author: Cakletox Harris, Chief Justice.

text:
    Bernie Parker v. Ruby Bowlan, Executrix of the estate of Nellie Jarvis deceased
    5-4170
    412 S. W. 2d 597
    Opinion delivered March 20, 1967

      J. B. Beed for appellant.

      Chas. A. Walls, Jr. for appellee.
   Cakletox Harris, Chief Justice.

Mrs. Nellie Jarvis a widow, died on May 24, 1963, leaving surviving her six children, including one minor, Dwight Jarvis, who was living with her when she passed away. At the time of her demise, Mrs. Jarvis owned 80 acres of land, which is. the subject of this litigation. On October 4, 1963, Jeff Jai’vis, Jr., one of the children, was appointed administrator of the estate. Nearly two years later, on September 2, 1965, Jeff Jarvis, Jr. (also known as Thomas J. Jarvis), executed a deed in his individual capacity to Bernie Parker, appellant herein, purportedly conveying an undivided one-sixth interest in and to the real estate herein mentioned. Mona Jarvis., wife of Jeff, released her rights in the property. On Ocotber 2, a petition was. filed, asking the court for an order directing the administrator to account for funds in the estate, and also requesting his removal as. administrator, this petition being filed by Ruby Bowlan (a sister to the administrator and the minor), as guardian of Dwight Jarvis. Jeff Jarvis, Jr., had left the state soon after he executed the above mentioned deed to Parker. Thereafter, a writing purporting to be the last will of Nellie Jarvis was found; this was admitted to probate on October 7, 1965, and Ruby Bowlan was named executrix (actually adminis-tratrix with the will annexed). The instrument purports to leave the property to the minor, Dwight, and does not mention the names of any of the other children. Subsequently, appellant filed a petition entitled “Petjtion for Contest of Will, ’ ’ alleging that he was ‘ ‘ an interested person” in the estate of Nellie Jarvis, and that-he had a vested interest in the real property being administered. Parker asserted that he, by virtue of the deed he had received from Jeff Jarvis, Jr., was the owner, along with the other five surviving children, of an undivided one-sixth interest in the lands. Further: ■

“The instrument filed herein on October' 7, 1965, purporting to be the last will and testament of Nellie Jarvis is ineffectual as to the said son of the said decedent, the said Thomas J. Jarvis, also known as Jeff Jarvis, Jr., for the reasons that:
(a) Nellie Jarvis, in the instrument filed herein which purports to be her last will and testament, did not name her children separately, and,
(b) She did not provide for them as a class.”

Ruby Bowlan, as executrix, responded to Parker’s petition, and asserted that appellant was an improper party to maintain a petition for contest of the will. It was further alleged that any interest held by Jeff Jarvis, Jr., in the estate was subject to his actions as administrator, ho inventory, or accounting having been filed. Mrs. Bowlan prayed that Parker’s petition be dismissed. On trial, the court held that appellant was an improper party to contest the will, and thereupon dismissed the petition. From the order so entered, appellant brings this appeal.

We think the trial court reached an erroneous conclusion, and this was probably predicated on the fact that the petition filed was considered a will contest, and, of course, as previously set out, appellant’s petition is entitled “Petition for ‘Contest of Will.” However, the mere fact that it is so titled is not controlling, and it is necessary to look to the allegations of the petition, particularly the prayer for relief, in order to make a determination. In the petition, appellant stated that he was the owner, by right of purchase, of an undivided one-sixth interest to the property here in question, and his prayer is as folloAvs:

“WHEREFORE, the petitioner prays that the Court make a finding of heirship in this estate; that the instrument purporting to be the last will and testament of the decedent be declared ineffectual as to her son, Thomas J. Jarvis, also known as Jeff Jarvis Jr., and ineffectual as. to the petitioner’s interest in the lands acquired by the petitioner from the said Thomas J. Jarvis, also known as Jeff Jarvis, Jr.*"”

It will be at once noted that there is no allegation that the will was not entitled to probate, either on the basis that it was not legally executed, or because of mental incompetency or undue influence. Generally speaking, a will contest is based on the allegations and contentions that no will exists, i.e... statutory requirements for execution of the instrument were not complied with — or, because of mental infirmities, the party was not mentally capable of making a wilF — or, in case of undue influence, the purported instrument was not the testator’s will hut that of someone else. Appellant does not ask that the instrument be denied probate; he only-asks that it be declared ineffectual as. to Thomas J. Jarvis (Jeff Jarvis, Jr.), because Jarvis was not mentioned in his mother’s will.

As. far as this record is concerned, there is no doubt but that Parker legally acquired the interest of Jeff Jarvis, Jr., in the lands, there being no controversy but that Jarvis and wife conveyed their interest to Parker by deed. In Dean v. Brown, 216 Ark. 761, 227 S. W. 2d 623, this court said:

“Our statute provides that immediately upon the intestate’s death, the title to real estate descends to the heirs at lain, subject to the widoiv’s dower and the payment of debts. See § 61-101 Ark. Stats. 1947. The two sections (§ 62-4-11 and § 62-911, Ark. Stats. 1947), concerning lands as assets in the hands, of the administrator, have been uniformly construed to mean that the title to the lands passed direct to the heirs on the death of the intestate, subject to the rights of the administrator to have the Probate Court sell the lands if such be necessary to pay the debts of the deceased.”

In Calmese v. Weinstein, Administrator, 234 Ark. 237, 351 S. W. 2d 437, this holding was reiterated, the court stating:

“Prior to Act 140 of 1949 (the Probate Code), § 66 of Pope’s Digest was the governing Statute and said: ‘Lands shall be assets in the hands of the executor or administrator, and shall be deemed in their possession and subject to their control for the payment of debts.’ § 94 of the Probate Code (as now found in § 62-2401, Ark. Stats.) says: ‘ * * * real property shall be an asset in the hands of the personal representative when so directed by the will, or when and if necessary for the payment of debts, or expenses of administration.’ The quoted language of the Probate Code was not designed to make the administrator automatically entitled to the real estate of a deceased intestate. The quoted language of the Probate Code continues the rationale of our cases decided under § 66 of Pope’s Digest; and these cases hold that the legal title of an intestate’s land, upon his. death, descends and vests in his heirs at law, subject to the widow’s, dower and the payment of debts through his administrator. (Citing cases.) Sec. 62-2701, Ark. Stats., in abolishing the priority between personal property and real property for the payments of the debts of the deceased, applies after it has been determined that the lands are necessary for the payment of debts. That section does not change the long established rule of our cases, as above cited.”

At the time of the execution of the deed from Jeff Jarvis, Jr., to appellant, the elderly Mrs. Jarvis had apparently died intestate. Jarvis had been named administrator, and the time for filing claims against the estate had expired. The record does not reflect that it will be necessary to sell the real estate in order to pay debts of the deceased. It was not until after the conveyance that the purported will was found. Of course, the vesting in an heir of an interest in real estate owned by an intestate decedent is not only subject to a widow’s dower and payment of the debts of the estate, but it is likewise subject to the provisions of a subsequent will which are held to be valid. Accordingly, the interest in the property acquired by Parker (by virtue of his deed from Jarvis) is- subject to debts, and also to any lawful provisions in the will which are adverse to the interest he (Parker) acquired. Whether appellant was an “interested party” to the extent that he could file a will contest is unimportant in this litigation, for he actually filed an intervention setting up his interest, and he did have a sufficient interest to file this pleading and assert his rights during the administration of the estate.

Appellee relies upon the language of Ark. Stat. Ann. § 60-507, Suh-section b (Supp. 1965), which, reads as follows:

“If at the time of the execution of a will there he a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to such child or issue, and such child or issue shall be entitled to recover from the devisees [our emphasis] in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will. ’ ’

Appellee points to the italicized language, and argues that the statute precludes anyone except a preter-mitted child from bringing a petition, and further, that any action brought must be instituted against the devi-see, instead of being contended for during the administration of the estate. We do not agree with this interpretation. After all, Section 60-507 deals only with the rights of those who are entitled to inherit when they are omitted from a will, i.e., inheritance under the laws of descent and distribution; the Legislature was not concerned (in this section) with what the heir did with the property inherited; there was no occasion, nor necessity, to include any provisions relating to the grantees or assignees (of a pretermitted child). As to appellee’s contention that the suit must be instituted against the devisee, instead of the executrix of the estate, let it be pointed out that the statute does not read in the manner suggested by appel-lee; rather the statute states that such “child or issue shall be entitled to, recover from the devisees.” The “Committee Comment,” with reference to this section (set out beneath the section), makes this perfectly clear. The comment is as follows:

“This is a restatement, with an effort at clarification of Sections 14524 and 14525, Pope’s. Digest [§ 60-119, 60-120.] Section 14526, Pope’s Digest [§ 60-121], is omitted because the committee feels that it is not necessary to designate the court or courts in which the pretermitted child may have his remedy if the administration of the estate has been completed,, or so nearly completed as not to allow him a complete remedy in the distribution of, that portion of the estate remaining urn,distributed [our emphasis] at the time his rights are adjudicated. ’ ’

It is thus entirely obvious that the pretermitted child is entitled to his remedy during the administration of the estate, and the provision for recovering from the devisee is only brought into being after the estate has been closed, or after sufficient funds have been paid out of the estate to prevent the pretermitted child from acquiring his full statutory share.

Appellant states in her brief:

“The relief he [appellant] seeks is that under the pretermitted child Statute (Section 60-507 b, Ark. Statutes 1947 Supra). Under the facts reflected by the pleadings, the appellant must attempt relief other than under this, statute. If he admits or pleads as he did, the preter-mitted child statute then he must maintain the action against the minor, Dwight Jarvis. By- instituting the action against the minor, the minor would then be able to plead and recover from the said Jeff Jarvis, Jr., as an offset or counterclaim, the funds and .property unaccounted for by Jess Jarvis, Jr., while he was'the administrator of the estate. *** To permit this type of action, under these circumstances, would not only violate all of the common law and statutory rights, of the minor, hut would promote and cultivate a method where an heir, as administrator, could misappropriate the property and assets of the estate then render himself judgment proof by conveying his. interest, without accounting and removing* himself from the action.”

Appellee’s fears are groundless, for Parker only acquires such interest in the property as Jeff Jarvis, Jr., himself would have received when the estate was closed. If the allegations of misconduct and misappropriation are substantiated, and Jarvis’ interest in the real estate lessened thereby, Parker’s interest is likewise lessened, since he is entitled to no more interest in the lands than that to which his grantor would have been entitled.

The trial court erred in treating appellant’s petition as. a will contest, and the judgment is reversed with instructions to proceed in a manner not inconsistent with this opinion.

       One acre, upon which the house is located, is not involved in this litigation.

       There is an interesting annotation at 69 A.L.R. 1129, relative to attacks on particular portions of a will because of alleged undue influence.

       This has reference to the committee which prepared Act 140 of the Acts of 1949, the Probate Code.

       These sections relate to the rights of pretermitted children.

       This seetion reads as follows: “If the devisees or legatees re-íase to pay the same, the party for the recovery thereof shall have a writ of scire facias against them, and, on the return of the same, the court shall enter judgment against such devisees or legal-tees, and award execution thereon.”

       In Graham v. Hill, 226 Ark. 258, 289 S. W. 2d 186, Virgil Finley Graham died testate, leaving his entire estate to certain friends and relatives, and naming two friends executrices. Virgil Hill, who had not been mentioned in the will, claimed to be an adopted son of Graham, and when the will was offered for probate, Hill intervened, along with the widow, and claimed his portion of the estate. The trial court held with him, and the Supreme Court affirmed on appeal. There, Hill was a pretermitted child, but brought his petition against the executrices of the estate, and during the time when the estate was being administered.

      Even if it be considered that the deed from Jarvis and wife to Parker was only an assignment of Jarvis’ interest in the realty, appellant would have' been entitled to assert his claim through the pleading filed, for the general rule is that any estate or interest in lands and tenements is assignable. 6 C.J.S., Page 1054.


source: Caselaw Access Project

author: GeoRge Rose Smith, Justice.

license: Public Domain

text:
    T. G. Watkins v. Madge Watkins
    5-4159
    412 S. W. 2d 609
    Opinion delivered March 20, 1967

      ShacJdeford & Shackleford, for appellant.

      Beryl Anthony Jr., for appellee.
   GeoRge Rose Smith, Justice.

Tho only question upon this appeal is whether a bill of review to obtain a modification of a divorce decree can he filed after the expiration of the time for appeal. The chancellor dismissed the bill, holding that it was filed too late.

The appellee obtained a divorce on September 8, 1965. The parties owned two tracts of land as tenants by the entirety. The decree awarded one to the appellee and the other to the appellant. On April 19, 1966, the chancellor, in response to a petition for clarification filed by the appellant’s original attorney, entered a supplemental decree directing the parties to put the initial decree into effect by an exchange of deeds. There was no appeal from either decree.

On June 9, 1966, the appellant, by his present counsel, filed, a bill of review asserting that the court had acted beyond its authority in awarding to the appellee a tract owned by the entirety. The bill, as later amended, asked that the two decrees be amended by the deletion of the provision .in question. The chancellor, as we have said,, dismissed the hill of review.

Under our holding in Pyles v. Holland, 187 Ark. 550, 60 S. W. 2d 1029 (1933), the chancellor was. right. There we held that a-bill of review such as this one, for error supposedly. apparent on the face of the record, must he filed within the time allowed for an appeal. We pointed out that if the rule were otherwise, “it would follow that an original decree might in effect he brought before the Supreme Court for re-examination after the period prescribed by law for an immediate appeal. . . In other words, the party complaining of the original decree would, in this way, be permitted to do indirectly what the statute has prohibited him from doing directly.” The time allowed for filing the notice of appeal is now thirty days after the entry of the decree. Ark. Stat. Ann. § 27-2106.1 ; Pinnacle Old Line Ins. Co. v. Ellis, 228 Ark. 458, 307 S. W. 2d 882 (1957). Hence the present bill of review was filed out of time.

Affirmed.


author: Paul Ward, Justice.

text:
    Billy C. Hall v. State of Arkansas
    5247
    412 S. W. 2d 603
    Opinion delivered March 20, 1967

      Carmacli Sullivan, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. General, for appellee.
   Paul Ward, Justice.

Billy C. Hall (appellant) was charged with Grand Larceny for stealing a 1957 Dodge automobile (the property of Gaylon Ellis) of the value of more than $35. A jury trial resulted in a conviction and his punishment was fixed at one year in the penitentiary.

On appeal, appellant urges five separate assignments of error which we will discuss in the order they are argued.

One. Appellant offered testimony to prove the market value of a “starter” on the car in question. The trial court refused such offer, and we think the court was correct in doing so.

Larceny, as. defined in- Ark. Stat. Ann § 41-3901 (Repl. 1964), is the felonious stealing the personal property of another. Subsequent § 41-3907 fixes the punishment at one or more years in the penitentiary if the value, of the property stolen exceeds the sum of $35. As previously stated, appellant was charged with stealing the car not the starter. Therefore, the offered testimony was irrelevant and immaterial, and not admissible in evidence.

Two. Here appellant- contends the trial court erred in refusing to give his requested instruction nos. 1, 2, and 3, contending “that the intent in this ease was crucial and if defendant took the automobile only with the intent to deprive the owner temporarily of the possession of the vehicle without the intent to steal the same, he could be guilty only of a misdemeanor”.

In offering the three instructions, mentioned appellant apparently sought to take advantage of Ark. Stat. Ann. § 75-170 (Repl. 1957) which makes it a misdemeanor to deprive a person of his vehicle temporarily without intent to steal the same. For reasons, presently mentioned, we find no merit in this contention.

The undisputed proof shows appellant took the car in question from the premises, of its owner, drove it six miles and hid it in a wooded area. Days later after he was apprehended he claimed he intended to remove and take the starter from the car for use on his own car. It is also undisputed that he did not remove the starter. There is no testimony in the record to support appellant’s purported intention. Consequently the trial court was justified in refusing the requested instructions. This same question was considered in the early case of Pickett v. State, 91 Ark. 570 (p. 574), 121 S. W. 732, where we said, quoting from Allison v. State, 74 Ark. 444, 86 S. W. 409 :

“In each case, then, the question of whether it is proper to submit to the jury the question of defendant’s guilt of any particular grade of offense included in the indictment must be answered by considering whether there is evidence which would justify a conviction for that offense.”

In the case before us here thfe trial court gave (without objection) Instruction No. 8 which told' the jury they must find appellant must have had the felonious intent to deprive the owner permanently of the car, and that if they had any doubt to acquit him.

Furthermore the instructions offered by appellant are indefinite, and could have been confusing to the jury. For that reason only the court was, we think, justified in refusing to give them.

Three. Appellant also contends there was reversible error because of the manner in which his confession was presented to the jury, but we do not agree.

When the question arose the judge, together with the attorneys, retired to chambers and discussed the matter. The court thereupon found that the confession was voluntary. When the trial was resumed the court also submitted the question to the jury. Ark. Stat. Ann. § 43-2105 (Supp. 1965) provides:

“Issues of fact shall be tried by a jury, provided that the determination of fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; that the trial court shall hear the evidence concerning the admissibility and the voluntariness of the confession out of the presence of the jury and it shall be the court’s duty before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily.”

The procedure in the case here under consideration was followed in the case of Brown v. State, 239 Ark. 909 (p. 918), 395 S. W. 2d 344, based on Jackson v. Denno, 378 U. S. 468.

Four. It is. further contended that appellant’s constitutional rights were violated because he “was not properly advised of his rights to have counsel” before he was interrogated. The record reflects that he was so advised, and appellant does not here contend to the contrary. However, appellant does contend he was so advised by a Special Agent of the FBI who was making an investigation of a Federal Statute. We think this, fact is immaterial since appellant confessed to a state crime after being fully advised of his rights.

Five. Finally, appellant contends that ‘ ‘ considering the alleged confession as a whole, same must he considered involuntary”. In view of what we have heretofore said, we see no merit in this contention.

Affirmed.


author: Lyle BeowN, Justice.

text:
    Piggott Junior Chamber of Commerce, Inc., v. Charley Hollis et al
    5-4164
    412 S. W. 2d 595
    Opinion delivered March 20, 1967

      C. W. Knauts, for appellant.

      E. L. Holloway and T. A. French, for appellee.
   Lyle BeowN, Justice.

Piggott Junior Chamber of Commerce sought, and was. denied, an order nunc fro tunc. The Chamber sought to establish of record an order allegedly made by the county court in 1964 but which was lost before being recorded. Appellees intervened as taxpayers and persuaded both the county court, and the circuit court on appeal, to deny the Chamber’s petition for the order nunc pro tunc. The Chamber has appealed.

Appellees urge dismissal of this, appeal on technical grounds, and those points can be quickly laid aside. First, the appeal from the county court to the circuit court was. timely filed. The time for appeal is governed by Ark. Stat. Ann. § 27-2001 (Repl. 1962), and not by Ark. Stat. Ann. § 17-314 (Repl. 1956). Secondly, the transcript was timely lodged in this court. Judge Light granted “an additional sixty days beginning June 8” to lodge the transcript. It was clearly his intent to add sixty days, to the statutory ninety days. To interpret it otherwise would shorten the statutory period. Thirdly, appellees urge us to strike Volume II of the transcript. They contend this volume was. not filed with, or certified by, the clerk of the circuit court, and bears no filing date by our clerk. It is admitted Volume II is a transcript of the evidence adduced in circuit court. The trial judge certified it and ordered it made a part of the record in the case. It bears our -court number identical with the number on Volume I, which volume bears the filing date. Other endorsements, by onr clerk show the transcript to be in two volumes and filed on the same date. The facts recited reflect substantial compliance.

This brings ns. to the single major issue in the case, and that is whether the Chamber of Commerce was entitled to have Ns petition for an order nunc pro time granted. The testimony of two witnesses was given, both in county court and circuit court. They were former County Judge Ernest Thomas and Attorney Guy Brinkley. Judge Thomas presided over the county court in 1964 and Attorney Brinkley represented the Chamber at the 1964 hearing. Intervenors, appellees, here, were represented at both hearings and cross-examined, but offered no evidence.

The evidence adduced at the hearing in circuit court establishes the pertinent .events at the hearing before Judge Thomas. The subject matter was a petition filed by the Chamber pursuant to Ark. Stat. Ann. § 17-313 (Repl. 1956), which sought a lease from the county of certain lands “for educational purposes.” When the testimony was concluded, Judge Thomas orally announced his findings to the effect that the petition was granted and the lands Avould be leased for $1.00 a year for a term of 99 years. Attorney Brinkley was instructed to draw the order and the lease. The court kept no docket and the clerk — if he attended — made no memorandum of the findings. The first precedent for order presented was. not satisfactory and Attorney Brinkley redrafted it. A few days after the hearing, the redraft was presented, examined, found satisfactory, and signed by Judge Thomas. He signed it in the office of the county clerk and he is certain he left it on the clerk’s desk because that was his custom. The order was never placed of record and was apparently lost. Exhibit “E” was introduced, it being identified by both witnesses as a substantial reproduction of the order signed by Judge Thomas. The source of this carbon copy is not apparent from the record, but it was not attacked and was placed in the record without objection.

In denying the Chamber’s position for an order nunc pro tuno, the circuit court in nowise questioned the facts just recited. In substance, the court ruled that failure to enter the order voided the proceedings. The formal order makes no mention of the validity or invalidity of the lease, apd we are not here concerned with it.

We have many decisions from this court touching on the authority of the courts to enter nunc pro tunc orders. One of the earlier cases which has been frequently cited with approval throughout the years is Bobo, Admr. v. State, use, etc., 40 Ark. 224 (1882). We cite this case because the fact situation is very similar to the case at hand. In Bobo, the State called the defendant’s case for trial, and the defendant failed to respond. A bond forfeiture was orally declared. The court made no docket entry and the clerk failed to make an entry in his court minutes. The error was discovered at a subsequent term. The court heard the testimony of the prosecuting attorney and the clerk. Counsel for the bondsmen asked the court to declare the law to be that some entry or memorandum in writing must exist before parol testimony can be introduced to show the nature of the judgment. This court approved' the response of the trial court on that point:

‘Orders, and judgments nunc pro tunc may be entered upon proof that such order or judgment was made and not entered, and such fact may be proven by oral evidence. or written memoranda like any other fact might be proven.”

The unanimous opinion in Bobo, written by Chief Justice English, contains an exhaustive treatise on the subject. The following concise statement of the law also contains, facts which are similar to the case at bar:

“ ‘It is often the case that the Court announces in open court the decision which it has made, without furnishing the clerk with any writing on the subject. Were the latter to make a mistake in en-terxng up the judgment, the injured party would he remediless, unless the mistake could be corrected upon the testimony of the Judge who made the decision, and the counsel and others who were present and heard it announced.’
“In this case it was clearly and distinctly proved by the prosecuting attorney and the clerk, who were present, that Etheridge failed to appear at appearance time, when called to answer the criminal charge against him, and that his hail failed to produce him, and that the Court ordered the clerk to enter a forfeiture of his hail bond, which he omitted to do, and there was. no evidence to the contrary, and this was satisfactory to the Court, and a mmc pro tunc entry of the order of forfeiture was. directed. The same Judge who presided when the forfeiture occurred -heard the evidence and ordered the nunc-pro tunc entry in question to he made.
“Bearing in mind the rule that such an omission in the record should be corrected after the term with caution, and upon satisfactory evidence, the judgment must he affirmed.”

The personal recollection' of the judge who pronounced the initial finding which granted the order is recognized as having strong probative value. This is particularly true when there is an absence of evidence to the contrary. Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030 (1910). Also, to the same effect, see Eiland, et al. v. Parkers Chapel Methodist Church, 222 Ark. 552, 261 S. W. 2d 795 (1953).

Finally, it should be noted that no rights, have been vested, in the interim, in third parties who could be prejudiced by the entry of the order at this time.

Reversed and remanded with direction that the order nunc pro tunc be entered.


author: Conley Byrd, Justice.

text:
    Franklin Andrew Dunfee, Mary Louise Dunfee Pat Hope and Geneva Howe v. State of Arkansas
    5229
    412 S. W. 2d 614
    Opinion delivered March 20, 1967

      Eugene Coffelt and Jeff Duty., for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. General, for appellee.
   Conley Byrd, Justice.

Appellants, Franklin Dunfee, his wife, Mary Louise, his sister, Geneva Howe, and her husband, Pat Howe, appeal from a conviction of assault with intent to kill. For reversal they rely upon certain comments of the court during the cross-examination of Klela Dunn, one of the prosecuting witnesses ; remarks, of the prosecuting attorney in his opening statement to the jury relative to the characters of appellants; and a remark of the prosecuting attorney in his closing-argument.

The facts show that on December 26, 1965, the four appellants and a young man named Barnes Avere riding-in a jeep on lands, of the prosecuting witness, Joe O’Neal, where they had gone ostensibly for the purpose of target practicing with their rifles. "When the prosecuting Avit-nesses, Joe O’Neal, his Avife, his. daughter, Klela Dunn, and his son-in-laAV, Ralph Dunn, observed appellants in the jeep, they started yelling, ‘Stop, stop, stop!” At this point the jeep Avas backed up, struck a tree, Avas turned around and Avas driven doAvn through the Avoods Avith the prosecuting witness., Ralph Dunn, in pursuit thereof on foot. Mr. Dunn fell over a log, got up and fired at least one shot Avith a derringer. Because the muffler Avas knocked loose on the jeep Avhile appellants Avere driving through the Avoods, the prosecuting witnesses Avei-e able to ascertain that the jeep had been driven back onto the county road bisecting the property either OAvned or managed by the prosecuting Avitnesses. After the muffler Avas repaired, appellants started back east and- as they topped the hill came upon the prosecuting AAitnes.ses.

The prosecuting Avitnesses and the appellants gave differing versions of Avhat happened after the jeep topped the hill. The prosecuting Avitness.es testified that they Avere Avalking along the- road toAvard the place where the jeep had stopped for the purpose of ascertaining Avhere it had knocked the fence down. They stated that Mr. Dunn had the derringer in his pocket and that Mrs. Dunn Avas carrying a .22 rifle, intending to shoot a squirrel for her father, Mr. .O’Neal. Appellants’ testimony Avas that Avhen they topped the hill, Mr. Dunn had the derringer in his hand and Mr. O’Neal had the .22 rifle, and both guns Avere pointed at appellants. All parties agreed that the jeep had run the prosecuting Avitnesses off the road, that some shooting and hair-villing had occurred, and that Mr. O’Neal had been Avounded.

There is testimony in the record indicating that Mr. John Dun fee, father and father-in-law of appellants, had leased the lands, which the prosecuting witnesses had either owned or had under their management, upon a written lease that had expired January 1, 1965, and that he was a holdover tenant of the lands on a year-to-year basis at the time the prosecuting witnesses either bought the land or took over the management thereof. At any rate, after the prosecuting witnesses took charge of the property, they posted the lands. At least one of the posted signs read, “Posted — -No trespassing. Survivors will he prosecuted.”

Klela Dunn was called by the prosecution as a witness after her husband had already testified. Her testimony, on direct, corroborated her husband’s testimony as to Avho had the .22 rifle and what was the purpose of walking along the road toward the place where the jeep had been stopped. During cross-examination of Mrs. Dunn, the following occurred:

“BY MR. COFFELT:
Q. You had that pretty well memorized, didn’t you ?
ME. COXSEY: Now, that’s not fair — .
THE COURT: Now, everybody is presumed to lie telling the truth, Mr. Coffelt, each side.
MR. COFFELT: Well, it’s cross examination.
THE COURT:. There is no information that anybody has memorized anything. That is not right before the jury. That’s for the jury’s conclusion.
MR. COFFELT: Save my exceptions. Save my exceptions to the remarks, of the court.
THE COURT: Now, you are supposed to treat everybody with courtesy on both sides. "When yon say she’s got it memorized, that is. a reflection on her.
MR. COFFELT: Just take everything that is stated — .
THE COURT: Yes, indeed, take everything.
MR. COFFELT: The defendants at this time object to the remarks of the court: this being cross examination, the defendants have a large range of latitude on cross examination.
THE COURT: Yes, but everybody is a gentleman and a lady.
MR. COFFELT: I’ll treat her as a lady. I haven’t failed yet.
THE COURT: I know, but they are presumed to be telling the truth, too. Everybody on the stand is presumed to be telling the truth.
MR. COFFELT: Object to the remarks of the Court.
THE COURT: All right.
MR. COFFELT: Save our exceptions.”

We hold that the trial court’s comment was prejudicial error. It is in violation of our constitution, article 7, § 23, which provides :

“Judges shall not charge juries with regard to matters of fact, but shall declare the law’, and in jury trials shall reduce their charge or instructions to writing on the request of either party. ’ ’

In Williams v. State, 175 Ark. 752, 2 S. W. 2d 36 (1927), we set out in the following language the reasons why a trial judge should preside with impartiality:

“../From the high and authoritative position of a judge presiding at a trial before a jury, his influence with them is of vast extent, and he has it in his power by words or actions, or both, to materially prejudice the rights and interests of one or the other of the parties. By words or conduct he may on the one hand support the character or testimony of a witness, or on the other hand may destroy the same, in the estimation of the jury; and thus his personal and official influence is. exerted to the unfair advantage of one of the parties, with a corresponding detriment to the cause of the other . . . ’ ”

Upon the second point, with reference to the prosecuting attorney’s opening statement, the record shows that the following occurred:

“-1 think you will find before this case is concluded that the Dunfee people are very contentious people. I think you will find that they are overbearing people and that they have run over many people. I think you will observe from facts that they were a belligerent type of people — .”

After objection was made, the prosecuting attorney continued:

“I am referring to the defendants and the close relatives of these defendants. ”

The trial court should have sustained the objection to the opening statement of the prosecuting attorney. However, we need not here decide that it was prejudicial error, for the error will not likely reoccur upon a new trial. See McFalls v. State, 66 Ark. 16, 48 S. W. 492 (1898).

The third point raised by appellants is without merit. It is entirely proper for the prosecuting attorney to tell the jury that in his opinion the defendants should he put in the penitentiary.

Reversed and remanded.


author: CarletoN Harris, Chief Justice.

text:
    Seabie Jerrel Medley v. Dan D. Stephens, Superintendent of Arkansas State Penitentiary
    5245
    412 S. W. 2nd 823
    Opinion delivered March 27, 1967

      II. Murray Clayeomb, for appellant.

      Joe Purcell, Attorney General; Rodney Parham, Asst. Atty. Gen., for appellee.
   CarletoN Harris, Chief Justice.

Seabie J. Medley, appellant herein, was charged with the crime of Armed Bobbery, the Information alleging that Medley, by force and intimidation, and armed with a revolver, took $80.00 in money from T. J. Bolin. Medley was also charged with Kidnapping. On Janu'ary 4, 1963, Medley entered a plea of guilty to robbery, and was sentenced to 15 years, imprisonment. On October 28, 1965, appellant filed a petition for a Writ of Habeas Corpus, alleging, inter alia, that he had been' stopped by officers at a road block, arrested, his car searched without a warrant, and two pistols, discovered in the glove compartment, one of these having allegedly been used in the robbery; further, that he made a statement of officers without being advised of his constitutional rights., and specifically without being given the right to legal counsel. On December 14, 1965, the petition was heard by the Jefferson Circuit Court, and at the conclusion of the hearing, the court, finding no merit in the petition, dis.missed same, and Medley was returned to the Arkansas Penitentiary. From the judgment denying relief, appellant brings this appeal.

For reversal, three points are relied upon, but we deem it unnecessary to discuss but one of these points, which, we think, determines the matter. Appellant asserts, .“The statement of the appellant, and the plea entered thereafter by him, were obtained involuntarily, so that the judgment against him is void, and should be vacated.” We do not agree. The Court, very properly, on January 4, 1965 (date of appellant’s plea of guilty), had all court proceedings relating to the charge against Medley reported by the official court reporter. We think it appropriate to commend the Jefferson Circuit Court for adopting this procedure in receiving pleas of guilty. It will at once be recognized that, in subsequent bearings on on petitions, for post-conyiction' relief /-after a plea of guilty (wherein allegations are contained that such plea was entered through mistake — :or duress — (or without being advised of the right to counsel), nothing is left to guesswork. The complete record is - available. There is no need for the judge — or the prosecuting at1 torney — nor any other person — to testify from memory, and we recommend that, where possible, áll-trial courts, in accepting pleas of guilty, direct that a record be made of all proceedings therein. In the instant case, the record reflects, as follows:

. “January 4, 1963, before the Court in open court. SEABIE J. MEDLEY. ' ‘ . ...
THE COURT: You do not have to plead in this case if you don’t think you should. You may get you an attorney, get you a. jury trial, if you,haven’t .anything with which to employ an' attorney the Court will appoint you one. You are charged by information .filed in the Jefferson Circuit Court, of the crime of robbery alleging that you on the 3rd day of January, 1963, in Jefferson County, Arkansas, did then and there wil-fully, unlawfully, feloniously, violently and by forcé and intimidation, armed with a revolver, take Eighty Dollars'in money, gold, silver, and paper money, good and lawful money of the United States of America, the propr erty of T. J. Bolin, ‘from the person of the sáid. T. J. Bolin, and against the will of said T. J. Bolin, contrary to the Statute in such cases made and provided, and against the peace and dignity of the State of Arkánsas. Signed E. W. Brockman, Jr., Prosecuting Attorney. What is your plea? . • ‘ '
A. Guilty sir.
THE COURT: You are guilty?
A.. Yes sir.
THE COURT: Yon are also charged with kidnapping, alleging that on the 3rd day of December, 1963, in Jefferson County, Arkansas, forcibly and against his will, unlawfully, feloniously steal, take, arrest and carry away T. J. Bolin, from his service station at Sherrill, Arkansas, to the South side of the Free Bridge in Jefferson County, Arkansas, forcibly and against his will, contrary to the Statute in such cases made and provided, and against the peace and dignity of the State of Arkansas. Signed E. W. Brockman, Jr., Prosecuting Attorney. What is your plea to that?
A. Not guilty.
THE COURT: You didn’t do that?
A. No sir.
THE COURT: Mr. Brockmán, what is your recommendation?
MR. BROCKMAN: Your Honor, on the kidnapping, I recommend that he be given the maximum sentence of 21. years on robbery and dismiss the kidnapping. That will make him eligible for parole.
THE COURT: "What trouble have you been into? A. I will tell you everything I have been into. I got three years in the State of Alabama for grand robbery in 1959. March of 1960 I got 18 months for the Dyer act. (The defendant is sentenced by the Court to the State Penitentiary for a period of 15 years.)

It is apparent that no advantage was taken of Medley ; that his plea of guilty was entirely voluntary, and that, in entering the plea of guilty, he waived his right to counsel, and his right to a jury trial. These -rights can be -waived. Gideon v. Wainwright, 83 S. Ct. 792 (1963) ; Johnson v. Uerbst, 301 U. S. 458. Of course, since appellant pleaded guilty, the statement or confession that he alleged (in his petition) to have been involuntarily obtained, never reached any jury, and it can hardly be contended that any prejudice resulted. It might be mentioned, however, that Escobedo v. Illinois, 378 U. S. 478, relied upon by Medley in his contention that his statement was made without benefit of counsel, cannot be of aid to appellant, for without distinguishing the instant case from that of Escobedo, it is enough to say- that that holding affected only those cases in which the trial began after June 22, 1964. Johnson et al v. New Jersey, 384 U. S. 719. Medley was sentenced on January 4, 1963.

Likewise the contention of illegal search of his car (at which time the pistols were found) is without merit, for, as pointed out, the plea of .guilty was entered, and the record does not reflect that the pistols were ever offered in evidence. Accordingly, no prejudice could have, resulted.

"We find no violation of any of appellant’s constitutional rights, either federal or state.

Affirmed.

       We treat this as an appeal under Criminal Procedure Rule No. 1.

       The charge of kidnapping was subsequently dismissed.

       The only suggested improvement in the procedure followed by the court would have been for the court to specifically ask Medley, “Do you waive your right to counsel' and a jury trial?”

       A “sheriff’s report,” which appears in the record, explains very thoroughly why Medley was stopped at the road block and arrested, and also makes it evident that the officers made the arrest with reasonable cause, thus making the search of the car incident to the. arrest. However, the report cannot be considered as admissible evidence, and accordingly cannot be discussed.


text:
    Carmie DeSalvo et al v. Arkansas Louisiana Gas Co.
    5-4171
    412 S. W. 2d 822
    Opinion delivered March 27, 1967

      George J. Gambiano., for appellant.

      Gordon & Gordon, for appellee.
   Paul Ward, Justice.

This litigation began when the Arkansas Louisiana Gas Company (appellee) filed a suit to condemn a right-of-way (for the purpose of installing a gas line) eight feet wide' across 120 acre's of land belonging- to Cármié DeSalvo and A. B. DeSalvo, and their wives (appellants).

The jury verdict, in favor of appellants, was for the amount of $1,250, and for a" reversal appellants rely solely on the following point:

The court erred in denying appellant’s Motion to set a. 'de the verdict and for a new trial.

The Motion, in pertinent part, reads:

“It is the contention of defendants that said verdict is wholly inadequate to compensate the defendants for the damages to their land and crops, and that the verdict is not consistent with the evidence. . .”

At the beginning of their brief it is stated that “The main question appears to be Avhat are the damages to the lands of the defendants”.

In view of the manner in which this case comes to us for a decision, there being no- question raised about the competency of evidence introduced or the instructions given by the court, we must affirm the judgment unless we can say, as a matter of; law, it is inadequate.

We note that this case was- apparently not tried by the usual rule announced in the case of Ark. State Highway Comm. v. Webster, 236 Ark. 491 (p. 493), 367 S. W. 2d 233, where we quoted with approval-:

“ ‘By a long line of decisions we have established that the determination of the damage, in cases like these, is to be measured, by what the property was reasonably worth before the taking, and what the remainder of the ■ property is worth after the taking.” . • - -

The testimony relative to the damages suffered.by ap pellants is set out at length by several witnesses in a record consisting of more than 375 pages, and it is abstracted at length in the briefs. Considering the sole issue involved we deem it sufficient to set out only a brief summary of the pertinent testimony.

There was a taking of approximately 3.70 acres of Avood and pasture land, and approximately two acres of a vineyard. There was testimony fixing the damages in excess of the verdict but there was also contradicotry testimony. The major item of damages related to the vineyard. Damages to this item depended largely on the cost of restoration and the anticipated profits derived from the sale of grapes, about which there was a wide difference of opinions. There was, in this connection, a question whether the cost of production was being taken into consideration.

A consideration of all the testimony leads us to conclude that these matters presented fact questions for the jury to decide, and, viewing the testimony in the light most favorable to appellee, we cannot say the jury verdict was arbitrary as a matter of law. In. the Webster case, supra, we said :

“We have consistently held that in determining the sufficiency of the evidence to support a verdict we must view the evidence, with every reasonable in-, ference arising therefrom,, in a light most favorable to the appellee and if there is any substantial evidence to support the verdict rendered by the jury, the triers of the facts, we will not disturb it on nn appeal. ’ ’

Affirmed.

FoglemaN, J., disqualified.


author: Lyle BrowN, Justice. . CoNley Byrd, Justice,

text:
    Dierks Forest, Inc. v. Elwood Garrett et ux
    5-4172
    412 S. W. 2d 849
    Opinion delivered March 27, 1967

      Wood, Ghesnutt & Smith,, for appellant.

      Fred E. Briner, for appellee.
   Lyle BrowN, Justice.

This suit was brought by Elwood Garrett and Myrtle Garrett, husband and wife, against Dierks Forest, Inc. The trial court quieted title in the Garretts on their claim of adverse possession and awarded judgment for a small amount of timber cut and removed by Dierks.

Without stating the basis of their title, the Garretts simply alleged ownership in them, asserted that Dierks was trespassing, and asked that Dierks be enjoined. Dierks filed a denial and a counterclaim, alleging entry-under color of title and payment of taxes continuously for 22 years. Although the, complaint merely stated an action for trespass, the litigation was treated by all. participants as a.n action to quiet title. Thus Garretts and Dierks introduced their purported. records of title and their tax payments, and the Garretts introduced evidence on the contention of adverse possession.

We reach the conclusion that neither party established good record title; that Dierks established entry, in 1941, into unimproved and unenclosed lands under color of title; and that plaintiffs, the Garretts, did not meet the burden of proof with respect to adverse possession.

Record Title. Dierks obtained a deed in 1941 from the heirs of Mrs..Dyer, and the deed contained a definite description. However, when Mrs. Dyer obtained her deed in 1896, the land was described as “Part N% SWp)., Sec. 2, Twp. 1 S., R. 17 ~W'., 73 acres.” Dierks contends the'seven acres excepted from Mrs. Dyer’s deed is identified by a dedd conveying the excepted acreage by metes and bounds. In. other words, Diei’ks asks us to hold that since,, the location of the excepted ácreage is readily apparent, we should hold that the deed to Mrs. Dyer conveyed the. rest of the eighty acres. If this were a suit between the. Dyer heirs, and Dierks, we might so hold,, but otherwise-not. Jones, The Arkansas Law of Title to Real Property § 309 (1935). “Part” or “Pt.” generally invalidates a description for indefiniteness.

Appellees, the Garretts, .find themselves in a wilderness-of errors as concerns their record title. It would serve no- useful purpose to recite them. The Garretts obtained their, deéd from W. R. Dunn in 1942, one year after Dierks obtained its deed. There was no record of any .grant ever-having been made to Dunn. In fact, if Dunn intended to convey the acreage in dispute to the Garretts, he failed to do so, because the description in the de.ed called for fifteen acres in an adjoining quarter section.

Tax History. Dierks paid taxes on the N% SWUt, 73 acres (including the land claimed by the Garretts), under proper description and continuously from the date of its deed to the present. Taxes on an indefinitely described fifteen acres were paid by Mr. Dunn from 1940 through 1943, and by Elwood Garrett from 1944 through 1958. The Dunn and Garrett payments were made under a “Pt.” description. Garrett failed to pay taxes in 1959, 1960, and 1961, but he redeemed. Under his tax receipt description, the fifteen acres could have been anywhere in the EVa of the SW%.

From the record title and tax history we find that Dierks began paying taxes on the land in litigation for the year 1942, under color of title, and has timely paid taxes continuously since 1943. Garrett has paid taxes on fifteen acres — somewhere in the E% of the SWV2 — but his deed called for acreage in another quarter section. Thus he was paying taxes without color of title, and upon lands which were not susceptible of physical location by examination of the record. In 1963 .and 1964, the Garretts obtained a correction deed and two quitclaim deeds. Even if these were valid deeds, they could not serve to disrupt a title already vested. Two of the deeds were in fact obtained after the filing of this. suit.

Dierks placed its deed of record on November 18, 1941. At that time the lands were unimproved and unenclosed, except for some evidence of old fencing. No other person was in actual possession at the time, nor had the lands been occupied since 1929. The lands were placed on the tax records in Dierks ’ name, under a valid description, for the year 1942. Dierks paid, and continued to pay, the taxes, for more than seven consecutive years. Dierks’ claim ripened into good title, and that title was held at the time this suit was filed. See Ark. Stat. Ann. § 37-102 (Repl. 1962).

Under the circumstances of Garrett’s entry upon the land in 1942 — that is, without color of title, and with an obscure record of tax payments by his. grantor, Dunn — Garrett could defeat Dierks’ claim only by adverse possession. The Garretts.’ evidence in this respect is wholly insufficient, especially in view of their having the burden of proof. Clem v. Mo. Pac. Rd. Co., 223 Ark. 887, 269 S. W. 2d 306 (1954).

Some of Elwood Garrett’s relatives had lived on the property many years ago, but the time and dates are not established. The last known occupant, prior to Garrett, appeared to be Bill Dunn, who left the land in 1928 or 1929. After that'time the property was not occupied or cultivated, and it grew up in timber. Then in 1942, or shortly thereafter, Garrett purported to take charge. There were remnants of a fence, partially on the front and on one side of the property. This fencing was broken down but Garrett said he “could see where the fence was, had been.” Using “hog wire,” he proceeded to fence fifteen acres, except the part in the creek and ‘ ‘ down the straight part of the road, not down where it turns.” He tried to dig a water well but was unsuccessful. He lived in a two-room house which he placed on the' property and after a few months moved back to Arizona, where he had employment. Thereafter, a relative lived in the house for about one year. Garrett would return to Arkansas intermittently and would pay taxes., either personally or through a relative. The little house eventually collapsed.

What we have said is a fair summary of the extent of Garrett’s, dominion over the property. It falls far short of being possession that is actual, open, notorious, peaceable, continuous, hostile, and exclusive for a period of seven years. See, Supplement to Jones’ Arkansas Titles, § 1498 (1959).

Reversed and remanded with directions, that title be quieted to the lands in controversy in appellant, Dierks,. and that the complaint in damages for trespass be dismissed.

JoNes and Byrd, JJ., dissent.

. CoNley Byrd, Justice,

dissenting. I dissent from that part óf the majority opinion which directs that title to the lands in controversy be quieted in appellant, Dierks Forests, Inc., by virtue of seven years’ payment of taxes under color of title, as provided in. Ark. Stat. Ann. § 37-102 (Repl. 1962).

The facts show that when Dierks obtained its color of title in 1941, the premises in controversy were fenced with hog wire. When the Garretts obtained their deed and went into possession in 1942, they repaired the fences with barbed wire and built a house, on the property. Obviously, Dierks could not acquire title under § 37-102 as long as the premises were enclosed. Schmeltzer v. Scheid, 203 Ark. 274, 157 S. W. 2d 193 (1941). Therefore-, Dierks could not have obtained any title under § 37-102 until seven years after the premises returned to a state of being wild and unenclosed.

In Schmeltzer v. Schied, supra, in considering Ark. Stat. Ann. § 37-102, supra, we held that the obvious and declared purpose of § 37-102 was to encourage the payment of taxes and to protect persons who pay them.

In Spradling v. Green, 226 Ark. 420, 290 S. W. 2d 430 (1956), we had before us Mr. Spradling, the owner of a five-acre tract in the SE1^ of the NE14, who had been erroneously paying taxes under a description in “the SW-pt. of the NE of ,the NE,” from 1902 until 1945, when the description was corrected to read “the SW-pt. of the SE of the NE.” The taxes on the 40 -acres described as the SE of the NE forfeited to the state for the tax year 1935, and the state’s title thereto was confirmed in 1941. Thereafter Mr. Green purchased the SE of the NE from the State Land Commissioner. In holding Mr. Green’s state land deed ineffective as against Sprad-ling’s payment of taxes under the erroneous description, which amounted to a double taxation, Ave there said:

“‘...The right to sell is founded on the nonpayment of the tax. If the tax be paid before the sale, the lien of the State is discharged, and the right to sell no longer exists. Where the OAvner has performed all of his duties to the government, no court will sanction, under any circumstances, the forfeiture of his. rights of property. The laAv was intended to operate upon the unwilling and negligent citizen alone. The legislative power extends no further. The sale involves an assertion by the officer that the taxes áre due and unpaid, and the purchaser relies upon this, or on his own investigations, and his title depends upon its-truth . . .’ ”

.Here it is- admitted that appellees and their predecessors have been paying taxes upon the disputed tract under a part description from 1901 to date. Since under our adjudicated cases a tax forfeiture upon the description used by Dierks Avould not defeat appellees’ title because of the double tax payments, I cannot interpret § 37-102 as creating a greater forfeiture against a property owner. - ■ .

For these reasons I would affirm the action of the trial court in quieting title in appellees, since their .predecessors in title had apparently acquired the lands either by purchase or adversely from Dierks’ predecessors in title.

J ONES,, J., joins in this dissent.


author: JohN A. FoglemaN, Justice.

text:
    Duncan Walter McIntyre v. State
    5250
    412 S. W. 2d 826
    Opinion delivered March 27, 1967

      Jesse B. Thomas, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   JohN A. FoglemaN, Justice.

Duncan Walter McIntyre, the appellant, was sentenced to 18 years in the Arkansas Penitentiary by the Circuit Court of Garland County on August 4, 1961, upon a charge of burglary alleged to have been committed on the first day of August, 1961. He was committed to the penitentiary and, on the 29th day of November, 1965, filed a motion in forma pauperis to vacate the sentence under Criminal Procedure Bule No. 1. He alleged that his rights under the United States Constitution were violated in that he was deprived of the assistance of counsel in his defense by reason of the fact that he was not advised of his right to counsel at any stage of the proceeding against him.

The motion was heard by the Garland Circuit Court on the fourth day of April, 1966. At this hearing the court heard, the Ustimony of appellant and. Bay Davis, an officer of. the Arkansas State Police. McIntyre testified that he did not have a.lawyer when he entered his plea of guilty and that he was never advised that he was entitled to a lawyer. He denied having waived his right to counsel and said that the question was never brought up. He admitted that he had been convicted of crime before, but stated that he had never had a trial, having always entered a plea of guilty. On examination by the court, he. admitted that he did not ask for an attorney. The State introduced a statement of appellant’s obtained by police officers immediately after his arrest. This statement showed no felonious intent on the part of appellant. The prosecuting attorney described it as not having admitted anything. The state police officer only introduced the criminal record of appellant.

The court denied the motion and filed its finding of fact. The findings state that appellant entered a plea of guilty and that the State had offered testimony that appellant “had been advised of his rights before entering a plea, and that he knew his sentence would be eighteen years”. There is no. evidence to contradict that of appellant as to his waiver of the right to counsel, nor is there any finding by the trial court that there was such a waiver. In this respect, the present, case is readily distinguished from the case of Deckard v. State, 241 Ark. 504, 408 S. W. 2d 604, where the court, after a formal hearing and comprehensive review of the record, made detailed written findings of fact adverse to the accused’s contentions before denying the motion. In the Dechard case, this court found the trial court’s findings of fact to be sustained by the record. Likewise in Wells v. State, 241 Ark. 1067, 411 S. W. 2d 529, the record disclosed a waiver of the right to counsel after defendant was advised of this right by the trial court.

It has been made absolutely clear by the Supreme Court of the United States that an accused is entitled to relief from a conviction, under the due process clause of the Fourteenth Amendment to the Constitution of the United States, whenever the proceedings .indicate the unfairness of trial without the help of a lawyer. Carnley v. Cochran, 369 U. S. 506, 8 L. Ed. 2d 70, 82 S. Ct. 884 ; Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 ALR 2d 733. In view of the fact that the charge against appellant appears to have been based upon his statement, it seems beyond question that appellant stood in need of the assistance and advice of counsel. Under federal constitutional standards prescribed by the United States Supreme Court, the acceptance of appellant’s plea of guilty without a conscious waiver of his right to assistance of counsel violated the Fourteenth Amendment. Carnley v. Cochran, supra ; Gideon v. Wainwright, supra. It was held in the Carnley case that, nnder circumstances where the assistance of counsel is a constitutional requisite, any waiver thereof must be; intelligently and tmderstandingly made, failure to request assistance of counsel is not a waiver and, in order to justify finding a waiver, the record must show or there must be evidence that shows that an accused was offered counsel but intelligently and under standingly rejected the offer. The only effect of appellant’s plea of guilty in this regard is to raise a question of fact re-! quiring a hearing. Rice v. Olson, Warden, 324 U. S. 786, 789-791, 89 L. Ed. 1367, 1369-1371, 65 S. Ct. 989, Carnley v. Cochran, supra.

In order to meet the constitutional requirements set out in these and similar decisions of the United States Supreme Court, this court adopted Criminal Procedure Rule No. 1 to provide for state post conviction relief. Since the files and records of the case would not show, that McIntyre was not entitled to relief, the trial court properly conducted a hearing under Paragraph (E) of the Rule. This paragraph requires that the trial court shall determine the issues and make written findings of fact and conclusions of law with respect thereto. There is no finding of fact in this case that appellant was advised of his right to counsel, or that he was offered counsel or that he waived this right. Nor is there any evidence in the record upon which the trial judge could have based such a finding. The docket sheet in the case reveals nothing in this respect. No witness to the proceedings when appellant’s plea was accepted was offered and there is no statement by the trial judge who appears to have been the same judge who accepted the plea of guilty.

In the face of these deficiencies in the findings of the trial court and the evidence at the hearing, we have no alternative except to reverse the order of the lower court denying the motion to vacate the sentence and to remand this case for a new trial of the appellant on the charge of burglary.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    James C. Cherry & Francis D. Cherry v. James Montgomery
    5-4119
    412 S. W. 2d 845
    Opinion delivered March 27, 1967

      Dulaney & Dulaney, Gentry & Gentry, and Shaver & Shaver, for appellant.

      Harold Sharp and James Robertson, for appellee.
   John A. Fogleman, Justice.

The question to be determined on this, appeal is whether there was error in failure of the trial'court to direct a verdict for appellants. The only inquiry necessary on this question is whether there is evidence that appellee produced a purchaser ready and willing to purchase lands of appellants listed for sale with appellee Montgomery on terms specified by appellants. We find conflicting testimony on all other fact questions sufficient to justify submission of those questions to the jury. They were resolved by the jury verdict, there being no question about the propriety of the instructions given. The only complaint about jury instructions is appellants’ contention that the court should have given a binding instruction which was refused, and on which we find it unnecessary to pass. Ap-pellee contends that Jonesboro Investment Corporation was ready and willing to buy the lands of appellants listed for sale with appellee, a real estate broker, upon the terms of the listing. In stating facts, we will remember that the jury made certain factual determinations contrary to evidence offered by appellants which was contradicted and that, in considering the question to be resolved, the evidence and all proper inferences therefrom are to be viewed in the light most favorable to appellee.

The exclusive listing contract under which appellee seeks recovery of a real estate commission gave him an exclusive agency for one month from the date thereof— December 11,1963 — at a price of $900,000.00 “to be paid according to price and terms herein given”. The terms were not stated anywhere in this agreement. Appellee contends that he performed his undertaking by obtaining Jonesboro Investment Corporation as a purchaser for $900,000.00 cash. Appellants, contend that even if this prospective purchaser was ready and willing to purchase at that price, its “offer” or “acceptance”, whichever it is called, was conditional in that it was. made upon the express condition that the lands have a cotton allotment of 700 acres and a rice allotment of 100 acres. They further contend that this proposal was not pursuant to the terms of the listing in that it did not except from the proposed purchase a certain mantel piece built into the fireplace in the dining room of the Cherry dwelling house on the land. It is undisputed that one of the specific terms upon which the listing was given was that this mantel was. to be kept by appellants, regardless of any other terms. Mrs. Cherry said that this mantel had been owned by her family for over 100 years and, in addition to its sentimental value, had a monetary value of several thousand dollars.

The evidence on this point shows that the prospective purchaser was informed by appellee that the mantel was. to be excluded in the very earliest negotiations with it. The officers of Jonesboro Investment Corporation, as. agents for X corporation (not then formed), made an offer of $830,000.00 for the land, to be paid over twenty-five years, in which they made no mention of any condition with reference to acreage allotments but clearly specified that the marble mantel would be reserved to appellants who would have been given six months after closing to remove it. The offer, of course, was not at the price specified in the listing. The offer upon which appellee relies was contained in a letter from Jonesboro Investment Corporation dated December 19, 1963 (after Mr. Cherry advised that the first offer was unacceptable) addressed to James Montgomery stating that the corporation accepted his. offer of the Cherry farm, that they enclosed a $25,000.00 check for earnest money, and that “700 odd acres” of cotton allotment and “100 odd acres” óf rice allotment were understood to be on the farm. No mention whatever is made of the mantel and the payment of the $900,000.00 purchase price was specified upon presentation of warranty deed and satisfactory title.

The appellee had, on the night of December 18th, arranged by telephone for an appointment with Mr. Cherry and appellants’ attorney for December 21st. The earnest money cashier’s check introduced was. dated December 20th, having been delivered after December 21st to appellee in lieu of a company check. An endorsement on the check refers to a “December 19th contract of acceptance,” the date having obviously been changed from December 18th — the date of the first offer. The officers, of the prospective purchaser, appellee, Mr. Cherry and appellants’ attorney all met on December 21st as arranged. All parties admit that the “acceptance” of December 19th was not mentioned at this conference by anyone, although there was discussion about terms of sale, and a later conference was agreed upon, and was later held on December 27th. No explanation was given for not mentioning this “acceptance” at the meeting of December 21s.t. Appellee had not advised appellants. of the earnest money check on December 21st. On December 23rd the prospective purchaser asked ap-pellee to put the check in the bank. The ticket for the deposit indicates the date of deposit to be December 22nd (a Sunday). The bank’s endorsement of the check is dated December 24th. Jonesboro Investment Corporation first advised appellants that they had bought the land by this “acceptance” sometime between the two conferences. Appellee advised Mr. Cherry of the earnest money check sometime before the latter conference. At the meeting of December 27th the officers of Jonesboro Investment Corporation advised Cherry that they had bought the farm for $900,000.00.

We find no evidence making a question of fact as to whether the prospective purchaser was willing to purchase the land and exclude the mantel, or from which an inference that they were may be justified. Appellee relies on testimony by Parker of Jonesboro Investment Corporation that it didn’t make any difference to him whether they got the mantel or not. The testimony of appellee on which reliance is placed on this point is as follows:

“Q. Show you a copy of a letter of the 19th you were talking about, signed by Mr. Spurlock and Mr. Parker, anything in there about the marble mantel?
A. No, sir. Said they could have it.
Q. It isn’t in there?
A. Would give it to them.
Q. You call this an acceptance?
A. Yes, sir. That was an acceptance.
Q. Wouldn’t they be insisting they were entitled to everything in the house?
A. Might have forgot and left that out.
Q. Isn’t in there?
A. Would have put it in there.”

Spurlock testified that he and Parker were ready, willing and able to purchase the farm on the terms and conditions he and Parker “described”. Our review of the record reveals no testimony whatever that anyone ever informed the Cherrys that Parker and Spurlock were willing to accept a conveyance excluding the mantel. We think that the only inference which can reasonably be drawn from the December 19th letter is that Jonesboro Investment Company was unwilling to accept the Cherry property without the elaborate marble mantel, or without an assurance of crop allotment acreages, if they were to pay $900,000.00 cash rather than $830,000.00 by payments scattered over twenty-five years. A witness’s affirmative answer to the question whether he was ready, willing and able to purchase realty is a mere conclusion, insufficient to make out a prima facie case for a broker in an action for a commission and is of no probative force in the light of undisputed contrary facts. Apple-Cole Co., et al v. Shackel, et al, 324 Ill. App. 230, 57 N. E. 2d 758 (1944).

This case is very similar to Sharrar v. Nestle, 193 N. W. 239, (Mich. 1923) wherein it was held that the trial court properly directed a verdict against a broker suing a landowner for a commission. The listing specified that all lumber and barn frame and some of the rosebushes and peonies on the lands were to be reserved. The written offer submitted by the prospective purchaser contained no statement about the reserved property. The record showed that the lumber and barn frame were so attached to the realty that a deed of the farm would convey title to them. This was a basis for holding that the broker had failed to show compliance with his contract with the landowner. There can be no doubt from the evidence in this case that-a deed to the farm of appellants would have conveyed the marble mantel if there were no clause in the deed to exclude it.

All parties concede that appellee would be entitled to recover only if the evidence shows that he produced a purchaser ready, willing and able to buy upon the terms and conditions specified in the agreement between the broker and the landowners. An offer to purchase or “acceptance”, as the case may be, which did not exclude the marble mantel was not on the terms and conditions of appellee’s contract. Another condition of the prospective purchaser was that there be over 700 acres cotton allotment and over 100 acres rice allotment. Parker stated unequivocally that the acreages were a condition of his comp ny’s acceptance. This was not a part of the terms specitied by Mr. Cherry. The only evidence that the land actually carried those acreage allotments was the statement of appellee that Cherry told him that the 1964 allotments were 705 acres of cotton and 109 acres of rice. Appellee stated that he gave these figures to Parker and Scurlock. Appellee argues that this does not render the purchaser’s offer conditional because there is no evidence that there is not more than 700 acres of cotton allotment and 100 acres of rice allotment. The burden of proof was on appellee to show that he produced a purchaser who was ready, willing and able to purchase on the terms and conditions specified by the owner. Gladys Bell Oil Co. v. McGee, 172 Ark. 1176, 291 S. W. 72. Consequently, the absence of proof would militate against appellee.

In Weldon v. Lashley, 214 Ga. 99, 103 S. E. 2d 385 (1958) it was held that proof of an offer by a purchaser containing a provision that the number of acres in the tract on which the sale price would be calculated be determined by a survey of the property provided and paid for by the purchaser showed a material variance from the broker’s listing in which the sale price was $2,500.00 per acre, s,o that it was error to deny a directed verdict in the broker’s suit for compensation.

A judgment in favor of a broker employed to secure a loan was held erroneous fo, failure to secure a lender ready, willing and able to make a loan on borrower’s terms, when the offer was conditioned upon an examination of borrower’s property. Robertson v. Carvey, 9 Alaska 488 (1939). It has also been held that a directed verdict was proper in a; suit by a broker for a commission for the sale of a garage when the purchaser was not willing to take the property as he found it, hut agreed to buy providing the premises would show a specified net profit. Stuart v. McEttrick, 136 N. E. 395 (Mass. 1922).

The trial court erred in denying a directed verdict. The judgment of the lower court is reversed and the case having been fully developed, is dismissed.

Byrd, J, dissents.

       A suit by Jonesboro Investment Corporation for specific performance was dismissed upon, demurrer invoking the Statute of Frauds because the listing contract did not show the terms and conditions of sale. Jonesboro Investment Corporation v. Cherry, 239 Ark. 1035, 396 S. W. 2d 284. This action arose from a cross complaint by appellee against appellants in that suit both having been parties defendants therein.

       While appellants do not raise the issue, the right of a broker to a commission upon an offer of a purchaser to enter into a contract upon a vendor’s terms, made to the broker, and not the vendor, has been questioned. Mattingly v. Pennie, 105 Cal. 514 (1895) ; Hicks v. Christeson, 174 Cal. 712, 164 P. 395 ; Frank Meline Co. v. Kleinberger, 246 P. 136 (Cal. 1926).