text:
    Enous O’NEAL Jr. v. STATE of Arkansas
    5729
    487 S.W. 2d 618
    Opinion delivered December 11, 1972

      Ralph C. Murray and Garland Q, Ridenour, for appellant.

      Ray Thornton, Atty. Gen., by: John D. Bridgforth, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Enous O’Neal, Jr. was convicted of the crime of murder in the first degree and his punishment assessed at death in the electric chair. From the judgment so entered, appellant brings this appeal. The killing occurred on the night of March 1, 1971, appellant shooting Robert Nathan. Following the shooting, O’Neal immediately went to Chicago, Illinois, but, according to testimony, called Phillips County officers, and told them where he was located, after which the Arkansas officers contacted the Chicago Police Department, advising that they held a warrant for O’Neal, and asking the Chicago police to take him into custody. Officer Lawhon, a Deputy Sheriff of Phillips County, testified that O’Neal was advised of his rights at that time; that subsequently he called O’Neal, at which time, two of O’Neal’s brothers talked with him and Lawhon again talked with him, advising that they held a first degree murder warrant for his arrest. Lawhon stated that O’Neal told him that he killed Nathan but that it was an accident. Detective Patrick Carroll of the Criminal Investigation Division of the Chicago Police Department, testified that he, along with other officers, in response to the message from the Arkansas officers, went to 5714 South Wabash in Chicago where they found the defendant; that they explained to him that they had a warrant for his arrest and he was at that time orally advised of his constitutional rights. A woman, Fanny Mae Hunt, was with the defendant and the officers were told that she was his wife. O’Neal was taken to a police station and again informed of his constitutional rights with a “Miranda” card. O’Neal was also told that his automobile was allegedly involved, at which time he stated, that the car was being repaired, giving the location of the garage, and appellant further stated that he had nothing to hide and gave the officers permission to search the house and the car, giving Detective Carroll the keys to the automobile. Both O’Neal and Miss Hunt stated that she was a co-owner of the car and Miss Hunt accompanied the officers when the car was searched. The door was opened with a key and a search made of the inside of the automobile and no weapon was found. The officers checked under the hood and then tried the' key to the trunk lock which would insert but would not turn. The back seat was then taken out of the car interior and the officers could view what appeared to be a gun case butt. Miss Hunt did not have her keys and the officers advised that they would like to search the trunk and would replace the lock, and she gave her permission. Upon forcing the trunk lid, a shotgun wrapped in sheets was observed and taken from the car. Subsequent investigation and tests established that this was the weapon that fired the shots that killed Nathan. For reversal, it is first asserted that appellant’s motion to suppress the shotgun as evidence should have been granted since there was no warrant obtained for the search. We find no merit in this contention for we think it is clearly shown that appellant waived the requirement of a warrant. On trial, O’Neal testified that he did not give his permission, but Carroll and M. F. Caccitiolo, a Chicago police officer, both testified that O’Neal and the co-owner of the car, Miss Hunt, did grant permission, and that the keys were handed to the officers. See Dokes v. State, 241 Ark. 720, 409 S.W. 2d 827; Asher & Bradford v. City of Little Rock, 248 Ark. 96, 449 S.W. 2d 933, and cases cited therein. The trial court found that consent had been given and we are of the opinion that the evidence supports that finding. Actually, it would not appear that the taking of the shotgun, and its subsequent introduction into evidence could have been prejudicial for O’Neal did not deny the shooting; rather he admitted that he shot Nathan, but said that he was firing at a deer and accidentally hit this companion.

It is next asserted that the court erred in excluding for cause two jurors who were opposed to capital punishment. This contention is based on the case of Witherspoon v. Illinois, 391 U.S. 510, 20 L. ed. 2d 776, 88 S. Ct. 1770. We cannot agree that that case is controlling in the present instance for the two jurors both emphatically answered, during the voir dire examination, that they would not vote for the death penalty. One answered “No” and the other, when asked “Do those words mean that you just would not vote for the death penalty?”, replied, “Yes sir, because I don’t believe in it”.

It is next asserted that the trial court erred in overruling the motion to suppress as evidence certain statements and admissions made by appellant for the reason that there was no showing that the Miranda warnings had been given. We have already commented that the Chicago police officers testified that O’Neal was informed of his constitutional rights as required in Miranda v. Arizona, 384 U.S. 436, 16 LEd 2d 694, 86 S. Ct. 1602, not once, but twice. The evidence further shows that when Police Chief Kenneth Winfrey of the Helena Police Department and Deputy Sheriff Law-hon took appellant into custody for the purpose of returning him to Arkansas, that he was again advised of his rights by both of the officers. According to their testimony, on the return trip, O’Neal several times voluntarily and of his own accord, made statements referring to the shooting to the effect that he killed Nathan, but said it was an accident. Lawhon said that three of four days after O’Neal was placed in jail, he sent work that he wished to talk with Lawhon and that officer, accompanied by Deputy Sheriff Gunn, went to the jail and appellant stated that he desired to tell them how the killing occurred. According to Law-hon:

“He said that ‘I killed Bugeye,’ as he referred to him, Robert Nathan. ‘But it was not murder, it was an accident.’ Said, ‘Up there in the curve on Springdale Road,’ said, ‘You know, that’s a deer crossing there and a deer come across the road,’ and said, ‘I got out and took the shotgun and just as I through [threw] upon the deer, Bugeye,’ who was Robert Nathan, ‘ran in between us and he took the charge of shot and that’s what killed him.’ *** ‘I told Enous — I said, ‘Enous, the body was X-rayed and there were two loads of shot went into this man. I recovered quite a few Number 6 shot from the lower throat area here.’ Or in my opinion I figured they were Number 6. ‘And could you explain the second shot,’ Mr. Gunn, Deputy Sheriff Gunn was standing there with me. He said, ‘Yeah, he was laying there kicking'and I shot him again to get him out of his misery.’ ”

The evidence was overwhelming that O’Neal was advised of his constitutional rights and the statements made were entirely voluntary.

Next, error was asserted due to the admission of the shotgun, a spent shell, the shirt of the deceased and certain photographs of the automobile taken in Chicago. It might be mentioned that no objection was made to the introduction of the shell and the shirt and we again mention that the introduction of the shotgun (or the shell) could not have been prejudicial, since O’Neal himself testified that he killed Nathan with the shotgun. The shirt was introduced by Officer Lawhon who testified that he, with other officers, cut it off the body at the hospital. The testimony reflected that the shirt had blood on it and two holes made by a shotgun in it, and certainly was admissible as reflecting the manner of the killing, the evidence also reflecting that the shirt had been in the possession of Chief Winfrey since being taken. Officer Caccitiolo testified that the shotgun was the same one found in appellant’s car, the identification being based on the fact that the serial number on the gun was the same as recorded in his report. After being turned over to Deputy Lawhon, the gun was returned to Helena, where it remained in the Sheriff’s office. The Chicago Police Department also placed an identification mark above the wood portion of the gun. There was no error in permitting these exhibits to be introduced. As to the photographs, Carroll testified that he was present when the pictures were taken and that they were a true and correct representation of the car and the shotgun as he found them. We have-said on numerous occasions that the admissibility of photographs is largely within the discretion of the trial court. See Davis v. State, 246 Ark. 838, 440 S.W. 2d 344, and cases cited therein.

It is asserted that the court erred in permitting the testimony of Chief of Police Kenneth Winfrey relative to entry and exit wounds. Winfrey, using photographs, explained where the shot entered and where they left the body, and appellant contends that Winfrey was not an expert and accordingly not qualified to testify on this particular matter. We disagree. The evidence reflected that Winfrey had served as Chief of Police of the Helena Police Department for two and one-half years, had formerly served with the Arkansas State Police, and had previous experience in gunshot cases dealing with entry and exit wounds. The witness testified that he had examined the body (after which photographs were taken) and he very clearly explained how he reached the determination testified to. No error was committed in permitting this testimony.

Next, it is contended that the court erred in admitting into evidence pictures of the deceased for the reason that they were of no probative value, and were prejudicial. We do not agree for we think the photographs were an aid to the jury in understanding the testimony. In Williams v. State, 250 Ark. 859, 467 S.W. 2d 740, this court said:

“The admission and relevancy of photographs must necessarily rest largely in the discretion of the trial judge. Admissibility of photographs does not depend upon whether the objects they portray could be described in words, but rather on whether it would be useful to enable the witness better to describe and the jury better to understand, the testimony concerned. Where they are otherwise properly admitted, it is not a valid objection to the admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible. Oliver v. State, 225 Ark. 809, 286 S.W. 2d 17; Smith v. State, 216 Ark. 1, 223 S.W. 2d 1011 (cert. den. 339 U.S. 916); Jones v. State, 213 Ark. 863, 213 S.W. 2d 974.
Photographs are admissible for the purpose of describing and identifying the premises which were the scene of the crime, and may also be admitted to establish the corpus delicti of the crime charged, to disclose the environment and to corroborate testimony. Stewart v. State, 233 Ark. 458, 345 S.W. 2d 472 (cert. den. 368 U.S. 935).”

It is next asserted that the trial court erred in not discharging appellant because he had been in jail for more than two terms of the court without having been brought to trial. We do not agree. In Stewart v. State, 13 Ark. 720, this court, through Cheif Justice Watkins in interpreting a section identical with our present statute, Ark. Stat. Ann. § 43-1708 (Repl. 1964), stated:

“The unavoidable construction of it is, that, in order to entitle the accused to be discharged for such cause, there must be, on the part of the State, a failure of three terms to bring him to trial, that is to say, at the end of the second term which shall be held after the finding of the indictment, [our emphasis]”

This is still the law, the recent opinion in Holland v. State, 252 Ark. 730, 480 S.W. 2d 597, not overruling this portion of the Stewart opinion. Ark. Stat. Ann. § 22-310 (Supp. 1971) sets out the terms of the Phillips County Circuit Court, and for the year 1971, these terms would have commenced on March 15, May 24, September 13, and November 22. Apparently, though the record is not entirely clear, O’Neal was returned to Arkansas the first part of May, and on May 7, entered his plea of not guilty and the court appointed counsel to represent him; at that time the case was set for trial for May 31. However, on May 20, appellant filed a motion for psychiatric examination and this motion was granted. Again, though the record is not completely clear, it appears that the case was not tried during the September term because of the fact that the material witnesses for the state were not present, and the case was continued. It was tried during the November term. Summarizing, the case was not tried during the March term, but under Stewart, the state was obligated to try him within the next two terms. As previously stated, the case was not tried during the May term because of the application of O’Neal for psychiatric examination; accordingly, this term does not count against the state. He was not tried during the September term because of the state’s motion for continuance, but was then tried in the November term which is clearly a trial within two terms, not counting the first term, and not counting the continuance granted on appellant’s motion.

Appellant complains that reversible error was committed by the prosecution because of statements made during the closing argument. The record does not reveal that any objections were made to these allegedly prejudicial statements at any time prior to the return of the verdict, and we cannot consider this point. See Jones v. State, 248 Ark. 694, 453 S.W. 2d 403.

Finally, it is asserted that the jury did not deliberate a sufficient length of time before arriving at its decision. We know of no statute that requires a particular time of deliberation, and certainly the amount of time taken, or lack of it, does not indicate prejudice; to the contrary, it would only indicate that the evidence was clear and substantial. Each juror was polled by the court when the verdict was returned, and each stated that he found appellant guilty of the crime of murder in the first degree.

It follows from what has been said, that we find no reversible error.

However, the United States Supreme Court, in the case of Furman v. Georgia, 408 U.S. 238 (1972), held that where a jury is permitted to determine whether a defendant should receive a punishment of life imprisonment or death, the death penalty constitutes “cruel and unusual punishment” and that this interpretation is applicable to the several states through the Fourteenth Amendment. It is thus mandatory that appellant’s sentence be reduced from death to life imprisonment as being the next highest available penalty. Ark. Stat. Ann. § 43-2308 (Repl. 1964). Accordingly, the cause is remanded to the Phillips County Circuit Court for re-sentencing in accordance with this opinion.

It is so ordered.

       From the record: “In many cases, Mr. Raff, the type of wound — expecially where it goes through clothing or some object prior to the entry into the flesh, the direction of travel will throw the material or whatever other objects it may hit in that direction upon entrance. On exit, everything is blown away from the wound, an outward position rather than being in an inward position, one of the important factors in determining an entrance wound and exit.”


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Charles RUSSELL v. Jimmy MILLER, Mayor
    5787
    487 S.W. 2d 617
    Opinion delivered December 11, 1972

      Troy Wiley, for appellant.

      Lightle, Tedder & Hannah, for appellee.
   George Rose Smith, Justice.

The appellant was charged in the mayor’s court of the city of Judsonia with driving while intoxicated, an offense under State law. The mayor denied the defendant’s motion to transfer the case to the municipal court of the city of Searcy. The defendant then petitioned the circuit court for a writ of mandamus directing the mayor to grant the requested transfer. This appeal is from a circuit court order denying the petition for mandamus.

We think the appellant’s position is well taken. The statute invests the mayor’s court with the jurisdiction and power of a justice of the peace in criminal cases arising from State offenses committed within the corporate limits. Ark. Stat. Ann. § 19-1102 (Repl. 1968). A separate statute provides that in any criminal case brought before a justice of the peace in any township in a county wherein a municipal court exists, the defendant may, on motion, take a change of venue to the municipal court. Upon the filing of such a motion of the justice of the peace “shall have no further jurisdiction in the case.” Ark. Stat. Ann. § 22-725 (Repl. 1962). The section just cited is part of Act 60 of 1927, as amended, which also provides that the municipal court’s jurisdiction is exclusive of justices of the peace in townships subject to the act. Section 22-709.

When the statutes are read together we construe them to mean that the jurisdiction of the mayor’s court, like that of the justice of the peace, is subject to a motion to transfer to municipal court when a State offense is involved. Evidently the legislature sought to achieve equality and uniformity of treatment with respect to such offenses, by making it possible for the cases to be heard by the same tribunal. Moreover, the municipal judge is required by Act 60, supra (§ 22-704), to be a licensed lawyer, but there is no similar requirement with regard to mayors or justices of the peace. Thus there are sound reasons supporting the appellant’s contention, while, on the other hand, we discern no basis for a legislative distinction between the justice of the peace court and the mayor’s court (now renamed the city court by Act 153 of 1971; Ark. Stat. Ann. § 19-1102.1 [Supp. 1971]).

We must decline counsel’s invitation to speculate about the effects upon our city courts that may result from the Supreme Court’s decision last month in Ward v. Village of Monroeville, 404 U.S. 1058, 92 S. Ct. 735, 30 L. Ed. 2d 745 (1972). There Ward, in support of his objection to being tried in the mayor’s court, showed that the mayor had broad responsibilities in the successful administration of the village government and also that the fines imposed by him in the mayor’s court amounted to specified and substantial portions of the village income. The court held the mayor’s conflict of interest to be so great as to preclude him from presiding at the trial. In the case at bar the appellant made no similar objection to being tried by the mayor, offered no similar proof with respect to the city’s income, and in fact is not even going to be tried by the mayor, under our decision. Hence any comment by us upon the Supreme Court’s decision would be contrary to our settled practice of not discussing questions of theoretical interest only. Lytle v. Zebold, 227 Ark. 431, 299 S.W. 2d 74 (1957).

Reversed.


author: Lyle Brown, Justice.

text:
    CAMFIELD TIRES, Inc. v. Carl R. MOSELEY
    5-6074
    487 S.W. 2d 268
    Opinion delivered December 11, 1972

      Davis & Reed, for appellant.

      Murphy, Carlisle ir Taylor, for appellee.
   Lyle Brown, Justice.

This cause originated as an action for an accounting brought by the appellee, Moseley, against his employer, Camfield Tires, Inc. The critical issue at the trial level was to determine what the written contract of employment meant by “two per cent gross profit”. The trial court determined that the basis of calculation as contended by appellee-employee was correct and awarded judgment for $5064.78.

The contract of employment became effective February 11, 1968. It provided for employment of appellee as a tire salesman at appellant’s place of business in Springdale, Arkansas. Appellee was to receive a salary of $125 per week and two per cent of the gross profits. The contract did not attempt to define the meaning of “gross profits”. During the ensuing three years appellant paid appellee a total of $1718.76 in bonus money. Appellee became dissatisfied with the amounts of the bonuses. During the absence of Camfield and the bookkeeper, appellee obtained from appellant’s files income statements for most of the period covered by his employment. Those statements were prepared by appellant’s accountant. Had appellee’s bonuses been calculated on the basis of the gross income shown on those statements, the amount would far exceed that which had been paid in bonuses. It was then that appellee filed this suit for accounting and judgment. Other pertinent facts will be related as we discuss the points for reversal.

POINT I. THE TRIAL COURT ERRED IN DISREGARDING EVIDENCE THAT ACCORD AND SATISFACTION DISCHARGING THE CONTRACTUAL OBLIGATIONS IN CONTROVERSY WAS HAD. Appellee filed this suit on April 23, 1971. He continued to work until May 21, 1971, on which date he was discharged. On the discharge date he was given a check for $111.66, being the precise amount of his weekly salary check after deductions. There was a notation on the check reading “final settlement”. It was signed by the corporation’s bookkeeper. There was no proof that there was any conversation between appellee and the bookkeeper about that payment being any part of a settlement concerning the bonus controversy. In fact appellee testified — and it was uncontroverted — that the check represented his final salary payment. The transaction whereby appellee was given the check does not meet the test of accord and satisfaction. As well stated in 1 Am. Jur. 2d, Accord and Satisfaction, § 1:

To constitute an accord and satisfaction there must be an offer in full satisfaction of the obligation, accompanied by such acts and declarations as amount to a condition that if it is accepted, it is to be in full satisfaction, and the condition must be such that the party to whom the offer is made is bound to understand that if he accepts it, he does so subject to the condition imposed.

Another important circumstance tending to prove that it was a regular weekly salary check: appellant was contending all along that it owed nothing as respected the bonuses; in fact it was testified that appellee had in fact been overpaid for bonuses.

POINT II. THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH THE JUDGMENT OF THE TRIAL COURT SHOULD BE SUSTAINED; FURTHER, THAT SAID JUDGMENT DOES NOT CONFORM TO THE EVIDENCE OR TO THE LAW. Under this point three separate arguments are advanced. First, it is contended that there is not sufficient evidence to support the trial court’s finding that two per cent of the gross profits for the periods amounted to $5064.78. Precisely the argument here is that the trial court used the wrong figures for gross profits. Mr. Camfield testified that the two per cent figure he used for bonuses were based on net income. Mr. Camfield’s certified public accountant was called as a witness by appellee. He identified the profit statement covering the years of appellee’s employment. They were prepared by the accountant. Those exhibits of course arrived at gross profits. He took the gross sales figure and deducted therefrom the cost of the merchandise and the freight; the difference gave him the gross profit.

Another important exhibit was introduced. Appellee had in his possession a sheet reflecting a year-to-year summary of profits. It covered the twelve years immediately preceding appellee’s employment. Appellee said Mr. Camfield gave appellee this sheet at the time they were discussing his possible employment. When that sheet is analyzed it is evident that in calculating the gross profit for each year the same procedure was used as was utilized by appellant’s auditor during appellee’s tenure. The trial court concluded, and we think correctly so, that appellant was bound, in arriving at gross profits, by its own long established method of arriving at gross profits. In other words, the chancellor apparently reasoned that when the employment contract was drawn, the term “gross profits” meant exactly what was reflected by appellant’s records for a continuous period of twelve years prior to employment of appellee.

The second argument under Point II is that of novation. The corporate appellant established a branch office in Rogers, Arkansas, several months before appellee was discharged and appellee was placed in charge of that store. So during those months appellee spent only a part of his time at the Springdale store. Appellee overlooks the fact that novation was not pleaded, either expressly or by unequivocal implication. It is an affirmative defense which must be pleaded and the answer must allege the essential elements of a novation. 66 C.J.S., Novation § 25. Also, see Elkins v. Vogt Machine Co., 125 Ark. 6, 187 S.W. 663 (1916). Furthermore, the employment agreement contained a provision that either party could cancel the contract by giving 14 days written notice. It is our impression that the notice was not given by the employer until after the suit was filed.

The final argument is that the trial court erred in admitting the summary sheet heretofore referred to as reflecting profit and loss for a twelve year period. It was introduced without objection. It is argued that those figures were shown appellee merely as an inducement for him to come to work. Appellant says that “promissory inducements cannot be asserted to vary the terms of a subsequent written contract”. The limited use to which the court utilized the summary sheet was perfectly proper. The trial court said the exhibit showed appellant’s accounting method for a twelve year period. The court remarked: “There was nothing in the testimony to show at any time .... a more precise definition of gross profits and net profits for some ten years preceding Mr. Moseley’s employment, and was shown to Mr. Moseley by Camfield”.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Bob CHILDS, d/b/a Bob CHILDS REALTY Company v. Wesley PHILPOT et ux
    5-6093
    487 S.W. 2d 637
    Opinion delivered December 11, 1972

      Hartje ér Hartje, for appellant.

      Clark, Clark é Clark, for appellee.
   John A. Fogleman, Justice.

This case originated as a suit by Bob Childs Realty Company, Inc., against Wesley Philpot and his wife for a real estate commission. The plaintiff alleged that defendants (appellees) engaged the services of Bob Childs Realty Company, Inc., to sell a tract of real estate and that, after the expiration of the 90-day exclusive listing of the property with plaintiff, appellees sold the property to purchasers under such circumstances that plaintiff was entitled to recover the commission specified in the listing contract. It was alleged that the sale of the property by appellees resulted from, or was based upon, information given by, or obtained through, the agent, with notice to the owner, during the term of the contract. Appellees answered denying that allegation. They also alleged that the plaintiff was not entitled to recover any commission because it was not a licensed real estate broker. By an amendment to the answer, appellees alleged that the plaintiff was non-existent. The plaintiff later admitted that “Bob Childs Realty Company, Inc.” had never been licensed as a real estate broker or salesman in Arkansas. Thereafter, a pleading denominated “Amended Complaint and Response” was filed by “Bob Childs d/b/a Bob Childs Realty Company, Inc.,” admitting that the real estate business conducted by Childs had never been incorporated, and alleging that his doing business in the corporate name was without intent to defraud or mislead anyone, and did not result in any loss to appellees or constitute fraud or misrepresentation. In the same pleading Childs alleged that he was a licensed real estate dealer in Arkansas under the name of “Bob Childs Realty Company” and that appellees were estopped to deny the corporate existence ot the plaintiff originally named in the complaint. 4ppel')?es moved to strike this pleading asserting that no procedu-e existed by which Bob Childs, an individual, could b substituted as plaintiff, and that Childs could not recover from appellees in his individual capacity without instituting a new action by filing a new complaint and causing a summons to be issued. The chancellor denied this motion and treated the case as if Bob Childs individually, Bob Childs Realty Company, Inc., and Bob Childs, d/b/a Bob Childs Realty Company were the plaintiffs.

The chancery court, after hearing the evidence, decreed that the complaint be dismissed “because of plaintiff’s failure to comply with § 71-1301, et seq., Ark. Stat. Ann. [(Repl. 1957)].” The chancellor made specific findings that the sale resulted from information obtained through “the plaintiff, as a real estate agent, for the sale of said lands,” that Childs at all material times operated as a corporation, although all steps necessary to incorporate had not been completed, and that appellees were not es-topped from pleading the lack of a real estate license as a defense.

For reversal, appellant argues that the trial court erred in finding that he operated as a corporation and consequently was to be treated as such and in failing to find that appellees were estopped to deny the corporate existence of appellant. We find that the court erred in holding that Childs was barred from recovery because the nonexistent corporation had no real estate license. Appellant could not benefit, however, if we held that appellees were estopped from denying the corporate existence of Bob Childs Realty Company, Inc., because appellant does not even assert that the real estate license had been issued to such a corporation, either de jure or de facto. Childs, in his amended complaint, plainly alleges that the license was issued to him, an individual doing business as Bob Childs Realty Company, and we find nothing contradictory in the record.

In reaching his conclusion, the chancellor based his holding upon the fact that Childs operated as a corporation in the transaction. The evidence shows only that Childs contemplated incorporating his real estate agency and made some effort to start the proceedings but did not follow through with the idea. The contract sued on was drawn by an employee of Childs. It designated the agency by the corporation name, and a sign identifying Childs’ office also used that name. No evidence of any other acts on the part of Childs to incorporate the business appears in the abstracts of the evidence. Consequently, there was neither a corporation de jure nor a corporation de facto. The necessary requisite to the existence of a corporation de facto lacking here is an actual attempt to organize a corporation. Watts v. Commercial Printing Company, 177 Ark. 525, 7 S.W. 2d 24. There must be at least a color-able compliance with statutory requirements by taking some of the statutory steps. Doyle-Kidd Dry Goods Company v. A. W. Kennedy & Company, 154 Ark. 573, 243 S.W. 66. Even the signing of articles of incorporation, a step apparently never reached here, is not a sufficient step in the act of incorporation to meet the requirements for declaring a corporation de facto. Harris v. Ashdown Potato Curing Assn., 171 Ark. 399, 284 S.W. 755.

Therefore, in order to bar Childs from recovery of the real estate commission to which he was otherwise entitled, the circumstances must have been such as to bring into being a “corporation by estoppel.” A “corporation by estoppel” has no real existence but is a fiction for the purpose of a particular case and can arise only from actions and conduct of parties which place them in such a position that they will not be permitted to deny the existence of the corporation. 8 Fletcher, Cyclopedia Corporations 191, §§ 3889-3891; 18 Am. Jur. 2d 615, §§ 74, 75; 18 C.J.S. 503, 509, §§ 108, 110. This doctrine has been severely criticized. 8 Fletcher, Cyclopedia Corporations 191, § 3889. It rests wholly upon equitable principles and operates only to protect those who would otherwise suffer loss or incur liability because of their reliance in good faith upon the representation of corporate existence. Doyle v. Mizner, 42 Mich. 332, 3 N.W. 968 (1879); 8 Fletcher, Cyclopedia Corporations, Cum. Süpp. 1971, 10, § 3938; 18 C.J.S. 515, Corporations, § 11 Id. The doctrine should be applied only where there are equitable grounds for doing so, but never where it would be inequitable. It should not be applied unless it would be inequitable not to do so. 8 Fletcher, Cyclopedia Corporations 194, § 3897, 18 C.J.S. 515, § 11 Id. See Montoya v. Hubbell, 28 N.M. 250, 210 P. 227 (1922).

Before an equitable estoppel may be applied, the party asserting estoppel must have relied to his detriment or prejudice upon the representations, acts or conduct of the one against whom estoppel is invoked. Bowlin v. Keifer, 246 Ark. 693, 440 S.W. 2d 232. In other words, the courts of Arkansas generally will not apply an equitable estoppel unless the actions or conduct relied upon caused the innocent party to assume a different position than he would otherwise have or it would be otherwise inequitable to permit the person estopped to change his position. Schlumpf v. Shofner, 210 Ark. 452, 196 S.W. 2d 747; The Exchange Bank & Trust Co. v. Gibbons, 228 Ark. 454, 307 S.W. 2d 877. There is no evidence to show that appellees suffered any detriment, prejudice or change of position in reliance upon the apparent corporate status of the real estate agency with whom they contracted. In a closely parallel case, the United States Circuit Court of Appeals for the Ninth Circuit, where Nevada law was applicable, held that an individual plaintiff in an action upon a contract which was entered into in the name of a non-existent corporation rather than his own name was not estopped to sue because there was no proof that the defendant was injured or misled as a result of such misrepresentation. El Ranco, Inc. v. First National Bank of Nevada, 406 F. 2d 1205 9th Cir. (1968). We think that logic and reason dictate the application to the case at hand of the equitable principles above stated and applied in the case just cited. Consequently, we find that Childs was not, under the circumstances, estopped to sue on the contract.

We consider Benton-Bauxite Housing Coop, Inc. v. Benton Plumbing, Inc., 228 Ark. 798, 310 S.W. 2d 483, relied upon by appellees, to be readily distinguishable. In that case the prospective incorporators of a proposed corporation were seeking to avoid liability for a debt for plumbing and gas piping installed in houses being constructed on land owned by the incorporators under a contract with the nonexistent corporation. The landowners had received full benefit of the contract. The court found that there was a preponderance of the evidence showing that the proposed corporation was a subterfuge through which the landowners sought to defraud the plaintiff and defeat its lien on the property. There was clearly a detrimental reliance there, and equitable principles demanded the application of estoppel under those circumstances.

Appellees urge an affirmance here upon the ground that the trial court correctly dismissed the complaint because Childs, individually, should not be permitted to recover upon the amendment to the complaint filed by him, after the lack of a corporate charter had been disclosed. A portion of appellees’ argument is inconsistent in that in one breath they rely upon the want of corporate existence and in the next they assert that Childs and Bob Childs Realty Co., Inc., are two entirely separate and distinct entities. Perhaps there would be merit in appellees’ contention, if there were any indication that they were prejudiced in any way by the procedure. Such a situation might arise if there were any question about the propriety of venue, the application of a statute of limitations, priorities among claimants, or other such issue. See Davis v. Chrisp, 159 Ark. 335, 252 S.W. 606, cert. denied, 263 U.S. 710, 44 S. Ct. 36, 68 L. Ed. 518 (1923), appeal dismissed for want of jurisdiction, 267 U.S. 572, 45 S. Ct. 227, 69 L. Ed. 793 (1924); Floyd Plant Food Co. v. Moore, 197 Ark. 259, 122 S.W. 2d 463; Edwin Schiele & Co. v. Dillard, 94 Ark. 277, 126 S.W. 835.

Our statutes require than an action be prosecuted in the name of the real party in interest. Ark. Stat. Ann. § 27-801 (Repl. 1962). There is no doubt about Childs, individually, being the real party in interest. Since one of the primary purposes of this statute is to prevent defendants from being harassed by different suits arising from the same cause, the real party in interest is considered to be that person who can discharge the claim on which such suit is brought and not necessarily the person ultimately entitled to the benefit of the recovery. A. F. House, Trustee v. Long, 244 Ark. 718, 426 S.W. 2d 814. Under Ark. Stat. Ann. § 27-806 (Repl. 1962) all persons may join in one action as plaintiffs if they assert any right to relief jointly, severally or alternatively in respect of, or arising out of, the same transaction, if any question of law or fact common to all of them will arise in the action, and judgment may be given for one or more of the plaintiffs according to their respective rights. In Hall v. Robins, 212 Ark. 803, 207 S.W. 2d 746, we recognized the legislative intention to liberalize procedure by this act, to the end that rights or liabilities incidental to or growing out of common or related transactions may be adjudicated in a single suit, if an adverse party is not deprived of a substantial right.

Under § 27-814, the court may determine any controversy between parties brought before it, when it can be done without prejudice to the rights of others, but when such a determination cannot be made, without the presence of other parties, the court must order them brought in. Arkansas Statutes Annotated § 27-1160 (Repl. 1962) provides:

The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. The court may likewise, in its discretion, allow an answer or reply to be made after the time limited by this Code, or by an order, enlarge such time. And whenever any proceeding taken by a party fails to conform in any respect to the provisions of this Code, the court may permit an amendment of such proceeding, so as to make it conformable thereto. And when the allegations of a pleading are so indefinite or uncertain that the precise nature of the claim or defense is not apparent, the court may require the pleading to be made definite and certain by amendment. The court must, in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.

We are firmly committed to a liberal construction of these statutes to permit the prosecution of an action by the real party in interest. In Sarna v. Fairweather, 248 Ark. 742, 453 S.W. 2d 715, the question of the capacity of a plaintiff to sue at the time of the institution of her suit arose. We said:

Appellant argues that appellee had no capacity to sue because the chose in action which was the subject of the litigation was not her property at the time the suit was filed. We find this contention to be without merit. We have put substance above form in procedural matters, at least since the adopdon of our Civil Code. Appellant does not demonstrate how he was prejudiced by the admission of this document into evidence. If he had plead surprise and asked for time to prepare to defend against this unforeseen development, or even to investigate the circumstances of the execution of the late assignment, he might well have been entitled to a continuance for that purpose. See St. Louis I. M. & S. Ry. Co. v. Power, 67 Ark. 142, 53 S.W. 572; Williams v. Uzzell, 108 Ark. 241, 156 S.W. 843. We have been rather liberal in permitting actions to be prosecuted by the real party in interest. See Ark. Stat. Ann. § 27-801 (Repl. 1962). We permitted the holder of a note by delivery without written assignment to sue in his own name under the statute. Webster v. Carter, 99 Ark. 458, 138 S.W. 1006. In House v. Long, 244 Ark. 718, 426 S.W. 2d 814, recognizing that the primary purpose of our statute was to prevent harassment of defendants by different suits upon the same cause, we said that the real party in interest is generally conceded to be that person who can discharge the claim on which suit is brought. At the time Margueritte Fairweather offered the later assignment in evidence, she was the person who could discharge the claim, if the assignment was valid. In the absence of any showing of prejudice, or attack upon the assignment, we would submerge substance with form if we sustained the objection made by appellant.

It is true that we have held that the statutes do not permit the substitution of one party for another in cases where to do so would be prejudicial to an adverse party. See Edwin Schiele & Co. v. Dillard, supra; Davis v. Chrisp, supra; Floyd Plant Food Co. v. Moore, supra. In each of those cases the substitution would clearly have been prejudicial to substantial rights of the adverse party, and each may be distinguished from the case at hand. In Edwin Schiele v. Dillard, we did state, as dictum, that, even though the court may in its discretion allow additional parties plaintiff to be added or struck out, it could not allow an entire change of parties, for to do so' would be tantamount to a new suit between entirely different parties. In that case a suit was brought against a defendant as a corporation and a garnishment issued. It developed that the defendant was a partnership. After other creditors had issued garnishments against the same debt which was the subject of plaintiff’s garnishment, plaintiff sought to amend its complaint to make the partners parties and to have the cause of action relate back to the date of filing of the original complaint in order to preserve the priority of its garnishment. To do so would have prejudiced the rights of other gamisheeing creditors. We properly held that the plaintiff’s suit against the partnership dated from the date of filing of the amended complaint and the issuance of a summons against the parties.

In Davis v. Chrisp, we held that our statutes were not broad enough to authorize a substitution of a new party defendant for one against whom the plaintiff had no right of action for personal injuries. The substituted defendant was prejudiced by reason of the fact the plaintiff’s cause of action had expired before the new party was brought in. The original defendant was a railroad company, and the new party was the agent of the government under the World War I Federal Control Act.

In Floyd Plant Food Co. v. Moore, the original complaint was filed by a corporation which was the payee in certain promissory notes executed by the defendant. At the time of the filing of the suit, the statute of limitations had not run, but the note had been taken over by a parent corporation, and the plaintiff corporation had been dissolved. When the parent corporation sought to be made a party plaintiff by an amendment to the complaint, the statute of limitations had run. Not only would the defendant have been prejudiced by being deprived of the defense of the statute of limitations if this amendment had related back to the filing of the original complaint, but the allegations of the amendment and subsequent pleadings by the parent corporation would have effectively established that the corporations were not identical but two separate entities. We pointed out that under the holding in Foster-Holcomb Inv. Co. v. Little Rock Publishing Co., 151 Ark. 449, 236 S.W. 597, a substitution would be permissible where the original party and the new one constituted a single entity. We also relied in part upon authorities holding that the statutes did not permit the substitution of a “stranger” for the sole party in the case.

We think the Foster-Holcomb case is peculiarly applicable here and that its rationale sustains the action of the chancellor, who remarked after overruling appellees’ motion to dismiss that if the motion were granted, “we would be back here about this time next year trying the case” and that he was unwilling to take the chance that this eventuality would not occur. We incorrectly stated in Floyd Plant Food Co. v. Moore that, in the Foster-Holcomb case, an amendment had been permitted substituting Little Rock Publishing Company, the owner of the Arkansas Democrat, for that newspaper as a party defendant.' Actually, the suit was brought in the name of “Arkansas Democrat.” Its complaint alleged that “the Arkansas Democrat is a corporation engaged in printing and publishing a newspaper at Little Rock.” There was a motion to dismiss based upon the allegation that “Arkansas Democrat” was not a name under which suit could be prosecuted. After the statute of limitations had run, an amendment to the complaint was filed alleging that the Arkansas Democrat was a newspaper owned by Little Rock Publishing Company, a corporation, and substituted the name of the corporation as plaintiff. We held that the trial court properly permitted the amendment to the complaint under the first sentence of Ark. Stat. Ann. § 27-1160. We there pointed out the breadth of the statute and the liberal construction given it by this court, and quoted with approval the following language from Midland Valley Rd. Co. v. Ennis, 109 Ark. 206, 159 S.W. 214:

Under this section the court may, in its discretion, before the commencement of the trial, allow a complaint to be amended so as to change the cause of action to another one which might have been joined in the same action, and at any time during the progress of the trial may permit an amendment which does not change substantially the claim, so as to conform to the facts proved. The only limitation in the statute is that, after the proof is introduced, the pleadings can not be amended so as to substantially change the cause of action.

The evidence here clearly establishes that the agency with which appellees dealt was Bob Childs Realty Company, a proprietorship of Bob Childs rather than a corporation, and that the word “Inc.” was not properly a part of its name. The allegations of the amended complaint were that Childs had never incorporated but that the complaint should have properly been styled Bob Childs, d/b/a Bob Childs Realty Company, rather than in the corporate name, all the while admitting that Childs had done business under the corporate title used in the original complaint. The preponderance of the evidence clearly sustains these allegations. Bob Childs was not a stranger substituted for the sole plaintiff, there.were not two distinct entities and the change permittedviy the amendment was not a change of the real parties in interest. We pointed out in Davis v. Chrisp, thát we had recogrized in Arkansas Land & Lumber Company v. Davis, 15 Ark. 541, 244 S.W. 730, that every change in designation of parties did not amount to a change of the real parties in interest. In that case, the plaintiff had instituted an adion for damages against John Barton Payne, Director general, and John Barton Payne, Federal Agent under\the Federal Transportation Act, when James C. Davis wa¡ both Director General and Federal Agent. When, Payqe filed a plea in abatement stating that he was not, 'at the time the complaint was filed, Director General,’plaintiff fihsn made a motion to substitute Davis as a defendant., DavisN,entered his appearance and pleaded the statute of limitations. We held that the trial court erred in sustaining the plea cf the statute of limitations, saying that there was no substitution of parties, because the amendment only made specific taat which was not apparent before, and it was certain from tue record that no prejudice to the defendant resulted. We also pointed out that in Snowden v. Thompson, 106 Ark. 517, 153 S.W. 823, where suit was brought in the name of the directors of a drainage district, who alone had the authority to bring the suit, the failure to name the district as plaintiff was a defect of form only, and it was the duty of the trial court to permit the complaint to be amended to conform to the statute which required suit in the name of the district.

The only prejudice suggested by appellees, when their motion to dismiss was denied, was that the plaintiff, in order to maintain the action, must be a licensed real estate agent or broker. The chancellor’s prediction was doubtless correct, if he had considered that appellees’ right to plead Ark Stat. Ann. § 71-1301, et seq., was such that permitting he amendment would have prejudiced appellees and granted the motion, Childs would doubtless have immediately filed a new suit as an individual, and the court, at ? later date, would have been trying the same issues. To have granted the motion under these circumstance? would have materially elevated form above substance, sc we find no error in this respect.

Appel’ees also argue that the evidence does not support tie finding that the eventual sale resulted from or was lased upon information given by or obtained through the agent, with notice to the owner, during the term of the listing agreement, as required by the terms of th¿ listing contract. Gary Langley, a restaurant owner, whc now operates a cafe on the premises, testified that he asked the eventual purchasers, Glover Joyner and Bob Banister, to buy the property so that he could lease it from them. According to Langley, he first talked about ¿he purchase with Wesley Philpot, who could not recall the name of the realty company with whom the property was listed, but did state the proposed purchase price to be $25,000, although the listing was for $28,000. Langley said he later talked to Jerry Lancaster of the Childs Realty Company on at least two occasions. Still later, Langley talked with Mr. Philpot, who then stated that he would not even talk about selling the property until the contract with the realtor expired, after which, according to Philpot, he would be “out from under the realty company.” Langley had proposed to Joyner and Banister that they buy the property and lease it to him, and stated that Joyner called Lancaster and made an offer for the property. Lancaster advised that Philpot would not sell at the price offered. Both Joyner and Banister told Langley that they would buy the property for $22,500, if he could arrange the purchase at that price. Langley asserted that the purchase of the property by Joyner and Banister in December 1971 was the result of Langley’s efforts. Philpot admitted to Langley that he had received an offer at a price that was not satisfactory to him. Lancaster confirmed the rejection of the Joyner offer by Philpot, which he said was for $20,000 plus the real estate commission. He stated that Philpot knew who had made it. Philpot denied this. Lancaster recalled talking with Langley about the property on five or six occasions. Joyner admitted making the offer to Lancaster and stated that Langley conducted all negotiations concerning the purchase. According to Joyner, he had never met or communicated with Philpot until the day the sale was closed. Philpot admitted postponing the sale until the listing agreement expired, and said that he would have never sold the property for $22,000 if he had known that he would have to pay a commission. This commission had been specified in the listing at 6%. We cannot say that this evidence preponderates against the chancellor’s finding.

The decree is reversed and the cause remanded for entry of a judgment against appellees in favor of Bob Childs in the sum of $1,320 with interest at the rate of 6% per annum from December 6, 1971, the date of the sale, and the proper application of the funds held in the registry of the court.

       This case was eventually reversed in Mellon, Director General v. Arkansas Land & Lumber Company, 275 U.S. 460, 48 S. Ct. 150, 72 L. Ed. 372 (1926), but the result was reached by holding that the suit was not brought in compliance with the Federal Transportation Act which permitted suits to be brought against the government within the period of limitation prescribed by state statute. The United Slates Supreme Court held that the substitution of parties after the statute of limitations had run was not in compliance with the requirements of the Transportation Act and that the action was barred by the statute of limitations. Of course, neither a federal statute nor the statute of limitations is involved here.


text:
    Bennie ERBY v. STATE of Arkansas
    5777
    487 S.W. 2d 266
    Opinion delivered December 11, 1972

      Lester E. Dole, for appellant.

      Ray Thornton, Atty. Gen., by: James A. Neal, As“st. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was found guilty of murder in the second degree and his punishment fixed at 12 years’ imprisonment. His sole contention for reversal is that the evidence was not sufficient to support the verdict. We find that it was, when considered in the light most favorable to the state.

There is no doubt that Nathaniel Allen, the person Bennie Erby was accused of having killed, died as the result of a gunshot wound or wounds inflicted by appellant. The shooting occurred at Cora Johnson’s residence, where, appellant said, she sold beer. Appellant contends that he killed Allen in self-defense, or that, at most, the killing amounted to manslaughter. He argues that there is no evidence showing an essential element of second degree murder — malice.

Erby is crippled as a result of some sort of paralysis of his right side due to injuries in an auto accident. He was employed operating a saw machine by pushing buttons. The evidence showed Nathaniel Allen was a larger man than Erby. Appellant purchased the pistol on the day he shot Allen. He had been shooting it at his home before going to Cora Johnson’s. Although he testified that there had been trouble between him and Allen on a prior occasion, he said that he had not seen Allen recently and did not expect to see him on the Saturday night when the incident occurred. Erby testified that he went with Benny Warfield to Cora Johnson’s to get a beer and had been sitting there on a bench for about 30 minutes when “Nate” came in. He said that, having just eaten dinner, he was sucking his teeth to remove meat from them, and that “Nate” jumped up with a knife, told Erby that he was not at Uncle John’s and that he was going to cut Erby’s throat and that he, Erby, then pulled around and shot Allen. Erby’s testimony about Allen’s use or possession of the knife was somewhat equivocal, and ranged from a statement that he could not see what Allen had in his hand to saying that Allen cut him on the shoulder. He claimed that he was too nervous to have told the officers about the slight knife wound. He related that, on another occasion, Allen had patted his hip, saying that he was going to cut Erby’s throat.

Erby admitted that he had drunk a half-pint of liquor before going to Cora Johnson’s. Officer Fletcher of the Criminal Investigation Division of the Arkansas State Police interviewed Erby, after taking him into custody about 2:30 a.m. on Sunday morning, and said that Erby was intoxicated at that time. He found four live cartridges and two spent ones in the pistol used by Erby. The officer also found a small pocket knife at the spot pointed out to him at the place Allen fell after having been shot. Fletcher testified that Erby stated that Allen had rushed at Erby and put a knife at his neck before Erby fired. The medical examiner found no powder bums about Allen’s wounds.

Cora Johnson’s brother, Henry Johnson, had been at the place three or four hours, drinking whiskey and watching television, before the shooting took place. He testified that Erby had been in the place more than once on this Saturday evening and that Erby was drinking beer and whiskey. According to Henry Johnson, when Bennie made a sucking sound Nate told Bennie to quit picking on him, and that Erby then went to the door and came back shooting. Johnson said he heard three shots, but saw no knife. He said that the shooting started when Nathaniel started toward Erby.

Leroy Jones was watching television before the shooting. He heard no arguments but saw Bennie with the gun, saw Nate fall and saw Bennie then turn and walk out. He looked up when he heard the shots and saw Erby with the gun and saw Nathaniel falling, but did not see any knife. Cassie Warfield said that Nate got up, put his hand in his pocket and advanced on Erby, before she heard the gun shots. She saw no knife, but ran out the front door before shots were fired and did not see Erby with the pistol.

Ophelia Finks, Bennie’s aunt, corroborated Erby’s testimony that Nathaniel Allen had previously threatened Erby with a small open knife at her grocery store, saying that Allen claimed that Bennie kept “meddling” with him. She stated that, when she told them to stop and that one of them had to leave, Bennie left. She told of another time when Nathaniel had a knife after Bennie, and said that Nathaniel left on this occasion. According to this witness, they had been “jawing” at each other for several months.

Other witnesses who corroborated Erby’s version said that Henry Johnson was drunk. One of them, Bennie Warfield, was unable to describe the knife he said Allen put around Erby’s neck. Warfield said that after the shooting, he hid the pistol in the woods, and later showed police officers where it was. David Warfield said that he heard the sucking sound, saw Nate “jump on” Benny and heard the shots, but saw neither a gun nor a knife. Cora Johnson did not see anything in Nathaniel’s hands. She had cleaned up a spot of blood on the floor, and did not know how the knife got in the position where it was found, according to her, by the third set of officers who came to the place. The sheriff testified that there was no knife in the room where the shooting occurred when he inspected the place prior to the visit by the state criminal investigator.

As indicated, there were inconsistencies and conflicts in the testimony, but these were resolved by the jury. The presence or absence of malice distinguishes between murder in the second degree and manslaughter. Malice is implied whenever there is a killing with a deadly weapon and no circumstances of mitigation, justification or excuse appear at the time of the killing. Attendant circumstances afford the only means of determining the mental attitude of the accused at the time of a killing. When the jury disbelieved the defendant’s plea of self-defense, as it had a right to do, the killing was without justification, and malice might well be implied. Bly v. State, 213 Ark. 859, 214 S.W.2d 77. The jury here might well have believed from the testimony that Erby, angered by previous “jawing” between the parties, had obtained his weapon, practiced its use and sought an encounter with his real or imagined “foe.” If it did, the verdict of murder in the second degree was well justified.

In many respects, this case is unlike McClendon v. State, 197 Ark. 1135, 126 S.W.2d 928, relied upon by appellant as authority for his argument that his actions could not have constituted any higher degree of homicide than manslaughter. The principal distinction lies in the lack of evidence in McClendon of any existing enmity between the adversaries. In Bone v. State, 200 Ark. 592, 140 S.W.2d 140, also relied upon by appellant, the court, after reciting the evidence, held it insufficient to support a second degree murder conviction in reliance upon the authority of McClendon, reciting that portion of the opinion in the earlier case emphasizing the lack of evidence of enmity between the parties. Bone is distinguishable upon the same basis as is McClendon.

Since we find substantial evidence to support the jury verdict, the judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    Tommy Lee WILBURN v. STATE of Arkansas
    5781
    487 S.W. 2d 600
    Opinion delivered December 11, 1972

      Lloyd R. Haynes, for appellant.

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Tommy Lee Wilburn was convicted of robbery by a jury in the Pulaski County Circuit Court and was sentenced to prison for a term of 12 years as a third offender under Ark. Stat. Ann. § 43-2328 (Supp. 1971), and under the procedure as outlined in Ark. Stat. Ann. § 43-2330.1 (Supp. 1971). The pertinent portions of these two sections as they relate to the case at bar, appear as follows:

“Any person convicted of an offense, which is punishable by imprisonment in the penitentiary, who shall subsequently be convicted of another such offense, shall be punished as follows:
(1) If the second offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one (1) year more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for this offense, unless the maximum sentence is less than the minimum sentence plus one (1) year, in which case the longer term shall govern.
(2) If the third offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for a determinate term not less than three (3) years more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for the offense, unless the maximum sentence is less than the minimum sentence plus three (3) years, in which case the longer term shall govern. * * *
The following trial procedure shall be adhered to in cases involving habitual criminals:
(1) The jury shall first hear all of the evidence pertaining to the current charge against the defendant and shall retire to reach its verdict, as to this charge, based only upon such evidence; provided, however, that nothing herein shall prohibit cross-examination of a defendant as to previous convictions when the defendant takes the stand in his own defense.
(2) If the defendant is found guilty, the same jury shall sit again and hear evidence of defendant’s prior conviction(s). Provided, that the defendant shall have the right to deny the existence of any prior conviction(s), and to offer evidence in support thereof.
(3) The jury shall again retire, and if it is found that the prior conviction(s) exists, or if the defendant admits such previous conviction(s), then the prior conviction(s) shall be considered in fixing the punishment for the current offense for which the defendant has been convicted in accordance with Section 1 [§ 43-2328] hereof.”

On his appeal to this court Wilburn has designated the point on which he relies for reversal as follows:

“The court erred in allowing the state to introduce and read into evidence a certified record of a prior conviction, which failed to show either that appellant was represented by counsel or that he had waived counsel.”

We conclude that Wilburn is correct in his contention on this point.

As above indicated, Wilburn was being tried for the crime of robbery which, upon conviction, carries a statutory penalty of imprisonment in the penitentiary for not less than three nor more than 21 years. Ark. Stat. Ann. § 41-3602 (Repl. 1964). The record in this case reveals that after the jury had found Wilburn guilty of robbery, the jury then heard evidence of the defendant’s prior convictions as provided in § 43-2330.1, supra, and as charged in the information filed against him. The state offered proof of two prior felony convictions, one of which was not questioned at the trial or questioned on this appeal.

As to the evidence of conviction that was questioned at the trial and is questioned on this appeal, a certified criminal court docket entry for Phillips County was offered and accepted in evidence over the objections of Wilburn. This docket entry recites as follows:

“This cause coming on to be heard, comes the State of Arkansas by its Prosecuting Attorney and the defendant in person and being informed of the nature of the charge in the information and penalty of conviction hereof for plea herein says he is guilty of burglary and robbery.
It is therefore considered, ordered and adjudged that defendant is guilty of burglary and robbery and the Court does sentence him to eighteen years on burglary and eighteen years on robbery, sentences to run consecutive.”

It will be noted that nowhere in this docket entry of judgment is it recited that Wilburn was represented by counsel or that he had waived counsel, but on the contrary the record indicates that no defense counsel was present. The docket entry does indicate that the court officials were present; that the state appeared by its prosecuting attorney and the defendant appeared in person. Wilburn’s objections to the introduction of this evidence appears as follows:

“We object to this on the grounds that there is nothing in here reflecting that the defendant, on this date, was represented by counsel, or had waived counsel. The record affirmatively states the presence of several individuals but it is completely silent as to any attorney whatsoever other than the Prosecuting Attorney. . . .”

The state’s attorney general concedes with commendable candor that his careful research of the point indicates that Wilburn’s assignment has merit under the decisions of Burgett v. Texas, 389 U.S. 109, 19 L.Ed. 2d 319, 88 S. Ct. 258; United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589; Loper v. Beto, 405 U.S. 473, 31 L.Ed. 2d 374, 92 S.Ct. 1014; Goodwin v. Smith, 439 F. 2d 1180 (5th cir., 1971); United States v. Lufman, 457 F. 2d 165 (7th cir.,. 1972); Craig v. Beto, 458 F. 2d 1131 (5th cir., 1972); Tiffey v. State, 476 P. 2d 84 (Okla. Cr., 1970); State v. Kennedy, 483 P. 2d 548 (Ari., 1971); White v. State, 274 A. 2d 671 (Md., 1971); Donahay v. State, 255 So. 2d 598 (Ala. 1971).

The appellant does rely heavily on Burgett v. Texas, supra, and argues that his conviction should be reversed. We agree with the state, however, that Burgett is distinguishable from the case at bar in that the questioned evidence of the prior conviction in Burgett was admitted prior to determination of the defendant’s guilt by the jury on the crime for which he was being tried. We also agree with the state that the error involved does not call for a new trial in the case at bar because this court has the power to modify the judgment of a trial court, Ark. Stat. Ann. § 27-2144 (Repl. 1962), and to reduce the penalty in criminal cases to that penalty which is appropriate for the crime involved. Blake v. State, 186 Ark. 77, 52 S. W. 2d 644, see also Clark v. State, 246 Ark. 876, 440 S. W. 2d 205.

The practical effect of § 43-2328, supra, is simply to add one year in prison to the minimum punishment for a second offense and to add three years in prison to the minimum punishment for a third offense. In the case at bar, Wilburn could have been sentenced to the state penitentiary for a determinate term of anywhere from three to 21 years for the crime of robbery upon a first conviction. He was, however, sentenced to a term of 12 years, which amounted to six years more than the minimum for a third conviction and eight years more than the minimum for a second conviction. As pointed out in the trial court’s instructions, the minimum time for which Wilburn could have been sentenced for robbery on a third felony conviction, would have been six years; but, the evidence offered as to one of the three convictions in this case was not sufficient proof of a third conviction for the purpose of increasing the minimum punishment for the crime of robbery for which Wilburn was being tried.

In Burgett, supra, the Texas State Appellate Court upheld the conviction of an accused, holding that there had been no error in reading to the jury an indictment containing a prior conviction in Tennessee since the trial court instructed the jury to disregard the prior offenses and because the petitioner had not received the enhanced punishment prescribed by the recidivist statutes. There were two versions of the Tennessee conviction, one recited that the defendant appeared “without counsel,” and the other simply recited that he appeared “in proper person.” The United States Supreme Court granted certiorari and in reversing the judgment of the state court, said:

“. . . Gideon v. Wainwright established the rule that the right to counsel guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth, making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one. And that ruling was not limited to prospective applications. See Doughty v. Maxwell, 376 U.S. 202; Pickelsimer v. Wainwright, 375 U.S. 2. In this case the certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is impermissible. Carnley v. Cochran, 369 U.S. 506. To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.....
The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we are unable to say that the instructions to disregard it made the constitutional error ‘harmless beyond a reasonable doubt’ within the meaning of Chapman v. California, 386 U.S. 18.”

From the record before us, we are unable to determine what effect, if any, the jury gave to the evidence pertaining to three convictions in this case. The 12 year sentence was less than the maximum for a first conviction but greater than the minimum for a third conviction. Only a second conviction was established by competent evidence and the minimum penalty upon a second conviction would have been imprisonment for a period of four years. We are of the opinion, therefore, that the state should have the option of retrying this case upon reversal for the error indicated, or accepting the minimum penalty of four years upon affirmance of the judgment as a second conviction. Consequently, the judgment will be reversed and the cause remanded for a new trial, unless the attorney general within 17 days elects to accept a modification of the punishment so as to sentence Wilburn to the minimum time of three years plus one additional year as penalty for the second offense, or a total of four years in the state penitentiary.


author: Frank Holt, Justice.

text:
    Walter Eugene KING v. STATE of Arkansas
    5761
    487 S.W. 2d 596
    Opinion delivered December 11, 1972

      Genn, Genn & Genn, for appellant.

      Ray Thornton, Atty. Gen., by: James A. Neal, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted of first degree rape and the jury assessed his punishment at life imprisonment in the state penitentiary. From the judgment on that verdict and the revocation of a 12-year suspended sentence to be served consecutively with the life sentence, the appellant brings this appeal.

Appellant first contends for reversal that the trial court erred in denying his “motions to suppress evidence of testimony emanating from the lineup and identification made of him*##in violation of his” constitutional rights and his “privilege against self-incrimination and his rights to counsel.” Under these mutiple contentions, appellant first makes the argument that he was not represented effectively by counsel at the lineup procedure because the appellant “did not have present active counsel in an attorney-client relationship.” Preceding the lineup, appellant’s relatives were negotiating with a local attorney about defending the appellant. This attorney was never actually retained nor did he ever talk with the appellant. However, upon being advised of the scheduled lineup, this attorney, feeling “morally bound to protect the record from the beginning,” appeared at the lineup and successfully made certain objections and requests on behalf of the appellant with respect to the lineup. In these circumstances we find no violation of appellant’s constitutional rights. Parrott v. State, 246 Ark. 672, 439 S.W. 2d 924 (1969). Furthermore, a person’s right to counsel at a lineup procedure attaches only when adversary judicial proceedings are initiated against him. Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411. In the case at bar the appellant was charged by an information after the assertedly unconstitutional lineup procedure; therefore, since the lineup procedure, following appellant’s arrest, preceded appellant’s being formally charged with any criminal offense, the proceeding was not “a criminal prosecution” at which he had a constitutional right to be represented by counsel. Kirby v. Illinois, supra. However, it is there recognized that the Due Process Clause of the Fifth and Fourteenth Amendments prohibits any lineup that is “unnecessarily suggestive and conducive to irreparable mistaken identification.” Such is not demonstrated in the case at bar. As to appellant’s contention about self-incrimination, suffice it to say that the mere appearance in a lineup is not a violation of the constitutional safeguard against compulsory self-incrimination. Kirby v. Illinois, supra.

Appellant’s next objection to the identification procedure is with respect to Ann Jacobs, a state witness. About two weeks before the presently alleged offense, she was the victim of a rapist. She could not identify her assailant from a police mug book. Later she was offered a series of seven photographs which included two of the appellant. The pictures were marked and shuffled. As she examined the photographs she laid aside the two of the appellant and identified him as her assailant. It is appellant’s argument that this procedure was impermissibly suggestive and conducive to a mistaken identity and, therefore, prejudicial. We disagree. The witness was not advised there were two pictures of the appellant among the photographs. His pictures were not in sequence in the stack. When she saw the first picture of appellant, she said “[TJhis is the man.” Thereafter, at the lineup she identified the appellant as her assailant. Also, this witness made an in-court identification of the appellant based upon her independent observation at the time of the offense committed against her. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967 (1968), 19 L.Ed. 2d 1247, it was said “...that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” See, also, United States v. Cook, 334 F. Supp. 771 (E. D. Ark. 1971) and Dorsey v. State, 485 S.W. 2d 569 (Tex. 1972). In the case at bar we are of the view that the pretrial photographic identification was not impermissibly suggestive and did not taint the in-court identification of the appellant.

Appellant next cites “another incident as adding to the cumulative prejudicial effect of the identification procedure***the parading of the appellant wearing handcuffs in front of the witness (prosecutrix), Ova Abbott, immediately prior to the lineup.” When the prosecutrix, with relatives, was sitting in the sheriff’s office, appellant was brought through the office handcuffed as he was being conducted to and placed in the lineup with several other individuals' in another room. There is no evidence this incident and the momentary observation and recognition by the prosecutrix was anything other than co-incidental. Nothing was said or done by anyone to unduly direct any attention toward the appellant as being the assailant. Suspects are often observed in various places and circumstances previous to actual in-court identification. United States v. Hardy, 448 F. 2d 423 (3rd Cir. 1971), United States v. Jackson, 448 F. 2d 963 (9th Cir. 1971), United States v. Famulari, 447 F. 2d 1377 (2d Cir. 1971). Such confrontations are said not to taint or destroy the witness’ subsequent in-court identification. In the case at bar, we do not consider this chance encounter as being prejudicial to the appellant who was subsequently identified by the prosecutrix in the lineup and definitely identified by her at the trial as being her attacker.

The appellant’s final asserted error as to the identification procedure is that the prosecutrix, Mrs. Abbott, and another witness and rape victim, Mrs. Jacobs, were left alone in a room for a few minutes before the lineup identification- procedure at which time they had the opportunity to discuss and compare experiences. Appellant contends that this situation could result in an irreparable mistaken identity and, therefore, is prejudicial. Although this procedure is not to be recommended, we find no evidence that any prejudicial error was demonstrated in the record. Their conversation, of short duration, was to the effect that a knife was used upon Mrs. Jacobs and a gun was used in the attack upon Mrs. Abbott. Mrs. Jacobs inquired as to whether or not Mrs. Abbott had been shown the station wagon. This was the extent of the conversation before they were interrupted by a police official and told not to discuss the case. Thereafter, each witness separately viewed the lineup in another room and individually identified the appellant.

Finally, the appellant contends that “the court erred in allowing the testimony of Ann Jacobs as to rape committed upon her under similar circumstances.” We cannot agree with this contention. The witness, Ann Jacobs, was raped approximately two weeks before the prosecutrix, Mrs. Abbott, was attacked. Her testimony revealed that the circumstances of the two assaults were almost identical. Both victims, when driving alone, were stopped at night by a man driving a light colored station wagon. Both stopped as their assailant approached from the rear blinking his lights. Both were engaged in conversation by being told the tail lights on their respective cars were not working properly. Each victim, during this conversation, was forced into the assailant’s car, threatened with a weapon, driven to another place, raped, and then driven back to their own car and released. Before raping each victim, the assailant subjected each to sexual indignities. “When the issue is one of identity, proof of other similar conduct by the defendant may be admissible to establish a modus operandi on his part.” Montgomery v. State, 251 Ark. 645, 473 S.W. 2d 885 (1971). See, also, Tarkington v. State, 250 Ark. 972, 469 S.W. 2d 93 (1971). In the case at bar the appellant offered testimony in an attempt to prove his absence from the scene of the alleged crime. His identity was a vital issue. In the circumstances, we think that Mrs. Jacob’s testimony was relevant and admissible. Her testimony was offered only for identification purposes. Also, the jury was admonished at the time it was offered and by an instruction that the sole purpose of admitting the testimony was for their consideration with respect to the identity of the accused. The credibility and weight of the testimony was for the jury to consider.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    MOTORS INSURANCE CORPORATION v. Earl TINKLE
    5-6091
    488 S.W. 2d 23
    Opinion delivered December 18, 1972

      Barber, Henry, Thurman, McCaskill & Amsler, by: Guy Amsler Jr., for appellant.

      Howell, Price, Howell & Barron, by: Richard J. Orintas, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal by Motors Insurance Corporation, appellant herein, from a judgment entered against it by die Pulaski County Circuit Court (Third Division) sitting as a jury, in favor of Earl Tinkle, appellee herein, allowing recovery under a physical damage automobile insurance policy for theft of a 1969 Chevrolet one-half ton pickup truck. The truck was stolen from the premises of Waldon Tinkle, a son of appellee. For reversal, it is simply contended that the findings of the trial court are not supported by substantial evidence, and a verdict should have been rendered for the appellant; actually, it is asserted that the owner and principal driver of the vehicle was misrepresented in the application for the insurance; that this was a material misrepresentation and the company would not have issued the policy had it known otherwise.

On February 7, 1969, the company issued to appellee the aforementioned insurance policy, the truck being purchased in Little Rock and selected by Waldon Tinkle, a son of the insured; the truck and transaction papers were then taken to the home of Earl Tinkle and executed by him. A 1962 truck, belonging to Waldon, was traded in on the 1969 vehicle. Earl Tinkle, 69 years of age, testified that he lived on the Billy Dale Milk Farm at Sweethome, and that he bought the truck from Cliff Peck Chevrolet Company, a salesman coming to his home, together with his son to explain the transaction. He said that he and his wife furnished the money for the payments on the truck but that Waldon frequently made the payments for him after the son had been given the money by the father. Appellee stated that he worked seven days a week, and found it difficult to get off from work in order to make the payments himself. The elder Tinkle said that his son did use the truck part of the time, though he testified that he kept the vehicle the “biggest part” of the time at his home. Tinkle said that Waldon was given the authority to use the truck whenever he needed it; that on the particular day before it was stolen, the truck was at his house during the morning and Waldon borrowed it that afternoon and took it to his home. Appellee was unable to state exactly how often he would use the truck but said that he used it “once, twice or three times a week maybe”. On cross-examination, it was developed that when Tinkle’s discovery deposition was taken, appellee had stated that he did not use the truck too often, and when asked how often, replied "Oh, whenever I would go out and get some feed, about once a week”.

The truck, at the time it was stolen, was at the home of Waldon and his wife, Margaret. The latter testified that when she got ready to go to work (sometime after 7:00 a.m.), she noticed that the truck was gone and after awakening her husband, went to a service station and reported to the police that it was stolen. Bill Blassingame, employed by the Pulaski County Sheriff, testified that he received a report on May 8, 1970 (day the theft was discovered), that the truck was stolen from the yard of the Waldon Tinkle home and a description of the vehicle was given. He was under the impression that the theft had been reported by Mr. Waldon Tinkle rather than his wife, and that the report had been made by the "owner”. The truck was recovered on December 4, 1970, from a “blue hole” on Arch Street Pike. Deputy Sheriff Ben Crane testified as to the following events occurring on December 4:

“Officer Presley and myself received a call late that afternoon that they were pumping water out of this hole out there and someone had saw the image of the truck in the water. We got out there, we couldn’t see it, so we called for a wrecker and the wrecker was sent out there and it was out in the water approximately seventy five feet and it was hooked onto and pulled out up to the bank, it was muddy twenty five or thirty feet from the original bank, and they washed off the license number and gave it to me. I went to the car and radioed the license number and description of the truck to Officer Blankinship and he checked and, of course, it was stolen.”

Waldon Tinkle testified that he used the vehicle in his work once or twice a week; that generally it stayed at his father’s house, and that he always obtained his father’s permission before using it. He said that he reported the loss to Motors Insurance Corporation on the authority of his father, and on the same day the vehicle was stolen, he leased another vehicle on behalf of Earl Tinkle from Cliff Peck Chevrolet, this being done after he learned that under provisions of the policy, rental of a replacement would be allowed for thirty days. He said that he borrowed the truck from his father the afternoon it was stolen; admittedly he made the truck payments most of the time, stating however that he was acting as agent for Earl Tinkle and that his father reimbursed him for all payments made. He said that the truck was used by his father and one of his older brothers, as well as himself.

Waldon testified that he had never been convicted of a felony, but had been arrested for car theft when he was sixteen years of age. He said that he was referred to the juvenile court, which released him on good behavior. It developed also that he had been charged on two subsequent occasions with car theft and had been placed on probation. These instances had occurred in 1962. At the time the instant theft was reported to the company, a statement was given in writing, in which statement Waldon testified that he purchased the truck, was the owner, and that normally he and his wife were the only operators.

James A. Halbert, a special agent for Motors Insurance Corporation, but who at the time of the theft of the truck was an adjuster for appellant, investigated the claim. Halbert was the individual to whom Waldon Tinkle had given the written statement. Halbert had recommended denial of the claim and also had recommended voidance of the policy, and the company had followed his recommendations, notifying appellee on May 26, 1970, that the company was voiding the policy as of its inception date and was returning the premium because Earl Tinkle was listed as the insured and only driver. Mr. Halbert testified that if Waldon Tinkle had been listed on the application as the owner or the principal operator of the truck, appellant would not have accepted him as a risk.

In rendering its verdict, the trial court found that the alleged false and fraudulent misrepresentations made by Earl Tinkle in obtaining the casualty insurance policy were not material to the risk and subsequent loss, and further, “the Court has not been convinced that the policy would not have been written had the defendant had available to it the information concerning Waldon Tinkle”. Though the court made no finding that false statements had been made, such a finding might be implied from the findings that the court did make. Actually, there was also evidence to the contrary. As pointed out, both appellee and the son testified that the father (applicant for insurance) was the owner of the vehicle. Of course, Waldon originally gave a statement contrariwise but this statement did not constitute affirmative evidence and could only be used for impeachment purposes. Chapman v. Henderson, 188 Ark. 714, 67 S.W. 2d 570; Thomas v. State, 72 Ark. 582, 82 S.W. 202.

Appellee asserts that he had a right to rely on the definition of “insured” appearing in the policy, which reads as follows:

“Insured means
(a) with respect to an owned automobile,
(1) the named insured, and
(2) any person or organization (other than a person or organization employed or otherwise engaged in the automobile business or as a carrier or other bailee for hire) maintaining, using or having custody of said automobile with the permission of the named insured and within the scope of such permission.”

As to the materiality of the misrepresentations, we agree that, it was not established that the answer relative to ownership was material. The fact that Waldon had, some eight years earlier been involved with car thefts, and placed on probation, is apparently the principal basis for this contention, and appellant is arguing that had it known Waldon Tinkle was the actual owner or operator, because of this record, the policy of insurance would not have been issued. This argument, of course, presupposes that the company checks the records of all applicants to determine if they have a criminal record. This would appear to be necessary since the application itself contains no questions relative to prior arrests or convictions, other than traffic violations. But, even though this be true, we cannot, as a matter of law, hold that when an applicant for this type of insurance has a record, that fact in itself makes any misrepresentation material. Had Waldon Tinkle been convicted of defrauding an insurance company, appellant’s argument would be much more potent. In Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, 436 S.W. 2d 829, Alexander failed to disclose certain surgery and it was contended that the omission was material to the risk and that the company in good faith would not have accepted the risk if correctly apprised of the facts. We said:

“If we assume that this was a concealment or omission sufficient to constitute a defense to the counterclaim or justifying rescission, still we cannot say as a matter of law that the fact that Alexander had this surgery was material to the risk. The materiality to the risk of a fact misrepresented, omitted or concealed is a question of fact so long as the matter is debatable. It is a question of law only when so obvious that a contrary inference is not permissible.”

The court also said that it had not been convinced that the policy would not have been written had the defendant had available to it the information concerning Waldon Tinkle. The testimony that the company would not have accepted the risk was given by Mr. Halbert. As pointed out by appellee, Halbert, now a special agent for the company, was a claim adjuster at the time he investigated the theft of this truck. As a claim adjuster, says appellee, he was not qualified to substantiate this affirmative defense. Mr. Halbert was an employee of the company but he mentioned no authority that he possessed to make a determination as to whether an application would be accepted. This is noticeable because in making his recommendation to deny the claim and void the policy, Halbert stated that “The decision to void or to do anything, of course, was not made by me”. Appellant points out that this was the only testimony on the subject and that Mr. Halbert was “not even cross-examined on the point, let alone contradicted”. It is true that normally some office official of the company, familiar with its underwriting practices, would be expected to testify but that is not the most important fact with regard to Halbert’s testimony. Rather, Halbert had recommended that the claim be denied and that the policy be voided; in other words, from a legal standpoint, he had an interest in the case, an interest in trying to sustain his position. We have said many times that in weighing testimony, courts must consider the interest of a witness in the matter in controversy, and that a trier of facts is not required to accept any statement as true because merely so testified. Under our cases, Halbert was not a disinterested witness. In Old Republic Insurance Co. v. Alexander, supra, we said:

“It is significant, as pointed out by the chancellor, that appellant produced no record of its own underwriting standards, nor did it attempt to show general standards in the underwriting profession or insurance trade by disinterested witnesses. It relied solely on the retrospective and possibly self-serving declarations of conclusions by this witness. It would be only natural if such a witness were subconsciously influenced by the defensive mechanism possessed by human beings to forestall criticism of his underwriting decision. At any rate, his testimony cannot be considered as that of a disinterested witness.”

In other words, Mr. Halbert’s testimony cannot be taken as undisputed, and the trial court was not required to accept this evidence just because no contradictory evidence was offered. The law, under the circumstances does not consider it uncontradicted.

The two questions at issue in this litigation were both fact questions. It was within the power of the circuit court, sitting as a jury, to determine these fact questions.

Affirmed.

       There was no telephone at the house.

       A brother of Waldon’s, Bill Tinkle, operated a salvage yard and, at public auction, purchased the truck from the company that had towed it in after it was found.

       A “blue hole” is a pit that has been formed by mining for bauxite, and has become filled with water.

       The duties of special agent were not enumerated.

       Appellant cites Ark. Stat. Ann. § 66-3208 (Repl. 1966), which provides, inter alia, that misrepresentations, omissions, concealment of facts and incorrect statements with regard to the application shall not prevent a recovery under the policy unless fraudulent, material to the acceptance of the risk, or to the hazard assumed by the insurer, or the insurer in good faith would not have issued the policy. Appellee points out that this statute refers to only life or disability insurance and appellant responds that the statute was referred to in the opinion in Old Republic Insurance Company v. Alexander, 245 Ark. 1029 436 S.W. 2d 829 and treated as though applicable, though that particular contract involved an accident policy. It is not really necessary to discuss the apparent conflict in deciding the instant case.