he, Duty, could not have her, the appellant, that Crawford was not about to get her. She then said:

“Then he hit me and knocked me down, whenever he did. I don’t know, I just grabbed the gun and shot him.”

The appellant said that Duty threatened her with a chain he jerked from the door latch and also threatened her with a knife and she just shot him and couldn’t help it. She said she already had a shell in the gun because Duty had threatened her previously at her mother’s home. She said she kept a shell in her gun all the time when Crawford was away from the trailer and she was there by herself. She said she was afraid of the decedent Duty. In her statement the appellant said that Duty didn’t actually strike her but that he pushed her with both hands and when he did, he knocked her down and she received a knot on her head and a bruise on her arm. She said she fell backwards and fell close to the gun so she picked it up and shot him.

Sergeant Young testified before the jury that alcohol in the body affects different people in different ways. He said that some people can be drunk and pass out with .08 or .09% and others who have developed a high tolerance can go as high as .31 or .32% and still be able to walk and talk.

Donald Crawford and Paul Burns testified as witnesses for the appellant. They both testified to the effect that some beer was being consumed by all of them on a friendly basis in the trailer. There was some testimony that a half pint of whisky was brought to the trailer by one of the parties. Their testimony was to the effect that the difficulty between Duty and the appellant arose when the automobile Duty was driving was repossessed by a former owner. They said the appellant attempted to restrain Duty from following the former owner toward the automobile after it was repossessed; that the appellant and Duty started cursing and shoving each other; that Duty threatened the appellant with a door chain and a knife and that the appellant shot him.

The appellant testified before the jury in her own defense. She said she had been drinking heavily on the day of the homicide and does not remember even going to the trailer with Duty and Paul Burns on that day. She said she had tried to think back and remember what happened but that she had been unable to do so. She said she drinks beer every day and also drinks whisky. She said she had been drinking like that ever since she was 17 years of age; that she thinks she is an alcoholic; that she had attempted to stop drinking but has been unable to do so.

We are of the opinion, that the court did not err in admitting the appellant’s statement into evidence. Certainly her answers to questions asked her were direct and responsive and there is nothing in the answers that would indicate she was under any mental or physical disability at the time they were made. There is some conflicting testimony as to the amount of alcoholic beverages the appellant had consumed and the effect it had upon her, but there is substantial evidence to support the trial court’s finding that the appellant was advised of her constitutional rights as set out in Miranda and that she knowingly and intelligently waived her right to the services of an attorney at the time she gave her statement and that she intelligently and knowingly did so.

In Reed v. State, 255 Ark. 63, 498 S.W. 2d 887, we reversed the conviction for error in admitting a statement of the accused into evidence without warning and advice of his constitutional right to the services of an attorney at the time of arrest as set out in Miranda v. Arizona, 384 U.S. 436 (1966). Asimilar deficiency appears in the warning given by Officer Young in the case at bar. He did not advise the appellant that an attorney would be appointed for her if she was unable to employ one. The record is not clear whether Officer Young was attempting to warn the appellant of her constitutional rights before questioning her, or whether he was attempting to determine if she had already been warned of her constitutional rights. In any event, according to Officer Wilson, he gave the appellant the complete Miranda warning approximately three and one-half hours before Officer Young talked to her and before she made her statement. The appellant testified that if such warning was given to her by Officer Wilson, she had forgotten about it.

In Brooke v. State, 86 Ark. 364, 111 S.W. 471, a public drunkenness ordinance was under attack. The defendant had been charged with violation of the ordinance and in that case we cited with approval the standard dictionary definition of drunk as being:

‘“Under the influence of intoxicating liquor to such an extent as to have lost the normal control of one’s bodily and mental faculties, and commonly, to evince a disposition to violence, quarrelsomeness and bestiality.’”

In Miller v. State, 251 Ark. 502, 474 S.W.2d 112, the appellant signed a waiver of his constitutional rights but testified at an in-chambers hearing that he had been drinking and did not remember whether his constitutional rights had been explained to him or not. His testimony was to the effect that he was too drunk to read and too drunk to know what was going on at the time he signed the waiver and statement. In that case we held that the trial court did not err in admitting the statement into evidence as voluntarily made and in doing so we pointed out that the appellant had no difficulty remembering other events in connection with his arrest and detention.

In Hale v. State, 252 Ark. 1040, 483 S.W.2d 228, we approved the action of the trial court in admitting a statement made to arresting officers 90 minutes after the accused was given the Miranda warning and we distinguished that case from Scott v. State, 251 Ark. 918, 475 S.W.2d 699, where there was a 90 day lapse of time between the giving of the warning and the admissions made by the accused.

In the Pennsylvania case of Commonwealth v. Smith, 447 Pa. 457, 291 S.2d 103 (1972), the conflict in the evidence was very similar to the conflict in the evidence in the case at bar and in that case the Supreme Court of Pennsylvania said:

“Appellant contends that at the time his confession was taken he was too intoxicated to understand the constitutional warnings, thereby rendering involuntary his waiver and subsequent statement. The fact that an accused has been drinking does not automatically invalidate his subsequent incriminating statements. The test is whether he had sufficient mental capacity at the time of giving his statement to know what he was saying and to have voluntarily intended to say it. Recent imbibing or the existence of a hangover does not make his confession inadmissible, but goes only to the weight to be accorded to it. See United States v. Martin, 434 F.2d 275 (5th Cir. 1970); United States v. Kershner, 432 F.2d 1066 (5th Cir. 1970); 2 Wharton’s Criminal Evidence (12th Ed.) § 388 (Cum. Supp. 1970).”

The same question was presented to the Wyoming Supreme Court in Lonquest v. State, 495 P.2d 575. In admitting the confession in that case the court pointed out that no confession or statement should be received unless the maker was capable of realizing what he was saying and not suffering from delusions or hallucinations, so that he knowingly, understandingly and comprehend-ingly made the statement. The court pointed out, however, that the judge first and the jury are the only possible available instruments by which such determination can reasonably be made. The Wyoming Court then applied the general rule quoting from People v. Schompert, 19 N.Y.2d 300, 279 N.Y.S.2d 515, 226 N.E.2d 305, as follows:

“‘The general rule applicable to confessions obtained from persons under intoxication has been well stated to the effect that ‘proof that the accused was intoxicated at the time he confessed his guilt of crime will not, without more, bar the reception of the confession in evidence. But if it is shown that the accused was intoxicated to the degree of mania, or of being unable to understand the meaning of his statements, then the confession is inadmissible.’ ***’”

See also People v. Dagge, 295 N.E.2d 336; State v. McClure, 185 S.E. 2d 693.

The judgment is affirmed.