author: David Newbern, Judge.

text:
    William I. RILEY v. STATE of Arkansas
    CA CR 79-35
    593 S.W. 2d 45
    Opinion delivered December 12, 1979
    Released for publication January 23, 1980

      Paul Petty and John Patterson, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   David Newbern, Judge.

In his first and third points for reversal of his conviction of theft by receiving, the. appellant complains of an unlawful search and insufficiency of evidence to show he knew the lawnmower he received was stolen. We hold the appellant gave valid consent to the search and the evidence of his knowledge was sufficient. In his second point, however, the appellant contends the evidence was not sufficient to show the value of the lawnmower to be over $100, and thus the charge should have been reduced from class C felony to class A misdemeanor. We agree and modify the sentence accordingly.

I.

Edgar Sharp testified he and the appellant had a conversation in the presence of customers at Smith’s Grocery, where Sharp was employed, in which they discussed the appellant’s desire to buy a riding lawnmower. The appellant told Sharp he wanted one and would pay $300 for a good one. No testimony showed the appellant asked Sharp to steal a mower or that Sharp said that was the manner in which he proposed to obtain one for the appellant. Sharp said he had a couple of boys who were “in the business” and thus could supply the mower. He further testified he asked David Jansen to steal a mower belonging to Mrs. Spoon and deliver it to the appellant’s home place which he pointed out to Jansen.

Jansen’s testimony confirmed that he was procured by Sharp to steal Mrs. Spoon’s mower. He, in turn, invited his friend, Steve Shelton, to help. Sharp paid Jansen $100, and Jansen paid Shelton $50. Jansen testified that after he and Shelton took the mower from Mrs. Spoon’s yard, they delivered it to the appellant’s place, unloaded it beside the appellant’s barn and covered it with hay. Jansen testified the appellant’s mobile home was situated about 50 yards from the barn. It was after dark when the delivery was made, but there was a light at the mobile home, and someone came out of it while they were unloading the mower. The apparent intention of the appellee in eliciting this testimony was to show the occupant of the mobile home knew the delivery was taking place.

Shelton also testified, confirming Jansen’s story about the delivery and adding that there was a gate on the appellant’s property through which they had to pass and that the gate was “down.” Another witness said the appellant’s gate was usually closed because he kept livestock inside the fence.

Our conclusion is that this evidence was sufficient to show the appellant knew the mower, of which he was later found in possession, was stolen property. We agree with the appellee’s conclusion that the fact the lawnmower was covered with hay upon delivery would be sufficient to show the appellant knew he was not involved in a regular business transaction. This evidence was at least sufficient to make a jury question.

Mrs. Spoon reported her mower stolen on September 21, 1978. On October 11, 1978, Mrs. Spoon’s mower was found at the appellant’s property. Possession of recently stolen property, if not satisfactorily explained to the jury, is sufficient to sustain a conviction. Patterson v. State, 253 Ark. 393, 486 S.W. 2d 19 (1972). See also, Paschal v. State, 243 Ark. 329, 420 S.W. 2d 73 (1967). Although the appellant presented an explanation that he had purchased the mower from someone whose name he did not know, the jury apparently found the explanation unsatisfactory. It was the jury’s responsibility, of course, to evaluate the credibility of the witnesses. Smith v. State, 258 Ark. 601, 528 S.W. 2d 389 (1975).

II.

The search of which the appellant complains occurred when a state police investigator and a deputy sheriff went to the appellant’s home. They had information from Jansen and Shelton that the mower had been left at a place meeting the description of the appellant’s. The deputy said he recognized their description as being of the appellant’s property. Upon their arrival, according to the investigator’s testimony, they informed the appellant they were there “checking on a lawnmower,” and the appellant explained how he had recently purchased a mower. He told them two conflicting stories, however, as to where he had purchased it. When he was asked if the investigator and the deputy could look at the mower, he readily assented and took them outside to see it. The appellant was not arrested at that time although the serial numbers on the mower were found to be the same as those on Mrs. Spoon’s missing machine. No warnings were given to the appellant at any time during this visit, nor was he advised of his right to withhold his consent to the “search.” The state police investigator testified he did not suspect the appellant at that time. The deputy, who admittedly knew less of the details of the case at that time, said at one point in his testimony that he suspected the appellant of a crime when he went to the appellant’s place.

The appellant cites a number of cases dealing with the traditionally produced evidence of involuntariness of consent, i.e., coercion by threat or promise. They need not be dealt with here, however, as there is no serious contention the consent was coerced. The contention, rather, is that the lack of a showing by the appellee that the appellant knew of his right to refuse to permit the warrantless search makes his consent other than “knowing and voluntary.”

The appellant acknowledges that knowledge of the right to refuse has been held to be only one factor in determining voluntariness as required by the fourth and fourteenth amendments to the U.S. Constitution. Watson v. U.S., 423 U.S. 411, 96 S. Ct. 820 (1976); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973). Those cases also hold proof by the prosecution of knowledge of the right to consent is not necessary to a showing of.voluntary consent sufficient to satisfy the U.S. Constitutional requirements.

There certainly was no evidence here of any kind of oppression or promise which would cause us to hold the consent to have been involuntary when combined with the lack of proof of knowledge. The appellant seems to admit there was no violation in the “traditional” sense of his rights under the fourth and fourteenth amendments, but on the other hand he seems to argue that there was some requirement he be advised of his right to refuse consent just as he could have asserted a right to be advised of his right to remain .silent if he had been a suspect. Any such contention that the U.S. Constitution imposes that requirement, is laid soundly, logically and emphatically to rest in the Schneckloth Case, supra, in which the U.S. Supreme Court made it clear that the warning rights associated with confessions and trial safeguards may not be transferred to the context of consensual search.

The Schneckloth Case has been cited by the Arkansas Supreme Court on several occasions. In Enzor v. State, 262 Ark. 545, 559 S.W. 2d 148 (1978), Judge (then Justice) Howard cited it to show there was no requirement of a showing of knowledge of the right to refuse consent to search where there was a showing of consent. Earlier, in a dissenting opinion, Justice Byrd had mentioned that it held a “Miranda warning” was not required in such a case. Byars v. State, 259 Ark. 158 at p. 183, 533 S.W. 2d 175 at p. 188 (1976). Although the Enzor Case might be deemed sufficient to cover the matter, the Arkansas Supreme Court has not had occasion to decide whether it will go beyond the requirements of the fourth and fourteenth amendments and say some other rule or sense of fair play requires a person whose property is to be searched be told he need not consent. We are persuaded there should be no such requirement. In the Schneckloth Case, Mr- Justice Stewart’s opinion, in addressing the suggestion that advice of the right to refuse be regarded as a prerequisite to consensual search, said the following:

That, however, is a suggestion that has been almost universally repudiated by both federal and state courts, and, we think rightly so. For it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person’s home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning. The police may seek to investigate further suspicious circumstances or to follow up leads developed in questioning persons at the scene of a crime. These situations are a far cry from the structured atmosphere of a trial, where, assisted by counsel if he chooses, a defendant is informed of his trial rights. Arid, while surely a closer question, these situations are still immeasurably far removed from “custodial interrogation” where, in Miranda v. Arizona, we found that the Constitution required certain now familiar warnings as a prerequisite to police interrogation. [412 U.S. at 231-232, citations and footnotes omitted]

As we find this language and general approach highly persuasive, we approve the conduct of the officers in this case and find no violation of any constitutional right or fairness ethic resulted from the lack of advice as to the right to refuse to consent to the search.

III.

The appellant was convicted of a class C felony for violation of Ark. Stat. Ann., § 41-2206 (Repl. 1977). To prove a class C felony the state must show the value of the property to be in excess of $100. If the property is shown to have some value but less than $100, theft by receiving it becomes a class A misdemeanor.

The proof of value here included (1) Mrs. Spoon’s testimony the lawnmower was inoperable and she considered selling it for $50 or $75; (2) Sharp’s testimony that the appellant was to pay $300 for the mower; (3) a ledger sheet showing the mower was purchased for $537.90 some four years before it was stolen; and (4) testimony of a mower repairman that the mower could be worth more or less than $100, depending on its condition.

The burden was on the appellee to show the value of the mower to be in excess of $100. Lee v. State, 264 Ark. 384, 571 S.W. 2d 603 (1978); Rogers v. State, 248 Ark, 696, 453 S.W. 2d 393 (1970). Viewing the evidence most favorably to the appellee, we find it not sufficient to form a basis of a factual determination that the mower was worth more than $100. The 1974 price was too remote. Cf., Cannon v. State, 265 Ark. 270, 578 S.W. 2d 20 (1979), and Williams v. State, 252 Ark. 1289, 482 S.W. 2d 810 (1972). The price agreed to by the appellant for a mower he had neither seen nor even had described to him is not relevant to establishment of a market price, or cost of replacement. Ark. Stat. Ann., § 41-2201 (11) (a) and (b) (Repl. 1977). The testimony of the repairman became virtually worthless when, having testified on direct examination the mower was worth $100, he answered “possibly” to a question on cross examination whether the mower might be worth more or less than that amount.

The evidence supported conviction for theft by receiving of property of some value but less than $ 100. The error in overruling the appellant’s motion at the end of the state’s evidence to reduce the charge to a class A misdemeanor will be cured by reducing the sentence from confinement in the state penitentiary for three years to confinement of one year in a place to be determined by the circuit court and reduction of the fine from $3000 to $1000. Cannon v. State, supra.

Affirmed as modified, and remanded for determination of the place of confinement.


source: Caselaw Access Project

author: Ernie E. Wright, Judge.

license: Public Domain

text:
    REVERE COPPER & BRASS, Inc., v. Leonard BIRDSONG
    CA 79-68
    593 S.W. 2d 54
    Opinion delivered December 19, 1979
    Rehearing denied January 23, 1980
    Released for publication January 23, 1980

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

      Sam Boyce, for appellee.
   Ernie E. Wright, Judge.

This is an appeal by the employer from a decision of the Workers’ Compensation Commission finding claimant, Leonard Birdsong, totally and permanently disabled and awarding compensation accordingly.

Appellee was 62 years of age at the time of hearing and had been in the employ of appellant for some 17 years prior to the injury. He sustained a compensable injury in the course of his work on or about June 23, 1976 while moving some steel. He felt a sting in his shoulder and the next morning was unable to move his left arm. He consulted his physician, Dr. John D. Ashley, and was referred to Dr. Richard M. Logue, an orthopedic surgeon. On March 8, 1977 Dr. Logue operated on his arm in an effort to correct the condition resulting from the injury. After the operation claimant convalesced until June 24, 1977 when he returned to work. The condition of his arm grew worse and after work on January 19,1978 the claimant quit working because of the arm injury, combined with problems with his knees. He had previously sustained a compensable scheduled injury to his left knee in 1966 while working for the same employer, resulting in an award of twenty per cent partial disability to the left leg. He thereafter developed arthritis in both knees and was treated for this condition by Dr. Ashley.

The evidence before the commission includes the report of Dr. Logue, who assessed claimant’s disability from the injury as thirty per cent loss of function to the arm due to the rupture of the biceps. Dr. Ashley testified he saw the claimant on June 24, 1976 and found the claimant had a marked weakness in his left upper arm, swelling in the mid portion of the arm, and that when the muscle would contract the arm would not move. It was his conclusion the claimant had a rupture of the head of the left bicep muscle. He had occasion to treat claimant for other conditions subsequent to the corrective surgery by Dr. Ashley, the last time being incident to hospitalization of claimant in. April of 1978 for osteo-arthritic problems with his knees and other complaints. He observed the arm surgery had not been successful, and gave a written report in May, 1978, expressing the following opinion regardng the disability arising from the arm injury:

He has previously suffered an industrial injury to the left leg and as a result of favoring this leg, he has developed arthritic symptoms in the right leg. As a result of this last injury to his arm and his previous leg injury interpreted in light of his over-all physical condition, I feel that Mr. Birdsong’s last injury is perhaps “the straw that broke the camel’s back” in creating a total disability situation.

Dr. Ashley testified in his opinion the claimant is permanently and totally disabled and the arm injury was the final factor in creating the total disability. Claimant testified he was unable to continue his employment after january, 1978.

The Workers’ Compensation Act defines disability as 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.

The evidence shows claimant has limited education, has worked only at manual-labor, and has no training in other fields of work.

The case of Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961) rejects the theory that only clinical findings can be considered in determining disability, and points out that consideration should be given to a claimant’s age, education, experience and other matters affecting wage loss in addition to medical evidence.

The evidence shows appellee was able to work after the 1966 scheduled knee injury, but there was medical evidence in addition to his own testimony that he became totally disabled to continue working after his last day of work on January 19, 1978, and that the precipitating cause was the arm injury.

In Cooper Ind. Products v. Worth, 256 Ark. 394, 508 S.W. 2d 59, (1974), the court held a scheduled injury may give rise to an award of compensation for total disability under Ark. Stat. Ann. § 81-1313 (^) where the scheduled injury proves to be totally and permanently disabling. The case also holds that on appeal we must give the findings of the commission the strongest probative force in favor of the Commission’s decision.

Appellant argues the opinion of Dr. Ashley should be disregarded because it went beyond assigning functional impairment. Ark. Stat. Ann. 28-1001, Rule 704 permits opinion testimony embracing an ultimate, issue to be decided by the trier of fact. The opinion of Dr. Ashley was received without objection and the factors upon which the opinion was predicated were detailed. It was proper for the commission to weigh Dr. Ashley’s testimony, along with all other evidence.

The question of permanent total disability is an issue of fact and all relevant evidence bearing upon the issue should be considered.

We conclude there is substantial evidence to support the findings of the commission that claimant is totally and permanently disabled as a result of the arm injury sustained in the course of employment, when the condition of his arm is considered along with the scheduled permanent disability to his leg and other physical conditions. However, the undisputed evidence shows claimant actually worked during the period from June 24, 1977 through January 19, 1978, and the evidence does not support the commission’s finding of permanent total disability as beginning prior to January 20, 1978.

The commission’s award is modified to show the commencement date of permanent total disability as being January 20, 1978, and as so modified the decision of the commission is affirmed.


author: James H. Pilkinton, Judge.

text:
    BUNNY BREAD and UNITED STATES FIDELITY AND GUARANTY CO. v. William E. SHIPMAN
    CA 79-103
    591 S.W. 2d 692
    Opinion delivered December 19, 1979
    Released for publication January 9, 1980

      Frierson, Walker, Snellgrove & Laser, for appellants.

      Warren E. Dupwe, for appellee.
   James H. Pilkinton, Judge.

This is a workers’ compensation case and is before the court on appeal from an award of the Arkansas Workers’ Compensation Commission finding that claimant is entitled, among other things, to all statutory benefits relating to a compensable injury suffered on December 11, 1978.

It was stipulated that on the date of the injury, claimant was a regular employee of Bunny Bread Company, earning a wage sufficient to entitle him to the maximum compensation rate of $87.50 per week.

The Commission found that appellee was injured within the scope of his employment and is therefore entitled to temporary total disability benefits and controverted attorney’s fees.

The appellants contend there is no substantial evidence to support the award, and say the claimant’s accident did not arise out of the normal course of his employment. Appellants contend appellee was injured during a deviation from his duties and, therefore, have controverted this claim in its entirety. The appellee, William E. Shipman, was the only witness who testified below, and the entire record is not long. Actually, there is no dispute over any material fact in this case. Mr. Shipman was a route salesman for the appellant, Bunny Bread Company. His route ran from Walnut Ridge to Hardy, Arkansas. On December 11, 1978, while traveling to Hardy to make his next delivery, appellee saw a car in the ditch and a lady standing beside the road. He recognized the lady and noticed she was attempting to flag him down. Mr. Shipman was unable to stop immediately because of ice on the road. He proceeded past the disabled vehicle, turned around and returned to the stranded motorist. Her car was off the road and in a ditch. He pulled his bread truck to the side of the road, and went over to see what assistance he could render. As Mr. Shipman prepared to drive the lady’s vehicle out of the ditch, he observed that the bread truck was perhaps blocking the ultimate pathway; and therefore, appellee attempted to get out of the stranded vehicle so that he could move the bread truck. Another vehicle, coming over the hill, slid on the icy road and crashed against the car on the side where Mr. Shipman was exiting, crushing his leg against the vehicle.

The sole issue involved is whether or not appellee’s “good Samaritan” act was such a deviation from his normal business duties as to take him outside the scope of his employment at the time of the injury.

The Commission held that the injury , in question did arise out of and in the course of appellee’s employment within the meaning of the law; that appellee-claimant has been temporarily and totally disabled for the period beginning December 12, 1978, and continuing to a date yet to be determined. Therefore, claimant’s healing period has not ended and the issue of permanent partial disability is not before the court. That question has been specifically reserved for future determination as provided by law.

I.

It was the duty of the Commission to draw every legitimate inference possible in favor of the claimant and to give him the benefit of the doubt in making factual determinations. Brower Manufacturing Co. v. Willis, 252 Ark. 755, 480 S.W. 2d 950 (1972). Further, the Commission in considering a claim must follow a liberal approach and, as stated above, draw all reasonable inferences favorable to claimant. Holland v. Malvern Sand and Gravel Co., 252 Ark. 755, 480 S.W. 2d 822 (1964). The same rules apply in determining whether the accident did, in fact, grow out of and occur in the course of the employment. Cox Lumber Co. v. Jones, 220 Ark. 431, 248 S.W. 2d 91 (1952); Brooks v. Wage, 242 Ark. 486, 414 S.W. 2d 100 (1967). See also Tinsman Manufacturing Company, Inc. v. Sparks, 211 Ark. 554, 201 S.W. 2d 573 (1947).

II.

On appeal this court’s inquiry is limited to determining whether the decision of the Arkansas Workers’ Compensation Commission is supported by substnatial evidence, and in so determining, we are required to view the evidence in the light most favorable to the decision of the Commission. St. Michael Hospital v. Wright, 250 Ark. 539, 465 S.W. 2d 904 (1971). Doubtful cases are resolved in favor of claimant. Cooper Industrial Products, Inc. v. Worth, 256 Ark. 394, 508 S.W. 2d 59 (1974). Thus, in disposing of this appeal, this court is only concerned with whether there is substantial evidence in the record to support the findings and award of the Commission. It is not within this court’s province to determine the preponderance of the evidence. Mounts v. Bechtel Corp., 256 Ark. 318, 507 S.W. 2d 99 (1974). Before we could reverse, this court would have to be convinced that fair-minded persons, with these facts before them, could not have reached the conclusion arrived at by the Commission. Purdy v. Livingston, 262 Ark. 575, 559 S.W. 2d 24 (1977).

III.

In considering the rules to be applied, it might also be mentioned that the burden of proof is on claimant-appellee to show that he sustained an accidental injury arising out of and during the course of his employment.

IV.

As stated in 1 Larson, Workmen’s Compensation Law, § 19.00 (1952):

An identifiable deviation from a business trip for personal reasons takes the employee out of the course of his employment until he returns to the route of the business trip, unless the deviation is so small as to be disregarded as insubstantial. In some jurisdictions, the course of employment is deemed resumed if, having completed his personal errand but without having regained the main business route, the employee at the time of the accident was proceeding in the direction of his business destination. (Emphasis supplied.)

Appellants take the position that under the circumstances of this case the appellee deviated from the business trip for personal reasons or a “good Samaritan” act; and consequently, took himself out of the course of his employment until such time as he resumed the course of his employment by completing his personal.errand or the “good Samaritan” act. Appellants’ contention is without merit.

Here the claimant’s act and deviation, if it may be properly so termed, was not a personal errand, but rather a “good Samaritan” act. The claimant was traveling his normal route, driving a vehicle furnished by the employer, when he saw a disabled vehicle. Also important was the fact that the claimant-employee had been instructed by his employer that every member of the general public was a potential customer and should always be treated with courtesy and consideration. If rendering assistance to a disabled motorist, under the circumstances of this case, may be considered a deviation from normal employment duties, the Commission determined that such action was not in time and place a sufficient deviation to constitute taking the claimant outside the scope of his employment. Tinsman Manufacturing Company, Inc. v. Sparks, supra; and Cox Brothers Lumber Co. v. Jones, 220 Ark. 431, 248 S.W. 2d 91 (1952).

There is substantial evidence in this record to support the conclusion of the Commission that the claimant’s deviation from his normal employment was so minor as to be regarded as an insubstantial deviation. Further, in view of the indoctrination of the claimant and his instructions concerning good public relations, we might question whether or not claimant’s “good Samaritan’’ act was even a deviation from his employment. The employer’s bread truck which the motorist flagged down had the Bunny Bread sign clearly displayed. Surely, except for the unfortunate accident which occurred, it would be difficult to argue that the employer would have objected to the claimant’s action in lending assistance to a disabled motorist.

The pages of 1A Larson, Workmen’s Compensation Law, § 27.22 (1952), are replete with illustrations of the lengths to which employees may be expected to go in pursuit of public good will. A number of courts have gone to considerable lengths in upholding awards for injuries occurring in the course of miscellaneous good Samaritan activities by employees, on the theory that the employer ultimately profited as a result of the good will thus created. In Lewis v. Kentucky Cent. Life Insurance Co., 20 N.C. App. 267, 201 S.W. 2d 228 (1973), an insurance collector and salesman was struck by an out of control automobile, while entering his own car after aiding a policy-holder whose automobile had stalled. He was held to have been in the course of his employment at the time of the accident. The test as applied by the North Carolina court is whether the employee was acting for the benefit of his employer or for his own benefit. The court held in that case that specific personal relations essential in the industry were promoted, as was also general good will.

In Carey v. Stadther, 219 N.W. 2d 76 (Minn. 1974), the widow of the deceased employee sought to recover dependency compensation benefits for the death of her husband, a feed salesman, who had died while trying to rescue a man from a cesspool. The Supreme Court of Minnesota reversed the Workmen’s Compensation Commission denial of benefits, and held that, when the deceased’s employer encouraged this type of community service Carey had done that day, and looked upon such activities as an essential sales technique, the salesman’s death arose out of and in the course of his employment, and his dependents were entitled to dependency benefits under the Workmen’s Compensation Act.

The good-will rule attained its ultimate expression in Gross v. Davey Tree Expert Company, 248 App. Div. 838, 290 N.Y. 168 (1936). In that case a tree trimmer who observed a lady in distress descended from his immediate duties to assist the lady in getting her car started. In so doing, he was injured. The court held he was entitled to benefits under his practice of helping those in distress and the policy of the employer to do everything possible to encourage good will.

The Commission in the case before us found appellee was entitled to benefits under the Arkansas Workers’ Compensation Act.

We find there is substantial evidence to support this conclusion.

Affirmed.


author: James.H. Pilkinton, Judge. George Howard, Jr., Judge,

text:
    Ronald LEWIS v. STATE of Arkansas
    CA CR 79-63
    591 S.W. 2d 687
    Opinion delivered December 19, 1979
    Released for publication January 9, 1980

      Jones & Tiller, by: Marquis E. Jones, for appellant.

      Steve Clark, Atty. Gen.,, by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   James.H. Pilkinton, Judge.

Appellant was charged with second degree forgery in violation of Ark. Stat. Ann. § 41-2302 (Repl. 1977). The state specifically alleged that on April 2, 1977 Lewis uttered a check which was purported to have been drawn on one Don C. Clark, who had not authorized the appellant’s act. After entering his plea of not guilty, and after numerous continuances were granted at the request of both sides, a jury trial was held on February 8, 1979. Lewis was found guilty as charged and sentenced to two years imprisonment.

I.

Appellant first contends the trial court erred in refusing to grant his motion for a directed verdict of not guilty. We find no merit in this argument. A directed verdict is proper only when no fact issue exists. On appeal this court reviews the evidence in the light most favorable to the appellee and will affirm if there is substantial evidence to support the verdict. Balentine v. State, 259 Ark. 590, 535 S.W. 2d 221 (1976); Harris v. State, 262 Ark. 680 at 682, 561 S.W. 2d 69 (1978). In the case before us, we cannot say that no factual issue existed. The trial court was correct in denying defendant’s motion for a directed verdict.

II.

An employee of Brandon Furniture Company in Little Rock testified that on April 2, 1977, appellant made a purchase and gave her the check in question for $41.20 payable to Brandon Furniture Company. At the time, appellant purportedly held himself out to be Don C. Clark. The Brandon employees were suspicious at the time, but having no poisitive proof, took the check nevertheless. However, they did take special note of the appearance and description of the individual involved.

A little over a month later appellant appeared at the John Tucker Warehouse in Little Rock. Teresa Mukerjea, the employee at Brandon with whom appellant had dealt before, was then working for Brandon’s at the Tucker warehouse. She recognized appellant, and called the police after he had left the warehouse. The police arrested appellant a short time later. He now claims on appeal that his trial was not fair because the state withheld certain original statements made by witnesses from appellant’s discovery. We find no merit in this argument. It is undisputed that Brandon Furniture Company employees Teresa Mukerjea and Tommy Claussen gave written statements to the police with regard to the check in question. Each witness wrote out the statement in long hand. A police department secretary then typed copies of each statement. Appellant introduced both the handwritten statements, and the typed copies, into evidence at the trial as Defendant’s Exhibits 1 through 4.

During the discovery period, defense counsel received copies of the typewritten statements via the “open file” policy of the Pulaski County Prosecuting Attorney’s office. The record is otherwise silent on the matter, but it was apparently only during the cross-examination of Officer Baer, who took the statements in the first place, that both the defense counsel and the state’s attorney learned that the longhand originals of the statements existed. The typewritten copies of the statements are identical to the handwritten originals except for the fact thát in the original statement of Ms. Mukerjea, some words were underlined by her, and this underlining was not shown on the typewritten version. Other than the underlineations, there are no differences whatsoever between the typed and handwritten documents. The wording is exactly the same. Thus no prejudice to the defendant could have occurred under the circumstances. The appellant’s argument, on appeal, that what happened constituted a violation of Rule 17.1 of the Arkansas Rules of Criminal Procedure is without merit. Neither does this case fall under the holding in Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415 (1978) as appellant claims.

III.

Appellant offered two proposed instructions concerning criminal simulation as defined.by Ark. Stat. Ann. § 41-2311. His theory was that the crime of criminal simulation is a lesser offense including a charge of forgery. The language of the commentary which accompanies Ark. Stat. Ann. § 41-2311 (Repl. 1977) (Criminal Simulation) states:

It [Section 41-2311] is designed to cover the fraudulent simulation of “objects” that are not written instruments within the definition of § 41-2301 (9). Such “objects” include antiques, paintings, and other objects d’art, as well as more common articles.

The commentary, although not legally binding, is highly persuasive in determining legislative intent. Britt v. State, 261 Ark. 488 at 495, 549 S.W. 2d 84 (1977).

Assuming without deciding that criminal simulation is in fact a lesser included offense of forgery, still appellant in this case would not be entitled to the instructions offered under the facts here. See Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972). The principle of law announced in Catón was codified in Arkansas Criminal Code, Ark. Stat. Ann. § 41-105 (3) (Repl. 1977) as follows:

The Court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.

See also Frederick v. State, 258 Ark. 553 at 557, 528 S.W. 2d 362 (1975). In the case before us the defendant-appellant was either guilty of the greater charge or nothing at all. The trial court was correct in refusing both offered instructions on criminal simulation.

IV.

Appellant’s final argument is that he was denied a fair trial below due to his inability to discover the names of persons, or to view additional checks, which were involved in other alleged line-ups. We find no merit whatsoever in this contention. If there were other checks not the subject of the instant charge which appellant was supposed to have written, they were clearly unrelated with the case being tried. Consequently, we are unable to see how the appellant was prejudiced thereby, nor does he so inform us. And, as noted by the trial judge, these alleged “other” check(s) were never referred to by the prosecution, but rather were called to the attention of the jury by the defense on cross-examination. Any resulting prejudice, therefore, was invited, and cannot be raised as an error on appeal. Strode v. State, 259 Ark. 859, 537 S.W. 2d 162 (1976). Thus appellant is in no position here to argue that his rights under Rule 17.1 and under Williamson v. State, supra, were abridged.

V.

This court has carefully considered all points raised by appellant, but finding no error the judgment of the Pulaski County Circuit. Court must be affirmed, and the conviction upheld.

Affirmed.

Howard, J., and Penix, J., dissent.

George Howard, Jr., Judge,

dissenting. I am unable to concur with the majority in affirming appellant’s conviction for it is plain, from a review of the record, that the State failed to comply with Rule 17 of the Rules of Criminal Procedure and the pronouncement of the Arkansas Supreme Court in Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415 (1978) which articulated the duty of a prosecuting attorney when a request for disclosure is made by a defendant.

On February 6, 1978, the defendant filed a rather detailed and comprehensive motion styled “MOTION FOR DISCOVERY, FOR BILL OF PARTICULARS, FOR PRODUCTION OF DOCUMENTS, AND FOR EXCULPATORY EVIDENCE”. Among other things, defendant’s Motion for Discovery provided:

10. The defendant requests the name of each person who has been interviewed by any agency but who the State does not intend to call at the trial of this matter and any statements written or oral given by such persons to any agent of any governmental agency.
12. The defendant requests that each of the above be considered to be a continuing request and demand and that the State amend its answers to so include such later discovered answers, after the time or its initial response hereto, as may come within the possession, custody or control of the State or by the exercise of due diligence may come within its possession, custody or control.

Rule 17.1 provides:

<d). . . [T]he prosecuting attorney shall, promptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor.

In Williamson v. State, supra, our Supreme Court in construing Rule 17.1 emphasized:

1. The State must disclose to defense counsel, promptly upon discovery thereof, any information which tends to negate the guilt of the defendant or that would reduce the punishment.
2. That such information which a party is entitled to must be disclosed in sufficient time to permit defense counsel to make beneficial use thereof.

I submit that an application of these rules to the relevant factual matters indicates a reversal of appellant’s conviction. Rule 17.1 (d) and Williamson v. State, supra, incorporate the due process requirement that evidence favorable to a defendant on issues of guilt or punishment be disclosed by the State. Appellant’s entitlement to disclosure may not be frustrated by what the State deems relevant or material to the issues in the proceedings. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); Giles v. Maryland, 386 U.S. 66, 87 S. Ct. 793 (1967); Williamson v. State, supra; Smith v. Urban, 245 Ark. 781, 434 S.W. 2d 283 (1968); Murchison v. State, 249 Ark. 861, 462 S.W. 2d 853 (1971).

The prosecuting attorney, in his opening remarks to the jury, made the following statement:

“We also have a Detective Ken Baer, who is the individual who investigated this checking account. He will tell you what he found out about the validity of the checking account.” (Emphasis added.)

However, when Officer Ken Baer was called as a witness by the State, only the following testimony was elicited pertaining to the extensive investigation the officer conducted regarding the account:

Q. . . . [D]id you have occasion to investigate a checking account which was in the name of Don Carlton Clark at the First National Bank here in Little Rock, Arkansas?
A. Yes, sir, I did.
Q. All right. I hand you what is marked State’s Exhibit No. 1. Did you investigate that particular check?
A. Yes, sir, I did.
Q. Did you have occasion to check out the information given there on the account holder?
A. Yes, sir.
Q. All right. Did you check out the address?
A. Yes, sir. •
Q. What did you discover?
A. The address of 4201 West Twenty-ninth is a vacant lot.
Q. Was there any indication that a house had ever been there?
A. No, sir.
Q. All right. Did you checkout the UALR identification number on there?
A. Yes, sir.
Q. What was the resdlt of that?
A.. I don’t remember the individual’s name it was listed to at this time.
Q. Was it male or female?
A. I believe it was female.
Q. Was it not Don Carlton Clark’s?
A. It was not Don Carlton Clark, no, sir.
Q. How about the State’s driver’s license number on there? Did you check that out?
A. Yes, sir. It listed to Don Carlton Clark.
Q. And where did you determine Don Carlton Clark to live?
A. He lives in Southern Arkansas. I’m not —
Q. He does not live in Little Rock?
A. He does not live in Little Rock.
Q. Did your investigation reveal any other Don Carlton Clarks except the one from Southern Arkansas?
A. No, sir, it did not.

On cross-examination, Officer Baer gave the following testimony which was relevant and crucial to appellant’s claim of innocence and, according to counsel for appellant, disclosed for the first time:

Q. Detective Baer, did during your investigation you check with the First National Bank herein concerning Don C. Clark’s account?
A. Yes, sir.
Q. Did you find such an account?
A. Yes, sir.
Q. Was that the account as stated on the check as you see it there?
A. Yes, sir. We investigated numerous checks on this account.
Q. Now, were all of the checks on that number account?
A. On this specific account?
Q. Yes.
A. Yes, sir. We investigated — I don’t know how many. There were checks all over the city on this account.
Q. Okay. Did you see an account in the name of Don Clayton Clark?
A. Yes, sir, I believe there were checks in that account also.
Q. Okay. Did you see an account in the name of Donald C. Clark?
A. I don’t recall, sir. This has been a long time ago.
Q. Did you check any other banks?
A. I could have at the time. I just don’t recall, sir.
Q. Okay. Based on your investigation, did you find that there were other accounts of Donald C. Clark, of Don C. Clark?
A. There may have been, sir. Like I say, there were so many of these checks. There, were two or three law enforcement agencies investigating them at the same time.

The testimony of Officer Baer relating to the numerous checks “all over the city” and other bank accounts in the names of “Donald C: Clark”, “Don C. Clark” and “Donald Clayton Clark” was not only relevant and beneficial in enabling appellant in locating other signatures from checks and bank records that would have been helpful to the State Police in seeking to compare and verify appellant’s handwriting on the forged check, but this information could have been equally as beneficial in assisting appellant in securing witnesses to see if they could identify appellant as the party who uttered the checks they received. These persons might have been in a position to offer a description of the person or persons whom they dealt with. Moreover, appellant could have taken advantage of the discoveries made by other law enforcement agencies that were investigating the same check scheme. Appellant was denied this information because the State failed to disclose this information although appellant’s motion was filed approximately one year preceding appellant’s trial.

Appellant’s counsel emphasized in his motion for a new trial that the prosecuting attorney’s office, on February 6, 1979, at approximately 9:00 p.m., only advised him of the name of the police officer who had investigated the “numerous checks”. However, appellant’s trial was already scheduled for February 7, 1979.

It is unlikely that Officer Baer concealed from the prosecuting attorney’s office the discoveries he made relating to the several bank accounts, the numerous checks and the fact that other law enforcement agencies were involved. Moreover, appellant’s motion for disclosure sought information which the State could supply by “the exercise of due diligence.”

For the reasons herein discussed, I respectfully dissent.

I have been authorized to state that Penix, J., joins in this dissent.

       On June 8, 1977, Detective Ken Baer.received the following communication from the Arkansas State Police which has been designated as defendant’s exhibit number 6:

        Dear Sir:
      E-l is a check of Don Carlton Clark, #282.
      I am unable to make a positive identification with the handwriting on the check marked E-l with the handwriting submitted of Ronald Lewis.
      I am unable to compare the printing on the face of E-l with the script submitted of Ronald Lewis.
      I am returning the questioned and known material at this time.


author: Marian F. Penix, Judge.

text:
    GREAT PLAINS BAG CORPORATION v. Charles BATY
    CA 79-170
    593 S.W. 2d 51
    Opinion delivered December 19, 1979
    Released for publication January 23, 1980

      Southern & James, by: Byron S. Southern, for appellant.

      Rice, Batton & Vaughan, P.A., by: Ben E. Rice, for appellee.
   Marian F. Penix, Judge.

Claimant was injured in 1968 at the age of 36. He alleged the injury was suffered in the course of his employment by U.S. Holdercraft and filed for Workers’ Compensation benefits. Benefits were denied on the basis of the testimony of his ex-wife who said he had actually hurt his back in 1968 while lifting a boat, an activity unconnected with U.S. Holdercraft. However incurred, the first back injury led to two surgeries and his total retirement from the work force. Under the Social Security Act claimant was determined to be totally and permanently disabled and began drawing benefits. In 1976, with the consent of the Social Security Administration, the claimant began working on a trial basis with Great Plains Bag Corporation. After two months on the job, claimant was injured. Dr. Lester testified claimant’s disability from the 1968 injury amounted to 20 to 25% to the body as a whole. Dr. Lester added an additional 5% arising from the 1976 injury. Dr. Adametz rated claimant’s disability as two and a half per cent affecting the body as a whole as an addition to his previous disability. The appellant controverted all'permanent partial disability benefits in excess of two and one half per cent to the body as a whole. The Administrative Law Judge requested the parties investigate the possibility of successful rehabilitation and subsequently held the claimant to be a suitable candidate for rehabilitation. The judge also awarded 35% anatomical permanent partial disability to the body as a whole. He gave no consideration to wage loss nor to loss of future earning capacity.

Claimant did not appeal the judge’s finding of 35% of anatomical permanent partial but rather argued his finding regarding rehabilitation should be set aside so a wage loss rating can be assigned to claimant in addition to the 35% physical impairment rating. The claimant asked the commission to award 95% permanent partial disability award under the rationale of Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961). The respondents argued that 30% is attributable to the claimant’s prior injury. The respondents argued for apportionment of the disabilities between the 1968 and 1976 injuries.

The 2-to-l opinion of the Workers’ Compensation Commission states it finds the 35% anatomical disability to the body as a whole to be “rather liberal”. However, the Commission adopted the finding and apparently translated Baty’s total disability to 95%'to the bo.dy as awhole, ofwhich 65% was found to have been caused by the Great Plains employment. The Commission acknowledged it was hard put to do this within the guidelines of Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961). This was particularly true since Baty had been unemployed and drawing total disability payments from Social Security since 1972. However, the Commission opinion apparently finds that Baty’s economic loss was the loss of his “trial” job of two months with Great Plains.

Assuming Great Plains knew of Baty’s prior back problems — and there is some dispute about this in the testimony — it was a commendable act by Great Plains to employ Charles Baty. Obviously this entailed substantial financial risk. Arkansas’ legislature wisely has tried to encourage employers, such as Great Plains Bag Corporation, to risk employing workers with previous disabilities. Of course, in such an employment, there is high risk of further injuries, and increased insurance premiums. Although this statute has been amended several times, the present law pertaining to Baty’s subsequent injury is set out in Ark. Stat. Ann. § 81-1313 (2) (Repl. 1976). This has been interpreted by our Supreme Court in Davis v. Stearns-Rogers Construction Co., 248 Ark. 344, 451 S.W. 2d 469 (1970). This fixes Baty’s compensation from Great Plains to be “. . . for the degree of disability that would have resulted from the subsequent injury if the previous disability had not existed.”

According to the Arkansas Workers’ Compensation Act, “disability” is the incapacity because of injury, to earn, in the same or some other employment, the wages, which the employee was receiving at the time of injury. Ark. Stat. Ann. § 81-1302 (e).

In Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961), the Arkansas Supreme Court held that the Workers’ Compensation Commission may in its discretion consider certain non-medical factors in determining the degree of permanent disability sustained by an employee. As státed in Glass v. Edens, supra, disability means not merely functional disability but also loss of the use of the body to earn substantial wages. The court quoted extensively from Larson.

The key to the understanding of this problem is the recognition, at the outset, that the disability concept is a blend of two ingredients, whose recurrence in different proportions gives rise to most controversial disability questions: The first ingredient is disability in the medical or physical sense, as evidenced by obvious loss of members or by medical testimony that the claimant simply cannot make the necessary muscular movements and exertions; the second ingredient is defacto inability to earn wages, as evidenced by proof that claimant has not in fact earned anything. 2 Larson, Workmen’s Compensation Law, § 57.10, p. 10-4, as quoted in Glass v. Edens, supra, at p. 787.

We are limited by statute law and a long series of cases, none of which need to be cited, to the propositions: first, that awards of the Workers’ Compensation Commission will not be disturbed on appeal if there is any substantial evidence to support them; and second, that all inferences will be resolved in favor of the worker. This is true even though the two Workers’ Compensation Commissioners who rendered the opinion now on appeal obviously had only the cold typed record of the trial to read, as do we. The Administrative Law Judge’s findings from live testimony are swept aside by the de novo hearing before the three commissioners. We are precluded by the statutes from considering the findings of the Workers’ Compensation Commission Administrative Judge who alone heard and observed live witnesses in the trial of this claim. Parker Stave Co. et al v. Hines, 209 Ark. 438, 190 S.W. 2d 620 (1945); Lane Poultry Farms v. Wagoner, 248 Ark. 661, 453 S.W. 2d 43 (1970); Burks v. Blanchard, 259 Ark. 76, 531 S.W. 2d 465 (1976).

Even when viewing the evidence in the light most favorable to the claimant, however, we cannot find there to be substantial evidence to support the Commission’s award of permanent disability in excess of his anatomical rating. We are well aware the Commission’s finding carries the same weight as a jury finding and it is with great reluctance we overturn a decision made by the Commission. The undisputed fact is claimant had already been permanently and totally disabled. He had not worked in private employment for over eight years. His employment with Great Plains Bag Corporation was under a temporary permit from the Social Security Administration as a totally disabled person. His employment with this employer was strictly on a trial basis to determine if he was able to work. After a very short trial period, events proved he could not perform due to his back. There is simply no substantial evidence to support a finding of loss of future earning capacity.

This court is apprised of the fact that not everyone who is at one time determined completely disabled will remain so.

The capacities of a human being cannot, be arbitrarily and finally divided and written off by percentages. The fact that a man has once received compensation as for 50 percent of total disability does not mean that ever after he is in the eyes of compensation law but half a man, so that he can never again receive a compensation award going beyond the other 50 percent of total. After having received his prior payments, he may, in future years, be able to resume gainful employment. In the words of the Colorado court, he may have resumed employment as a “working unit.” 2 Larson, Workmen’s Compensation Law, § 59.42, at p. 10-352, 353.

The facts with regard to Charles Baty just do not show that he had returned to the work force as a “working unit”. He was not able to resume gainful employment.

The economic plight of Charles Baty concerns us. We have compassion for a man who has attempted to once again become a part of the work force. This attempt to re-enter, however, is simply not enough to support the award of 65% additional disability under Glass v. Edens, supra. As Professor Larson has written,

Workmen’s compensation is a mechanism for providing cash-wage benefits and medical care to victims of work-connected injuries, and for placing the cost of these injuries ultimately on the consumer, through the medium of insurance whose premiums are passed on in the cost of the product. Larson, Workmen’s Compensation Law, § LOO, p. 1.

Sustaining an award such as this, however, stretches this concept too far. Furthermore, this award would defeat the purpose and intent of the legislature as evidenced by the second injury statute and work to discourage rather than encourage employers to hire persons with any degree of disability.

The decision of the Workers’ Compensation Commission is revérsed with directions to limit the rating of Charles Baty to the 35% anatomical figure . Of this 35%, Great Plains Bag Corporation is responsible for 5% permanent partial disability to the body as a whole. The attorney for the claimant is awarded the maximum attorney’s fee on the amount controverted in excess of two and one-half percent.

Reversed and remanded.

       The Social Security Administration has a program wheréby a person who is drawing disability benefits may begin working on a trial basis. This trial lasts for nine months. During this time he continues to draw disability benefits. If after nine months, it is determined the person is able to hold a job the disability benefits are discontinued. Charles Baty was at the time of his injury still drawing these disability benefits.


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

text:
    William Glen CARLTON, Administrator v. Barbara Ann BAKER, BANK OF NORTHEAST ARKANSAS
    CA 79-181
    591 S.W. 2d 696
    Opinion delivered December 19, 1979
    Released for publication January 9, 1980

      Warren E. Dupwe, for appellant.

      Seay & Bristow, by: Bill W. Bristow, and Parker, Henry & Walden, for appellees.
   Marian F. Penix, Judge.

This case was appealed to the Arkansas Supreme Court and by that Court assigned to the Arkansas Court of Appeals pursuant to Rule 29 (3).

William Glen Carlton, Administrator of the Éstate of Rebecca C. Self, appellant, petitioned the probate court to have six certificates of deposit declared to be the property of decedent’s estate rather than the property of Barbara Ann Baker, appellee, and niece of decedent. Barbara Ann Baker, Bank of Northeast Arkansas, and The Caraway Bank were all made respondents and the case was transferred to the chancery court.

After a hearing on the matter the court found the three certificates purchased at Bank of Caraway were the property of the estate. There is no appeal from this finding.

The court further found the three certificates purchased from the Bank of Northeast Arkansas to be the property of Barbara Ann Baker. The Administrator, Carlton, brings this appeal.

The decedent, Rebecca C. Self, purchased a $5,000 certificate of deposit No. A1960 on October 14, 1975. She designated it was to be in the name of Rebecca Self or Barbara Ann Baker, either or the survivor of either. At the time of purchase she affixed her signature to a receipt for the certificate. On September 15, 1976 Ms. Self purchased another $5,000 certificate No. A1446 with the.same designation as No. A1960 but she signed no document of any kind. She signed no-receipt, signature card, nor tickler. On January 12, 1977, Marie Bertrand, acting as Ms. Selfs agent, purchased certificate No. A2069. Ms. Bertrand signed a receipt and a tickler. No. A2069 was also for $5,000 and had the same designation as the other two.

We believe Rebecca C. Self intended for the three certificates of deposit to go to her niece Barbara Ann Baker. However, Ark. Stat. Ann. § 67-552 (Repl. 1966) specifically provides the procedure whereby a right of survivorship can be created in a certificate of deposit.

(a) If the person opening such account, or purchasing such certificate of deposit, designates in writing to the banking insitution that the account or the certificate of deposit is to be held in “joint tenancy” or in “joint tenancy with right of survivorship,” or that the account or certificates of deposit shall be payable to the survivor or survivors of the perspns named in such account or certificate of deposit, then such account or certificate of deposit and all additions thereto shall be the property of such persons as joint tenants with right of survivor-ship. ...

More is required than intent.

In interpreting § 67-552 our Supreme Court has held there must be substantial compliance with the designation in writing requirement of the statute. Cook v. Bevill, 246 Ark. 805, 440 S.W. 2d 570 (1969); Willey v. Murphy, 247 Ark. 839, 448 S.W. 2d 341 (1969); Note, 24 Ark. L. Rev. 361 (1970-71). Again in Justice v. Ringold, 254 Ark. 11, 491 S.W. 2d 383 (1973) the Supreme Court restated the rule that no survivor-ship interest is created where the decedent does not affix his signature to an instrument complying with the statutory requirement. The above cases appear to require a) some writing, b) signed by purchaser, c) indication of intention in order to substantially comply.

Certificate No. A1960 has a copy of a receipt bearing Ms. Self s signature. Certificate No. A1446 is unsigned and nothing appears in the record to be Ms. Selfs signature nor that of her agent. In the case of Certificate No. A2069 there appears the signature of Marie Bertrand, Ms. Selfs agent, on two different documents — a copy of a receipt and a maturity tickler.

After hearing all the testimony and viewing the evidence the trial court held there to be sufficient evidence of an intention on the part of Ms. Self the three certificates were to pass to Barbara Ann Baker upon Ms. Selfs death.

We find the trial court’s decision to be correct in regard to Certificates No. A1960 and No. A2069. However, we find the court, erred in its view of No. A1446. There is not substantial designation in writing for No. A1446 to comply with the statutory requirement. Intention of the purchaser is not sufficient in light of the specific requirement that there be a designation in writing. Therefore we find certificate No. A1446 to be the property of the estate.

Reversed in part and remanded.

Newbern, Wright and Pilkinton, JJ., concur.

David Newbern, Judge,

concurring. I reluctantly agree with the result in this case. The statute, Ark. Stat. Ann.. § 67-552 (Repl. 1966), quoted in the majority opinion is subject to an interpretation which would permit a “designation in writing” to be construed as the writing on the certificate itself which, if accepted by the purchaser, could be interpreted readily as his designation. The analogy to a deed conveying land in joint tenancy would be strong. In the case of a deed, the grantee need sign nothing for the conveyance to be effected in that way.

Because of the decision in Willey v. Murphy, 247 Ark. 839, 448 S.W. 2d 341 (1969), we are permitted no interpretation of the statute other than the one expressed in the majority opinion. I believe we should make clear, however, that neither Cook v. Bevill, 246 Ark. 805, 440 S.W. 2d 570 (1969), nor Justice v. Ringold, 254 Ark. 11, 491 S.W. 2d 383 (1973), would require the holding we reach here, as in those cases the certificates themselves contained no right of survivor-ship designation.

Chief Judge Wright and Judge Pilkinton join in.this concurring opinion.


author: Marian F. Penix, Judge. M. Steele Hays, Judge,

text:
    Darrell ELMORE v. STATE of Arkansas
    CA CR 79-91
    592 S.W. 2d 124
    Opinion delivered December 19, 1979
    Released for publication January 9, 1980

      John W. Achor, Public Defender, by: William H. Patterson, Jr., Chief Appellate Attorney, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Marian F. Penix, Judge.

Defendant was charged with Burglary and Theft of Property in violation of Ark. Stat. Ann. §§ 41-2002 and 41-2203, respectively. Allegations were on November 4, 1978 the defendant and two companions broke into Couch’s Exxon Station in North Little Rock and took tools valued over $100.00. Also alleged was the defendant had previously been convicted of more than one but less than four other felonies, and his sentence should be made greater, accordingly. Defendant pleaded not guilty. Defendant was tried by a jury, found guilty, sentenced to fifteen years on the burglary charge and five years on the theft charge, the terms to run consecutively.

Before trial, a Denno hearing was held on the defendant’s motion to suppress an in-custody statement which he made. The court allowed the statement introduced into evidence. From this ruling, the defendant appeals.

From the record we find State Police Investigator Lynn Chachere interviewed the Defendant at the Prairie County jail on November 9, 1978 at 11:30 p.m. Present was Chief Deputy Sheriff of Prairie County, Bruce Roe. Prior to the interview of the defendant, Trooper Chachere interviewed two other defendants, Mills and Edwards, who were the defendant Elmore’s accomplices in several burglaries and had been arrested with Elmore. Trooper Chachere took down a lengthy statement from defendant Elmore. However, Elmore refused to sign the statement. Both Chachere and Roe testified Elmore’s statement was freely gi-ven. They also testified Chachere read Elmore his rights from the State Police standard rights waiver form and Elmore initialed each separate right and signed the form. The defendant Elmore testified in his own behalf. He denied having made the statement. He also stated his requests for an attorney were refused and alleged the officers threatened to “bust his head” if he didn’t talk. The defendant also denied ever having read the statement.

At the conclusion of the Denno Hearing, the trial court found the defendant’s statements to have been voluntary and that he had been advised of his rights. The defendant was 23 years old. The trial judge had the opportunity to personally observe him during the Denno Hearing and also at the time of his testimony during the trial.

There are several factors to be considered, by the trial court in determining whether a defendant’s confession was voluntarily given. These include the age of the accused, lack of education, low intelligence, lack of advice as to his constitutional rights, length of detention, repeated and prolonged nature of questioning, and the use of physical punishment. Perkins v. State, 258 Ark. 201, 523 S.W. 2d 191 (1975); Watson v. State, 255 Ark. 631, 501 S.W. 2d 609 (1973).

There is conflicting testimony as to what occurred at the time Trooper Chachere interviewed the defendant. The defendant testified he was threatened into making a statement, and also was denied the opportunity of calling an attorney. Both Trooper Chachere and Deputy Sheriff Roe testified the defendant was informed of his rights, that defendant voluntarily waived his rights, and that the defendant gave the statement to Trooper Chachere even though he wouldn’t sign it.

This court must uphold the finding of the lower court unless such finding is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 518 S.W. 2d 515 (1975); Rouw v. State, 265 Ark. 797, 581 S.W. 2d 313 (1979).

The fact the statement was unsigned does not render it inadmissible where the defendant is shown to have understood the substance of the statement. Wong Sun v. U.S., 371 U.S. 471. See also, Scott v. State, 249 Ark. 967, 463 S.W. 2d 404 (1971).

Affirmed.

Hays, J., dissents.

M. Steele Hays, Judge,

dissenting. I am unable to join in the affirmance of this case for the reason that the trial court, as I view it, should not have admitted the purported confession of appellant into evidence. 23 C.J.S. Criminal Law § 833, pp. 237-238 states:

If a statement purporting to be a confession is given by accused, and is reduced to writing by another person, before the written instrument will be deemed admissible as the written confession of accused, he must in some manner have indicated his acquiescence in the correctness of the writing itself. If the transcribed statement is not read by or to accused, and is not signed by accused, of in some other manner, approved or its correctness acknowledged, the instrument is not legally, or per se, the confession of the accused; and it is not admissible in evidence as the written confession of accused.

[See also Annot., 23 A.L.R. 2d 919 (1952).]

The majority cites Wong Sun v. United States, 371 U.S. 471, for the rule that an unsigned statement is not rendered-inadmissible where the defendant is shown to have understood the substance of the statement. However, I believe the facts in this case call for a different result. In Wong Sun, the United States Supreme Court specifically stated in regard to the unsigned statement:

The petitioner has never suggested any impropriety in the interrogation itself which would require the exclusion of this statement.

In this case, the appellant emphatically rejected the.contents of the written statement at the Denno hearing. The written confession was an extrajudicial statement offered by the state for the truth of its contents. As such, it required proper authentication by the defendant. State v. Rosa, 170 Conn. 417, 365 A. 2d 1135 (1976); Marshall v. State, 339 So. 2d 723 (Fla. App. 1976); People v. Lebron, 360 N.Y.S. 2d 468 (1974).

In instances where any doubt exists as to whether a purported confession is given free of duress, the court could well require a tape recording of the interview to insure its authenticity. [See State v. Goodwin, 223 Kan. 257, 573 P. 2d 999 (1977).]

For the reasons stated above, I respectfully dissent.


author: George Howard, Jr., Judge. Ernie E. Wright, Judge,

text:
    Johnny HOLLAND v. STATE of Arkansas
    CA CR 79-8
    591 S.W. 2d 698
    Opinion delivered December 19, 1979
    Released for publication January 9, 1980

      Robert E. Irwin, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Judge.

This is an appeal from the imposition of a one year sentence to the Department of Correction pursuant to a suspension of four years of an original sentence of five years where appellant was required originally to serve one year in the penitentiary.

Appellant contends:

The revocation of the suspended portion of appellant’s original sentence was not authorized by the sentencing provisions of the Arkansas Criminal Code provided by Ark. Stat. Ann. § 41-803(4).

The pertinent facts are: On August 19, 1976, appellant entered pleas of guilty to two counts of theft of property. The trial.court fixed appellant’s punishment at five years in the Department of Correction, on each count, “with four (4) years suspended.” The sentences were to run concurrently.

Appellant was released from the penitentiary in December, 1976.

On March 9, 1978, the State filed a petition for the revocation of appellant’s suspended sentence.

Between September 13, 1977, and February 14, 1978, appellant was convicted of nine misdemeanor charges, including two counts of driving while under the influence of intoxicating liquor and one count of minor in possession. In addition to paying fines, appellant was confined to the county jail for ten days on two of the charges. Because of appellant’s failure to pay an installment due.on a fíne, appellant was taken into custody by officers, but escaped and fled to Crescent City, California. Arkansas police officers were required to make a trip to California in order to return appellant to Arkansas.

On November 28, 1978, the trial court found that appellant had “inexcusably fail[ed] to comply with the conditions of his suspension . . . and he hereby is directed to serve a period of one (1) year in the Arkansas State Penitentiary.”

The force of appellant’s argument for reversal may be briefly summarized as: The trial court was without authority to revoke any part of that portion of the suspension under appellant’s original sentence, and that the original judgment did not set forth any conditions for suspension of the remaining four years of the original five year sentence.

Ark. Stat. Ann. § 41-803 (4) (Repl. 1977) provides in. material part:

If a defendant pleads or is found guilty of an offense other than capital murder,. . . [t]he court may sentence-the defendant to a term of imprisonment and suspend imposition of sentence as to an additional term of imprisonment, . . . (Emphasis added.)

The original judgment of the trial court, as emphasized by appellant, does not contain any expressed conditions relating to the suspension given appellant. However, the presentence report of the probation officer of the trial court, which is a part of the record, does shed some light on the matter.. The report, in relevant part, provides:

“After a plea of guilty to two counts of Theft of Property in Circuit Court on August 19, 1976, Mr. Holland was given a five year prison term with four years suspended. Upon his release from prison, he iw.v to work steadily and stay-out of any and all trouble for the next four years. (Emphasis supplied.)

It is plain that the trial court obviously advised appellant from the bench that as a condition to the suspension afforded him, appellant was required to work steadily and stay out of any and all trouble for the next four years. Moreover, it is equally plain that the conditions were to become operative upon appellant’s release from prison. Appellant does not challenge the . accuracy of the pre-sentence report in any way.

In Thornton v. State, 267 Ark. 675, 590 S.W. 2d 57 (Ark. App. 1979), this Court held that there was substantial compliance with the statutory requirement that a defendant is entitled to a written list of the conditions governing his suspension where appellant was advised explicitly by the trial judge of the conditions. Cain v. McGregor, 182 Ark. 633, 32 S.W. 2d 319.

In Matthews v. State, 265 Ark. 298, 578 S.W. 2d 30 (1979), our Supreme Court has made it clear that a suspended sentence commences at the time a defendant is released from active confinement by the Department of Correction.

While the original judgment speaks in terms of four years of appellant’s five year sentence as “suspended”, the sum and substance of the trial court’s action in making the conditions operative upon appellant’s release from prison and the imposition of a one year sentence to the penitentiary at the close of the revocation hearing, the trial court, indeed, regarded its action as ‘ ‘a suspension of the imposition’ ’ of an additional four years to the original one year sentence to the Department of Correction.

We are persuaded that this record dictates a conclusion that the trial court suspended pronouncement of sentence of the additional four years articulated in the trial court’s judgment of August 19, 1976.

Finally, appellant’s challenge of the trial court’s authority to revoke his suspended sentence is asserted for the first time on appeal. Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888 (1978).

Affirmed.

Wright, C.J. and Newbern, J., dissent.

Ernie E. Wright, Judge,

dissenting. I would reverse the judgment of the court entered August 16, 1978, imposing a one year sentence upon appellant on the stated finding, ‘ ‘ The defendant has inexcusably failed to comply with the conditions of his suspended sentence.” The judgment then enumerates certain actions of the defendant constituting misdemeanor offenses.

My dissent is not on the basis appellant’s conduct does not warrant additional punishment, but rather is on the grounds the original sentence, as to the suspended portion, was not authorized by law, and therefore not a valid basis upon which to predicate further sentence.

Ark. Stat. Ann. § 41-803, a part of the new Criminal Code adopted in 1975, details the only sentences authorized and specifies no defendant convicted of an offense shall be sentenced otherwise than as authorized by the Criminal Code. § 41-803(4) provides if a defendant pleads or is found guilty of an offense other than capital murder, the court may sentence the defendant to pay a fine and suspend imposition of sentence as to imprisonment or place him on probation, or sentence the defendant to a term of imprisonment and suspend imposition of sentence as to an additional term of imprisonment. The section expressly prohibits sentencing a defendant to imprisonment in the penitentiary and placing him on probation except as authorized by § 41-1204. The latter section does not authorize sentencing a defendant to confinement in the penitentiary and also providing for probation.

In this case the court sentenced appellant to five years in prison and suspended four years. There was an imposition of a five year sentence and an authorized provision suspending, four years, rather than a sentence of one year and reserving jurisdiction for imposition of an additional sentence as authorized by § 41-803.

The original judgment imposing sentence dated August 16, 1976 did not.set out any. conditions imposed upon the defendant as mandated by § 41-1203 in the case of suspension of imposition of sentence or probation; and the record is silent on any conditions attached to the suspended sentence other than a statement in the report of the probation officer dated after the judgment imposing the additional one year of confinement stating, “Upon his release from prison he was to work steadily and stay out of any and all trouble for the next few years.”

The cases cited in the majority opinion either involve sentencing prior to the date of the new Criminal Code or do not address the question here raised of a sentence not authorized by law.

In my view the judgment of August 16, 1978 sentencing appellant to one year in prison is unauthorized by law. It is based upon a suspended sentence not authorized by present law. I am unable to equate suspended sentence with suspension of imposition of sentence.

I am authorized to say Newbern, J., concurs in this dissent.

       The original trial transcript was not made an exhibit to the revocation proceeding.


text:
    Ches WILLIAMS v. Frank W. FLETCHER
    CA 79-231
    593 S.W. 2d 48
    Opinion delivered December 19, 1979
    Released for publication January 23, 1980

      Rieves, Rieves & Shelton, by: Connie Lewis Mayton, for appellant.

      Nance; Nance, Fleming & Wood, for appellee.
   David Newbern, Judge.

The appellee, an accountant, brought suit for beach of an oral, contingent fee contract for. accounting services. The services were performed for the appellant with the object of seeking a reduction of a U.S. government claim for delinquent taxes which accrued over a four year period. The appellee alleged the appellant had agreed to pay one fourth of the difference between what the appellant would ultimately be required to pay and what the government claimed to be due. The appellee was awarded a judgment of $12,229.26, and the appellant appealed to the Arkansas Supreme Court, mainly alleging the appellee’s evidence was not sufficient to have gone to the jury. The case was assigned to us pursuant to Rule 29 (3), and we affirm the judgment.

The appellant has asked us to consider three alleged errors. In his third point he contends the trial judge improperly refused to give an instruction that the appellee was required to prove by a preponderance of the evidence and. with reasonable certainty the amount of the tax deficiency stated by the U.S. Internal Revenue Service (IRS) and the deficiency ultimately determined to exist. The appellant did not furnish an.abstract of the instructions given by the court, and thus we decline to consider this point. It has long been the rule that an appellant in' a civil case who complains of failure to give a proffered instruction must set out or abstract the instructions given. See Ellis v. State, 267 Ark. 960, 590 S.W. 2d 309 (Ark. App. 1979), in which this court discussed the rule as it has been applied in civil cases and misdemeanor criminal cases and held that it applied even to felony conviction appeals. See also. Rule 9 (d) of the Arkansas Supreme Court and Court of Appeals.

Before discussing the appellant’s first two points, we must state these additional facts. The appellant was, in 1973, under investigation for federal income tax evasion. In a meeting between IRS officials and the appellant, his lawyer and the appellee, who had been hired as appellant’s accountant in 1972, IRS officials stated the appellant owed additional taxes of $198,623.43 for the years in question, according to the appellee’s testimony.

The appellee testified that after the criminal aspects of the case had been disposed of, he met with the appellant and they agreed that, in addition to the standard hourly rate the appellee had been paid, he would be entitled to one fourth of the amount he was able to “save” for the appellant. The appellee’s testimony at the trial was that he had with him in March of 1975, and on the day the alleged agreement was reached, a copy of a worksheet upon which he had calculated the IRS claim to be $189,828.29. That figure was, according to the appellee, based on a report which had been filed by Treasury Department agents in the criminal proceedings and was the “latest” estimate of the government’s claim. The appellee testified the figure was provided to the appellant at the time they agreed on the contingent fee.

In his first point, the appellant contends a verdict should have been directed in his favor because the entire evidence of the original claim, or “starting figure,” of the IRS from which the “savings” were to be determined was the testimony of the appellee which was contradicted by the previously taken deposition of the appellee. For this proposition, the appellant cites a number of Tennessee cases, the most recent of which is Gambill v. Hogan, 30 Tenn. App. 465, 207 S.W. 2d 356 (1947). The statement of the law the appellant asks us to apply from that case is, “. . . when a witness both affirms and denies a proposition, without explanation, the fact as to which he testifies remains unproven. [207 S.W. 2d at 361].”

We have no quarrel with that statement of the law, but it does not apply here. The appellee’s testimony in his deposition was revealed at the trial when the appellant’s counsel had the appellee read certain parts of it for the purpose of impeaching his trial testimony. At the trial, the appellee’s testimony was that upon his deposition he had said from the outset he had presented to the appellant the figure $189,-828.29 as the claim of the IRS, as of the time of the alleged agreement, and that it was based on preliminary IRS agent reports. The appellee freely admitted in his deposition he did not know at that time how much of that money he could “save” the appellant. At one point in his deposition he said the figure was not the basis of the law suit. At the trial, the appellee said that if he had made such a statement in his deposition it was a mistake, as the suit was based on that figure from its outset.

' Unlike the cases cited by the appellant, this is not one where the witness was vague and uncertain or where he made two diametrically opposed and irreconcilable sworn statements at different times. Here the appellee had one lapse in his deposition testimony which must be regarded as insignificant when viewed in the context of the other testimony in the deposition. Although the deposition was not introduced in evidence, enough of it was read by the appellee in the appellant’s attempt to impeach his trial testimony to make it clear the appellee was firm in both his statements that both he and the appellant knew the figure upon which their agreement was based. We hold that if the appellant’s misstatement could be regarded as sufficient to invoke the rule the appellant would have us apply, it was “explained” when viewed in the context of all the testimony we have examined.

Contingent fee contracts such as this one between an accountant and a client under attack by the IRS have not been the subject of cases decided by us or by our supreme court. Other jurisdictions have dealt with them, however, and have found them inoffensive, even where a fiduciary relationship existed between accountant and client, Jorge v. Rosen, 208 So. 2d 644 (Fla. App. 1968), or where the actual work done by the accountant seemed grossly insufficient in relation to the fee to be determined in this manner. Gladding v. Langrall, Muir & Noppinger, 401 A. 2d 602 (Md. App. 1979). Such an agreement is sufficiently definite as to the price of services, as the amount can be determined by the court without any new expression by the parties. 1 Corbin, Contracts, § 98, p. 433 (1963).

The other point raised by the appellant is that the verdict is not supported by substantial evidence. We assume this argument is based on a supposition we would find the testimony of the appellee worthless. To the contrary, we find the appellee’s testimony constitutes substantial evidence, and we find no reason to disturb the jury’s verdict or the judgment.

Affirmed.

Supplemental opinion on Denial of Rehearing delivered January 23, 1980

PER CURIAM

In his motion for rehearing, the appellant has correctly pointed out that Rule 9 does not require an appellant to abstract all the instructions given by the court as a predicate to objection on appeal to failure by the trial court to give an instruction proffered by the appellant. Guaranty Trust Life Insurance Company of Chicago, Illinois v. Koenig, 240 Ark. 650, 401 S.W. 2d 216 (1966); Forest Park Canning Company v. Coler, 226 Ark. 64, 287 S.W. 2d 889 (1956).

We cited Ellis v. State, 267 Ark. 960, 590 S.W. 2d 309 (Ark. App. 1979), as a case in which the majority opinion explained the history of the abstracting requirement, not as a precedent binding on the parties in this case. Our historical discussion in Ellis was incomplete, however, as it left out the Guaranty Trust and Forest Park cases cited above.

We will not, however, depart from a requirement that an appellant abstract at least the instruction proffered where the basis of appeal is failure of the trial court to have given it. We regard that requirement as fairly set but in Rule 9 (d). The rationale for the rule and the requirement as we apply it here will be found in Bank of Ozark v. Isaacs, et al, 263 Ark. 113, 563 S.W. 2d 707 (1978).

Nor will we consider the failure to abstract cured by mention of the omitted matter in the brief of the appellee where no supplemental abstract is filed. Rule 9 (e); Smith, Abstracting the Record, 31 Ark. L. Rev. 359, 368 (1977).

Here neither party abstracted any instruction given or proffered. The appellent did set out the proffered instruction in the argument portion of his brief, and the appellee set out in the argument portion of his brief the comparable instruction that was given by the court. As stated, that does not comply with the abstracting requirement.

In view of this failure, we persist in our refusal to give formal and full consideration to the appellant’s point. However, we can assure the appellant that even in our origianl consideration of the case we did not completely ignore the point although we decided to base our decision on the abstracting lapse. To the extent we were able to consider the point, it was apparent to us the court correctly instructed the jury it was the appellee’s burden to prove the terms of the contract and it was not necessary for the court to have used the word “price” or to have specifically instructed the jury in the manner the appellant’s argument suggests was requested at the trial.

Rehearing denied.


author: Ernie E. Wright, Chief Judge.

text:
    Jerry YOUNG et al v. Everett H. YOUNG and Maggie YOUNG
    CA 79-183
    593 S.W. 2d 72
    Opinion delivered January 9, 1980
    Released for publication January 30, 1980

      Franklin Wilder, for appellants.

      N. D. Edwards, for appellees.
   Ernie E. Wright, Chief Judge.

Appellants seek reversal of the decree of the trial court dismissing their complaint for partition of forty acres of land and confirming title solely in appellees.

Various points for reversal are urged by appellants. However, as we conclude the decree should be affirmed on the restoration of a lost deed it is unnecessary to discuss the other points raised by appellants.

Henry Young acquired title to the SW 1/4 of the SE 1/4 of Section 7, Township 11 North, Range 30 West in Crawford County, Arkansas in 1905. Appellants and appellees all claim title through Henry as the common source. In 1918 he mortgaged the 40 acres along with 160 acres of adjoining land to the Federal Land Bank. In 1925 his son, Edward Young, purchased the 160 acres from Henry Young and wife, and the deed was duly recorded. Appellees, Everett Young and his wife Maggie Young, alleged in their counterclaim that Edward Young also obtained a deed from Henry Young to the forty acres but that it had been lost or destroyed without recording. After hearing extensive testimony the Chancellor found the appellees had proven by the clearest, most conclusive and satisfactory proof that Henry Young and his wife executed and declined a conveyance of the forty acres to Edward Young in 1926, reserving a life estate in themselves, and that the deed had been lost or destroyed and should be restored. Henry Young died in the mid 1930s and his widow died in the early 1950s.

Edward Young and his wife Lucy took possession of the forty acres and exercised exclusive control over it along with the 160 acres after the death of Henry Young’s widow. Edward Young died in 1957 and in 1967, Lucy Young executed a deed to the forty acres to Everett Young; and in April 1978 she joined in adeed with the children of her and Edward Young conveying the land to the son, Everett Young.

Everett Young and his wife, Maggie, have exercised exclusive control over the forty acres since 1967 and, while they have not lived upon the land, they have utilized it in various ways, claimed ownership and paid the taxes. The Court found title in appellees was also established by adverse possession.

It is undisputed that appellees have record title to at least a one-half interest in the forty acres, and appellants would have an inherited interest as decedents of Henry Young only if appellees failed to establish a deed was executed and delivered by Henry Young and his wife to Edward Young or failed to establish ownership by adverse possession.

We look then to the evidence before the court supporting the decree finding that a deed conveying the forty acres was in fact executed and delivered in 1926 by Henry Young and his wife to Edward Young.

Lucy Young, widow of Edward Young, age 85, testified she and her husband bought 160 acres from his father, Henry Young, in 1925 and that in October, 1926, Henry Young and his wife made and delivered a deed to the forty acres in dispute to Edward at Mountainburg and Edward brought the deed home. Edward took over the mortgage payments on the land. Henry and his wife reserved the right to. live on the forty until they died. Henry died in 1935 and Cordelia died in 1951. Lucy kept the deed at home. While she was away someone entered the home, tore things up and the deed and box it was in was missing. The deed was sent to the Federal Land Bank and returned when the loan was paid off. Edward made the mortgage payments until 1926 and until the mortgage was paid off in 1948. Numerous receipts from the Federal Land Bank evidencing loan payments by Edward Young were received in evidence, along with a letter from the Bank’s affiliate office in Fort Smith dated September 18, 1948, to Edward calling attention that taxes had not been paid on the forty acres and referring to the land as belonging to Edward. At that time Cordelia was still living upon the forty. Edward’s brothers and sisters all knew about the deed. She doesn’t know why they failed to record the deed. She and her husband took possession of the forty acres after Cordelia Young died, claimed to own it and utilized it with the rest of the farm. The 200 acres was under one fence.

Harrison Young, a brother of Everett, testified his grandfather and grandmother lived on the forty acres until they died, and they recognized his father, Edward Young, and wife as being the owners of the land. His mother had possession of the forty acres after the death of his grandfather and grandmother and it was just part of the one farm. In 1965 he saw the deed for the forty that had been executed by his grandparents to his dad and mother. The deed was in the old home place. He looked for the deed after the house was ransacked but did not find it.

Mrs. Dutton testified she is a sister of Everett Young and that her father, Edward Young, claimed ownership of the forty as far back as she remembers. She worked like a man on the forty to help pay off the mortgage. The mortgage was paid off in 1948 or 49. Her father, Edward Young, had possession of the whole farm including the forty and after his death her mother had possession. In 1963 her mother showed the deed to the forty acres to her and her husband.

Appellee Everett Young testified he was born on the 160 acres and ownership of the forty by his father had been discussed by family members through the years. In 1975 Jerry Young commented to Everett that he knew he had bought the whole place from his mother and Everett confirmed that he had. Jerry asked if there would be a chance to buy 5 or 10 acres, and gave him a card with his phone number on it. The card was received in evidence. His father and mother and he had paid taxes on the forty acres for many years. He saw the deed in 1953. His dad got the papers out and showed them to him. The deed was stolen or taken by someone. He knew where it was kept in his mother’s home. Someone ransacked the place while she was away in Texas. They could not find the papers after that. He has paid the taxes on the forty since 1966, has put up most of the fencing, he and his sons cleared about ten acres nine years ago, he has fruit trees on it, and has been raising corn and vegetables on it. When he bought the land from his mother he did not know the deed from his grandparents to this father had not been recorded until after he had paid for the land.

Katherine Stewart, one of the appellants, testified she took Edward Young’s widow, Lucy, to the welfare office in the late 60s or early 70s and she had to have her deeds. They found evidence from the papers this forty acres was in her name. They put it down that she owned the forty acres, and she told them she owned it.

It is well settled the chancellor’s findings of fact will not be reversed unless clearly against the preponderance of the evidence. Gibson v. Heiman, 261 Ark. 236, 547 S.W. 2d 111 (1977).

The testimony as to the execution and delivery of the deed of Henry Young and wife to Edward Young, supported by testimony of various witnesses that they had seen the deed, the long exclusive possession of the land and payment of taxes by Edward Young, his widow and the appellees are sufficient to support the finding of the chancellor that the execution and delivery of the deed and the loss of same was established by clear, conclusive and satisfactory evidence. Isgrig v. Thomas, 219 Ark. 167, 240 S.W. 2d 870 (1951); Carpenter v. Jones, 76 Ark. 163, 88 S.W. 871 (1905).

Affirmed.