author: Darrell Hickman, Justice. John F. Stroud, Justice,

text:
    Cleveland PARKER v. STATE of Arkansas
    CR 80-169
    607 S.W. 2d 378
    Supreme Court of Arkansas
    Opinion delivered November 10, 1980

      Paul Johnson, for appellant.

      Steve Clark, Atty. Gen., by: Arnold L. Jochums, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Cleveland Parker’s conviction for aggravated robbery must be reversed because the trial court failed to grant a continuance.

Parker’s case was set to be tried before a jury November 5, 1979- His attorney also represented William Compton whose criminal case was later set for the same day. Parker’s attorney was certain that at the time the Compton case was set the court told him that the Parker case would be rescheduled.

Shortly before trial date, the Compton case was passed. On the Friday afternoon before Monday, November 5th, Parker’s attorney was called and told the Parker case would be tried as originally scheduled.

Parker’s lawyer filed a motion for continuance the first thing Monday morning. He said that (1) he had been informed that the Parker case would not be tried that day; (2) he was unable to prepare for the case over the weekend because he had not been able to locate any of the witnesses; and, (3) he had not even located the accused until Sunday afternoon.

The court called as a witness the “case coordinator.” She testified that the docket reflected that the Parker case was set for November 5 th and that she had not changed it or notified Parker’s lawyer that the case would be reset. On cross-examination she admitted that the handwriting on the docket regarding both cases was not hers but apparently that of another court employee.

Parker’s attorney took the witness stand and said that he did not object when the Comptom case was set for trial the same day as the Parker case but that he had pointed out to the court that the Compton case would take about a week to try and the Parker case should be reset. He said the court informed him that the Parker case would be rescheduled. Consequently, Parker’s lawyer testified that he did not prepare for the case and did not know it would go to trial on November 5 th until he was notified on the previous Friday afternoon.

The court never commented one way or the other but asked Parker’s lawyer if he could get ready in thirty minutes since a jury was waiting. Parker’s lawyer said he would do the best he could.

There is no doubt that Parker’s lawyer acted in good faith. In addition to granting a thirty minute delay, the trial court remarked:

I think what we’ll do is go ahead and try the case and see how it goes and I will keep in mind that I might, depending on the circumstances, grant a new trial. If the verdict should go against the defendant. . . .

At the conclusion of the trial, Parker’s attorney renewed the motion for a continuance and the judge denied it without comment.

The law in regard to a continuance was stated in Russell v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977), where the court stated:

The matter of continuances is addressed to the sound judicial discretion of the trial court, and its action will not be reversed on appeal in the absence of such a clear abuse of that discretion as to amount to a de?tial of justice. [Emphasis added.]

We believe in this case that the defendant did not obtain a fair trial. He was denied an opportunity to present his case and this denial resulted neither from actions of his own nor through the negligence or intentional misconduct of his attorney which might be attributable to him. Two key witnesses were unable to be located in time and their testimony was critical to his defense.

There is no doubt that there was a mix-up which could not be solely attributed to Parker’s counsel. In fact, the counsel’s testimony was not denied. The court was in a perfect position to comment that the facts were not as Parker’s attorney represented them. It failed to do so. In any event, a criminal trial is not such a casual thing that when such a mix-up occurs, a trial can proceed without regard to whether one can be given a fair opportunity to present his case.

Parker’s counsel also argues that the evidence was insufficient to warrant a finding of guilt for aggravated robbery. The victim said that Parker put his hand in his pocket and asked for money; she thought he had a gun and she was scared. That was sufficient evidence to support a finding of aggravated robbery. The situation is unlike the case where the defendant had his hand in his shirt, the victim did not think he had a gun and was not scared. See Fairchild v. State, 269 Ark. 273, 600 S.W. 2d 16 (1980).

Reversed and remanded.

Fogleman, C.J., and Stroud, J., dissent.

Mays, J., not participating.

John F. Stroud, Justice,

dissenting. At the arraignment of appellant on July 16, 1979, both he and his counsel were informed by the court that the case was set for a jury trial on November 5, 1979. Thereafter, another criminal case, State v. Compton, in which appellant’s counsel also represented the defendant, was transferred to the same division of the Pulaski County Circuit Court in which this case was pending and it was also set for a jury trial on November 5, 1979. Appellant’s counsel testified at the pretrial hearing on his motion for continuance, as to the discussion that occurred at the arraignment of Compton:

We were looking for a week in which to try Compton. The week of November the 5th was free except for one case that was involving Cleveland Parker, Jr. Which was set for jury trial, Monday. At that time, I was informed and as I recall by the Court that we could reset Parker and try Compton that week. With that in mind I never thought or bothered to do any more on the Parker case until I received notice of it when it would be reset. The State subsequently requested that Compton be continued. This was about two weeks ago. And this Court — I believe entered its order without objection transferring it to December the 17th. It was not until Friday, November 2nd, this Friday that I was aware that Cleveland Parker was still on the docket. (Emphasis added.)

The only way the criminal courts of this state can hope to handle their caseloads is to continue their practice of setting more than one jury trial on the same date. The court’s case coordinator testified at the pretrial hearing that it was not unusual for four or five jury trials to be scheduled for the same day. In spite of the best efforts of the trial judges to encourage the early negotiation of pleas, every trial lawyer knows it is common for defendants to change their pleas to guilty on the day of trial. When an attorney has two criminal jury cases set for the same day, he simply must be prepared for trial in both of them.

The attorney’s testimony that the court told him “we could reset Parker and try Compton” falls far short of the certainty required for an attorney to safely consider that a case has been passed. This is particularly true here where he agreed with the state and the court to a resetting of the Compton case knowing that the only other case that had been set for that entire week was his case. Appellant’s attorney received no written notice that this case had been continued or reset, the case coordinator testified that she had never notified counsel for Parker that the case would be reset, and the docket sheet showed the case still set for November 5, 1979. I do not question that the attorney held the honest but mistaken belief that this case would be reset for trial, but when the Compton case was reset some two weeks before November 5th, he should have at least checked to see if this case was still set for that date.

Appellant’s attorney testified that he was not aware until Friday, November 2, that this case was still on the docket for trial on November 5. He said he tried to call the judge about 2:30 or 3:00 p.m. on November 2, but was unable to reach him. Even though there obviously was time to issue subpoenas on November 2d, none were issued. The attorney told the court when he presented his motion for a continuance that “the biggest problem that has been caused by this is the inability for us to get out witnesses.” Ark. Stat. Ann. § 27-1403 (Repl. 1979), which applies to both civil and criminal cases, provides in part:

A motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made only upon affidavit . . . and if it be for an absent witness, the affidavit must show what facts the affiant believes the witness will prove, and not merely the effect of such facts in evidence, that the affiant himself believes them to be true, and that the witness is not absent by the consent; connivance, or procurement of the party asking the postponement. (Emphasis added.)

Although appellant’s attorney filed an affidavit in support of his motion for continuance, he did not include any of the items required by § 27-1403 to postpone a trial due to the absence of witnesses, nor did he include any of those requirements in his testimony at the pretrial hearing. The failure to file the affidavit is a significant factor in appellate review of the trial court’s denial of a motion for continuance. Leach v. State, 229 Ark. 802, 318 S.W. 2d 617 (1958). At the conclusion of the trial, appellant made three motions, one of which was a renewal of his motion for continuance, but when he filed his written motion for a new trial on December 6, 1979, it was limited solely to the question of the sufficiency of the evidence. This court has consistently held that the matter of granting or denying a continuance in a criminal case is within the sound judicial discretion of the trial court and should not be disturbed on appeal in the absence of a clear abuse of that discretion. Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500 (1975); Russell v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977).

Because I find no abuse of discretion by the trial court in denying the motion for continuance, and because I agree with the majority of this court in rejecting appellant’s second point of error on appeal that the evidence was insufficient to support the conviction of aggravated robbery, I would affirm the judgment of the trial court.

Fogleman, C. J., joins in this dissent.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Raynell ELLIOTT, Executrix of the Estate of James H. TODD, deceased, v. Muriel D. HARDCASTLE
    80-208
    607 S.W. 2d 381
    Supreme Court of Arkansas
    Opinion delivered November 10, 1980

      David H. Williams, for appellant.

      Guy H. Jones, Phil Stratton, Guy Jones, Jr., & Casey Jones, by: Phil Stratton, for appellee.
   John I. Purtle, Justice.

The chancellor set aside a deed from Harry Thomas to James H. Todd, deceased, as an action done for the purpose of defeating a judgment creditor’s claim.

On appeal it is argued (1) that the court erred in finding that a Missouri divorce decree was a valid judgment in Arkansas; (2) that the court erred in failing to hold the quitclaim deed was a disclaimer; and (3) that the court erred in setting aside the quitclaim deed as a means of defeating the registered foreign judgment because there was no evidence of fraud.

We are unable to agree with appellant on any of the three arguments and affirm the trial court.

Appellee obtained a decree of divorce from Harry Thomas on May 19, 1975, in Toni County, Missouri. The decree granted appellee the sum of $25,000 as maintenance in gross plus $5,000 representing support for the period of one year. The decree also allowed a $500 attorney’s fee and the costs of the action. This instrument was registered in the Faulkner County Chancery Court on January 16, 1976. Thereafter, a writ of execution was issued by the Faulkner Chancery Court and an automobile in the possession of Harry Thomas was attached. James H. Todd claimed ownership of the vehicle thereby excluding it from the writ of execution on the foreign judgment.

Lena Crisel died on July 3, 1976, and left a will dated May 6, 1976, in which she left Harry Thomas a life estate in a house and three lots in Mayflower, Arkansas. On July 20, 1976, Harry Thomas executed a quitclaim deed to James H. Todd, the remainderman, for the recited consideration of $1,-000. The will of Lena Crisel was admitted to probate on August 1, 1976. On June 20, 1977, appellee filed suit against Thomas and Todd to set aside the deed from Thomas to Todd. On July 2, 1979, Todd died, and the action was revived against his estate. At the trial appellee testified that the writ of execution issued on the foreign judgment occurred during the life of Lena Crisel and that James H. Todd knew about the judgment and garnishment because he claimed ownership of the vehicle being driven by Thomas at that time. Based upon these facts the court entered a decree on April 2, 1980, ordering the deed from Thomas to Todd be set aside and held for naught. This appeal follows.

A judgment is defined in Ark. Stat. Ann. § 29-101 (Repl. 1979) as the final determination of the rights of the parties in an action. Further, Ark. Stat. Ann. § 29-115 (Repl. 1979) requires that all judgments or decrees rendered by the courts for debts, damages, costs, and execution, shall be computed, as near as possible, in dollars and cents. Ark. Stat. Ann. § 29-116 (Repl. 1979) requires that a judgment be entered upon the order book.

The record does not disclose that Harry Thomas ever contested the validity of the judgment when it was registered in the Faulkner Chancery Court. Therefore, a collateral attack at this time is too late. In any event, we have no hesitancy in stating that the Missouri decree amounted to a judgment and is entitled to full faith and credit in Arkansas. Therefore, the judgment became a lien which attached to any interest in real estate which Harry Thomas held or subsequently acquired in Faulkner County, Arkansas. The only manner in which a foreign judgment may be defeated is to prove there was fraud in the procurement of the judgment or lack of jurisdiction in the court rendering it. Neither argument was even presented here. For a full discussion on this point see Purser v. Corpus Christi State National Bank, 256 Ark. 452, 508 S.W. 2d 549 (1974).

Secondly, the appellant argues that the deed executed by Thomas to Todd amounted to a disclaimer pursuant to Ark. Stat. Ann. § 62-3202 (Supp. 1979). Lena Crisel left Harry Thomas a life estate. Her will was dated May 6, 1976, and she died on July 3, 1976. The life estate granted to Harry Thomas was conditioned upon his acceptance of said estate. James H. Todd was to receive the entire property upon the death of Thomas or upon his failure to take the life estate. It is obvious Harry Thomas did not follow the statute if he intended to file a disclaimer. Even had he intended to file a disclaimer, he would have been barred from doing so, upon the facts in this case, pursuant to Ark. Stat. Ann. § 62-3208 (Supp. 1979) which denies the right to disclaim if the beneficiary is insolvent at the time of the event giving rise to the right to disclaim. In the present case a writ of execution was returned unsatisfied against Harry Thomas shortly before the death of Lena Crisel. After her death, and before the probate of her will, Thomas executed a quitclaim deed to James H. Todd. This action not only cannot be construed as a disclaimer but to the contra could be considered as an acceptance of the estate. Whatever estate Harry Thomas had was effective on the date of the death of Lena Crisel. Webb v. Webb, 111 Ark. 54, 163 S.W. 1167 (1914). Likewise, the judgment which had previously been registered in Faulkner County became a lien upon the property deeded to Todd. The execution of the quitclaim deed to Todd, who had prior knowledge of the judgment and the insolvency of the grantor, had no effect on the claim of the appellee. The judgment lien would have attached to Thomas’ interest in the lands whether or not the chancellor set the deed aside.

Finally, appellant argues the court erred in finding the deed from Thomas to Todd was executed for the purpose of defeating satisfaction of the foreign judgment because there was no evidence of fraud. It is not necessary that actual fraud be alleged or proven under circumstances such as exist in the present case. Although it is apparent Thomas desired to get the property out of his name prior to the probate of the will of Lena Crisel, his effort to do so was useless. An additional fact to be considered in this case was that even after the quitclaim deed Thomas continued to reside on the property. Therefore, we hold that specific acts of intentional fraud were not required to be alleged or proven in order to hold the deed from Thomas to Todd ineffective as to the appellee. Her rights were not affected by this transaction.

Affirmed.

Hickman, J., not participating.


text:
    ARKANSAS STATE HOSPITAL v. CLEBURNE COUNTY
    80-209
    607 S.W. 2d 61
    Supreme Court of Arkansas
    Opinion delivered November 10, 1980

      Hall, Tucker, Lovell, Alsobrook & Moudy, for appellant.

      T.J. Hively, Pros. Atty., 16th Judicial Dist., and James R. Cooper, Deputy Pros. Atty., 16th Judicial Dist., for appellee.
   John I. Purtle, Justice.

The Arkansas State Hospital filed claim against Cleburne County for collection of three accounts totaling $1800. The debts were incurred because three prisoners were sent to the state hospital, from Cleburne County, pursuant to Ark. Star. Ann. § 43-1301 (Repl. 1977). The Cleburne County Quorum Court denied the claim, and the hospital appealed to the circuit court which allowed one of the claims in the amount of $600 but denied the other two because the three year statute of limitations had run.

On appeal the hospital claims the statute of limitations does not run against the state. We agree.

These claims were not filed until 1980 although they were incurred in 1975, 1976 and 1977. The first two were incurred more than three years prior to the filing of the claim. The trial court applied the three year statute of limitations which did not bar one claim but did bar the other two.

Appellant correctly cites several cases which hold that the statute of limitations does not run against the state. Alcorn v. Arkansas State Hospital, 236 Ark. 665, 367 S.W. 2d 737 (1963); and Jensen v. Fordyce Bath House, 209 Ark. 478, 190 S.W. 2d 977 (1945). Our cases have held that the sovereignty of the state prevents the statute of limitations from barring its claims. It has been held many times that a county may invoke the statute of limitations in claims presented for payment. Boone County v. Skinner-Kennedy Stationery Co., 191 Ark. 329 (1935). In the cases we have reviewed which allow the county to invoke the statute of limitations the claims were not presented by the state. Therefore, it appears that the county may invoke the statute of limitations to all except the state.

It does not appear that the parties asked the court to consider Amendment 10 to the Constitution of Arkansas which states:

* * #
The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and no county court or levying board or agent of any county shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk or other county officer, sign or issue any scrip, warrant or make any allowance in excess of the revenue from all sources for the current fiscal year; nor shall any city council, board of aldermen, board of public affairs, or commissioners of any city of the first or second class, or any incorporated town, enter into any contract or make any allowance for any purpose whatsoever or authorize the issuance of any contract or warrants, scrip, or other evidences of indebtedness in excess of the revenue for such city or town for the current fiscal year; nor shall any mayor, city clerk or recorder, or any other officer or officers, however designated, of any city of the first or second class or incorporated town sign or issue any scrip, warrant or other certificate of indebtedness in excess of the revenue from all sources for the current fiscal year.
* # #

The trial court was in error in holding the statute of limitations applied to the claims of the Arkansas State Hospital. The procedure for collection of the claims is a matter which is not before us at this time.

Reversed and remanded.

Hickman, J., concurs in the result.


author: John F. Stroud, Justice.

text:
    Arzelle Lee PHILLIPS v. STATE of Arkansas
    CR 80-125
    607 S.W. 2d 664
    Supreme Court of Arkansas
    Opinion delivered November 10, 1980
    [Rehearing denied December 15, 1980]

      McArthur & Lassiter, P.A., for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   John F. Stroud, Justice.

Appellant was convicted of theft of property and two counts of robbery. As we find no merit to the three points of error urged in his appeal, we affirm the conviction.

David Sims and C. D. Burnett were robbed at gunpoint on the night of October 25, 1978, by two men wearing ski masks in Murray Park adjacent to the Arkansas River in Little Rock. After taking their billfolds and ordering the two to run into some nearby woods, the gunmen left, one in the vehicle in which they arrived and the other in Mr. Burnett’s 1970 dark blue Malibu Chevrolet. Neither of the victims was able to give much of a description of the gunmen, although both testified that they could tell from the eye holes in the ski mask that the one who ordered them to run into the woods was a black man. The only other description of that gunman was that he wore wire-framed glasses with tinted lenses, was armed with a .38 revolver and seemed to be quite at ease during the robbery. In a voice line-up both victims identified appellant, a Little Rock policeman, as the person who had ordered them into the woods. Mr. Burnett testified he was 90% certain, but Mr. Sims stated he was positive appellant was the man. Appellant was tried before the court, sitting as a jury, on September 4, 1979- Both victims testified that the gunman’s vehicle was a large car, a luxury model, that was light blue in color. Although victim Burnett first reported that the vehicle was a Cadillac, when he next saw the rear of an Oldsmobile 98 he informed the police that he had made a mistake and that the car was an Oldsmobile. Other testimony indicated that appellant owned a light blue 1976 Oldsmobile 98, which the victims had identified prior to trial as the assailant’s vehicle.

Trooper Larry Gentry of the Arkansas State Police testified that on October 26, 1978, he was instructed to set up a roadblock near Pine Bluff to check passing vehicles in connection with the investigation of a bank robbery earlier that day in Wilmar, Arkansas. The first car he stopped at the roadblock was a vehicle occupied by appellant and a man named Walker, who appellant said was the owner of the automobile. Testimony revealed that the vehicle of Mr. Burnett taken at the time of the robbery was found abandoned near Wilmar a few days after the bank robbery. Special Agent Donald Jarrett of the F.B.I. testified that on October 28th he participated in the search of an automobile belonging to Danny Walker, at which time several items were recovered that had been in Mr. Burnett’s vehicle when it was stolen. Appellant testified that he was somewhere else at the time of the robbery of Burnett and Sims, and also presented several alibi witnesses, but he did admit on cross-examination that he had been convicted of robbing the bank at Wilmar on October 26, 1978, and that he left the bank in a dark blue 1970 or 1972 Malibu. He was found guilty in this case of theft of property and two counts of aggravated robbery. For the robberies he received two twenty-year sentences, to run concurrently, and for theft of property he received a five-year sentence, to run consecutively to the others. Urging three points for reversal, appellant brings this appeal.

Appellant first contends that the evidence adduced at trial is insufficient to sustain his conviction. The thrust of appellant’s argument here is that the only admissible evidence linking him to the crime was the voice identifications made by the two victims, which appellant claims are insufficient, standing alone, to support his conviction. It is well-settled that on appeal in criminal cases the evidence must be viewed in the light most favorable to appellee and the judgment affirmed if there is any substantial evidence to support the finding of the trier of fact. Chaviers v. State, 267 Ark. 6, 588 S.W. 2d 434 (1979); Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975); Miller v. State, 253 Ark. 1060, 490 S.W. 2d 445 (1973). Substantial evidence is that which is more than a scintilla and must do more than create a suspicion of the existence of the fact to be established; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980); Pickens-Bond Const. Co. v. Case, 266 Ark. 323, 584 S.W. 2d 21 (1979).

Contrary to appellant’s contention, there was considerable evidence other than the voice identifications which tended to connect him with the crime. For example, the description of the automobile driven by the gunmen matched the automobile owned by appellant and subsequently identified by Sims and Burnett. Further, appellant was shown to be involved with Danny Walker, from whose automobile several items of property belonging to victim Burnett were recovered. Also, appellant admitted that he left the bank at Wilmar in a vehicle matching the description of Burnett’s, and it was undisputed that Burnett’s vehicle was found abandoned near Wilmar shortly after the bank robbery. There was more, but these facts are more than sufficiently substantial to support the conviction.

Appellant next contends that the trial court erred in allowing into evidence the items recovered from Walker’s car. Those items were seized pursuant to a search warrant and then identified by Burnett as those things which were in his automobile when it was stolen. Appellant’s argument is that the items were irrelevant and, hence, inadmissible, because no evidence was presentedly positively showing that the automobile searched by the F.B.I. and its owner were the same vehicle and person appellant was seen with at the roadblock. Ark. Stat. Ann. § 28-1001, Rule 401 (Repl. 1979), provides:

‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Generally, save a few exceptions not applicable herein, all relevant evidence is admissible. Ark. Stat. Ann. § 28-1001, Rule 402 (Repl. 1979). We do not agree with appellant’s contention that this evidence was irrelevant, as there was ample testimony tending to connect appellant with the missing items and the vehicle from which they were recovered. While this evidence is of a circumstantial nature, it is nonetheless relevant pursuant to Rule 401.

Finally, appellant contends that he was prejudiced by the trial court allowing the prosecutor to lead various witnesses for the State throughout the trial, but he failed to abstract any of the alleged leading questions or his objections to them. A review of the record, including that set out in appellee’s supplemental abstract, indicates that the prosecutor was allowed to ask some leading questions during the trial, but the particular questions which appellant now apparently attacks were largely propounded on redirect examination, where the prosecutor incorporated the witnesses’ earlier testimony in formulating his questions. We cannot say the trial court abused its discretion in allowing the form of these questions. Finding no error, we affirm the judgment of the trial court.

Affirmed.


author: Richard L. Mays, Justice.

text:
    Richard Robert FALBO and Linda Lou FALBO v. Wendell HOWARD et al
    80-178
    607 S.W. 2d 369
    Supreme Court of Arkansas
    Opinion delivered November 10, 1980

      Sanford, Rate & Marschewski, by: Jon R. Sanford, for appellants.

      Monroe L. Bethea, for appellees.
   Richard L. Mays, Justice.

When Robert and Linda Falbo, appellants herein, learned that an infant child of whom they had recently obtained custody as foster parents from the Arkansas Division of Social Services was going to be removed from their home and placed with Stephen and Judy Schlobohm for adoption, they promptly filed a petition for adoption of the child with the Pope County Probate Court. Nine days later the Scholobohms filed a petition to intervene in the Falbos’ adoption proceedings and a petition for adoption, attaching a consent to adoption signed by Ivan Smith, the child’s legal guardian and a representative of Arkansas Social Services. After a joint hearing on the consolidated petitions, the probate court dismissed the petitions and restored the child to the custody of Arkansas Social Services. From that consolidated order, the Falbos appeal and the Arkansas Social Services cross-appeal. We affirm on appeal and dismiss the cross-appeal of Arkansas Social Services.

A probate court may grant a petition for adoption if it determines at the conclusion of a hearing that the required consents have been obtained or excused and that the adoption is in the best interest of the child or individual to be adopted. Ark. Stat. Ann. § 56-214(c) (Supp. 1979). If the requirements for an adoption decree are not met, the court shall dismiss the petition and determine the person to have custody of the child. Ark. Stat. Ann. § 56-214(d) (Supp. 1979). The court has broad discretion in awarding custody of a minor child, and its decision will not be reversed on appeal in the absence of gross abuse. Adams v. Adams, 224 Ark. 550, 274 S.W. 2d 771 (1955); Knight v. Dealers, 259 Ark. 45, 531 S.W. 2d 252 (1976).

Although the appellants did not obtain the required consent to their proposed adoption from their foster child’s legal guardian, the Arkansas Social Services, or allege in their adoption petition that consent should be excused, they complain on appeal because the probate court dismissed their petition. Since there was testimony below that the Arkansas Social Services would not approve or consent to an adoption of a normal, healthy infant, such as child here, by parents over the age of 34, as were the Falbos, appellants contend that the Arkansas Social Services exceeded its statutory authority by arbitrarily establishing an age limit for prospective adoptive parents. In effect, they argue for the first time on appeal that consent should have been excused by the probate court because the Arkansas Social Services unreasonably withheld its approval to their proposed adoption. Having failed to raise the consent issue in their pleadings, however, appellants not only fell short of establishing a prima facie case for adoption, but, since the issue was not raised below, they cannot now raise the issue on appeal. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W. 2d 848 (1974).

Appellants also argue that the chancellor’s decision to return the custody of the child to Arkansas Social Services was not in the best interest of the child. Appellants buttress this contention by referring to evidence which emphasizes the suitability of their home and the likelihood that relocation of the child would cause some temporary adjustment problems. Fully crediting the facts relied upon by appellants, and finding no need to state all of the facts which might have influenced the chancellor’s decision, we find no merit in appellants’ contention. The chancellor heard substantial testimony that the interest of an infant child would be best served by placement in a home with children close to the infant’s age and parents younger than the Falbos. Since restoring the child to the custody of the Arkansas Social Services would provide an opportunity to place the child in a more suitable home, we are unable to say that such a decision was not in the best interest of the child.

The Arkansas Social Services also seeks to cross-appeal from the decision of the chancellor dismissing the adoption petition of Stephen and Judy Schlobohm because of improper venue. Although we have reservations about the legal propriety of the chancellor’s dismissal, we find no basis to reach the issue without an appeal by the Schlobohms. Since Arkansas Social Services did not petition the court for adoption of the child, it has no standing to appeal from the order dismissing the petition for improper venue.

Affirmed on appeal and dismissed on cross-appeal.


text:
    Ismet DIVANOVICH v. STATE of Arkansas
    CR 79-165
    607 S.W. 2d 383
    Supreme Court of Arkansas
    Opinion delivered November 10, 1980

      Tapp Law Offices, by: J. Sky Tapp, for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Richard L. Mays, Justice.

Appellant was convicted by a jury of capital felony murder and was sentenced to life imprisonment without parole. On appeal appellant argues 19 points for reversal. Since we find reversible error, we shall limit our discussion to those points which compel reversal and to those which, though not error, are likely to confront the court on a retrial.

Although included among appellant’s points for reversal is a challenge to the sufficiency of the evidence, we find ample evidence to sustain a conviction of capital felony murder. A person commits capital murder if he causes the death of any person under circumstances manifesting extreme indifference to the value of human life while committing or attempting to commit a robbery. Ark. Stat. Ann. § 4l-1501(l)(a) (Repl. 1977). Specifically, appellant, Ismet Divanovich, was charged by information, along with a co-defendant, Wayne Abbott, with feloniously causing the death of Anna Trailovich by striking her with a rubber mallet and cutting her with a knife in the course of robbing her. The evidence indicates that appellant had accompanied his landlord to the victim’s apartment the day before her death and overheard her tell the landlord that she had misplaced $140.00 with which to pay her rent. The next morning appellant was observed pounding a rubber mallet against his hands, saying it would make a good murder weapon. A little later he was seen carrying what appeared to be the same rubber mallet, now covered with blood, and conversing with Wayne Abbott, who was holding a knife, also covered with blood. He was overheard saying that he thought “that lady” had more money than she had. Subsequently, the victim was found dead in her apartment (which was adjacent to appellant’s), her skull having been fractured. Contusions and lacerations covered her head and blood was spattered on the floor and the door. Appellant was arrested with blood stains on his clothing and a blood stained rubber mallet and knife were found in another apartment to which appellant had a key.

We must sustain appellant’s contention that his right to a fair and impartial trial was undermined and unduly jeopardized by remarks of the trial judge. The record reflects that appellants’ defense attorney was threatened with jail and was refused the opportunity to make a record to establish that the jury heard the threat.

During cross-examination of a prosecution witness by the defense attorney, the state objected to a question on the ground that it called for speculation from the witness. Instead of ruling specifically on the objection, the trial court directed counsel to “stop arguing” with the witness. The defense counsel denied that he was arguing and, during the heated exchange which followed, the court threatened the defense counsel with incarceration, saying, “I’ll put you right down there where he is,” referring to the defendant. The defense counsel objected, requested a mistrial, and, since there was some qustion about whether the jury heard the judge’s rebuke, offered to proffer the testimony of another attorney in the courtroom who had allegedly heard the court’s remark. The court refused the proffer and directed the defense counsel to proceed. When the defense counsel suggested that he could not continue with cross-examination, the court responded, “Otherwise, I’m going to declare a recess and we will have a session . . . and you may spend the night downstairs.”

Although the state concedes that the judge’s remarks were inartfully phrased, the state argues that they were provoked by appellant’s counsel. We do not believe, however, that the responsibility of the trial judge to maintain the integrity of the judicial process is diminished by the misconduct of lawyers. As Mr. Justice Butler so aptly stated many years ago in Western Coal & Mining Co. v. Kranc, 193 Ark. 426, 429, 100 S.W. 2nd 676 (1937):

We are not unaware that many things occur during the trial of a case to fray and irritate the nerves of the presiding judge and that he is not immune to the natural frailities of humanity, but because of his position he must exercise the greater forbearance and patience.

In alluding to the perceptive words of Justice Butler today, we emphasize that it is not the lawyer who is on trial for his life or who suffers when a judge’s disparaging retort to an unseasoned attorney hardens the jury against the defense. Neither the rights of the defendant, nor the dignity of the court can be sacrificed because of human frailties of the judge. This is no new principle of law adopted only for this occasion, but is one to which this Court has consistently adhered. In McAlister v. State, 206 Ark. 998, 178 S.W. 2d 67 (1944), we reversed a grand larceny conviction because the judge told the defense counsel that to grant his motion “would be just silly,” and, that he was “not going to put up with any more of this foolishness.” In Jones v. State, 166 Ark. 290, 265 S.W. 974 (1924), we found error when the defense counsel stated he was “just trying to facilitate matters” and the judge retored, “Yes, facilitate like a crawfish does, backwards.” In Chapman & Pearson v. State, 257 Ark. 415, 516 S.W. 2d 598 (1974), we found error when the defense attorney, excepting to an evidentiary ruling of the court, said, “Note our exceptions,” and the judge replied, “Yes, sir, and the court will also note your dilatory tactics.”

We also found that the trial court erred in permitting testimony from one of the investigating officers that appellant offered to make a statement about the murder but changed his mind after talking with his lawyer. The officer testified that appellant, after several weeks in jail, stated “I’ll give you a statement 20 pages long in reference to this murder.” Although the appellant did not give a statement concerning the murder, the implication to the jury was clearly that appellant wanted to confess. The implication is so harmful that any probative value the evidence could have is substantially outweighed by the prejudicial effect. Rule 403, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979). The prejudice was not diminished by permitting appellant to explain the “statement” away when he testified in his defense. The damage had been done.

The trial court also erred by permitting the state to question appellant on cross-examination about instances of misconduct which were not probative of his veracity. Specifically, the prosecutor asked appellant if he had ever broken out a window of the car of Mr. Knezevich, a witness who testified during the trial on behalf of appellant, and whether he had ever struck or attempted to strike Mr. Knezevich with a crowbar. The prosecutor further asked appellant whether he had been guilty of damaging the apartment of two friends and had to be restrained by deputy sheriffs. The trial court overruled the defense counsel’s objections to the questions as appellant admitted breaking the windows. In Gustafson v. State, 267 Ark. 278, 590 S.W. 2d 853 (1979), this court enumerated the conditions under which questions of prior misconduct would be allowed for impeachment purposes under Rule 608(b), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979): (1) the questions must have been asked in good faith (2) the probative value of the conduct must outweigh any prejudicial effect, (3) the misconduct must relate to truthfulness or untruthfulness. Questions regarding appellant’s violent nature and destruction of property are wholly unrelated to his propensity for honesty and, therefore, improper.

We find no merit in appellant’s contention that the court erred in allowing the photographs of the victim to be introduced. The admissibility of photographs is a matter largely within the discretion of the trial court. Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342 (1979). Photographs are useful in assisting the jury to better understand the testimony and may only be excluded if their probative value is substantially outweighed by their prejudicial effect. Gruzen v. State, supra; Rule 403, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979). Here, the photographs revealed the nature and extent of the victim’s wounds and the savagery of the attack. Since the murder was not witnessed and the murder weapon was in question, the photographs were relevant to establishing the rubber mallet, allegedly owned by appellant, as the murder weapon. We have held that the ghastly character alone of a photograph which depicts the wounds inflicted upon a body does not necessarily justify excluding it. Perry v. State, 255 Ark. 378, 500 S.W. 2d 387 (1973). No error has been shown.

We find appellant’s challenges to the court’s jury instructions to be insubstantial and discern no particular value in discussing them at length.

Reversed and remanded.


author: James H. Pilkinton, Judge. Steele Hays, Judge,

text:
    REVERE COPPER & BRASS, INC. v. William E. MORRIS
    CA 80-175
    607 S.W. 2d 402
    Court of Appeals of Arkansas
    Substituted Opinion delivered December 10, 1980
    [Rehearing denied December 10, 1980.]

      Pickens, Boyce, McLarty & Watson, by:James A. McLarty, III, for appellant.

      Sam Boyce, for appellee.
   James H. Pilkinton, Judge.

The original opinion in this case, dated November 12, 1980, is withdrawn, and is replaced by this substitute opinion.

This is a workers’ compensation case. Claimant suffered a work related injury which his treating physician found to constitute 10% impairment to the body as a whole. The Commission, based on a wage loss consideration as well as the medical evaluation, awarded claimant 35% permanent partial disability. This opinion was entered on March 10, 1978, and became final thirty days later as the employer took no further appeal.

After the decision became final, and payment had been made for the disability set by the Commission, claimant requested that the employer pay for a program of vocational rehabilitation. This request was refused as not being timely made. At a later hearing on the vocational rehabilitation request, the administrative law judge held that the request was timely made, and the program requested was reasonable as related to the injury. The requested program was thus approved. The employer appealed to the Commission which affirmed the administrative law judge in a split decision. The decision of the Arkansas Workers’ Compensation Commission is now brought to this court on appeal.

I

Appellant first argues that the Commission erred in holding that the request for vocational rehabilitation was timely filed. We agree. This claim for benefits is based upon Ark. Stat. Ann. § 81-1310(f), as it existed on August 22, 1974, the date of claimant’s injury. Under the mandatory requirement of the act, a program of rehabilitation had to be filed with the Commission within sixty (60) days from the final determination of permanent disability benefits. That was not done in this case, and appellant must be sustained in its contention that the request was not timely filed. The award of permanent disability was first made on February 11, 1977, and affirmed by the full Commission on March 10, 1978. There was no “filing” with the Commission of any “program” of rehab until the rehab hearing held November 16, 1978. The 60-day period provided in the “old” act had long since expired by that time. Under either act, “old” (60 days after final award), or “new” (prior to determination), the claimant was barred.

II

Appellee claims that appellant waived the right to object by not pointing out below that claimant’s efforts to reserve the question of vocational rehabilitation for a later determination was improper. We cannot agree. The statute is clear on this matter. The claimant, carrying the burden of proof and as the moving party, pushed his claim to a final determination of his permanent disability benefits without requesting vocational rehabilitation training within 60 days thereafter as required by the act. It was the omission of the claimant himself, not of the employer, which foreclosed the right.

Ill

Appellant also contends that the program requested was not reasonable in relation to the disability sustained by the employee. We need not reach that question as the case must be reversed and dismissed on point one.

Reversed and dismissed.

Hays, J., dissents.

Steele Hays, Judge,

dissenting. I earnestly disagree with the result reached by the majority in this case. The claimant sustained a work-related injury on August 22, 1974, and was ultimately awarded a 35% permanent partial disability by the Commission. Subsequently, a program of rehabilitation was upheld by the Administrative Law Judge and the Commission over the employer’s objection. Rehabilitation was opposed on two grounds: that the program requested was “not reasonable in relation to the disability sustained by the employee” and that the request for rehabilitation was not timely filed under Ark. Stat. Ann. § 81-1310(f).

The Administrative Law Judge and the Commission found that the program requested was reasonable as related to the injury and that there was substantial compliance with § 81-1310(f). That decision is supported by substantial evidence and should be affirmed.

It was stipulated by the parties that this claim'is governed by the “old act” affecting rehabilitation, the difference in the “old act” and the new act being that under the former language the request for rehabilitation must be filed within sixty days from the final determination that permanent disability benefits are payable. Under the new act a request for rehabilitation must be filed prior to a determination of the amount of permanent disability benefits payable to an employee.

The majority has accepted the appellant’s argument that this language of the act is mandatory and cannot, even by agreement between the parties, be waived. In the absence of precedent on the point, which neither the appellant nor the majority have provided, I am unwilling to reverse the Commission and deprive the claimant of the benefit of rehabilitation. I agree that the use of the word “must" in the act makes the filing of the request mandatory and if the claimant had done nothing within the sixty days I believe the request would not be timely and I would agree with the majority. But I can find no authority that prohibits the parties from reserving the right to request a program at a later date, where they have seen fit to do so and I can conceive of no reason why the law should interfere where they have done so and it is clear that within the sixty day period counsel for claimant and Respondent reached at least enough of a stipulation as to justify a finding by the Commission that the act had been substantially complied with.

Appellant argues that the final determination of permanent disability was made on March 10, 1978, and insists that a program of rehabilitation must have been filed prior to March 10, 1978 (page 25 of appellant’s brief). But this argument is applying not the “old act,” but the new one. In fact, appellant’s brief at page 24 quotes the new act verbatim as the law applicable to this claim, notwithstanding the stipulation between counsel repeatedly referred to in the record and in the briefs that the “old act” applied. I believe the confusion has resulted in an error in the reversal of this case.

Many hearings occurred in this claim. The first reference to rehabilitation to be found in the record occurs at the outset of a hearing on February 11, 1977, before the Honorable Gary R. Shelton at Newport. In the course of a preliminary statement of the issues, counsel for claimant stated:

. . . and that he is entitled to rehabilitation which questionably we would have to specifically reserve as I understand under the Rules of the Commission that a plan must be submitted to the Commission for their approval and we’re not in a position to present that plan at this time but we would like to have that particular issue reserved for a possible subsequent hearing.

In his remarks, counsel for the Respondent listed a number of controverted issues and said:

. . . with regard to the rehabilitation issue, if we understand, there’s nothing before the Commission by way of rehabilitation now, we simply reserve our position as to whether to accept or controvert any plan of rehabilitation until we see what the plan is.

Admittedly, this exchange leaves something to be desired in terms of a clear and specific agreement. But it was sufficient to put Respondent on notice that claimant intended to request rehabilitation and Respondent’s words at least implied that the only thing being reserved was the right to controvert or accept the plan. That interpretation of the exchange, that is, that counsel themselves viewed the matter as a stipulation, is bolstered considerably by the events that followed.

On April 20, 1978, counsel for claimant wrote counsel for Respondent regarding a program of rehabilitation, opening his letter with:

As you will recall, uie agreed to consider the question of rehabilitation on William E. Morris at a later date once we had submitted a program to you. I now have a program .... [Emphasis supplied.]

Counsel for Respondent took no exception to this conclusion, but answered (July 11, 1978):

In response to your letter of April 20th regarding a program of rehabilitation, I am not in a position to recommend to Revere your requested plan of rehabilitation in order to qualify Billy Ed for a permanent position in the Baptist Church. I possibly could recommend a nominal payment for a Joint Petition (which would include rehabilitation and any claim to fees and costs); but in view of the payments which have been made in the past, I simply cannot recommend the figure that you suggest.
I will look forward to hearing back from you regarding whether or not you want to dismiss this matter further or simply submit your plan to the Commission.

Counsel continued to correspond without reaching an agreement on a program and eventually the issue was submitted to the Commission. The opening comments of that hearing on November 16, 1978, are also revealing. Counsel for claimant stated (at page 78):

MR. BOYCE:
Your Honor, I think we can probably stipulate, although I think it’s obviously on record. This was under the old Act as opposed to the new one. The issue of rehabilitation was specifically reserved at the time of the hearing on a permanent disability factor, (e.s.)
MR. McLARTY:
Yes. sir. I agree. But, so we’re clear, the earlier hearing was held on February 11, 1977, which resulted in a 35% award. That opinion was handed down by Judge Louis Smith, and was appealed by the respondent. The file reflects the full Commission filed an opinion on March 10th of ’78, when the 35% award was affirmed, and there was no appeal taken from that. On page 14, of the transcript record on the February 11 hearing, the last hearing. The third line from the bottom . . . These were my words speaking at that time, setting out the contentions with regard to the rehabilitation issue. If we understand, there is nothing before the Commission by way of rehabilitation now. We simply reserve our position as to whether to accept or controvert any planned rehabilitation until we see what the plan is.
MR. McLARTY:
That’s what was done before as far as rehab was concerned, when they had the earlier hearing.
JUDGE SHELTON:
All right, sir.
MR. McLARTY:
I agree that rehab is not an issue. Back on February 11th of 77, it was not covered within the last opinion of the Commission.
JUDGE SHELTON:
Any further proposed stipulations?
MR. BOYCE:
No. sir.
MR. McLARTY:
No, sir.
[Emphasis supplied.]

It should be noted that counsel for Respondent, in briefs and oral argument, with innate fairness, has attempted to give a full account of these exchanges between counsel, urging that whatever counsel may have intended, the mandatory requirement of the statute may not be modified by the agreement of the parties.

I find it reasonably clear that the parties through their counsel did so agree and there is no discernable reason why we should refuse the employer the power to modify this provision by agreement.

I would affirm the Commission.


author: James H. Pilkinton, Judge.

text:
    Evelyn K. MARSHALL v. John W. MARSHALL
    CA 80-271
    607 S.W. 2d 90
    Court of Appeals of Arkansas
    Opinion delivered November 12, 1980

      Carl J. Madsen, for appellant.

      Macom, Moorhead, Green & Henry, for appellee.
   James H. Pilkinton, Judge.

On June 4, 1977, Evelyn K. Marshall of Arkansas County, Arkansas, married John W. Marshall, an elderly man from Oklahoma. His previous wife had died. Evelyn lived with appellee until on or about March 15, 1979- The wife sued the husband for divorce, and Mr. Marshall answered and counterclaimed also seeking a divorce. He alleged in addition that Mrs. Marshall wrongfully and by undue influence gained possession of the sum of $28,000, and other personal items, which were his separate property. The wife denied all of the allegations of the cross-complaint.

Mr. Marshall was 78 at the time of the trial. After a full and patient hearing, the chancellor dismissed the wife’s complaint for want of equity, and awarded the husband a divorce on the cross-action. There is no appeal from that part of the decree. The trial court also found that Evelyn had exercised undue influence upon the husband to obtain $13,500 from him which represented a portion of the proceeds from the sale of certain real property which the husband had acquired prior to the marriage. The wife has appealed from that part of the decree rendering judgment against her for the $13,500. She contends that Mr. Marshall voluntarily gave this money to her.

I

Appellant first argues that the chancellor abused his discretion in finding that she used undue influence in obtaining the $13,500. The real test on appeal, however, is whether the decision of the chancery court that Mr. Marshall did not voluntarily give this-money to her was clearly against the preponderance of the evidence. See Rule 52, Arkansas Rules of Civil Procedure.

The parties were husband and wife, and appellant does not dispute the existence of a confidential relationship in which she was dominant. Therefore, under the circumstances here, the transfer of the $13,500 to Mrs. Marshall was presumed to be invalid. Dunn v. Dunn, 255 Ark. 764, 503 S.W. 2d 168 (1973). Appellant therefore carried the burden to support by proof her contention that the transfer of the $13,500 to her was a gift, voluntarily made, and was not the product of a confidence betrayed or influence abused. The chancellor found that she had failed to discharge this burden of proof, and we cannot say on appeal that this decision was clearly erroneous (clearly against a preponderance of the evidence). Rule 52, A.R.C.P.

Prior to the marriage, Mr. Marshall had only known Evelyn for about ten days. The testimony clearly shows that Mr. Marshall had a major stroke in October of 1977, soon after the parties were married. He had previously suffered blackouts in May and August of 1977- The stroke in October of 1977 was severe, and Mr. Marshall had difficulty talking, could not walk, and was incoherent; and, as he termed it, “did not know what he was doing half the time.” This testimony was substantiated by Mrs. Marshall. She testified that her husband had suffered smaller strokes about every three months during the entire marriage. She further testified that these strokes would affect Mr. Marshall to the extent of disabling him for a while, and that he would not be able to walk or talk. Mrs. Marshall said that she took care of appellee during these periods of incapacity as he would not see a doctor. In November of 1977, soon after his major stroke, Mr. Marshall gave his wife a power of attorney over his affairs. There is no doubt from this record that the testimony regarding Mr. Marshall’s mental and physical condition, much of which was undisputed by appellant, clearly shows that because of his condition Mr. Marshall was extremely dependent upon his wife. This was especially true in financial affairs. Mrs. Marshall testified that she wrote all the checks on the parties’ joint account for the payment of the expenses of remodeling her home, which was done with Mr. Marshall’s money, because appellee’s mind got so bad after the stroke that he did not know enough to pay the bills. Mrs. Marshall claimed that she was writing most of the other checks on the parties’ joint account for the reason that after his major stroke Mr. Marshall did not know what he was doing. During this period Mrs. Marshall made a $3,000 down payment from the parties’ joint bank account on a new automobile which she purchased in January of 1978. She placed the title to the car in her name alone. The record is clear that it was Mrs. Marshall who principally controlled the financial affairs of the parties during the marriage, although Mr. Marshall supplied most of the money, and that the operation of their financial affairs by the wife was, at times, detrimental to the interest of the appellee. At the time of the marriage, Mr. Marshall owned as a separate estate a parcel of land in Oklahoma. This particular property had been owned and resided on by Mr. Marshall and his first wife before her death. The chancellor held Act 705 of 1979 (Ark. Stat. Ann. § 34-1214) applicable and that.neither the property nor the proceeds therefrom were marital property, thus appellant had no interest therein. The home in Oklahoma was sold by appellee and the first payment received on the purchase price was a check for $3,000. Appellant received this $3,000 check, and Mr. Marshall testified he never saw it. Mr. Marshall next received a check in the amount of $23,-185.12 on the sale of the property which he deposited in a bank at Enid, Oklahoma, in his and his daughter’s names. Mr. Marshall testified that he deposited this money in Enid, Oklahoma, because he did not consider the proceeds of this sale to be the property of appellant and did not wish to give appellant any of this money because the property belonged to him and his first wife and he wanted the money to go to his children. Mrs. Evelyn K. Marshall did not know for a time that appellee had received the $23,185.12. Appellant testified that she found out about the $23,185.12 check when she discovered a letter from the realtor along with another check for .$4,398.50 which represented the final payment on the sale price. When she discovered that the $23,185.12 had been disbursed, and deposited in the bank account in Oklahoma, appellant testified that she got upset and confronted appellee with this information. She took appellee’s pants to a neighbor’s house at 1:00 a.m. and admitted that the main reason for that action on her part was so that Mr. Marshall could not leave the house. The upshot of the matter was that appellant forced appellee to go to Enid, Oklahoma, and threatened to put him in a rest home if Mr. Marshall did not draw the money out, move the funds to Arkansas, and give her half of the combined total of the $23,185.12 and $4,-398.50 checks, one-half of which amounted to approximately $13,500. Mr. Marshall finally capitulated to her demands, and gave her a check for $13,500. The chancellor felt it was his duty to closely scrutinize this alleged gift under these circumstances, and to hold invalid the transfer of the $13,500 in question to Mrs. Marshall. We cannot say that this decision is clearly erroneous (clearly against the preponderance of the evidence). Rule 52, Arkansas Rules of Civil Procedure.

II

Appellant places much emphasis on the fact that the appellee, almost at the conclusion of the trial, and in apparent exasperation, said that she could have the $13,500, and all the personal property in issue. The trial court attached no significance to this contradiction in the appellee’s testimony, and apparently treated it as an emotional outburst of an elderly man, under great strain at the trial. It is apparent from the record that the chancellor viewed this statement as only serving to point up the confusion which appellee was experiencing, and the extent to which he was subject to influence and coercion. The entire thrust of the cross-action was to the effect that appellee did not want or intend for appellant to have any part of the sale proceeds from his former home in Oklahoma. He had earlier testified positively that he did not want appellant to share in any part of the sale proceeds in question because that property had belonged to his first wife. We cannot say that the chancellor erred in his interpretation of Mr. Marshall’s testimony, or that the trial court did not have the right to adjudicate the case on its merits, irrespective of the confused statemént made by appellee just before the conclusion of the trial.

Finding no error, the decree of the chancery court is affirmed.


author:
Marian F. Penix, Judge.
      David Newbern, Judge,

text:
    Verna E. LARRICK v. Arthur LARRICK
    CA 80-207
    607 S.W. 2d 92
    Court of Appeals of Arkansas
    Opinion delivered November 12, 1980

      Harkey, Walmsley & Belew, by: John M. Belew, for appellant.

      Reed & Irwin, P.A., by: Michael E. Irwin, for appellee.
   Marian F. Penix, Judge.

Woodrow Larrick died June 27, 1979- His widow Verna Larrick, the appellant, petitioned to be appointed administratrix of Woodrow Larrick’s estate, stating Woodrow Larrick died intestate. On July 23, 1979 the Probate Court of Cleburne County appointed Verna administratrix. On September 4, 1979, Arthur Larrick, brother of Woodrow Larrick, petitioned for the admission to Probate of the Last Will and Testament of Woodrow Larrick. Verna Larrick responded to the petition stating the Last Will and Testament had been destroyed thereby rendering it null and void. On February 29, 1980 the Probate Court found that Woodrow Larrick personally destroyed the original Will by tearing and burning it and that at the time of the destruction his intent was to immediately make a new will. However, he died suddenly. The Court found further the destruction was a revocation conditioned upon his making a new will and that he would prefer the terms of the destroyed will to intestacy. The Court applied the doctrine of dependent relative revocation and ordered the will admitted to probate. The widow Verna Larrick appeals.

Howard Speraw testified by deposition on behalf of Verna. He stated Woodrow Larrick, the day before his death, told him “I tore up my old Will and I have got to get one made out down here. I have got to get down and see a lawyer.” He stated Woodrow at one time had told him his brothers were all well to do and had all they needed.

The widow Verna testified she observed Woodrow tear up the Will and set fire to it about a week before his death. She further testified she was the one who went to Hoyt Thomas’ office, the lawyer who had prepared it, and took it home to Woodrow. She said he kept it two or three days before tearing it up. She said also Woodrow was planning to make a new will which he said would be quite a bit different from the destroyed will.

Hoyt Thomas testified for Verna. He testified several weeks prior to Woodrow’s death, he talked to Woodrow in front of the bank. Woodrow asked him how to effectively destroy his will. He admitted telling a Kansas lawyer, Mr. Grimshaw, he had not prepared a will for Woodrow. He said at the time he forgot having prepared the destroyed 1978 will. He went to the bank with Verna to look for a will but none was found. He then located a copy of the will in his office.

Verna, upon recall, testified she had misunderstood when she first testified having gone to Thomas’ office and picking up the will and taking it to Woodrow prior to his death. She said she actually took Woodrow to the bank in the truck to get the will, but didn’t go into the lock box with him. Verna’s testimony reveals some inconsistencies and confusion.

Hoyt Thomas’ secretary testified Verna had not been to his office to pick up a copy of the will within two weeks of Woodrow’s death. She said she prepared the petition and other necessary papers necessary for appointing Verna Administratrix. She said she pulled the copy of the will and it became mislaid. She also said Thomas probably never saw the copy. She testified she didn’t know at the time she prepared the Petition for Appointment of Administratrix whether or not the copy of the will was in the Larrick file.

Sam Morton, an employee of the Cleburne County Bank, testified for Arthur Larrick. He introduced the lock box rental form which had several signatures of Woodrow Larrick. The last signature “Woodrow Larrick” on June 5, 1979 appears to be different from the others. This was 22 days prior to Woodrow’s death. Verna Larrick’s name was not authorized to be on the lock box until after July 9, 1979. This authorization came from Jerome Johnson, president of the bank. He further testified the bank’s policy was not to admit anyone but the person whose name appears on the lock box lease in the box.

Darlene Williams, a bank employee, testified she once let Verna sign Woodrow’s name and enter the lock box. She also testified she matched signatures of customers she let into lock boxes and that the last signature of Woodrow Larrick did not match the others.

Arthur Larrick, appellee, testified as to how close he and Woodrow had been as brothers down to 1974 when Verna and Woodrow married. He said Woodrow told him he had a will under which he, Arthur, would receive $30,000. Woodrow told Arthur “ . . . I have made a will and I have left you $30,000 and the rest goes to Verna, and I want you to be sure that you get this.” This conversation occurred March 20, 1979, three months prior to Woodrow’s death. He testified seeing Woodrow twice again between March 20 and his death and Woodrow did not mention he was going to destroy his will or make any changes in it. He said he called Verna on August 10, after receiving notice in a letter from Hoyt Thomas Woodrow had died intestate, and was told Woodrow had destroyed his will.

Jerome Johnson, president of the Cleburne County Bank, testified as to Verna’s reputation for truthfulness and honesty and that her reputation is good. He also testified to having seen both Verna and Woodrow together when Verna would get the lock box and hand it to Woodrow.

It is the contention of Verna, the appellant, Woodrow intended to destroy the will and there is clear, cogent and convincing evidence he intended to destroy the will. Ark. Stat. Ann. § 60-406 provides:

Revocation by Written Will or by Act on Document. Except as provided in Section 23 [§ 60-407], a will, or any part thereof, can be revoked only
a. By subsequent will; or
b. By being burnt, torn, cancelled, obliterated, or destroyed, with the intent and for the purpose of revoking the same, by the testator himself or by another person in his presence and by his direction. . . .
The testimony of Verna Larrick was that Woodrow

Larrick destroyed his will because of conversations he had had with members of his family during his last trip to Kansas which indicated Verna was to get nothing. This testimony regarding destruction of the will is corroborated by the testimony of Howard Speraw. The Court found as a matter of fact Woodrow destroyed his will. We find substantial evidence to support this.

Verna further contends the Court’s application of the doctrine of dependent relative revocation is in error. Verna contends the doctrine is not the law in Arkansas.

The Probate Judge, having found the will was destroyed, then applied the doctrine of dependent relative revocation. This is defined as:

The doctrine which regards as mutually dependent the acts of one destroying a will and thereupon substituting another instrument for distribution of estate, when both acts are result of one plan, so that, if second act, through incompleteness or other defect, fails to accomplish its in tended purpose, and it thereby becomes evident that testator was misled when he destroyed his will, act of destruction is regarded as bereft of intent of revocation and way for probate of destroyed will is opened. Black’s Law Dictionary, Revised Fourth Edition, P. 525.

Wills — Dependent Relative Revocation, 8 Arkansas Law Review 193 (1953):

Dependent relative revocation has long been a significant doctrine in the law of both England and the United States (cites omitted). The result of an application of this principle is that the efficacy of the revocation of an original will or some part thereof is relative to and dependent upon the validity of a new disposition. This doctrine is only invoked in the event that the testator intended to make another will, made an invalid will, or effected an invalid alteration of the original will; and proper application raises a rebuttable presumption that the deceased would prefer the original will to intestacy

In Section 267, 95 C.J.S. 35 at page 36 ... .

the doctrine is subordinate to the rule which makes the intention of the testator paramount, so that its application is limited to cases in which it can operate in furtherance of the intention of the testator .... The doctrine should be applied with caution; and, it has been said, the tendency of modern cases is clearly to narrow the scope of its application. Thus, the mere fact that the testator intended to make a new will, or made one which failed of effect, will not alone, in every case, prevent a cancellation or obliteration of a will from operating as a revocation; and the doctrine can only apply where there is a clear intent of the testator that the revocation of the old will is made conditional on the validity of the new one.

There is some question whether or not this doctrine has ever been applied in Arkansas. In Starnes v. Andre, 243 Ark. 742, 421 S.W. 2d 616 (1967) Justice Fogleman stated the Court did not know of the doctrine having been applied in Arkansas and were unable to find facts to justify its application. Again in Armstrong v. Butler, 262 Ark. 31, 553 S.W. 2d 453 (1977) Justice Fogleman writing about the doctrine stated: “There is no place for the application of the rule here, as we understand it.”

We can find no instance in Arkansas when this doctrine has been applied. Ark. Stat. Ann. § 60-408 seems to prevent the application of the doctrine here in Arkansas, even though there is some evidence in the record Woodrow intended to make a new will following the destruction of the 1978 will. Section 60-408 provides:

No will or any part thereof which shall be revoked, or which shall be or become invalid, can be revived otherwise than by re-execution thereof, or by the execution of another will in which the revoked or invalid will or part thereof is incorporated by reference.

As was said above, this statute would seem to preclude the application of the doctrine of dependent relative revocation here in Arkansas.

In the 1979 case of Parker v. Mobley, 264 Ark. 805, 577 S.W. 2d 583 Justice Purtle wrote:

If the decedent desired to reinstate his 1973 will, he could have easily followed the provisions of Ark. Stat. Ann. § 60-408. . . .

The Probate Judge found as a matter of fact that a few days before his death Woodrow Larrick personally destroyed the original of said will by tearing and burning it. The Judge further found it was Woodrow Larrick’s intent to make a new will as a substitute for the will he was destroying, however, he died from a sudden attack before he made a new will. We, as appellate court, find substantial evidence to support the Probate Court’s findings of fact. However, we disagree with the Court’s application of the law to those findings of fact.

The intentional physical destruction of the . . . will, in the manner required by law, left the testator without an existing will. Everyone is presumed to possess knowledge of the legal consequences of his acts or omissions. Whatever reason the decedent had, he failed to re-execute either of his known wills or publish a new one. Therefore, he died intestate. Parker v. Mobley, Supra at Page 586.

We find the Probate Judge erred as a matter of law in applying the doctrine of dependent relative revocation. Since we hold the doctrine cannot be applied to these findings of fact, the presumption Woodrow Larrick intended to revoke his will has not been overcome nor rebutted. We find it to be error to admit to probate the copy of the revoked will. We therefore reverse and remand to the Probate Court for proceeding with the administration of Woodrow Larrick’s estate which we find to be intestate.

Reversed and remanded.

Newbern, J., concurs.

David Newbern, Judge,

concurring. I agree with that part of the majority opinion holding the facts in this case do not necessarily bring it within the doctrine of dependent relative revocation. I am, however, not willing to agree our statute, Ark. Stat. Ann. § 60-408 (Repl. 1971), “would seem to” preclude application of the doctrine in this state. The majority opinion, it seems to me, fails to recognize that the statute only comes into effect if there . has been a “revocation.” It is to determine precisely that question, i.e., whether there has been a revocation, that the doctrine is applied.


author: David Newbern, Judge.

text:
    Vick PALMER, A. J. PRATT, Joe PADGETT, Bill BRAZEAR and James HENDRICKSON v. CITY OF CONWAY, Arkansas and George HARTJE, Agent
    CA 80-265
    607 S.W. 2d 87
    Court of Appeals of Arkansas
    Opinion delivered November 12, 1980

      Guy Jones, Jr., for appellants.

      Ronald L. Burton and Jesse W. Thompson, for appellees.
   David Newbern, Judge.

This is a city annexation case. The decision in the lower court approved the annexation. In addition to the appellants’ points for reversal, we will discuss the appellees’ contention that the appellants have no standing in the case. We find that one of the appellants has sufficient standing to raise the asserted errors, but we disagree with the appellants’ assertions of error, and thus, the lower court’s judgment is affirmed.

The annexation was brought about by a petition circulated by persons who owned property adjoining the city of Conway. The appellants appeared personally before the county court to make their remonstrance known. The county judge approved the annexation of all of the property originally sought to be annexed but later amended his order, apparently for the purpose of excluding properties owned by these appellants from that to be annexed. The county judge failed to exclude some two acres belonging to appellant A.J. Pratt and the property of appellant Joe Padgett.

The matter was then appealed to the circuit court which completed the task of excluding the property owned by Pratt but did not exclude that belonging to Padgett.

1. Standing.

The appellees contend that the appellants have no standing to appeal the circuit court judgment because none of them, with the exception of appellant Joe Padgett, owned property in the area to be annexed, and Padgett did not participate in the circuit court trial. Perkins v. Holman, 43 Ark. 219 (1884). If it were true that none of the appellants owned property in the area to be annexed or in the city to which it is to be annexed, this might have been a valid point. However, it is admitted that Padgett owns property in the area to be annexed. The fact that Padgett did not participate in the circuit court proceedings does not convince us that he was not a litigant there. His name was on the pleading, and the circuit court judgment purported to affect him as well as the other appellants. The appellees cite no authority holding that failure to participate makes one who appears there as a matter of record any less entitled to appeal the result. Having found that one of the appellants has standing to pursue this appeal, we proceed to the points raised by them.

2. Premature order.

The appellants’ first contention is that Ark. Stat. Ann., § 19-303 (Repl. 1980), prevents any further action from being taken for a period of 30 days after the county court has entered its order granting the annexation petition, and that here the 30 days had not elapsed before the city of Conway passed an ordinance accepting the annexation.

The appellees respond, and we agree, that the sole purpose of that statute is to give to remonstrants an opportunity to appeal the county court order to the circuit court. In Barnwell v. Town of Gravette, 87 Ark. 430, 112 S.W. 973 (1908), our supreme court said:

Thirty days are allowed for a notice of complaint against such annexation; and where such complaint has been heard and dismissed, then thirty days must elapse before the order of annexation shall be made. This thirty days after the dismissal of the complaint is evidently in order to allow the remonstrants to appeal. There can be no other purpose for it in the legislative scheme.

While § 19-303 was not cited there, and we cannot be entirely certain the court was writing about the 30-day period prescribed in that particular statute, we believe the principle espoused in that annexation case applies in this one. We can find no prejudice which occurred to these appellants because the ordinance was passed some two days before the period elapsed. The appellants were in no way prevented from taking their appeal to the circuit court. The statute gives the right to protest the annexation in circuit court during the 30-day period to “any person interested.” Again, we cannot see how these appellants have been prejudiced by failure to follow the statute even though it might be surmised that some other “person interested” might somehow have been deprived of his or her right to protest the annexation.

3. Validity of the annexation petition.

Under this point, the appellants contend that the lower court erred in finding that the majority of the property owners in the annexed area signed and agreed with the petition for annexation and that the signers owned a majority of the acreage affected. The contention seems to be that the trial court should have disqualified many of the petition signers. The appellees meet the argument by stating explanatory and contradictory facts surrounding the signatures of the signers whose qualifications are questioned by the appellants.

This argument is no more than a rehashing of the facts which were decided by the trial court. We decline an invitation to make these factual determinations as that is, of course, not our duty. Much of the testimony heard by the trial court went directly to the qualifications of the petitioners, and we find no reason to reverse the determination that there were sufficient valid signatures. The appellants’ brief has merely argued facts without even suggesting a reason for us to reverse the trial judge’s findings.

4. Technical failures.

In their final point, the appellants urge that a number of errors occurred in the annexation process acknowledging that many of their allegations have to do with questions to be answered in “the sound discretion of the court as the trier of fact.” We agree that all of the items mentioned in this point, e.g., allegations of misrepresentation used to obtain signatures to the petition and alteration of the plat considered by the trial court in a way that misled the court and the signers of the petition are factual determinations. For that reason and because no authorities whatever are cited under this point, we decline to consider these allegations. The appellants have not demonstrated that there is no substantial evidence in the record to support the trial court’s findings or that those findings were clearly erroneous or clearly against the preponderance of the evidence. A. R. Civ. P. 52.

Affirmed.


author: Per Curiam

text:
    Mark WOOTEN v. Charles L. DANIELS, Director of Labor, and ARKANSAS ALUMINUM ALLOYS, INC.
    E 80-118
    607 S.W. 2d 96
    Court of Appeals of Arkansas
    Opinion delivered November 12, 1980
    Appellant, pro se.

      Herrn Northcutt, for appellees.
   Per Curiam

This case was erroneously placed on our docket as an appeal. The only document filed with this court is a letter from the father of the claimant Mark Wooten requesting an extension of the deadline for filing a petition for review with this court. Thus, there has been no appeal in this case.

We deny the request for extension for two reasons. First, we have no authority to extend the 15-day deadline for filing petition for review as prescribed in Ark. Stat. Ann., § 81-1107(d)(7)""(Supp. 1979)- Secondly, the o'nly evidence presented by claimant’s father with respect to his authority to act for the claimant was a power of attorney giving him authority to purchase and sell personal property on behalf of the claimant. It did not authorize him to represent the claimant in the manner purported in the letter.


author: John A. Fogleman, Chief Justice.

text:
    William Lewis HICKS, Jr. v. STATE of Arkansas
    CR 80-150
    607 S.W. 2d 388
    Supreme Court of Arkansas
    Opinion delivered November 17, 1980

      E. Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: ArnoldM. Jochums, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

Appellant William Hicks and Eugene Morris, Jr., were charged with breaking and entering and theft of property. Both were charged as habitual offenders. They were tried jointly in a court trial, without a jury, on December 6, 1979, found guilty of the charges, found guilty of having been previously convicted of four or more felonies, and sentenced to imprisonment for five years, with credit for time served. Among other arguments advanced by Hicks is his contention that the evidence was insufficient to support his conviction for either breaking and entering or theft of property. We agree, reverse the judgment and dismiss the charge.

The offenses were alleged to have been committed on August 7, 1979, at the 7-11 Store at 4400 West 12th Street in Little Rock. The trial court admitted into evidence an unexpurgated confession of Eugene Morris, Jr. This statement was:

Me, William Hicks and Brenda Harper went into the 7-11 store at 12th and Peyton to get some cigarettes. The dude went down and left the cash register open like he didn’t care so I made my move and snatched ten dollars. Hicks was going to snatch him some but never did make his move.

Phillip Arnold, the store manager, testified that, between 7:00 and 8:00 a.m. on August 7, when he had a good many customers in the store, a black lady came in and bought a Coke. He said that she leaned over the counter behind which he stood, and pointed to something she wanted, causing him to turn his back to her and to the counter on which the cash register rested. He said that, while he had his back turned, she would keep changing her mind about what she wanted and kept asking for something different. He said that two black males, the defendants, were with her. He stated that when he turned back around, the three left immediately. He testified that he then noticed that a packet of money (two one dollar bills and one five dollar bill) which had been placed in the cash register, as “bait money,” was missing. According to him, this packet has been placed over a transmitter which served to trip a surveillance camera whenever the packet of money was removed. When he discovered that the money was missing, he called the police camera division by telephone. According to Arnold, $60 was missing from the register. Arnold viewed photographs developed from the camera and identified both defendants in them. He said that Hicks had returned to the store on August 9th and 10th and that the camera had been activated while Hicks was in the store on August 9th.

Appellant moved for a directed verdict of acquittal at the conclusion of the evidence on behalf of the state. The defense rested without offering any evidence and again moved for an acquittal. The trial judge found both defendants guilty.

Even with unexpurgated statement of the co-defendant, the evidence in this case gives rise to nothing more than a strong suspicion that Hicks was an accomplice of Morris and the woman. Even when the co-defendant’s statement, qualifiedly admitted over appellant’s objection, is considered, it does nothing to incriminate Hicks, other than to state Morris’ own subjective evaluation of the intent of Hicks, and to say that the three, whom Arnold placed at the counter, had gone into the store together. No other testimony puts Hicks in the company of Morris and the woman until the store manager saw tham at the counter near the cash register. The photographs developed from the film taken from the surveillance camera show the woman leaning on the counter at all times. The first one shows Morris, standing next to the woman, reaching across the counter into the cash register drawer and Hicks standing behind the register, glancing toward the cash drawer and holding a piece of currency in this right hand. The next picture shows Morris, apparently passing something to the woman or into her purse, and Hicks still looking at the cash drawer. The next photograph shows Hicks, still holding the paper money, turned toward Morris, looking toward Morris’ hands which were above the counter but below Morris’ waist. The state says that this picture “appears” to show Morris handing or having handed money to Hicks. We simply see nothing to justify such a conclusion. None of the photographs, taken at the rate of more than 20 per minute, show Morris passing any money to Hicks or justify any inference that he did. Morris is not identifiable in any of the remaining pictures introduced. Hicks, still holding the piece of paper money in his hand, moved into the position where Morris had previously stood next to the woman and then walked behind her and stood at the counter on her right side, away from the still open cash register. Morris definitely did not appear in the photographs showing Hicks walking behind the woman or standing on her right side. The money Hicks held in his hands appeared in every photograph in which he appears near the counter. Finally the photographs show Hicks walking away from the counter, leaving the woman still leaning over it. The last two photographs show the woman alone at the counter, still leaning over it. Neither Hicks nor Morris, nor any other person appears anywhere in these photographs. Although the store manager said that Morris and Hicks were with the woman, he apparently did not see any of the three until they were at the counter. There is actually no clear evidence that the three entered the store or left it togethere, except for the statement of Morris which should not have been considered by the trial judge as to Hicks. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L.Ed. 2d 476 (1968); Grooms v. State, 251 Ark. 374, 472 S.W. 2d 724. The fact that the case was tried before a judge without a jury does not affect the rule. See Hickey v. State, 263 Ark. 809, 569 S.W. 2d 64.

The state contends that appellant and the unidentified female were accomplices and that appellant was liable for the actions of Morris because he was aiding Morris to commit a theft, relying upon Ark. Stat. Ann. § 41-303 (1) (b) (Repl. 1977). Under the section of the statute, Hicks would be an accomplice of either of the other two persons if, with the purpose of promoting or facilitating the commission of the offenses charged, he aided, agreed to aid, or attempted to aid one or both of them in planning or committing the offenses or either of them.

We agree with the state that the guilt of an accomplice may be shown by circumstantial evidence. That evidence must, however do more than arouse suspicion; it must not leave the fact finder to speculation and conjecture alone. Chaviers v. State, 267 Ark. 6, 588 S.W. 2d 434. No one should be deprived of his liberty on mere suspicion or conjecture, however suspicious the circumstances may be. Ravellette v. State, 264 Ark. 344, 571 S.W. 2d 433.

The term accomplice does not embrace who had guilty knowledge or who is morally delinquent; it includes only one who takes or attempts to take some part, performs or attempts to perform some act or owes some legal duty to the victim of the crime to prevent its commission; and mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of some legal duty to act, concealment of knowledge or failure to inform officers of the law, is not sufficient to make an accomplice. Wilson v. State, 261 Ark. 820, 552 S.W. 2d 223; Ark. Stat. Ann. § 41-303 (Repl. 1977).

Not only must we reverse the judgment, the case must be dismissed. Greene v. Massey, 437 U.S. 19, 98 S. Ct. 2151, 57 L.Ed. 2d 15 (1978).

Reversed and dismissed.


author: George Rose Smith, Justice.

text:
    STARR FARMS, INC. et al v. SOUTHWESTERN ELECTRIC POWER COMPANY
    80-183
    607 S.W. 2d 391
    Supreme Court of Arkansas
    Opinion delivered November 17, 1980

      Blair, Cypert, Waters & Roy, for appellants.

      Greenhaw & Green haw; Little, McCollum & Mixon; and Richard L. Arnold, for appellee.
   George Rose Smith, Justice.

Three companion suits, consolidated below, were brought by the appellants in the Washington Chancery Court, seeking to enjoin Southwestern Electric Power Company, a licensed foreign corporation, from trespassing upon the plaintiffs lands and to recover a total of $175,000 as damages for past trespasses. SWEPCO defended its entry upon the plaintiffs lands as having been made under the authority of circuit court orders by which SWEPCO’s wholly owned subsidiary, a domestic corporation, had condemned a right of way for the construction of electrical transmission lines across the plaintiffs lands. The case was tried on admissions and other conceded facts, without testimony. The chancellor dismissed the complaints for want of equity. The appeal comes to this court under Rule 29 (1) (a).

The ultimate question is whether SWEPCO should be permitted to use its subsidiary, Southwest Arkansas Utilities Corporation, to condemn a right of way so that SWEPCO itself can construct its transmission lines upon the plaintiffs’ lands. That precise question was answered in the affirmative in earlier cases involving this same parent corporation and this same subsidiary, though SWEPCO has changed its name slightly since then. Patterson Orchard Co. v. Southwest Ark. Utilities Corp., 179 Ark. 1029, 18 S.W. 2d 1028, 65 A.L.R. 1446 (1929); Southwestern Gas & Elec. Co. v. Patterson Orchard Co., 180 Ark. 148, 20 S.W. 2d 636 (1929). Both the Patterson Orchard cases arose, as did this one, from that section of our Constitution denying to foreign corporations the right of eminent domain. Ark. Const., Art. 12, § 11 (1874).

The first Patterson Orchard case is almost indistinguishable from the case at bar. There SWEPCO’s predecessor, a Delaware corporation, was relocating an interstate transmission line when it reached the Patterson property and was unable to get permission to cross the orchard. On March 7, 1928, the company filed a condemnation action in the circuit court and obtained an order permitting it to enter the land and construct its line. The landowner at once protested on the ground that Southwestern Gas & Electric was a foreign corporation without power to condemn a right of way. The company, however, went ahead and practically completed its construction.

Three days later, on March 20, the landowner presented its protest to the circuit judge, who suspended his earlier order and set the matter for a hearing on March 24. In that four-day interval Southwestern Gas & Electric hastily formed its present subsidiary, Southwest Arkansas Utilities, whose corporate purpose as stated in its charter was to generate and transmit electricity for public use. The parent company conveyed part of the new transmission line, including the segment across the orchard, to the subsidiary in exchange for all its capital stock except two qualifying shares. The parent company then leased the line from the subsidiary, which intervened in the case on March 24. After the parent company abandoned its original condemnation effort the case was transferred to chancery and resulted in a decree condemning a right of way for the subsidiary company. The landowner appealed to this court.

We stated much the same question that is again presented in the case at bar: “Could the appellee, a domestic utilities corporation, clothed with the power of eminent domain, exercise that power for the benefit of a like foreign corporation which had complied with the general laws of the state prescribing upon what terms a foreign corporation might do business therein?” It was argued there, as it is here, that the creation of the subsidiary “was but a subterfuge for acquiring a right-of-way indirectly” for the parent company, which could not be done directly because of the constitutional prohibition.

We followed the great weight of authority in upholding the right of a foreign corporation to exercise the power of eminent domain through a domestic subsidiary. The opinion discussed cases from Iowa, Utah, and New York, and distinguished the only contrary holding because the Nebraska constitutional provision was different from ours. Our final reasoning was this:

Since the power to acquire rights-of-way by purchase, lease, or otherwise, is not excepted from the general powers granted, it follows that a foreign corporation may exercise such power. The privilege granted a foreign corporation to do business in this State would be practically nullified if it were restricted from doing the act which was necessary to the prosecution of that business, and, as it it is a necessary incident to the business of companies engaged in the transmission of electricity for public use to acquire rights-of-way, this authority must be deemed to have been granted under its general powers, unless expressly or by necessary implication prohibited in terms expressed in the Constitution, and which it does not do.

In the present litigation there was not even a suggestion of concealment or subterfuge in the condemnation actions brought by Southwest Arkansas Utilities against these appellants. The complaints alleged that the plaintiff was an Arkansas corporation authorized to engage in the businesss of generating, transmitting, and supplying electricity for public use, that it had the power of eminent domain, and that it was a wholly owned subsidiary of SWEPCO. The complaints recited that plaintiff was acquiring the right of way for the use and benefit of SWEPCO and at its direction. The pleadings cited the plaintiffs own statutory authority to exercise the power of eminent domain and also stated that SWEPCO, about three earlier, had obtained from the Public Service Commission certificates of environmental compatibility and public need for the major utility facilities which would be constructed after the right-of-way had been' acquired by Southwest Arkansas Utilities and assigned or leased by it to SWEPCO. Ark. Stat. Ann. § 73-276.15 (RepL 1979). The condemnation orders approved deposits to secure the landowners, put the plaintiff in possession of the rights of way, and vested title in the plaintiff with all rights of enjoyment set forth in the complaints.

The appellants attempt to distinguish our holdings in the Patterson Orchard cases on the ground that in those cases the subsidiary corporation actually held title to the transmission lines and leased them to the parent company, while here SWEPCO itself entered the right of way and constructed the lines. We do not see that this distinction is of controlling importance. Our rule is that separate corporate entities will be disregarded only “when the privilege of transacting business in corporate form has been illegally abused to the injury of a third person.” Pounds & Porter Lbr. Co. v. Burns, 216 Ark. 288, 225 S.W. 2d 1 (1949). SWEPCO has not used the device of a subsidiary illegally, its procedure having been approved in Patterson Orchard. Nor have the appellants suffered any pecuniary injury. In the condemnation cases they had the opportunity to obtain just compensation for the use of their lands; presumably they did so. They knew from the condemnation complaints that the rights of way were being acquired for SWEPCO and would be used by SWEPCO. The proof does not show the arrangement between Southwest Arkansas Utilities and its parent company, but we do not see how the landowners have any basis for complaint even if the subsidiary merely gave the parent company oral permission to use the right of way, instead of executing a formal lease.

The appellants recognize the Patterson Orchard cases as precedents and have not asked us to overrule them, but that suggestion has been made during our consideration of this case. We are firmly of the view that those cases, which construed our Constitution and statutes and laid down a rule of property which has since been relied upon, should not be disapproved. As the court said in our earlier quotation from the first Patterson case, the legislature authorized SWEPCO’s predecessor, although a foreign corporation, to engage in the business of generating and transmitting electricity for public use, knowing that it was essential to the business that the company acquire rights of way for its lines. More than 50 years have passed since the Patterson cases were decided, but the legislature has not seen fit to change the rule announced in those decisions. If any change is to be made at this late date, it should be made by the legislature, not by the courts. A repudiation of the Patterson Orchard rule would undoubtedly disrupt many public utility businesses, but as far as we can see there would not be the slightest compensating benefit either to landowners or to the general public.

Since we are affirming the chancellor’s decree on the authority of our earlier precedents, it is unnecessary for us to consider SWEPCO’s alternative contention, that our constitutional distinction between domestic and foreign corporations with respect to the right of eminent domain is a denial of the equal protection of the laws.

Affirmed.