text:
    Chester WARREN v. STATE of Arkansas
    CR 80-210
    613 S.W. 2d 97
    Supreme Court of Arkansas
    Opinion delivered March 23, 1981

      Ernie Witt and Tom Donovan, for appellant.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant Chester Warren was convicted of terroristic threatening, a class D felony. The facts are basically undisputed. Troyce Jones, a county employee, and Billy Workman, a passenger, were in the process of grading a road in Yell County, when the appellant came out of some adjoining woods armed with a rifle. The men continued grading until appellant insisted they stop. When both men got down from the grader, appellant pointed his rifle at them and threatened to shoot one of them, Billy Workman. They did get back on the grader without any shots being fired and continued to grade the road. However, appellant threatened to shoot at the grader if they did not raise the blade. Apparently he was under the impression that the grader was on his land alongside the road and the road was not a county one but a private road running through his property.

We have taken jurisdiction in this case to interpret and construe Ark. Stat. Ann. § 41-1608 (Repl. 1977), the terroristic threatening statute. Appellant makes the novel argument that the facts proven might constitute an assault, but not terroristic threatening. His reasoning, based on the comments to the Arkansas Criminal Code, is as follows: Assaults are traditional offenses and involve risks of (1) death, (2) serious physical injury, (3) physical injury and (4) purposeful creation of apprehension of imminent physical harm. Terroristic threatening is a new statutory offense and is designed to protect against fear of safety where the apprehension arises from conduct not punishable as assaultive because imminent injury is not threatened. That is, terroristic threatening involves conduct causing a prolonged state of fear, while an assault does not have this protracted impact. For example, Ark. Stat. Ann. § 41-1607 (Repl. 1977) provides: “A person commits assault in the third degree if he purposely creates apprehension of imminent physical injury in another person.”

Appellant acknowledges that the assault, or imminent injury statute is only a misdemeanor statute, while the terroristic threatening provision is a felony statute.

The statute involved, Ark. Stat. Ann. § 41-1608 (Repl. 1977) is as follows:

Terroristic threatening. — (1) A person commits the offense of terroristic threatening if with the purpose [of] terrorizing another person he threatens to cause death or serious physical injury or substantial property damage to another person.
(2) Terroristic threatening is a class D felony. [Acts of 1975, No. 280, § 1608, p. 500.]

While we strictly construe a penal statute, we find no language which requires terrorizing over a prolonged period of time.

We use three well settled rules of review in determining whether the evidence is sufficient to sustain the finding of guilt. We view the evidence in a light most favorable to the appellee, the State here. Milburn v. State, 262 Ark. 267, 555 S.W. 2d 946 (1977). The jury’s finding of guilt will be upheld if there is any substantial evidence to support it. McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979). It is not the function of an appellate court to weigh evidence or judge the credibility of witnesses; that is the function of the jury. Barnes v.State, 258 Ark. 565, 528 S.W. 2d 370(1975). There is substantial evidence that appellant, while armed with a rifle, threatened to shoot both prosecuting witnesses, and intended to cause, and did cause, both of them to fear for their lives.

The jury made its finding and there is substantial evidence to support it.

The assault statutes and the terroristic threatening statute overlap and we do not consider the issue other than to state that in Cromwell v. State,269 Ark. 104, 598 S.W. 2d 733(1980) and Wilson v. State, 271 Ark. 682, 611 S.W. 2d 739 (1981), we noted that the mere overlapping of statutory provisions does not render a statute unconstitutional.

In this second assignment of error, appellant contends that a remark made by the trial judge in the presence of the jury constituted a comment on the evidence requiring reversal. We disagree.

Prior to trial, the court entered a discovery order requiring disclosure of any defense to be used at trial. The defendant did not respond. At trial one of the defense attorneys began to ask a series of questions going to the legal status of the road on which the incident occurred. The trial judge, not knowing appellant’s defense, after an objection, questioned relevancy of this testimony. A colloquy occurred between counsel and the attorneys for both sides. Finally, the judge stated:

What’s puzzling me is what difference does it make? I don’t think it’s relevant is what I am saying.

An in-chambers conference followed and appellant’s attorney was then allowed to pursue the line of inquiry.

Article 7, § 23 of our constitution states that judges shall not “charge juries with regard to matters of fact” and so precludes them from commenting on the evidence. The judge is not to influence the jury with regard to the credibility of witnesses or the weight to be given their testimony. The prohibition applies not only to charges, but to colloquys with lawyers in the jury’s hearing. Fuller v. State, 217 Ark. 679, 232 S.W. 2d 988 (1950). Clearly, if this inquiry into relevance could influence the jury in any manner, the case must be reversed, but since the appellant was allowed to pursue the line of questioning after the inquiry, we can see no possible inference on credibility, weight to be given, or any other matter. We hold the questioning into relevancy did not amount to a comment on the evidence.

Appellant contends that the trial judge was unmerited in the rebuke of a witness. The point was not preserved with an objection, and no authority is cited. Therefore, we do not consider the point. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980).

Appellant makes three additional assignments of error which relate to evidentiary rulings. We find no reversible error in those rulings and we find no principles of law or statutory interpretation which necessitate discussion.

However, it is necessary to state why this majority opinion does not consider two issues that are mentioned in the dissenting opinion: the reaction of the trial judge to the bickering of the attorneys and the form of the verdict rendered by the jury. The reason is because there were no objections to either of these issues below and no argument has been made on either issue here. As a result, there has been no adversary representation of both sides.

The importance of an adversary procedure is illustrated by the alleged error in the form of the verdict discussed in the dissent. We do not know what instructions were given with regard to the verdict, nor do we know what forms of verdict were given to the jury. We do not know whether there was a verdict for finding the appellant guilty or not guilty of terroristic threatening. We also do not know what appellant was found guilty of — we only know the fine was in the amount of $500. We know that the attorneys for the appellant chose, perhaps as a carefully considered matter of trial strategy, not to object and not to abstract or argue the matter on appeal. The majority feel that it would amount to speculation if we consider the issue under these circumstances; the same reasoning applies to the other non-preserved and unargued issue.

The case of Wicks v. State, 270 Ark. 781 at 785, 606 S.W. 2d 366 (1980) contains a clear and complete description of our rule that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court. We expressly rejected the “plain error” rule in that case and these issues do not fall within one of the enumerated exceptions to our rule. See Wicks, supra. We do not intend to deviate from our policy concerning non-preserved issues; thus, we did not consider the aforementioned issues.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. In order to understand the case I think we should set out Ark. Stat. Ann. § 41-1607 (1) (Repl. 1977), which states:

A person commits assault in the third degree if he purposely creates apprehension of imminent physical injury in another person.

The statute immediately following is Ark. Stat. Ann. § 41-1608 (1) (Repl. 1977), which reads:

A person commits the offense of terroristic threatening if with the purpose (of) terrorizing another person he threatens to cause death or serious physical injury or substantial property damage to another person.

The commentary following § 41-1608 states:

Terroristic threatening is a new offense encompassing conduct dealt with ineffectively by prior law. Several considerations led the Commission to deal with the conduct proscribed as a separate offense. First, the section is designed to reach efforts to terrorize another by conduct not punishable as assaultive because apprehension of imminent injury is not required. The extreme nature of the harm threatened also distinguishes this kind of behavior from that proscribed by § 41-1607 and led to treatment of the conduct as a discrete crime.

It is at once obvious that terroristic threatening is a separate classification of offenses which was inserted into the statutes after the statute for assault in the third degree had been perfected. If it were intended that terroristic threatening include the exact same acts as assault in the third degree, it would have, of course, been unnecessary to include them under separate offenses. Therefore, it seems clear that the legislature intended that terroristic threatening be a separate and distinct activity from that used to describe assault in the third degree.

The terroristic threatening statute is not descriptive of an assaultive offense. On the other hand, the assault statute clearly indicates apprehension of imminent physical injury. Certainly, there was a period of a few minutes in the present case when the prosecuting witnesses may have been under the apprehension they would be immediately assaulted. The record is absolutely void of any indication that the prosecuting witnesses considered the incident to be of a lasting duration.

It seems to me that the assault statutes were clearly intended for cases which were over and complete in a matter of a short period of time. On the other hand, terroristic threatening surely intended to cover such cases as threats by telephone or mail or continuing conduct to cause the other party to be terrorized. If in the present case the appellant had said, “I am going to shoot you now,” it would have been an assault. If he had said, “Even though I’m not going to shoot you now, I’m going to get you at some time down the line,” then, in my opinion, he would have been guilty of terroristic threatening.

It is regrettable but the record indicates attorneys on both sides were antagonistic toward each other. This creates an intolerable position for the trial judge and often leads to actions which would not otherwise be taken. On several occasions the conflict between the attorneys became so apparent that the court went into chambers to cool them down. At times the conduct of the attorneys was almost uncontrolled. All of this tended to force the judge to frequently intervene with the proceedings. No doubt, this left the jury in a condition where they could not freely concentrate on the facts of the case. The position of a trial judge is not an easy one and a good description of his function at a jury trial is found in Fuller v. State, 217 Ark. 679, 232 S.W. 2d 988 (1950), where Justice Leflar stated:

A Circuit Judge presiding at a jury trial should not be a mere automaton on the bench, exerting no control over what goes on before him. He should be more than a moderator who keeps order while counsel do and say what they please before the jury. It is his duty to see not only that the trial proceeds in accordance with law, but that it proceeds efficiently and effectively, and in keeping with the ends of justice. He should, among other things, be free to shut off long-winded and irrelevant testimony or questioning, and to confine counsel to the actual issues in the case being tried. The firm and fair administration of the trial is a part of his job.

No doubt, the court became irritated on several occasions, one in particular which comes to mind when the court addressed an attorney as follows:

Mr. Witt, you will do two things if you want to continue this trial. You will quit waving that pencil in my face and you’ll get behind the podium. *** You will not unduly repeat questions. We all have limits to our time including me, you, the jury, everyone. You are unduly repetitious.

Still a little further the court was obviously a little vexed at a time when the motion of the state was sustained on certain testimony relating to hearsay. The appellant was listening to the dialogue between the attorneys and the court, about the hearsay rule, interrupted and said:

THE WITNESS: That’s not hearsay. The man was right in front of me.
THE COURT: The witness will remain silent until his attorney or the court asks him a question. This is the second time, sir.
THE WITNESS: Sorry, Your Honor.
THE COURT: Sir, you will remain silent until your attorney —
THE WITNESS: Yes, sir.
THE COURT: Sir, you will remain silent.
THE WITNESS: Thank you.
THE COURT: I’m not going to tell you a fourth time. All right?

There appears to have been a considerable dispute as to whether the road in question here was a public road or a private road. The court made a statement before the jury which was objected to by the appellant. The court’s statement was:

What’s puzzling me is what difference does it make? I don’t think it’s relevant is what I’m saying.

The court may have been entirely correct in the statement but the setting in which it was made no doubt had some impression on the jury. In other words, it probably caused the jury to think the appellant was making a lot to do about something which had no bearing on the trial. The truth of the matter is that if the road had been private and the property of the appellant, he very well may have had the right to do exactly what he did. I think it was relevant to show the condition of appellant’s mind at the time.

There had obviously been several other lawsuits involving the parties and the subject matter of the road. The present attorneys had represented different parties in some of those actions. Appellant’s attorney attempted to show that a state’s attorney represented the wife of one of the prosecuting witnesses in one of the former court cases. The trial court sustained the state’s objection on the ground that the former suit was immaterial. After a considerable amount of bickering the court had to take the attorneys into chambers again. At the in-chambers hearing the appellant moved for a mistrial which was denied.

There are so many objections that it is hard to read the record. It is no wonder the court became edgy under the circumstances. It seems to me from a totality of the circumstances in this case the jury most likely got the impression that appellant’s attorney was guilty of misconduct and that the court may have been favoring the state’s version of the facts. Therefore, upon consideration of all of the incidents, none of which would have been prejudicial in themselves, I think the case should be returned for another trial.

From the record I am unable to determine whether the jury returned a verdict of guilty against the appellant. The only quotation from the jury is found within the judgment and it simply states:

We, the jury, assess a fine in the amount of $500.

The above statement was signed by the foreman, but there is no indication that the jury found the appellant guilty of terroristic threatening. From the attempt to assess punishment as a fine, it would appear the jury attempted to levy a misdemeanor punishment upon the appellant.

I would reverse and remand for a new trial.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Robert Lee BORECK v. STATE of Arkansas
    CR 80-244
    613 S.W. 2d 96
    Supreme Court of Arkansas
    Opinion delivered March 23, 1981

      James E. Davis, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Robert Lee Boreck, the appellant, is charged with rape. He confessed to the crime, and the trial court found, at a Denno hearing, that the confession was freely and voluntarily given. Appellant then filed a motion, pursuant to Ark. Stat. Ann. § 41-1810.2 (Repl. 1977), for a ruling authorizing introduction of evidence about prior sexual conduct between himself and the prosecuting witness and between the prosecuting witness and other persons. At the evidentiary hearing the appellant denied that he had sexual intercourse with the prosecuting witness on the night in question, testified he did not remember giving the confession, and denied making the confession. He testified that he had consensual sexual intercourse with the prosecutrix one month before she was raped. The trial court ruled the requested evidence was not admissible, and appellant filed this interlocutory appeal.

The admissibility of evidence of a victim’s prior sexual conduct is, by the terms of Ark. Stat. Ann. § 41-1810.1 (Repl. 1977), barred from admission at trial. The only exception to this exclusionary rule occurs when the trial court finds the evidence is relevant to the current charge and its probative value outweighs its inflammatory or prejudicial nature.

Prior acts of sexual conduct may be evidence of consent in a subsequent sexual act. Sterling v. State, 267 Ark. 208, 590 S.W. 2d 254 (1979). But in this case the appellant denies he had sexual intercourse with the prosecutrix on the date she was raped; consequently, he does not claim she consented. The testimony about sexual intercourse one month prior to the offense is prohibited by the statute cited above. The same reasoning applies to testimony about prior sexual conduct between the prosecutrix and other persons.

The trial court was correct in ruling that on the facts now before us the evidence should not be admitted.

Appellant contends that he had a right to cross-examine the complaining witness at the evidentiary hearing. We disagree. The purpose of this statutory preliminary hearing is to review the evidence to determine relevancy and admissibility and then to determine whether the defendant has a valid reason to pierce the rape shield statute with that evidence. It is not a discovery hearing. There is no requirement that the victim present herself for questioning by the accused. Sterling v. State, supra. The cross-examination and confrontation of the accuser will come at the trial on the merits.

Affirmed.


author: Per Curiam.

text:
    William TERRY v. STATE of Arkansas
    613 S.W. 2d 90
    Supreme Court of Arkansas
    March 23, 1981

      E. Alvin Schay, State Appellate Defender, by: Jack R. Kearney, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., for appellee.
   Per Curiam.

Appellant William Terry, by his attorney, has again filed for a rule on the clerk. In a per curiam opinion issued March 16, 1981, we denied a similar motion. His attorney, E. Alvin Schay, has attached an affidavit admitting that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our per curiam opinion dated February 5, 1979, 265 Ark. 964, In Re: Belated Appeals in Criminal Cases.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Richard B. Adkisson, Chief Justice.

text:
    ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT, Self-Insured Employer v. Johnnie M. BRESHEARS, Employee
    80-320
    613 S.W. 2d 392
    Supreme Court of Arkansas
    Opinion delivered March 30, 1981

      Robert L. Wilson, for petitioner.

      William C. Gilliam, for respondent.
   Richard B. Adkisson, Chief Justice.

Johnnie M. Breshears suffered an injury to his back while painting a ceiling for his employer, the Arkansas Highway Department. The Workers’ Compensation Commission, in sustaining the administrative law judge, found temporary total disability from the date of the injury through the healing period. The Court of Appeals affirmed. Ark. Hwy. & Transp. Dep’t. v. Breshears, 271 Ark. 398 (Ark. App. 1980). We granted certiorari to review the legal basis of the Court of Appeals’ decision in affirming the Commission.

The Court of Appeals relies upon Pyles v. Triple F Feeds of Texas, 270 Ark. 729 (Ark. App. 1980) which incorrectly held that temporary total disability and the healing period were, in all cases, the same because, as the court stated: “While the wording of the act is not entirely clear, it seems more logical to ascribe to the Legislature an intent that an employee in Arkansas, suffering an unscheduled first injury, is to be paid compensation for the healing period as is done in case of a second injury or for a scheduled injury.”

I

We hold that the term “disability” as defined below controls compensation awards in all cases of temporary disability except where compensation is statutorily based upon the “healing period.” The Legislature specifically defines these terms in Ark. Stat. § 81-1302 (e) and (f) (Repl. 1976):

(e) ‘ Disability’ means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.
(f) ‘Healing period’ means that period for healing of the injury resulting from the accident.

The term “disability” is then used in Ark. Stat. Ann. § 81-1313 (a) (Repl. 1976) which controls this case:

(a) Total Disability. In case of total disability there shall be paid to the injured employee during the continuance of such total disability sixty-six and two thirds per cent (66 2/3% ) of his average weekly pay.

The term “healing period” is noticeably absent from this particular compensation provision although it appears in two other compensation sub-sections of § 81-1313: (c), providing for scheduled permanent injury compensation; and (f), providing for second injury compensation. See International Paper Co. v. McGoogan, 255 Ark. 1025, 504 S.W. 2d 739 (1974), a scheduled injury case.

Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood based on medical evidence, age, education, experience, and other matters reasonably expected to affect the claimant’s earning power. See Rooney & Travelers Insurance Co. v. Charles, 262 Ark. 695, 560 S.W. 2d 797 (1978).

Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Ark. Stat. Ann. §§ 81-1302 (e) and -1313 (a). Whereas temporary partial disability is that period within the healing period in which the employee suffers only a decrease in his capacity to earn the wages he was receiving at the time of the injury. Ark. Stat. Ann. §§ 81-1302 (e) and -1313 (b).

II

There is substantial evidence of record to support the Commission’s finding that the claimant suffered temporary total disability from the date of injury through the healing period, November 9, 1978; by coincidence, the period of temporary total disability equals the healing period in this case.

Testimony at the June, 1979 hearing reflected that appellee “had tried to work but had been unable to do so; that he had an eighth grade education; suffered continually from pain in and about his neck and shoulders; [and] had an experience background consisting primarily of mechanic work, sawmills and principally general labor.” Dr. Cash’s reports indicated that the injury aggravated claimant’s preexisting condition of “degenerative cervical arthritis” and disabled claimant until May 3, 1978, at which time he was released for light work; lifting and overhead work were prohibited.

Although Dr. Cash released claimant for light work, there was no testimony pertaining to his ability to earn the same or any part of the wages he was receiving at the time of the injury. The Workers’ Compensation Commission is in a better position to evaluate the claimant’s ability, to earn wages in the same or other employment. And, as in this case, once the Commission has before it firm medical evidence of physical impairment and functional limitations, it has the advantage of its own superior knowledge of industrial demands, limitations, and requirements. It can apply its knowledge and experience in weighing the medical evidence of functional limitations together with other evidence of the manner in which the functional disability will affect the ability of the injured employee to obtain or hold a job and thereby arrive at a reasonably accurate conclusion as to the extent of the disability. Rooney.

The Commission’s findings of fact are binding upon this court where we find substantial evidence to support them. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979).

Affirmed as modified.


text:
    Ricky Deron WILLIAMS, Michael Eugene ROGERS, Rickey PENNEY v. STATE of Arkansas
    CR 80-131
    613 S.W. 2d 391
    Supreme Court of Arkansas
    Opinion delivered March 30, 1981

      James P. Massie, Robert F. Morehead, and W. H. "Dub" Arnold, for appellants.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

The issue of whether racial discrimination was present in the selection of petit jurors for the trial of this case is controlled by our holding in Waters & Adams v. State, 271 Ark. 33 (1980).

It appears from the record that the present case was consolidated with the cases of State v. Waters and State v. Adams at the trial level for purposes of hearing motions to quash the Howard County Circuit Court jury panel. After a hearing, these motions were denied although found properly raised by the trial court. On appeal we held in Waters & Adams v. State that the Howard County jury panel was unconstitutionally infirm because of the systematic exclusion of blacks from the panel. Since the same jury panel was used in the present case, we must reverse and remand for a new trial.

The State’s argument that no objection was timely made to quash the jury panel is without merit since the record reflects that the trial judge acknowledged that the objection to the jury panel was made and proceeded with the hearing.

Reversed and remanded.

Hickman, J., dissents for the reason stated in Waters & Adams v. State, supra.


author: Frank Holt, Justice.

text:
    R. W. LEWIS et al v. Carmen PETTY
    80-278
    613 S.W. 2d 585
    Supreme Court of Arkansas
    Opinion delivered March 30, 1981
    [Rehearing denied April 27, 1981.]

      Gordon & Gordon, by: Allen Gordon, for appellants.

      John Norman Harkey and Blair Arnold, for appellee.
   Frank Holt, Justice.

The probate court determined appellee to be the illegitimate daughter of the intestate decedent, who was never married. The appellants are collateral heirs, who question this ruling. The trial court found there was clear, cogent and convincing proof that appellee, Carmen Petty, is the illegitimate daughter of the decedent Major William Lewis. Appellants Insist that the court erred in finding this to be the correct test of the necessary proof. They argue that the degree of accuracy in this paternity action can only be assured by some form of the written acknowledgement of the putative father or a judicial determination during the lifetime of the parties.

Following Trimble v. Gordon, 430 U.S. 762 (1977), we held in Lucas v. Handcock, 266 Ark. 142, 583 S.W. 2d 491 (1979), that Ark. Stat. Ann. § 61-141 (d) was unconstitutional since it did not provide that an illegitimate child could inherit from the father; we would not give retroactive effect to Act 1015 of 1979, which amended the invalidated Act; that, as here, cases arising between the decision in Trimble and the effective date of the amended statute, would be decided on a case-by-case basis; and that the evidence in Lucas was clear, cogent and convincing that the appellant there was the illegitimate son of the decedent and he and others in a like position should be permitted to inherit. The present case clearly falls within this interim period. Therefore, the trial court correctly applied the quantum of proof which is necessary in this action.

Even so, appellants contend that the court erred in holding that the appellee had sustained her burden of proof by clear, cogent and convincing evidence on the issue of actual paternity. There was much testimony that Major Lewis had dated appellee’s unmarried mother, now deceased, prior to appellee’s birth in 1927. Appellee introduced into evidence a certified copy of her birth certificate, signed by appellee’s mother and listing Major Lewis as the father. The original was filed with the Bureau of Vital Statistics within a month after her birth in conformity with the existing law. School records reflected that appellee was enrolled as Carmen Lewis in 1941, and she was so entered on the Family Census filed in 1941. Her marriage license was issued in 1946 to Miss Carmen Lewis, and it was undisputed that this was the name she went by in the small rural community in which she was reared. Numerous witnesses, including some who are now nonresidents, testified in person or by deposition in corroboration of appellee’s testimony that the decedent recognized her as his daughter, made gifts of money to her, paid a medical bill, purchased her clothing and shoes, and voiced affection toward her as his daughter. There was evidence of a similarity of appearance; that she and her children would visit Lewis annually; that she referred to the decedent as “daddy”; and he asked that her children be told they were his grandchildren. When Major Lewis died, appellee was notified by the wife of one of the decedent’s nephews and attended the funeral along with other members of the family.

There was evidence adduced by the appellants that she was not regarded as Lewis’ daughter and that she could have been anybody’s child as her mother ran around with men quite a bit. Other witnesses testified that the Major either denied or was uncertain of her paternity. However, a nephew, who was reared by the decedent and is administrator of the estate, testified that he always considered appellee as the decedent’s daughter and his cousin; when she visited them, she would call the decedent, he would come there, “hug” her, and she would call him “daddy;” she bore a resemblance to him; his wife notified her by telephone of Major Lewis’ death; and she attended the funeral and sat with the family. He thought it was right that she share in the estate.

Upon a review de novo, we hold, as did the probate judge, that the appellee has established by clear, cogent and convincing evidence that she is the illegitimate daughter of the decedent.

We do not agree with appellants that the court erred in allowing testimony as to general reputation in the community on the issue of paternity. Our Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), Rule 803 (19) provides a hearsay exception for “[reputation ... among members of his family ... or among his associates, or in the community, concerning a person’s birth ... relationship by blood ... ancestry, or other similar fact of his personal or family history.” See, also, Weinstein’s Evidence, § 803 (19) [01] (1979). This is the same rule we previously followed. See Daniels v. Johnson, 216 Ark. 374, 226 S.W. 2d 571, 15 ALR 2d 1401 (1950), in which we approved the testimony of witnesses who had lived in the same community with the families involved and knew the community reputation as to their relationships. The witnesses here are long-time residents in the small rural community in which appellee was raised and knew her mother and Major Lewis.

Appellants’ last contention is that the trial court erred in overruling their objection to the admissibility of the appellee’s birth certificate. We disagree. Rule 803 (9) of the Rules of Evidence provides an exception to the hearsay rule for “records or data compilations, in any form, of birth ... or marriages, if the report thereof was made to a public office pursuant to requirements of law.” Act 96 of 1913, in effect when this birth certificate was filed, established the State Board of Health, the Bureau of Vital Statistics and State and Local Registrars to register births. Section 11 of that act stated any copy of a birth record when properly certified by the State Registrar shall be prima facie evidence in all courts and places of the facts therein stated. No challenge was made at trial, nor is one made now as to the authenticity of the certificate.

Affirmed.


author: John I. Purtle, Justice.

text:
    Dennis R. BURTON et al v. Herbert S. SPARLER and Dorothy SPARLER
    80-305
    613 S.W. 2d 394
    Supreme Court of Arkansas
    Opinion delivered March 30, 1981

      Loyd Harper, for appellants.

      Branch & Thompson, for appellees.
   John I. Purtle, Justice.

The Circuit Court of Sharp County struck appellant’s complaint and rendered default judgment against the appellant because he failed to answer interrogatories within the ten days ordered by the court. The appellant argues the court erred in entering a default judgment without notice and that the court also erred in entering an order without prior notice and a hearing compelling answers to interrogatories. The court did not commit error.

The complaint was filed by the appellant on August 23, 1976. A demurrer was filed on March 8, 1977. The demurrer was timely because appellant did not obtain service on appellees until February 17, 1977. The demurrer was apparently overruled, and the appellees filed an answer, cross-complaint and counterclaim on July 12, 1977. One interrogatory was submitted to appellant on June 23, 1978, and four others on June 27, 1978. These interrogatories were not timely answered. A motion for an order compelling appellant to answer was filed on May 30, 1979. An answer to the first interrogatory was filed on July 6, 1979, and amended answer filed subsequently. The answers were not timely filed.

The order requiring appellant to answer specifically stated that failure to answer within ten days would cause the court to dismiss his cause of action and render a judgment by default against him. An order was entered on October 4,1979 whereby appellant’s complaint was dismissed and appellees were awarded default judgment. The appellant filed a motion to set aside the default judgment on December 12, 1979. May 8,1980, appellant was notified that there would be a hearing on the appellees’ counterclaim to determine the amount of appellees’ damages on May 29, 1980. On the scheduled date the court made a determination of the damages incurred by the appellees and entered a judgment for $5,500. Notice of appeal was filed by appellant on June 18, 1980. This appeal followed.

The question presented for a decision is whether the trial court was authorized to dismiss the complaint and enter a default judgment against the appellant. The same question was presented to us in the case of Mann v. Ray Lee Supply, 259 Ark. 565, 535 S.W. 2d 65 (1976). Although this case was decided prior to the Code, the exact same reasons apply to the case at bar as applied to Mann. In Mann the court warned the defendant if he failed to respond within ten days he would be subject to the consequences set forth in Ark. Stat. Ann. § 28-359- The penalty included a default judgment against a disobedient party. Upon Mann’s failure to comply with the ten-day order default judgment was entered, and we affirmed.

The present Rules of Civil Procedure are applicable in this case. Rule 37 (b) (2) (C) provides that the court may make an order striking out pleadings or dismissing the action or rendering judgment by default against the disobedient party. This is precisely what was done in this case. Since neither Ark. Stat. Ann. § 28-359 nor Rule 37 require a hearing before the imposition of sanctions, we cannot say that the court abused its discretion.

Affirmed.


text:
    THE GIFT BOX, B & G FASHIONS, THE FRAME HOUSE, and Mike R. LAWYER v. Joe SCOTT and Rita SCOTT, d/b/a THE WISHING WELL
    80-306
    613 S.W. 2d 395
    Supreme Court of Arkansas
    Opinion delivered March 30, 1981

      Laser, Sharp & Huckabay, for appellants.

      Jones & Petty, for appellees.
   Robert H. Dudley, Justice.

The Court of Appeals has certified this case to us as a case of significant legal principle. Rules of the Supreme Court and the Court of Appeals 29 (4) (b).

Appellants and appellees are co-tenants operating different businesses in a shopping center in Pine Bluff. The various appellants filed suit claiming the appellees’ negligent use of an extension cord resulted in a fire that caused 828,446.53 in damages. It is stipulated that the various appellants had fire insurance policies which paid for their losses subject to a 8100 deductible provision in each policy. The policies provided for subrogation and that the insured would not waive subrogation. All parties leased their spaces in the shopping center from the T & S Company. Each lease between T & S and the parties to this action contained the following provision:

Lessor and Lessee and all parties claiming under them hereby mutually release and discharge each other from all claims and liabilities arising from or caused by any hazard covered by insurance on the leased premises, or covered by insurance in connection with the property or activities conducted on the leased premises, regardless of the cause of the damage or loss.

The appellees filed a motion for summary judgment, contending this provision prevented the appellants from maintaining a cause of action against them. The trial court granted the motion.

The learned trial judge found that the waiver of subrogation in each lease bound the co-tenants in this tort action. The paragraph in each lease released the lessee and the T & S Company, the lessor, and parties claiming under it. But in this action, the appellants are not claiming damages under or through the lease. The lease contains no language waiving the right to bring an action for negligence against a co-tenant. We hold there is no express written waiver of the cause of action for negligence.

As a second reason for granting the summary judgment, the trial judge relied upon a different type of waiver which is described in a line of cases which hold that subrogation by the insurance company is not allowable against a tenant when it was agreed that insurance would be taken out for the mutual protection of all, and the tenants paid extra rent as a part of the insurance premium. New Hampshire Insurance Company v. Fox Midwest Theatres, Inc., 203 Kansas 720, 457 P. 2d 133 (1969). That reasoning is not applicable to this case, as each policy of insurance was purchased by an individual tenant and inured to the benefit of that tenant. There is not even a suggestion that the lease contains terms from which it could be found the insurance was for the mutual benefit of the parties.

In Page v. Scott, 263 Ark. 684, 567 S.W. 2d 101 (1978), the lessor carried a policy of insurance on the damaged property. He sued for the entire damages, not just the deductible. We allowed recovery, finding there was no insurance for the mutual benefit of the parties and said:

... Appellee’s statement that Page procured the policy of fire insurance as a part of the leasing transaction is wholly unsupported by anything in the record before us. As a matter of fact, it was admitted that both appellant and appellee carried insurance. The fiction that by paying the rent, the lessee paid the insurance premium is not appropriate. There is no evidence that appellee paid any greater rent because of the insurance than he would have paid had appellant not taken insurance. If the tenant paid the insurance premium, he also paid the taxes on the property and the cost of construction or purchase of the house, not to mention cost of repairs and maintenance. Such a fiction ignores the fact that more often than not the market, i.e., supply and demand, is the controlling factor in fixing and negotiating rents.

The language is applicable to this case. There is no insurance policy for the mutual protection of all parties which bars subrogation or this cause of action.

Reversed and remanded.


text:
    Leslie ANDERSON v. O. H. HARGRAVES, Judge
    CR 80-266
    613 S.W. 2d 587
    Supreme Court of Arkansas
    Opinion delivered March 30, 1981

      Harry L. Ponder and H. David Blair, for petitioner.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for respondent.
   Robert H. Dudley, Justice.

Petitioner Leslie Anderson, on December 22, 1978, was charged by information in the circuit court of Sharp County with the crime of public servant bribery. On July 16, 1980, he moved to have the charges dismissed for failure to timely prosecute. He concedes that if the statutory terms for Sharp County, Ark. Stat. Ann. § 22-310 (Supp. 1979), are the exclusive gauge, he is not entitled to a dismissal. He argues, however, that Rule 28.1 (b), before our rule change effective July 1, 1980, guaranteed a speedy trial by the counting of court terms, the lengths of which vary, and as a result the right to a speedy trial was of different dimensions, depending upon where a defendant was charged. He contends that his right to dismissal must be measured by the shortest period recognized by any county, or district, within the state and that he is entitled to dismissal by the shortest period. That to do otherwise denies him equal protection of law, as the treatment of persons may not differ because of some geographical factor.

We do not rule upon the argument of unequal protection, as the petitioner would not have been entitled to dismissal of the charges in any county or district in the state.

Ark. Stat. Ann. § 22-310 (Supp. 1979) provides that the terms of court in Sharp County convene on the first Monday in January and the second Monday in July. An information was filed against petitioner on December 22, 1978. The term during which the defendant was charged is not counted. Ark. R. Crim. P. 28.2; Wade v. State, 264 Ark. 320, 571 S.W. 2d 231 (1978). Therefore, the July, 1978, term is not counted.

The case was continued on motion of the petitioner during the January and July terms of 1979. These terms are excluded by Rule 28.3 (c) which provides that the period of delay resulting from a continuance granted at the request of the defendant or his counsel shall be excluded. Dupree v. State, 271 Ark. 50, 607 S.W. 2d 356 (1980).

The docket sheet reflects that the petitioner next moved to continue the case on May 5, 1980. This was during the six-month term which commenced on the first Monday in January, 1980. This term should be excluded on the basis of the docket entry.

On July 16, 1980, during the first term that seemingly should be counted, the petitioner made two motions. The first was to correct the docket entry to reflect that the respondent, not the petitioner, moved for the continuance during the January, 1980 term. And the second was to dismiss for failure to timely prosecute within the period of time which ought to be gauged by the shortest period recognized by any county or district. These motions were heard on July 28, 1980, by the assigned judge, not the regular judge.

The assigned judge granted the motion to correct the docket entry. Petitioner then contended that the correction related back to May 5, 1980, and that this creates a longer period of time without trial than was allowed in the Second Judicial Circuit in Alexander v. State, 268 Ark. 384, 598 S.W. 2d 395 (1980). The trial judge refused to dismiss and the writ is denied.

There is no showing that, prior to the motion, the petitioner brought the docket error to the attention of either the assigned judge or the prosecuting attorney. They had no way of knowing that the time for speedy trial might be running. The assigned judge relied on the regular judge’s docket book. This was proper. As we said in Dupree v. State, supra:

It was proper for the judge to act upon the basis of the docket entry. The court’s docket is an appropriate record of continuances granted. See Ark. Stat. Ann. § 22-117 (Repl. 1962). A court’s records have a large degree of sanctity attached to them and are not to be lightly overturned. Williams v. Alexander, 140 Ark. 442, 215 S.W. 721.

The first notice the assigned judge had that an error might exist was the motion to correct the record. However, it was not filed until the same day the motion to dismiss was filed. By then, a sufficient amount of time had run for petitioner to make his equal protection argument.

In addition, we are not favored with an abstract of any of the testimony from the hearing correcting the docket entry, nor with the findings of fact by the assigned judge. From the docket sheet we only know that the prosecuting attorney, the deputy prosecuting attorney and one of the defense attorneys testified. The continuance for the State may well have been on grounds which cause exclusion of the material term.

Under these circumstances, petitioner would not be entitled to have the charges against him dismissed in any county or district in the State. Where one discovers a docket error which affects his speedy trial rights, he must either notify the court of the error, or affirmatively request trial, in order to activate the statute and avail himself of its protection. Where that docket error is later corrected, we must be supplied the reason, in order to rule on whether the time should be included or excluded.

The petitioner styled this action as an appeal, but we have treated it as a petition for a writ of prohibition and deny same.


author: Steele Hays, Justice.

text:
    MUSTANG ELECTRICAL SERVICES, INC. v. Ussery H. NIPPER
    80-317
    613 S.W. 2d 397
    Supreme Court of Arkansas
    Opinion delivered March 30, 1981

      Shackleford, Shackleford & Phillips, for appellant.

      Boswell & Smith, PA., by: David E. Smith, and Chambers & Chambers, for appellee.
   Steele Hays, Justice.

This cases arises from a motor vehicle collision between a truck owned by appellant, Mustang Electrical Services, Inc., and driven by one of its drivers, and a vehicle owned and driven by appellee, Ussery H. Nipper. Mustang brought suit against Nipper for damages to its vehicle and Nipper counter-claimed for personal injuries and property damages. At the conclusion of trial, the jury returned a verdict awarding damages to Nipper “... in the amount of $30,000.00 consisting of: $2,000.00 property damage, $3,000.00 medical, $30,000 for pain and suffering, less $5,000 contributory negligence.”

It is undisputed that the maximum amount of special damages which could be sustained by the evidence is $1,000 in property damage and $1,117.79 for medical expenses. After examining the verdict, the trial court reduced the jury award for property damage and medical expenses to the amounts supported by the evidence, entered judgment in the total amount of $27,117.79, and discharged the jury. Appellant now brings this appeal urging that the award is excessive.

We have repeatedly held that in order for a jury award to be set aside as excessive, it must be so disproportionate to the evidence that it shocks the conscience of the court or demonstrates passion or prejudice. In Moses v. Kirtley, 256 Ark. 721, 510 S.W. 2d 281 (1974) we said:

In determining whether a jury verdict is excessive the question is whether the verdict shocks the conscience of the court or demonstrates that the jurors were motivated by passion or prejudice. Moses, at 722-723.

See also, Clark County Lumber Co. v. Collins, 249 Ark. 465, 459 S.W. 2d 800 (1970).

In applying this test, the court makes a case by case determination with little reliance on prior decisions:

We have many times said that precedents in cases of this kind are of scant value. This is because no two cases are identical; essential points of difference are usually apparent. Moses, at 722.

And in Dyer v. Payne, 246 Ark. 92, 436 S.W. 2d 818 (1969), this court noted:

We have said more than once that precedents are of scant value in appeals of this kind. In each case we must study the proof, viewing it most favorably to the appellee, and decide the difficult question whether the verdict is so great as to shock our conscience or to demonstrate passion or prejudice on the part of the jurors. Dyer, at 93.

In the argument for reversal, the appellant urges that the excessive nature of the property damages and medical expenses (awards of $2,000 and $3,000 were returned on proof of maximum damages of $1,000 and $1,117.79, respectively) renders the award as to pain and suffering excessive by showing passion or prejudice.

The appellant’s argument finds some support in Mattingly v. Griffin, 235 Ark. 1028, 363 S.W. 2d 919 (1963): the jury awarded $8,000 to plaintiff A and $2,000 to plaintiff B, though it was stipulated that plaintiff B received only $920.67 in damages. The court in Mattingly held that the error as to plaintiff B sufficiently demonstrated the passion or prejudice of the jury so that the award to plaintiff A must be reduced.

The fact that jury returned a $2,000 judgment for Simmons, ... when it had been stipulated that his damages amounted only to $920.67, shows rather conclusively that the jury was influenced by passion or prejudice or had an incorrect understanding of the facts in the case. Mattingly, at 1031-1032.

However, Mattingly cannot be fairly read so broadly as to say that where the award is excessive as to a portion of the verdict, the entire verdict is excessive as a matter of law. Indeed, in Dyer v. Payne, 246 Ark. 92, 436 S.W. 2d 818 (1969), this court took the opposite view. In Dyer, the jury awarded $39,000 to one plaintiff and $5,000 to another plaintiff even though the maximum amount of proof as to the second plaintiff’s damages was only $650. There, contrary to the language in Mattingly, this court held that excessiveness as to one of the parties did not demonstrate passion or prejudice as to the other plaintiff:

Nor are we convinced that the jury’s award of excessive damages to [the second plaintiff] for medical expenses necessarily shows that the personal injury award was motivated by passion or prejudice. Dyer, at 94.

We do not view Mattingly and Dyer as inconsistent merely because they reach differing results. Rather, the two cases simply illustrate the rule that each case will turn on its own facts in following a case by case determination. We remain convinced that the proper test to be applied in the present case is that defined in Moses, in Clark County Lumber Co., supra, and in numerous other decisions, that is, whether the jury award “shocks the conscience of the court” or demonstrates “passion or prejudice.”

In viewing the evidence adduced at trial in this case, we cannot say that the jury’s award was so disproportionate to the injuries sustained as to shock the conscience or demonstrate passion or prejudice on the part of the jury. There was medical testimony that the appellee has sustained a 25% permanent partial disability as a result of the accident, that his condition was “degenerative,” that appellee continued to experience pain in various parts of his body, and that he could no longer engage in activities he formerly enjoyed. In viewing all of the evidence below, we cannot say that the jury award, even if liberal, was so disproportionate to the injuries sustained that it must be set aside as excessive as a matter of law.

Finally, the appellant argues that the court erred in reducing the excessive awards as to the property damage and medical expenses rather by directing the jury to reconsider the verdict. However, we do not reach the appellant’s argument. Here, the trial court reduced the excessive property and medical award to the maximum amount at proof in the trial below, as it should have done. The only remaining question, then, was the award for pain and suffering. But, as we have said, the award was not excessive. Thus, we are drawn to the conclusion that the procedure used by the trial court did not prejudice the rights of the appellant. Rule 61 of the Arkansas Rules of Civil Procedure provides: “The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”

Accordingly, we affirm the judgment of the trial court.


text:
    Tim DALEY, Paul PLUMMER and Ron GATEWOOD v. Thomas F. DIGBY, Judge
    80-303
    613 S.W. 2d 589
    Supreme Court of Arkansas
    Opinion delivered April 6, 1981

      Jack T. Lassiter, for petitioner Daley.

      Samuel A. Perroni, for petitioner Plummer.

      Richard D. O’Brien, for petitioner Gatewood.

      Steve Clark, Atty. Gen., by: R. B. Friedlander, Asst. Atty. Gen., for respondent.
   Richard B. Adkisson, Chief Justice.

This petition is from an order denying petitioners’ motion to dismiss for lack of subject matter jurisdiction in the circuit court as opposed to chancery court. The complaint seeks to declare invalid the Little Rock Civil Service Commission’s promotion list, to enjoin its use in making promotions within the Little Rock Police Department, and to rescind a promotion previously made from the list. The complaint further alleges that the Commission unlawfully delegated its testing authority to a special panel and that the special panel unlawfully conducted the examination.

Circuit courts have the power within their jurisdiction to declare the rights of parties under our declaratory judgment statute, Ark. Stat. Ann. § 34-2501 (Repl. 1962). And, the correct method of ascertaining what jurisdiction circuit courts have in civil and criminal cases is to ask whether exclusive jurisdiction of the particular case is vested in another tribunal by the Arkansas Constitution. Adams v. State, 153 Ark. 202, 240 S.W. 2d 5 (1922). No exclusive jurisdiction exists in chancery courts where the party seeks a ruling on the validity of city civil service commission actions. And, once the circuit court acquires jurisdiction to declare such rights it may also issue injunctive relief. See Booth v. Baer, 263 Ark. 213, 563 S.W. 2d 709 (1978).

We have considered the merits of this petition only because its procedural correctness has not been questioned. Nevertheless, the method of obtaining review on an issue of circuit or chancery jurisdiction is by appeal, not by prohibition. See Richards v. Maner, Judge, 219 Ark. 112, 240 S.W. 2d 6 (1951).

Writ denied.

Dudley, J., not participating.


author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice,

text:
    Jackie Ann BERKY v. STATE of Arkansas
    CR 80-246
    613 S.W. 2d 818
    Supreme Court of Arkansas
    Opinion delivered April 6, 1981
    [Rehearing denied May 4, 1981.]

      John Wesley Hall, Jr., for petitioner.

      Steve Clark, Atty. Gen., by; Jack W. Dickerson, Asst. Atty. Gen., for respondent.
   Richard B. Adkisson, Chief Justice.

Petitioner Jackie Ann Berky, being charged with felony possession of marijuana, negotiated a plea of guilty with the state for a $ 1,000 fine and a two-year suspended imposition of sentence. The court accepted the negotiated plea and entered judgment accordingly.

Counsel for petitioner then asked that the fine be suspended conditioned upon the “probationary period being successfully completed,” and stated that under Act 346 of 1975 the court was without authority to impose a fine. The court then asked if petitioner wanted to withdraw her plea of guilty to which she answered in the negative.

The trial court delayed petitioner’s obligation to pay the fine until after review by this Court. Petitioner now brings certiorari, urging that this is a proper method of review because “the trial court acted beyond its jurisdiction and petitioner is unable to appeal the trial court’s actions otherwise, through no fault of [her] own.”

Petitioner is not without “fault.” A plea was negotiated, she got exactly what she bargained for. The sentence was authorized by law. And, there is no appeal from a plea of guilty. Rule 36.1, Ark. Rules Crim. Proc., Ark. Stat. Ann., Vol. 4A (Repl. 1977). Here, certiorari is an improper means of review; petitioner is merely seeking to do by way of certiorari what she is prohibited from doing by Rule 36.1.

Writ denied.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I feel compelled to write this concurring opinion because the majority opinion does not fully treat the purpose of a petition for writ of certiorari and its application to the facts in this particular case. The office of the writ of certiorari is to bring before the court for its inspection the record and proceedings of a lower tribunal in order that the reviewing court may determine from the face of the record whether the inferior court has exceeded its jurisdiction or acted when it did not have jurisdiction. It is in the nature of an appellate procedure inasmuch as it obtains a review of the proceedings in the inferior court. Certiorari is a common law right and unless restricted by statute its office extends to the review of all questions of jurisdiction, power and authority of inferior tribunals to do the action complained of and whether the inferior tribunal has exceeded the boundaries prescribed by the express terms of the statutes or well settled principles of common law. See 14 Am. Jur. 2d, Cert. § 2.

Ark. Stat. Ann. § 22-200 (d) (Repl. 1962) provides the Arkansas Supreme Court shall have the authority to issue writs of certiorari. The language of the statute is identical to that found in the Constitution of Arkansas, Art. 7, § 4. Since there is no explanation of the office of the writ of certiorari, we must assume it means what it did at common law. We have stated that the scope of the common law writ has not been enlarged by statute. McAllister v. McAllister, 200 Ark. 171, 138 S.W. 2d 1040 (1940). We had reason to further discuss the use of a petition for a writ of certiorari in the case of Switzer v. Golden, 224 Ark. 543, 274 S.W. 2d 769 (1955). In the last cited case the facts are strikingly similar to those in the case before us. The facts in Switzer show that the petitioner entered a plea of guilty for the third offense of selling intoxicating liquors in dry territory. The court accepted the plea of guilty and sentenced the petitioner as a third offender, a felony, and suspended the sentence. Later the suspended sentence was revoked and the petitioner sentenced to five years in prison. He filed a motion for a new trial. In the motion for a new trial he claimed that the sentencing court exceeded its jurisdiction because he was charged only with selling intoxicants in dry territory. In other words, he was charged with a misdemeanor, not a felony. The court failed to act on the motion whereupon the petitioner filed for a writ of mandamus in the supreme court. We treated the petition for mandamus as a petition for certiorari and granted it. We addressed the matter of certiorari in the following words:

The writ of certiorari is granted in two classes of cases: first, when it is shown that the inferior tribunal has exceeded its jurisdiction; and second, when it appears that it has proceeded illegally, and no appeal will lie or that the right has been unavoidably lost. Ex parte Goldsmith, 87 Ark. 519, 113 S.W. 799.

Having discussed the nature and purpose of the writ of certiorari, I now discuss briefly what it is not. We have held it will not lie to review mere errors at the instance of one who has lost his right of appeal by his own fault or neglects to apply for it as soon as possible after the necessity arises. North Little Rock Transportation Co. v. Sangster, 210 Ark. 294, 195 S.W. 2d 549 (1946). We have also held it will not take the place of an appeal unless the right of appeal is lost through no fault of petitioner and then it lies only when the inferior court acted without or beyond its jurisdiction. Hendricks v. Parker, 237 Ark. 656, 375 S.W. 2d 811 (1964).

The petition in the present case clearly alleged lack of jurisdiction on the part of the trial court. It is recognized that no appeal lies from a guilty plea. Therefore, there was no right of appeal and the petition does not take the place of the right of appeal. On the face of the judgment the trial court sentenced the petitioner pursuant to Act 346 of 1975 which states in part:

... and place the defendant on probation for a period not less than one (1) year, under such terms and conditions as may be set by the court. ... nor shall any defendant be availed the benefit of this Act as a matter of right.

Although we have never been called upon to construe the above statute, it appears from its face that the court clearly had the right to place the petitioner on probation under such terms and conditions as deemed appropriate. After examination of the record we are able to state that the court neither acted without jurisdiction nor exceeded its jurisdiction as to any facet of the proceeding. Therefore, the petition should properly be denied even though it was the correct manner of bringing this procedure to the attention of this court.


author: George Rose Smith, Justice.

text:
    BUCKEYE COTTON OIL v. Shirley McCOY
    81-3
    613 S.W. 2d 590
    Supreme Court of Arkansas
    Opinion delivered April 6, 1981

      Thomas & Nussbaum, by: Alan Nussbaum, for petitioner.

      Owens, McHaney & Calhoun, by:John C. Calhoun, Jr., for respondent.
   George Rose Smith, Justice.

This Workers’ Compensation claim arises from an injury sustained by the claimant at work when a door handle struck her in the groin. After the claimant had suffered intermittent physical disabilities for some months, surgery disclosed that she had dermatopathic lymphadenitis, a condition characterized by swollen lymph glands. Upon conflicting medical opinions the Commission found that the claimant had failed to prove by a preponderance of the evidence that her condition arose out of her employment.

In appealing to the Court of Appeals the claimant argued only that the Commission had failed to give her the benefit of the doubt with regard to differing medical opinions. The Court of Appeals reviewed the evidence, declared that the Commission’s finding that the claimant had failed to prove her case by a preponderance of the evidence was a mere conclusion, and remanded the case to the Commission with directions that it reopen the case and if necessary employ a qualified medical specialist to provide testimony upon the issue of causation. The Court’s procedure in remanding the case was so unusual that we granted certiorari to consider whether the Court had correctly interpreted the statute. Rule 29 (1) (c).

Before reaching the question that led us to review this case we observe that the claimant’s argument for a reversal did not state a valid objection to the Commission’s decision. It is true that the Commission should view the evidence favorably to the claimant in determining where the preponderance lies, but its failure to do so is not a basis for appellate reversal. The appellate court must view the evidence in the light most favorable to the Commission’s decision and uphold that decision if supported by substantial evidence. Warwick Electronics v. Devazier, 253 Ark. 1100, 490 S.W. 2d 792 (1973). Specifically, conflicting medical testimony presents an issue of fact for the Commission. Mechanics Lbr. Co. v. Roark, 216 Ark. 242, 224 S.W. 2d 806 (1949). Here Dr. Mallory testified that in his opinion the claimant’s injury was not work-related. He explained that lymphadenitis is caused by infection, but the blow to the claimant’s groin did not break the skin and could not have caused an internal infection. He also explained that such a condition would have caused so much pain that she could not have continued to work, as she did. The substantiality of the doctor’s testimony is not open to question.

The Court of Appeals, without directly addressing the question of substantial evidence, found the proof to be inconclusive and sent the case back to the Commission for further investigation, with the possible employment of a medical examiner pursuant to Ark. Stat. Ann. § 81-1319 (i) (Repl. 1976). That statute provides that the Commission shall “make such investigation, cause such medical examination to be made, hold such hearings, and take such further action as the Commission deems proper for the protection of the rights of the parties.” (Our italics.) Thus the discretion to require a medical examination is conferred not upon an appellate court but upon the Commission, which has heard the testimony and is in a superior position to decide whether some additional investigation is appropriate. The Court of Appeals misconstrued the statute in setting aside the Commission’s decision and remanding the case.

The decision of the Court of Appeals is reversed, and the Commission’s denial of the claim is reinstated.

Hays, J., not participating.


text:
    Charles L. DANIELS, Director of Labor, et al v. Margaret BENNETT and VICTOR INDUSTRIES CORPORATION
    81-44 and 81-45
    613 S.W. 2d 591
    Supreme Court of Arkansas
    Opinion delivered April 6, 1981

      Herm Northcutt and Bruce H. Bokony, for appellants.

      James A. McLarty, for respondent Victor Industries Corporation, and Margaret Bennett, pro se.

   George Rose Smith, Justice.

The Director of Labor has filed two substantially similar petitions for certiorari, asking this court to review two decisions of the Court of Appeals. Both decisions reversed the Employment Security Board of Review on the ground that its findngs of fact were not supported by substantial evidence. Both decisions were by a divided court. Both petitions for review cite Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978), for the familiar rule that the findings of the Board of Review are binding on an appellate court if supported by substantial evidence. Both petitions for review characterize the substantial evidence rule as “a legal principle of major importance,” which, it is argued, makes both cases reviewable under our Rule 29 (4) and (6). We have consolidated the two petitions for review and take this opportunity to explain why such petitions must be denied, because they do not involve a legal principle of major importance within the intent of our jurisdictional rule.

In considering whether to review decisions of the Court of Appeals, we shall steadfastly adhere to the position we unanimously adopted in Moose v. Gregory, 267 Ark. 86, 590 S.W. 2d 662 (1979). That is, we do not regard the Court of Appeals as a purely intermediate court, “becoming merely an expensive and time-consuming level in the appellate structure.” To the contrary, our goal is to assign separate areas of jurisdiction to each court. “Ideally,” as we said in Moose, “each court will be in effect a court of last resort, with its decisions having a desirable finality. Ideally, it will be immaterial to the litigant whether his particular case goes to one court or the other. In either event both parties will have the benefit of an appellate review by a multi-judge court composed of judges having exactly the same qualifications. ... Our goal is to provide each litigant with the opportunity for one appeal only, not two.”

No doubt the substantial evidence rule is a legal principle of major importance, but the present petitioners are mistaken in their insistence that the Court of Appeals abrogated that rule. It did not. Quite the opposite, the majority opinion in each case stated that the only question was whether the Board of Review’s decision was supported by substantial evidence. Had the Court of Appeals announced that it was abolishing the substantial evidence rule, an issue of major importance would have been presented for review. That did not happen. The Court of Appeals simply found that the Board’s decision was not supported by substantial evidence. If we reviewed either case we might agree or disagree with the majority decision of the Court of Appeals, but in either event the substantial evidence rule would not be altered by one particle. What the petitioners seek is simply a second appellate review, which is contrary to our position as expressed in Moose v. Gregory.

We realize, of course, that the Court of Appeals could not have certified these cases to us without first deciding them, because the Constitution does not permit us to review directly a decision of an administrative body such as the Board of Review or the Workers’ Compensation Commission. Ward School Bus Mfg. Co. v. Fowler, 261 Ark. 100, 547 S.W. 2d 394 (1977). Even so, we will not review the decision of the Court of Appeals in such a case unless it presents some ground for review under Rule 29- Here no such ground exists.

Petitions denied.


text:
    SOUTHERN EQUIPMENT & TRACTOR CO. v. K & K MINES, INC.
    80-239
    613 S.W. 2d 596
    Supreme Court of Arkansas
    Opinion delivered April 6, 1981

      Napper, Wood, Hardin, Grace, Downing & Allen, P.A., for appellant.

      McHenry, Skipper & Choate, for appellee.
   Frank Holt, Justice.

In 1976 appellee purchased a used track loader from appellant. In 1978 appellee sold the loader to Leonard Stacks. About a year later, when Stacks attempted to “trade in” the loader to an equipment dealer, it was discovered that the loader was a 1970 and not a 1975 model as represented to him by appellee. This prevented the consummation of a sale in which Stacks would have netted 85,000. Stacks filed suit against appellee seeking damages alleging reliance upon this misrepresentation of the year model. Appellee filed an answer denying any intentional misrepresentation and, also, a third party complaint against appellant, asserting it had repeated to Stacks the same 1975 year model representation which was made to it by appellant. Appellee sought recovery from appellant of any damages it was required to pay to Stacks. Appellant denied any such representation as to year model and affirmatively alleged, inter alia, that any representation that had been made as to year model did not become part of the basis of the bargain with appellee and, therefore, could not be construed as warranties. The court, sitting as a jury, awarded Stacks 84,500 damages against appellee and then awarded judgment over in that amount in favor of appellee against the appellant.

Appellant first contends that the court erred in failing to rule that the oral representations of appellant’s salesman as to the year model did not constitute an express warranty, which was binding on appellee. Appellant argues that such a representation made by its salesman did not become part of the basis of the bargain with appellee and cannot be construed as a warranty. Appellant points out that the purchase order and invoices contain no reference to the year model of the track loader, and, further, these documents recite that the equipment is being sold without any warranty whatsoever except a five month manufacturer’s warranty. In our view, the appellant’s liability under the pleadings and the proof was predicated upon a material misrepresentation of the year model of the equipment and not on any theory of express or implied warranty. The trial court found for the appellee on this basis.

To prove materiality of a misrepresentation, it is only necessary to show the misrepresented fact was a material influence on the decision; it must have been a substantial factor, but it is not necessary that it was the paramount or decisive inducement. This is a question of fact for the fact-finder. Prosser, Law of Torts, 4th Ed., § 108; also see 37 Am. Jur. 2d, Fraud and Deceit, §§ 177 and 178. Here there was considerable testimony that the year model is a factor in the resale value of this type equipment. Also, the owner of appellee, K & K Mines, testified that the machine was represented to him by appellant as being a 1975 model, and he thought he was getting a “real good buy” when he purchased what he thought was a $26,000 machine for $ 15,000. We cannot say the trial court’s finding was clearly erroneous. Ark. Rules of Civ. Proc., Rule 52.

Appellant next denies liability for the asserted misrepresentation of its salesman, arguing such representation is not usual or customary in sales of this type equipment and, therefore, is outside the scope of his authority, actual or implied. We note, at the outset, that this issue is not raised by the pleadings nor were the pleadings amended to conform to any such proof. Even if the argument was considered on its merits, it would fail. An agent, acting within the apparent scope of his authority, even though in violation of specific instructions, may bind his principal if the one with whom he is dealing does not have notice of these restrictions. General Casualty Co. of America v. State, 229 Ark. 485, 316 S.W. 2d 704 (1958); Lakeside Bridge & Steel Company v. Duvall, 179 Ark. 963, 19 S.W. 2d 1107 (1929). There is no persuasive evidence here that appellee knew of the salesman’s lack of authority to represent the year model of the loader.

Appellant lastly contends the judgment over was based on evidence having no relation to the difference of the value of the track loader as sold and the value, if as represented, at the time of sale. Stacks had sought $4,577 from appellee as damages, as being the difference of the market value between the 1975 model which appellee sold to him and a 1970 model which Stacks actually received. The court awarded $4,500. A witness, who had 34 years experience in the sale and trade of heavy equipment, testified that according to the “blue book” used by dealers and lending institutions, there was a $5,000 difference in the value of a 1970 and 1975 model. Appellant objected to this testimony because the witness had not shown he had access to information the publisher of the book had. The trial court then asked the witness to disregard the blue book and the problems posed by financing in the farm and equipment industry and give his opinion, based on his experience, as to the difference between the market value of the two model machines if in the same condition. There was no objection to this inquiry. It appears that the 1970 loader here was practically new. The witness replied that if both were in the same condition, there would be a difference in value on resale of $5,000. Evidence was also adduced from an officer of appellant that at the time this machine was sold to appellee, the sale price of a new 1975, not considering extras (which this one had) and freight, was in the neighborhood of $23,000. The year model was irrelevant, if as here, the model was in the same series. He, also, testified that, based on his experience, the sale of this loader for $15,000 by appellant to the appellee was commercially reasonable. This indicates a difference in value of $8,000 between the models. As previously indicated, the appellee testified that when he bought the machine from appellant he thought he was getting a $26,000 1975 model machine, with extras, for $15,000.

We think the evidence as to damages sufficiently demonstrates the difference between the market value of the loader as represented and the actual value of the loader at the time of the sale. Consequently, the trial court’s finding that Stacks suffered damages of $4,500 with judgment over against the appellant is amply supported by the evidence.

Affirmed.


text:
    Bobbie Dean CAMERON v. STATE of Arkansas
    CR 79-95
    613 S.W. 2d 593
    Supreme Court of Arkansas
    Opinion delivered April 6, 1981

      Martindale & Holiman, by: Richard E. Holiman, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant, Bobbie Dean Cameron, was charged and convicted of the rape of his eight year old daughter, Tanya. The jury imposed a sentence of forty years in the Department of Corrections. Appellant argues four points for reversal, two of which the State forthrightly concedes to be reversible error. We concur in that view.

All essential elements of the charge were amply supplied by the testimony of Lillie Marie Cameron, appellant’s former spouse, and Tanya. Testifying in his own behalf, appellant denied raping his daughter. On direct examination he was asked: “Have you ever been in any trouble before as far as have you ever been convicted of a felony?” He answered, “Just one time,” describing an altercation in which his brother was shot in the arm, resulting in a fine in municipal court. Appellant acknowledged two convictions for public drunkenness and a number of DWI convictions during the early 1970s.

On cross examination, appellant was asked:

Q: Do you ever recall a few years ago down on Highway 82 near Texarkana being with a fellow by the name of Carl LeMasters?
A: No, Sir, I don’t know no ...
Q: Getting in trouble down there?
A: I don’t know any Carl LeMasters.

COUNSEL FOR APPELLANT:

Your Honor, I object to this, that is not proper cross examination on credibility.

BY THE COURT:

Sustained.
Q: Did you give an overdose of narcotics to a lady down there who died and as a subsequent Carl LeMasters is now spending time in Cummins Prison on a manslaughter charge?

COUNSEL FOR APPELLANT:

Your Honor, I object to that.

BY THE COURT:

Overruled.
A: No, Sir, I do not know the fellow.
Q: You never pushed dope; never sold dope?
Q: And never used dope?
Q: Have you ever used LSD?
A: Yes, Sir, sure have, one time. I don’t like that either, that all happened in Vietnam in the two and a half years I was over there.
Q: Do you remember the time a few years ago when you were in an automobile accident, a young girl was killed?
Q: You told the authorities that she was driving when the true facts were you were driving?

COUNSEL FOR APPELLANT:

Your Honor, I object to that.

BY THE COURT:

Overruled.
A: She was driving and I do remember the accident.

It may be that counsel for the state and the trial judge thought the earlier question to have, been “Have you ever been in trouble?” which would open the door to some extent to questions on cross examination touching on the truth of defendant’s response. But the question asked was multiphasic, and in reality was limited by the second phase of the question, i.e., “as far as conviction of a felony is concerned?” and the state’s right of cross examination was plainly subject to Rule 608 (b).

Rule 608 (b) of the Uniform Rules of Evidence provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfiillness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness. ...

Recently, in Gustafson v. State, 267 Ark. 278, 590 S.W. 2d 853 (1979), this court adopted a three-fold test of admissibility under 608 (b), saying that 1) the question must be asked in good faith, 2) the probative value of the question must outweigh its prejudicial effect, and 3) the prior conduct must relate to the defendant’s truthfulness. Quoting favorably from a New Mexico case, the court in Gustafson said:

We do not hold that a question under Evidence Rule 608 (b), which asks for an admission concerning a felony, can never be asked. Our holding is that any one of such questions is prejudicial [citation omitted] and, if there is nothing indicating the question has probative value on the question of credibility, it is an abuse of discretion to permit the question. ... We arrive at the same conclusion. Gustafson at 290.

Also in Gustafson, this court specifically disapproved language to the contrary in the earlier case of Cox v. State, 264 Ark. 608, 573 S.W. 2d 906 (1978):

We were also mistaken in Cox if we left the impression that a negative answer to an improper question results in no prejudicial error. There is no doubt that such a question harms a defendant’s case. Gustafson at 291.

Most recently, in Divanovich v. State, 271 Ark. 104, 607 S.W. 2d 383 (1980), we held that the trial court erred in “permitting the state to question appellant on cross examination about instances of conduct which were not probative of his veracity.” Divanovich at 107.

In the present case, the court permitted the prosecution to cross examine the defendant on allegations that he sold drugs, that he was involved in a fatal' car accident, and that he was involved in a fatal drug overdose of an unnamed woman, for which a Carl LeMasters was now in prison. Of these questions, only one appears to have any relevance to the defendant’s veracity or to his character for truthfulness or untruthfulness as required by the rule, and that is the question asking if he had not falsely reported that someone else was driving during a fatal accident. But this problem was cured by an admonition to the jury to disregard it after an in-chambers hearing established an absence of any basis in fact for the question. The other matters were left for the jury to consider and resulted in reversible error, as the State candidly concedes. The prejudicial effect of such questions is not remedied by the fact that they were answered in the negative. As was made clear in Gustafson, “There is no doubt that such a question harms a defendant’s case.”

Although the issue discussed disposes of the case on this appeal, the appellant urges two other points for reversal. First, the appellant argues that the trial court improperly allowed the State to ask leading questions of its own witness. However, it is improbable that questions will be phrased in exactly the same manner on retrial, and any error is not likely to recur, therefore we do not reach this point.

Second, the appellant argues that the trial court improperly sustained objections to the testimony of one of the defense witnesses because of an insufficient foundation for the testimony. But the record is devoid of any offer of proof as to what the witness would have testified to had he been permitted. We cannot speculate as to whether a proper foundation for the testimony can be established on retrial, hence, discussion is pointless.

For the reasons stated, the trial court erred in permitting the prosecution to cross examine the defendant regarding specific instances of prior conduct which do not bear on the defendant’s veracity. Rule 608 (b). We must therefore reverse. Gustafson and Divanovich, above.

Reversed and remanded.

Dudley, J., not participating.


text:
    Johnny Lee NELSON v. STATE of Arkansas
    CR 81-30
    613 S.W. 2d 598
    Supreme Court of Arkansas
    Opinion delivered April 6, 1981

      Ray Baxter, for appellant.

      Steve Clark, Atty. Gen., for appellee.
   Per Curiam.

Appellant Johnny Lee Nelson, by his attorney, has again filed for a rule on the clerk. In a Per Curiam opinion issued March 23, 1981, we denied a similar motion.

His attorney, Ray Baxter, has attached an affidavit admitting that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    James FULLERTON v. SOUTHSIDE SCHOOL DISTRICT et al
    80-311
    613 S.W. 2d 827
    Supreme Court of Arkansas
    Opinion delivered April 13, 1981

      Jim Burnett, for appellant.

      Carter & Woods, for appellees.
   George Rose Smith, Justice.

The Teacher Fair Dismissal Act of 1979 specifies certain steps that must be taken before a school district can refuse to renew the contract of a teacher who has been employed by the district for three successive years or more, Ark. Stat. Ann. §§ 80-1264 et seq. (Repl. 1980). In the spring of 1980 the Southside School District refused to renew the appellant’s teaching contract. The circuit court upheld the district’s decision. This appeal, in which Fullerton argues that the statute and the district’s own rules were not complied with, comes to us under Rule 29(1)(c).

In March, 1980, Superintendent Griffith notified Fullerton that his contract had been renewed. Patrons of the district, however, appeared at the next meeting of the school board and presented a petition opposing the renewal of the contract. The superintendent sent Fullerton a copy of the petition and informed him that the renewal was being reconsidered. Fullerton requested an executive (closed) meeting with the board, which was arranged. At that meeting the board members questioned Fullerton and with his consent adjourned the meeting to a later date so that statements could be obtained from the protesting patrons.

At the adjourned meeting the statements were presented to Fullerton, who was given an opportunity to respond to them. Neither side requested that the proceeding be recorded. § 80-1264.8(d). A week later the board met, decided notto renew Fullerton’s contract, and notified him of that decision. After Fullerton’s request for an additional hearing had been denied he appealed to the circuit court. § 80-1264.9-

The statute provides that a teacher’s contract will be renewed unless the teacher “is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed.” § 80-1264.3. In this instance no such recommendation was made by the superintendent. Fullerton argues that the omission was fatal, because the statute contemplates “that the initial decision to dismiss must be a professional decision rather than a political decision.”

We do not so construe the statute. The sole power to terminate a teacher’s contract is vested in the district’s board of directors. § 80-1264.9- Yet if the superintendent’s recommendation for dismissal were essential to the termination of a contract, the superintendent could assure the indefinite retention of an incompetent teacher simply by not recommending dismissal. We are unwilling to say that the legislature meant to confer such a veto power on the superintendent. Here Fullerton was given notice of the charges against him and an opportunity to be heard. There is no contention that the patrons’ complaints about Fullerton concerned matters requiring the superintendent’s professional judgment. We find substantial compliance with the requirements of the statute.

Second, Fullerton argues that the district did not comply with its own personnel regulation, which provides that if the board intends to dismiss a teacher it must inform him of the charges, supply him with the names of the witnesses and the nature of their testimony, and accord him a hearing upon request. Without deciding whether the 1979 act superseded the district’s regulation, we are satisfied that there was substantial compliance with the regulation in that Fullerton eventually received all the required information and a hearing. No prejudice is shown to have resulted from any want of strict compliance.

Affirmed.


text:
    Merril Lee CURRY v. STATE of Arkansas
    CR 80-142
    613 S.W. 2d 829
    Supreme Court of Arkansas
    Opinion delivered April 13, 1981

      E. Alvin Schay, State Appellate Defender, by: Linda Faulkner Boone, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of first degree murder, Ark. Stat. Ann. § 41-1502 (Repl. 1977), and sentenced to life imprisonment. She had interposed the affirmative defense of insanity. Ark. Stat. Ann. § 41-601 (Repl. 1977). The only issue argued on appeal is that no substantial evidence exists to support the jury’s finding that appellant was not insane at the time of the alleged offense.

Appellant was employed at a grocery store in Pine Bluff. On November 8, 1976, she was called to the office of the manager, Edward Chrisp, III, who suspended her from work. That night she called him about her suspension, and he told her he would talk to her during store hours. The next night she contacted him again by phone at his home about midnight, and he told her he did not want to talk to her. About a half hour later she arrived at the Chrisp home and rang the doorbell. Both Mr. and Mrs. Chrisp went to the door. Mr. Chrisp again advised her he did not want to talk to her. She pulled a gun and the Chrisps attempted to close the door. She shot through the door, hitting Mr. Chrisp. She then forced the door open, entered the home and continued firing at the prostrate Chrisp. Shortly thereafter, the police arrived and found appellant pointing the gun at Chrisp. He was pronounced dead at the scene.

In support of appellant’s affirmative defense of insanity, Dr. Roaf, an obstetrician-gynecologist who had been treating her several months for physical ailments, testified appellant appeared to be suffering from anxiety or neurosis and exhibited some symptoms of hysteria. When he saw her in jail on the 10th, a few hours after the shooting, it was his opinion she did not know right from wrong. He had her admitted to the Southeast Arkansas Mental Health Center with the diagnosis of acute psychosis and dehydration. Dr. James, a staff psychiatrist at that facility, stated that the tests did not suggest a clear-cut psychosis. He did not form an opinion but recommended further evaluation at the state hospital. Dr. Donahue, a state hospital doctor, observed appellant there in April of 1977. He concluded appellant was seriously disturbed, very possibly actively psychotic in the recent past. His diagnosis on the basis of his testing was paranoid schizophrenia. He did not believe she could distinguish between right and wrong or conform her behavior to the requirements of the law. Dr. Carroll, a private psychologist, who reviewed the tests and findings of the other doctors, testified his findings were consistent with a finding of paranoid schizophrenia. Dr. Stevens, a self-employed clinical psychologist, examined her about nine months after the shooting. His tests of appellant indicated borderline psychosis. However, the tests indicated she had a hysterical personality and a capacity for disassociative episodes. The tests indicated a potential for acute psychotic episodes in which she would lose touch with reality. He believed she was actively psychotic at the time of the shooting, did not know right from wrong, and had no concept of conforming her behavior to the requirements of the law. Her brother and husband testified as to her strange behavior in recent years, including running from room to room through the house for hours and “talking to the mirror” for two or three hours.

In rebuttal Dr. Rosendale of the state hospital testified that he noted no abnormal behavior from the notes kept by the nurses. From her performance at the staff interviews and her responses to questioning at that time he determined she was not suffering from a mental illness or defect to the point that would render her unable to appreciate the criminality of her act. Dr. Oglesby of the state hospital found appellant had a personality disorder but was not psychotic. There was testimony that at the scene of the crime appellant stated to the officers, “Go ahead and shoot me. I’ve already done what I’ve come to do.” The jail sergeant testified appellant seemed to understand his questions and responded to them when she was brought there following the shooting. Further, appellant, upon seeing another officer, stated, “I’m going to get him,” explaining that this officer had mistreated her in a recent incident.

On appellate review, the question is not whether the verdict is against the weight or preponderance of the evidence, but whether there is any substantial evidence to support the verdict; the jury is the sole judge of the credibility of expert and other witnesses and the weight to be accorded their testimony. Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342 (1979). In determining the sufficiency of the evidence, we consider that evidence most favorable to the appellee and affirm if any substantial evidence exists. Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974).

Here, the evidence was in conflict as to appellant’s mental capacity to know right from wrong at the time of the alleged offense. The jury resolved that conflict by finding her legally responsible for her acts and conduct at that time. Viewing the evidence most favorable to the appellee, as we must do on appeal, we hold that there is substantial evidence to support the verdict. (Shirley Marie) Curry v. State, 271 Ark. 913, 611 S.W. 2d 745 (1981). Here, as required by Ark. Stat. Ann. § 43-2725 (Repl. 1977), we have reviewed the record for any prejudicial errors and find none.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Mary S. COOPER and Agnes S. ADAMS v. TOSCO CORPORATION, LION OIL DIVISION et al
    81-31
    613 S.W. 2d 831
    Supreme Court of Arkansas
    Opinion delivered April 13, 1981

      Brown, Compton & Prewett, Ltd., by: William L Prewett, for appellants.

      Crumpler, O’Connor & Wynne, for appellees.
   Darrell Hickman, Justice.

This is an appeal from a summary judgment granted by the chancellor who found no disputed issue of fact concerning the ownership of the land in question. Tosco is an interpleader that owes oil royalties to the true owner of the land.

Cooper and a co-appellant, Adams, claim title to the Arkansas land under a will executed by Thomas Rowland who died in Louisiana in 1966. Rowland’s will was probated in Louisiana in 1968, but was not offered for probate in Arkansas until May 22, 1979, over ten years later. Without the will the land would have passed to Rowland’s only child who has since died leaving a daughter, Edith Kavanaugh.

Several weeks before the Louisiana will was offered for probate in Arkansas, Kavanaugh transferred the oil, gas, and mineral interests to her aunt, Fahy Rowland, by deed. Arkansas law provides that a will must be offered for probate in Arkansas within five years of the testator’s death. However, the statute permits a foreign will to be probated in an Arkansas court even after the lapse of the five year period unless there has been a “purchase” of the land in the meantime. Such a purchase cuts off all rights of any person attempting to probate a foreign will after the running of the five-year statute of limitations. Fahy Rowland’s “purchase” occurred before the will was offered in Arkansas. The chancellor held there was no genuine fact dispute since the deed foreclosed the issue of “purchase.”

Cooper and Adams argue on appeal that a genuine issue of fact exists as to whether the conveyance from Kavanaugh to Rowland was a true purchase. They allege that Kavanaugh knew of the will and that the deed was not issued for valuable consideration. There is no allegation of fraud. The appellants ask this court to find that the statute means that the purchaser has to be a bona fide purchaser for value without notice, rather than one who may not so qualify. The pertinent portions of the statute read as follows:

No will shall be admitted to probate and no administration shall be granted unless application is made to the court for the same within five (5) years from the death of the decedent; subject only to the exceptions hereunder stated. ...
(b) In so far only as it relates to real property in Arkansas, or any interest in such property, the will of a nonresident which has been admitted to probate in another appropriate jurisdiction may be admitted to probate in this State without regard to the time limit imposed by this section; provided that rights and interests in such real property which, after the death of the testator, have been acquired (if it be assumed that he died intestate) by purchase, as evidenced by one [1] or more appropriate instruments which have been properly recorded in the office of the recorder of the county in which the real property is situated and which would be valid and effective had the decedent died intestate, shall not be adversely affected by the probate of such will in this State under the expiration of the time limit imposed by the first paragraph of this section.

Ark. Stat. Ann. § 62-2125 (Repl. 1971).

There are no restrictions, such as “in good faith” or “without notice,” attached to the word “purchase” in the statute. In fact, prior to the addition of section (b) in 1963, the act made no exception to the period of limitations, even for the will of a nonresident that had been admitted to probate in a foreign jurisdiction. The addition of section (b) gave a second chance to those person who failed to file in Arkansas within the five year period, but only if there had been no properly recorded purchaser prior to the tardy offering of the will.

The term “bona fide purchaser without notice” is commonly used in sales. However, Ark. Stat. Ann. § 62-2125(b) refers to real property and applies the word “purchase” as it is used in the old adage: “Property either passes by descent or by purchase.” We find that such unrestricted use of “purchase” comes within the definition of that word in Black’s Law Dictionary 1110 (5th ed. 1979), which is: “Purchase ... generally means the acquisition of real estate by any means whatever except by descent.”

The mineral deeds conveying the rights of Edith Kavanaugh to Fahy Rowland were executed, delivered, and recorded prior to the admission of the will of Thomas Claude Rowland to probate in Arkansas. That satisfies the “purchase” requirements of the statute. We agree with the chancellor that “bona fide purchaser for value without notice” cannot be added to the statute. Since the appellants have failed to show that there was the genuine issue as to a material fact, the summary judgment is affirmed. Hughes Western World v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W. 2d 826 (1980).

Affirmed.