author: J. Fred Jones, Justice.

text:
    Thomas DUNN and George WHISENHUNT v. STATE of Arkansas
    CR 74-4
    508 S.W. 2d 555
    Opinion delivered May 6, 1974

      James E. Davis, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings, Jr., Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Thomas Dunn and George Whisenhunt were convicted of robbery and sentenced to 15 years each in the Arkansas Department of Correction. On appeal to this court they contend that the state’s witness, Steve Roberts, was an accomplice whose testimony was legally insufficient to sustain their conviction since Roberts’ testimony was not corroborated by other evidence tending to connect them with the commission of the crime. Dunn and Whisenhunt also contend that the trial court erred in refusing to grant a mistrial when the prosecuting attorney elicited testimony from Steve Roberts regarding previous crimes committed by Dunn.

The state seems to recognize its error in eliciting testimony froip the prosecuting witness regarding previous crimes committed by Thomas Dunn, but the state contends that the prejudicial effect of such error was cured by admonition to the jury. We conclude that the judgment must be reversed under the appellants’ first contention so we find it unnécessary to further discuss the second assignment since the state recognizes the error involved and it’s not likely to arise again in the event of a new trial

In connection with the appellants’ first assignment, Ark. Stat. Ann. § 43-2116 (Repl. 1964) provides as follows:

“A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. Provided, That in misdemeanor cases a conviction may be had upon the testimony of an accomplice.”

Our rather recent application of the above statute to facts very similar to those in the case at bar was in the case of Moore v. State, 251 Ark. 436, 472 S.W.2d 940. In that case we reiterated the rule announced in Pitts v. State, 247 Ark. 434, 446 S.W.2d 222, as follows:

“ ‘There is no dispute about the applicable rules of law. Under the statute a conviction for a felony cannot be had upon the testimony of an accomplice ‘unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof’ Ark. Stat. Ann. § 43-2116 (Repl. 1964). In construing the statute we have held that the test of the sufficiency of the corroboration is whether, ‘if the testimony of the accomplice is eliminated from the case,’ the other evidence establishes the required connection of the accused with the commission of the offense. Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960). Corroborating evidence which merely raises a suspicion of guilt is not enough. Underwood v. State, 205 Ark. 864, 171 S.W.2d 304 (1934).’ ”

However, in the still later case of King v. State, 254 Ark 509, 494 S.W.2d 476, we discussed the application of the statute and there said:

“By its own language, the statute only requires that there be corroboration by evidence tending to connect the defendant with the commission of the offense and that this evidence go beyond a showing that the crime was committed and the circumstances thereof. We have, therefore, consistently held that the corroborating evidence need not be sufficient in and of itself to sustain a conviction, but it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime. Lauderdale v. State, 233 Ark. 96, 343 S.W.2d 422; Shipp v. State, 241 Ark. 120, 406 S.W.2d 361; Fleeman v. State, 204 Ark. 772, 165 S.W.2d 62.”

In the case at bar the victim of the robbery, Mr. Ed Corley, had closed his store on Halloween night, October 31, 1972, and as he started to leave the store premises with the day’s receipts about 9:00 p.m., he was assaulted from behind in the dark as he prepared to enter his automobile and his money was taken from him. Mr. Corley did not see who attacked him and the money, or the bag in which it was contained, was never recovered. Steve Roberts- and the appellants Thomas Dunn and George Whisenhunt were subsequently arrested and charged with the robbery. Steve Roberts entered a plea of guilty and testified as a state’s witness at the trial of Dunn and Whisenhunt.

Roberts testified in detail as to his participation with Dunn and Whisenhunt in the robbery of Mr. Corley, according to plans he said were devised by Dunn and Whisenhunt as the three were riding around town (De Queen, Arkansas) in Whisenhunt’s red Mustang automobile. Although he testified that he was intimidated by Dunn and Whisenhunt into participating in the robbery after, and because, he had heard their plans for its execution, he said he participated with Dunn in the actual robbery and cut his hand on Mr. Corley’s glasses when he actually struck him. He said he and Dunn pulled lady’s stockings over their heads and first attempted to go in the back door of Corley’s store before he closed it. He said they found the back door locked so they hid beside the building until Mr. Corley came out of his store, at which time they both struck Mr. Corley and took his money. He then related how he and Dunn ran back to the parked car in which Whisenhunt was waiting. He said that after the robbery they drove to Whisenhunt’s apartment where they divided the money, after which they went to Julius’ place (a tavern or roadhouse) just across the state line in Oklahoma. He said they made up alibis as they drove to Oklahoma; one of the planned alibis being that Dunn would borrow some money in Oklahoma as an explanation for any excessive amount of money that might be observed or found in his possession. There is no question that Roberts was an accomplice to any crime Dunn and Whisenhunt may have committed in this case, but the record is simply void of any corroborating evidence of sufficient quality to sustain their conviction.

Mrs. Thelma Corley was the first witness called by the state. She testified that her father-in-law, Ed Corley, operated his grocery store about four blocks from her home. She said Mr. Corley called her by phone following the robbery; that she went to the grocery store where Mr. Corley related to her what had happened. She testified as to the approximate amount of money taken but denied any knowledge whatever as to the identity of the person or persons who might have committed the robbery.

Mr. Jake Alexander testified that he went to the Corley Grocery store on the evening in question and found that Mr. Corley had been injured. He described Mr. Corley’s condition and his efforts to obtain medical assistance for Mr. Corley. Dr. O. D. Brown, Jr. testified as to Mr. Corley’s injuries, including the appearance that he had been struck on the head with a hard blunt instrument. Mrs. Frances West-brook testified that she drove by the Corley Grocery store on the night in question and observed the other people trying to help Mr. Corley into a pickup truck, and that she stopped and assisted them in doing so.

Mr. Corley testified as to closing his store on the night in question after which he walked to his automobile carrying a bag containing the day’s receipts. He said someone rushed out of the dark behind him, struck him on the head and face and rendered him unconscious. He said he could definitely say one person struck him but that he did not hear anyone except someone rushing üp back of him just before he was struck. Mr. Corley testified that when he regained consciousness, his money bag containing approximately $2,000 was gone. He said that when he regained consciousness following the robbery, he walked back into the store and called his daughter-in-law.

Mr. Carroll Page of the criminal division of the Arkansas state police testified that he assisted Chief of Police Hughes in investigating the robbery. He identified pictures he made of the store and Mr. Corley. Mr. Page testified that he and other officers obtained information that Dunn, Whisenhunt and Roberts might know something about the robbery and that as a result of such information, they were picked up and questioned. He said Roberts admitted his participation in the robbery and involved the other two. Mr. Roberts was next called as a witness for the state and testified as to his own guilt and as to the participation of his two codefendants, as above set out.

Mr. Loit Peek, a logging contractor, testified that he was acquainted with Roberts, Dunn and Whisenhunt. He said Mr. Corley’s grocery store was about two blocks from the Parkview Grocery store and as he was leaving the Parkview Grocery about 7:15 or 7:30 on the night in question, he saw Roberts, Dunn and Whisenhunt pass in Whisenhunt’s red automobile traveling in the direction of Mr. Corley’s store. He said as he left the Parkview Grocery store, he believed the Whisenhunt car drove ahead of him for some distance up a hill in the direction of Corley’s Grocery store. He said as he proceeded up the hill in the direction of Corley’s Grocery, there were two or three automobiles between him and what he thought was the Whisenhunt automobile, so he was not absolutely sure as to the occupants of the car driving ahead of him, but he definitely identified Roberts, Dunn and Whisenhunt as they passed in front of Parkview Grocery.

Sergeant Kenneth Hendricks with the Arkansas state police testified that he has been assigned to the De Queen area for about a year and was acquainted with Roberts, Dunn and Whisenhunt. He said he was familiar with the red Ford Mustang automobile owned and driven by Whisenhunt. He said that on Halloween night he was parked and observing traffic at the junction of Highway 41 with U.S. 70 and 71 and saw a red Mustang Ford automobile as it turned left on U.S. 70 headed west from state Highway 41. He said he recognized Thomas Dunn sitting on the righthand side in the front seat of the automobile but did not see anyohe else in the automobile well enough to recognize them. He said he did not recall what time in the night this occurred but it was after dark and he would guess that it was somewhere around 8 or 9 o’clock. He said this occurred about 10 minutes before he received a radio message that Mr. Corley had been robbed and taken to the hospital. He said he proceeded to the hospital to interview Mr. Corley and did not search further for the red Mustang automobile and its occupants because it meant nothing to him at the time.

Jerry Wayne Weiner testified that he lived in the same apartment building where George Whisenhunt lived. He said that on Halloween night in October, 1972, he was drunk and went to his apartment about 9:30. He said that in reaching his apartment he walked around the front of an automobile he thought was Whisenhunt’s. He said he recalled placing his hand on the hood of the car and remarking to “Gussie” (apparently his wife), “I see ’ole George is home.”

Mr. Cecil Lloyd next testified as a witness for the state. He testified that he operates a tavern about a half mile west of the Oklahoma state line. He said Thomas Dunn and George Whisenhunt came to his place on the night in question about 9:45 p.m. He said they played pool for awhile and that Dunn wrote him a $25 check and he cashed it. He said it was understood he was to hold the check and that Dunn would later come by and pick it up or redeem it. This testimony of Lloyd is as close as the state came to producing corroborating evidence tending to connect Dunn and Whisenhunt with the crime. As to making up an alibi, Roberts’ exact testimony was as follows:

“After we got out there a little ways, I sat up in the car, and we discussed how we were going to fix an alibi.
Q. What did you talk about in the way of an alibi?
A. Well, Mr. Dunn was suppose to borrow, I think, twenty-five or thirty dollars from Poppy Rod.
Q. Are you talking about Cecil Lloyd known as Poppy Rod?
A. Yes, sir. Said that would be an alibi in case he came up with too much money or something, well, he would say he borrowed it from Mr. Lloyd.”

Elbert Hughes, the chief of police for De Queen, identified hat and glasses belonging to Mr. Corley and found near his automobile, but he gave no testimony connecting the appellants with the commission of the crime.

Several witnesses testified for the defendants. They testified that they were at one of the taverns on the Oklahoma side of the state line and observed Roberts, Dunn and Whisenhunt somewhere around 8:30 or 9:00 p.m.

Aside from the testimony of the accomplice Roberts, there is no other testimony at all linking the appellants with the robbery of Mr. Corley. The fact that Dunn and Whisenhunt were seen riding in the same automobile with Roberts, as related under the facts and circumstances of this case, is not sufficient corroboration to sustain their conviction. (See Moore v. State, supra). We conclude that the judgment must be reversed and this cause remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: Conley Byrd, Justice. CARLETON HARRIS, Chief Justice,

license: Public Domain

text:
    Billy Dean STARKS v. NORTH LITTLE ROCK POLICEMEN’S PENSION and RELIEF FUND
    73-298
    510 S.W. 2d 305
    Opinion delivered May 6, 1974
    [Rehearing denied June 10, 1974.]

      Carpenter, Finch & Dishongh, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Conley Byrd, Justice.

Appellee, North Little Rock, Arkansas Policemen’s Pension and Relief Fund, brought an action against appellant Billy Dean Starks alleging:

“Billy Dean Starks had numerous dealings with Plaintiff from July of 1971 through October of 1972. Billy Dean Starks, as a bond broker, bought and sold securities for Plaintiff. Billy Dean Starks defrauded Plaintiff of a sum of not less than Six Hundred and Thirty Thousand Dollars ($630,000.00). During the period in which Billy Dean Starks committed the acts of fraud he was acting in a fiduciary capacity.”

The prayer of appellee’s complaint, so far as applicable to appellant, was as follows:

“Wherefore, Plaintiff prays that it have a judgment against Billy Dean Starks for an amount not less than Six Hundred and Thirty Thousand Dollars ($630,000.00); ...”

Thereafter, the trial court found the appellant in default and ordered “that a default judgment in favor of plaintiff be entered against him after a hearing to determine damages.” At the hearing to determine damages appellant was present through his counsel. Upon the proof there presented, the trial court entered judgment for $934,915.61. For reversal appellant contends that the trial court erred in rendering judgment for a sum in excess of the $630,000.00 set forth in the declaration and prayer.

Appellee acknowledges our prior cases, Hudspeth v. Gray, 5 Ark. 157 (1843), Pleasants v. State Bank, 8 Ark. 456 (1848), and Arkansas Power & Light Co. v. Murry, 231 Ark. 559, 331 S.W. 2d 98 (1960), which limit the amount of damages to the amount laid in the declaration, but contends that the result of those cases has been altered by the enactment of Act 205 of 1971 which provides:

“SECTION 1. Subsection Fourth of Section 109 of the Civil Code, the same being Arkansas Statutes (1947) Section 27-1113 (Fourth), is hereby amended to read as follows:
‘Fourth. A demand for the relief to which the plaintiff considers himself entitled. In complaints for unli-quidated damage, a prayer containing no specified amount in money, shall limit recovery to an amount less than required for Federal Court jurisdiction in diversity of citizenship cases, unless language of the prayer indicates that the recovery sought is in excess of such amount.’
SECTION 2. A maximum amount of recovery prayed may be required by motion, pre-trial conference or interrogatories.”

Appellee contends that the purpose of Act 205, supra, is to allow a plaintiff to file his complaint for unliquidated damages in an unspecified amount. It also contends, without citation of authority, that a court of equity should have inherent power to allow a victim of fraud to recover judgment against an admitted wrongdoer for the full amount of the fruits of his fraudulent activity. We disagree with both contentions.

It should here be pointed out that we are not dealing with a trial of this case upon the merits, because in those instances the trial courts are given the discretion of permitting the pleadings to be amended to conform to the proof, Ark. Stat. Ann. § 27-1160 (Repl. 1962). We are here dealing with a judgment by default which is a type of forfeiture because of a defendant’s failure to plead within the time allowed. See Walden v. Metzler, 227 Ark. 782, 201 S.W. 2d 439 (1957). In Kerr v. Kerr, 234 Ark. 607, 353 S.W. 2d 350 (1962), we pointed out that the latitude ordinarily allowed in pleading upon a trial on the merits is not allowed in the instance of a judgment by default. In doing so we stated the applicable law in this language:

“A judgment for plaintiff by default must strictly conform to, and be supported by, the allegations of the petition or complaint, a closer correspondence between pleading and judgment being necessary than after a contested trial. Defendant’s default does not enlarge or broaden plaintiff’s claim and rights under the allegations of the petition; nor may the allegations of the petition be enlarged by any evidence offered or introduced as confirmation of the default judgment.”

Furthermore, in Lowery, Administrator v. Yates, 212 Ark. 399, 206 S.W. 2d 1 (1947), we pointed out that before an original complaint could be amended in a matter of substance it would be necessary for the plaintiff to obtain a second service upon the defendant to afford him an opportunity to answer and make defense. Other courts take substantially the same view. See Pruitt v. Taylor, 247 N.C. 380, 100 S.E. 2d 841 (1957). In the last mentioned case, the North Carolina Supreme Court said:

“It would do violence to one’s sense of justice to say that defendant, having consented to the assessment of damages not in excess of a stipulated amount, had, by that consent, agreed that larger damages might be assessed.”

When the declaration of the complaint alleging that “Billy Dean Starks defrauded plaintiff of a sum not less than Six Hundred and Thirty Thousand Dollars ($630,000.00)” is considered under the rule requiring strict conformity to the allegations of the pleadings as our cases hold that it must be in awarding a default judgment, it at once becomes obvious that the complaint cannot be construed as one asking for a judgment in excess of $630,000.00. Act 205, supra, certainly did not affect the construction that should be given to a complaint upon the entry of a default. Furthermore, we do not construe Act 205, supra, as authorizing a default judgment to be entered upon a complaint for unliquidated damages in an unspecified amount. After all, Ais;t 205, supra, does still require “a demand for the relief to which the plaintiff considers himself entitled.”

Courts of equity are usually accorded a great deal of leniency in matters of procedure or discretion when a trial is had upon the merits, however, as can be seen from Kerr v. Kerr, supra, and Lowery, Administrator v. Yates, supra, courts of equity have no greater power in awarding default judgments upon amended complaints than does a court of law.

From the foregoing discussion, it follows that the trial court erred in awarding a judgment against appellant in excess of $630,000.00. If appellee wishes to enter a remittitur within 15 days for the amount in excess of $630,000.00 the judgment will be affirmed as modified. Otherwise, the judgment will be reversed and remanded to permit the pleadings to be amended as desired.

Affirmed as modified on condition of remittitur.

Harris, C.J., and Fooi.kman and Hoi.t, JJ., dissent.

CARLETON HARRIS, Chief Justice,

dissenting. At the outset, let it be said that I disagree with the majority that the legislative act in question does not permit the granting of the judgment against Starks in the amount of $934,915.61. I consider the act entirely valid and feel that it authorized the procedure followed in this case. After all, there was no way for appellee to know at the time the suit was filed how much money had been taken from the Pension Fund by fraud, i.e., the damages sought were unliquidated.

This suit against Starks was filed on October 27, 1972. An amended complaint was filed and summons issued out of state on October 31. 1972. No answer was filed by Billy Dean Starks, though the record reflects that a motion to quash the service on this defendant was filed on December 6, 1972. This motion does not appear in the record and accordingly the wording of same, and the reason for the assertion that service should be quashed, is unknown. On January 11, 1973, the court denied the motion, and also denied a motion filed on January 26, 1973 by Starks to plead out of time. (This motion likewise does not appear in the record.) The order of denial was dated January 30, 1973. The court then held that Billy Dean Starks was in default “and that a default judgment in favor of plaintiff be entered against him after a hearing to determine damages.”

The hearing as to the amount to be awarded was conducted on May 17, 1973, at which time the judgment recites:

“On this day this cause comes on to be heard, plaintiff appearing by its attorneys, Wright, Lindsey & Jennings, and defendant, Billy Dean Starks, appearing by his attorneys, Carpenter, Finch & McArthur, and the court having heard testimony, arguments, and written briefs of counsel and being fully advised, finds:”

According to the record, it was stipulated that the summons was properly issued and Starks was properly served, but failed to appear or plead within the time allowed by law. On May 17 (when the amount of judgment was rendered) both sides were represented by counsel. The plaintiff (appellee herein) offered documents and presented testimony of five individuals to sustain the issues and the parties agreed under the stipulation that the testimony and documents met appellee’s burden of proof, and established that Starks, while acting in a fiduciary capacity, defrauded appellee of the sum of $934,915.61. It was further stipulated that Starks “did not raise by motion, pre-trial conference, interrogatories, or any other pleading the issue” of whether appellee could recover judgment against Starks for any amount in excess of $630,-000. This issue was first called to the attention of the trial court at this hearing held on May 17, 1973. “Starks never requested plaintiff [appellee] to state the maximum amount of recovery plaintiff was seeking.”

Starks was represented by counsel before the judgment was ever entered. While the record reflects that five witnesses testified, it is not shown either in the judgment, or the stipulation, whether these witnesses were cross-examined by Starks’ attorneys, but one thing is certain — they had such a right and the opportunity!

The facts in the North Carolina case of Pruitt v. Taylor, 247 N. C. 380, 100 S. E. 2d 841, cited by the majority, are quite different from the situation at bar. In the first place, in Pruitt, an amendment to the compalint was made while the plaintiffs were offering evidence with respect to the amount of damage, such amendment being allowed in order that the complaint might “conform to the proof”. This action by the trial court was the basis for the reversal of the judgment by the North Carolina Supreme Court, but I desire to point out that there, the defendant had no notice of the amendment until after the verdict was rendered, judgment entered, and execution had issued. As herein pointed out, this is not the situation in the case before us. The complaint itself pointed out by its language of “not less than $630,000” that very likely a larger amount was due to the plaintiff. Starks was well aware before any judgment was ever rendered that a greater amount was being claimed, and through his attorneys had every opportunity to cross-examine witnesses offered by plaintiff, or to furnish evidence on his own behalf. In relying upon Pruitt, the majority overlook the North Carolina statute which flatly states that the relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in his complaint, and an additional statute further provides that the complaint must contain a demand for the relief to which the plaintiff supposes himself entitled, then stating, “If the recovery of money is demanded, the amount must be stated.” Such a provision, of course, is completely contrary to the Arkansas statute here in litigation.

Returning to our own cases, the rights of Starks at the hearing on damages which I mentioned in the preceding paragraphs are fully supported by Arkansas case law.

In Ferri v. Braun, 236 Ark. 329, 366 S.W. 286, Braun and wife filed a suit against Ferri alleging damages growing out of an automobile collision. Ferri failed to answer and judgment was rendered against him for the total amount asked in the complaint. Ferri appealed, and it developed that no testimony had been presented by the Brauns before the trial court nor were any witnesses offered in their behalf. This court, after first pointing out that there must be evidence to support an award of damages in a default judgment, went on to use language which I deem to be entirely pertinent to the issue at hand, as follows:

“Although the defendant, appellant, failed to file an answer, he had the right to cross-examine witnesses giving testimony as to damages and he had the right to introduce testimony in mitigation of damages. In other words, he had the right to contest the element of damages; it necessarily follows that he has the right to question on appeal the sufficiency of the evidence to support the amount of damages awarded.”

In Clark v. Collins, 213 Ark. 386, 210 S.W. 2d 505, Clark filed no answer, was held in default, and a hearing was subsequently set for the purpose of fixing the amount of damages. A motion for leave to file an answer was denied and Clark then filed á motion setting out that he had been denied permission to file an answer; further, that he was entitled to cross-examine plaintiff’s witnesses on the question of damages and to introduce proof before the jury for the purpose of minimizing damages that might be awarded to the plaintiff. He prayed that “he be permitted and granted opportunity to cross-examine the witnesses of the plaintiff and introduce proof to minimize damages of said plaintiff before the jury herein.” The motion was denied by the trial court and an appeal was taken to this court. In reversing this holding by the trial court, the late Justice Minor W. Millwee, speaking for the Arkansas Supreme Court, said:

“In the early cases of Thompson v. Haislip, 14 Ark. 220, and Mizzell, et al. v. McDonald, et al., 25 Ark. 38, this, court laid down the rule that in a hearing to determine the amount of damages after default, a defendant has a right to cross-examine the plaintiff’s witnesses and to introduce evidence in mitigation of damages. In the last case cited Chief Justice Walker, speaking for the court, said: 'As regards the first question, the defendants, by failing to plead in bar, confessed the plaintiffs’ rights to recover damages, but not the amount of damages claimed in the declaration; because, if such is the effect of a judgment by default, then there would be no necessity for calling a jury to inquire of damages, and judgment would, without the intervention of a jury, be rendered for the amount of damages set forth in the plaintiff’s declaration. It must therefore follow, that although the assumpsit to pay for the goods, averred to have been sold and delivered is admitted by the default, and no longer an open question for contest, such is not the case as regards the amount of damages to be recovered. In the case of Thompson v. Haislip, 14 Ark. 220, this court recognized this rule, and held that, upon a writ of inquiry of damages, the defendant had a right to cross-examine a witness introduced by the plaintiff, and that it was error to refuse such permission. And we think that, upon principle, the decision in that case is alike applicable to this. The open question before the jury was as to the amount of the damages to be assessed, and if the defendant be permitted (as we have held he should be) to cross-examine a witness introduced by the plaintiff, for the purpose of reducing the amount of damages, we think, for the same reason and upon principle, he should be permitted to introduce evidence for the purpose.’ ”

Let it also be remembered that it is not necessary that a prayer in a chancery case set out the specific relief sought. We have held that where a prayer for a judgment was not included in the specific relief sougnt, the chancery court was warranted in rendering such a judgment, in the absence of the element of surprise, because the facts alleged and proved warranted the rendition of the judgment. See Jackson v. Jackson, 253 Ark. 1033, 490 S.W. 2d 809, and cases cited therein.

The purpose of the law is to see that justice is done. How has appellant been deprived of that essential right in the trial proceedings of this case? Let it be recalled that there is no contention here that the court erred in not permitting Starks to file an answer out of time; nor is there any contention that he was not given the opportunity to present each and every defense he might have to the granting of this particular judgment. He admits that proof offered by the North Little Rock, Arkansas Policemen’s Pension and Relief Fund, as stated in the stipulation, “established that Billy Dean Starks (my emphasis), while acting in a fiduciary capacity, committed fraud by which he defrauded the North Little Rock, Arkansas, Policemen’s Pensiqn and Relief Fund of Nine Hundred Thirty-Four Thousand Nine Hundred Fifteen and 61/100 Dollars ($934,915.61). ” (My emphasis)

It should be quite evident by now that I disagree wholehartedly with the majority opinion and would uphold the decree of the chancery court in its entirety.

FoGLEMAN and HOLT, JJ., join in this dissent.


author: Conley Byrd, Justice.

text:
    Bonnie Jo TENPENNY v. STATE OF ARKANSAS
    CR 74-14
    508 S.W. 2d 752
    Opinion delivered May 6, 1974

      Harold L. Hall, Public Defender, by: Robert L. Lowery, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings, Jr., Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Bonnie Jo Tenpenny’s sole allegation on appeal is that her sentence of 30 years upon a conviction by a jury on a charge of delivery of heroin was excessive and should be reduced by this court.

The record shows that the jury heard evidence sufficient to sustain appellant’s conviction of having sold two packets of heroin to a police undercover agent. In addition, the jury heard appellant’s own testimony that she supported her own addiction to heroin by procuring drugs for others.

Assuming, without deciding, that we would have the power under Ark. Stat. Ann. § 43-2725.2 (Supp. 1973), to reduce on appeal a sentence which was deemed excessive, this court has no inclination toward substituting its judgment for that of the jurors who have heard the testimony and assessed a punishment within the limits prescribed by law.

Affirmed.


author: FRANK Holt, Justice.

text:
    Wayne R. WILLIAMS v. Maupin CUMMINGS, Circuit Court Judge
    CR 74-44
    508 S.W. 2d 564
    Opinion delivered May 6, 1974

      Tackett, Moore, Dowd & Harrelson, for petitioner.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for respondent.
   FRANK Holt, Justice.

Petitioner is charged with the alleged offense of bribery in both Miller and Clark Counties based upon his acts in each county in the furtherance of the same alleged illegal transaction which originated in Clark County. In Williams v. Turner, 255 Ark. 907, 503 S.W. 2d 901 (1974), we issued a writ of prohibition preventing his trial in Miller County since the information there, as amended, affirmatively disclosed that' the alleged offense occurred in Clark County. Following our opinion, the state proceeded to further amend the Miller County information. The trial court held, in dismissing petitioner’s motion to dismiss it, that both counties had concurrent jurisdiction and ordered that the trial proceed in Miller County based upon the further amended information and that the disposition in Miller County would preclude further action in Clark County. Petitioner again seeks a writ of prohibition to prevent his prosecution in Miller County on the bribery charge, as amended on January 30, 1974, following Williams v. Turner, supra.

The pertinent sequence of events is that on November 7, 1973, petitioner was indicted by a Clark County grand jury for paying or promising to pay a bribe to the deputy prosecuting attorney of Clark County “ . . . . with the intent and for the purpose of influencing the actions, decisions and recommendations of the [deputy prosecutor] in the prosecution of Frank S. Wheat, a defendant in a criminal case then pending in the circuit court of Clark County, Arkansas, in violation of Ark. Stat. § 41-901 ” (Repl. 1964). Predating this Clark County indictment is the Miller County information, as now amended, which is attacked herein by petitioner. It recites the alleged Clark County bribe as well as a second payment in Miller County by Frank Wheat’s father to Eetitioner for his use in payment of the balance of the alleged ribe.

Petitioner contends, inter alia, that even if the Miller County amended information alleges sufficient activity by petitioner to constitute a violation of the bribery statute (§ 41-901) (which petitioner vigorously denies), the Miller County Circuit Court is without jurisdiction in light of the subsequent Clark County indictment. We must agree.

Ark. Stat. Ann. § 43-1031 (Repl. 1964) provides:

If therefore shall be, at any time, pending against the same defendant, two [2] indictments for the same offense, or [2] indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment, and shall be quashed.

As we read the Clark County grand jury indictment and the Miller County amended information, they allege a single act of bribery. The allegations are concerned with one offense and not two as the state contends. We must give the Clark County indictment preference in view of § 43-1031, supra, for it is the latest charge. Therefore, it suspends or supersedes the first charge which was instituted in Miller County. The statute clearly requires that it be quashed. The presently amended Miller County information must be considered as of the date of the filing of the original information which was on October 10, 1973. This is true because the subsequent amendments, including the one following Williams v. Turner, supra, merely relate back to the original information. In fact the state at the trial level took the position that the most recent amendment did not change the form or substance of the original charge which, as we have indicated, predates the Clark County indictment. Under the mandate of § 43-1031, supra, we have previously held that the returning of a second indictment in another county for the same offense operates as a relinquishment or as an abandonment of the first indictment in the other county where both have equal or concurrent jurisdiction of an alleged criminal activity. Bottom v. State, 155 Ark. 113, 244 S.W. 334 (1922). In the case at bar, the alleged activities in Miller County would, of course, be admissible in evidence in the Clark County proceeding since the alleged activities in both counties constitute and are in furtherance of a single offense. Also, being a single offense, prosecution in Clark County bars further prosecution in either of the counties. Bottom v. State, supra. We must observe that there is no significance between the effect of a charge being brought by information or by indictment.

Writ granted.

       We do not here reach nor determine that the alleged conduct occurring in Miller County constitutes a violation of Ark. Stat. Ann. § 41-901 (Repl. 1964).


author: Carleton Harris, Chief Justice.

text:
    Seymour COTTON v. STATE of Arkansas
    CR 73-170
    508 S.W. 2d 738
    Opinion delivered May 13, 1974

      h'illough & Ford, by: Robert M. Ford, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Richard Maltison, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, Seymour Cotton, was charged in the St. Francis County Circuit Court with the crime of Robbery, the Information alleging that Cotton “did on January 5, 1973, take currency from the person of another at the Kroger Store in Forrest City, Arkansas, by force and intimidation, against the peace and dignity of the State of Arkansas.” After the taking of evidence in the trial, the court instructed the jury, after which the jury retired foi its deliberations. Along with Instructions, the jury was handed a handwritten interrogatory as follows:

“Do you find that the Defendant, Seymour Cotton Robbery alleged in this Case? (Ans. Yes or No) ____''

The jury returned its verdict, setting the sentence of appellant at 21 years confinement in the Arkansas Department of Correction and also answered the interrogatory “Yes”, whereupon the trial judge sentenced Cotton to seven additional years imprisonment under the provisions of Act 78 of 1969, making a total of 28 years. From the judgment so entered, Cotton brings this appeal. For reversal, three points are asserted which we proceed to discuss in the order listed.

It is first alleged that the trial court erred in failing to excuse Venireman Ernest Houton for cause, which failure, says appellant, required him to exhaust his peremptory challenges to remove Houton from the jury. During voir dire examination of the jury panel, it apparently developed that Houton held what he termed a “courtesy card”, such card purportedly naming Houton a deputy sheriff, and generally referred to as “honorary deputy sheriff”, having been presented to the juror by the Sheriff of St. Francis County.

Mr. Houton was not, under the law, disqualified to serve. Those persons disqualified from Petit Jury service (except by consent of the parties) are set out in Ark. Stat. Ann. § 39-105 (Supp. 1973), appellant depending upon subsection (e) which provides that one is disqualified who is prevented by any relationship or circumstance from acting impartially. We do not consider the card herein mentioned as a relationship or circumstance that would prevent impartiality on the part of the juror. In fact, the only reference to members of law enforcement agencies serving on juries is found in Ark. Stat. Ann. § 39-108 (Supp. 1973), this section providing that certain persons therein listed cannot be required to serve as Grand or Petit Jurors if they object to serving and make such objections known prior to being sworn. Subsection (h) includes “active members of any law enforcement agency.” Of course, this section refers only to the procedure used by those who do not desire to serve on the jury, and said section can be of no help to appellant. It might be mentioned that Ark. Stat. Ann. § 43-1923 (Repl. 1964) states that an exemption from serving on the jury is not a cause for challenge. At any rate, under the facts heretofore shown, Houton was not an active law enforcement officer.

It is next asserted that the court erred in giving a circumstantial evidence instruction when, in fact, the State was relying upon eyewitness identification rather than circumstantial evidence. It is true that the State offered a witness, Shirley Richard, a cashier at the Kroger Store, who identified Cotton as the man who robbed her, stating that he was holding a small pistol. Two other employees identified appellant as being in the store, one of them testifying that she had a conversation with him in which he inquired about where certain items in the store were located and inquired with regard to what time the store would close. All stated that the appearance of his hair was different at the time of trial from what it had been when the robbery was committed, each agreeing that at the time of the offense. Cotton’s hair was very “bushy”; according to one of the witnesses, “a large Afro, large bushy head of hair. ” Officers John Bascue and R. L. Robbins, employed by the Forrest City Police Department, testified that they had a description of the alleged robber and saw appellant on January 31, noting that he complied with the description given. When they placed him in the police car, he had “bushy” hair, but when they arrived at the police station, his hair no longer had that appearance. According to Robbins, a search of the police car revealed a wig under the front seat of the automobile, the wig being offered in evidence at the trial. The testimony that he was in the store on the occasion in question, and the fact that his wig was hidden under the front seat of the car, were pertinent circumstances for the jury to consider in reaching its verdict, and there was no error in giving the instruction. The only objection made at the trial to the instruction was that it was not applicable, and that is the only objection that can here be considered.

Finally, it is asserted:

‘'The Court erred procedurally iVi the way Arkansas Statute 43-2336 was presented to the jury for a determination, said procedural error denying the defendant his constitutional rights under Article II, Section 10 of the Constitution of the State of Arkansas, and denying the defendant due process of law under the General Robbery Statute 41-3602 (Repl. 1964).”

It has already been pointed out that the Information did not charge Cotton with using a firearm in the commission of the robbery, but that after the taking of evidence and instructing the jury, said jury was handed an interrogatory directing that they find whether a firearm was used in the commission of the crime. The jury returned a verdict of 21 years imprisonment on the robbery charge and answered the interrogatory “Yes”. As also earlier pointed out, the court then added an additional seven years imprisonment to the sentence. This last act constituted error. We first passed upon this question in Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409 (1970), although we did not find it necessary in that case to pass upon the constitutionality of the applicable statute, Ark. Stat. Ann. § 43-2336 (Supp. 1973). In Johnson, we set aside that portion of the trial court's judgment which added a seven year penalty for the use of a firearm in a robbery because of two defects, viz., the use of a firearm was not alleged in the Information, and the court made an independent determination as to the use of the firearm and then added seven years to the sentence which the jury had imposed. We said that appellant was therefore deprived of his constitutional right to be informed of the nature of the accusation against him, as well as being deprived of trial by jury. Here, though the jury did reply affirmatively to the interrogatory submitted as to whether Cotton used a firearm, the jury did not render the punishment therefor, the seven years being added by the court. This constituted error. Accordingly, this portion of the judgment must be reversed for two reasons. First, the Information did not contain a charge against Cotton of using a firearm in the robbery, and second, the jury did not fix the amount of time to be imposed for violation of this statute. In Redding v. State of Arkansas, 254 Ark. 317, 493 S.W. 2d 116, this court said:

“We are of the view that the legislature’s use of the words ‘sentencing court’ was intended by the legislature to refer either to the judge or the jury and that the factual issue as to the use of a firearm is to be determined by the trial court if a jury is waived and otherwise by the jury as in the case at bar.’’

The fairness of the procedure of the jury fixing the sentence (where a jury is used) can be recognized when, as here, it is really impossible to say whether the jury, in giving the maximum sentence for robbery, took into consideration the use of the firearm.

In accordance with what has been said, it is the order of this court that that portion of the judgment imposing the added seven year penalty on appellant is set aside and reversed. With that modification, the judgment is affirmed.

It is so ordered.

       This act provides that any person convicted of a felony who employed any firearm as a means of committing or escaping from said felony may be sentenced to an additional period of confinement in the State Penitentiary for a period not to exceed seven years. The act was amended in February, 1973, by Act 61, codified as Ark. Stat. Ann. § 43-2336 (Supp. 1973), wherein the additional penalty for use of a firearm was increased to 15 years.

       From the record:
      “THE COURT: The prospective juror, Ernest Houton, has testified that he is the holder of what he calls a “courtesy card,” which purportedly deputizes him as a deputy sheriff, except that it shows to be honorary. There is no Certificate of Oath by any official jurat, and the juror has testified that he has never exercised any authority as a deputy sheriff, and never expects to.”

      The act was held constitutional in a subsequent case, Redding v. State of Arkansas, 254 Ark. 317, 493 S.W. 2d 116.


author: George Rose Smith, Justice.

text:
    UNION NATIONAL BANK and Edmound Dale LEIGH v. Alice E. LEIGH
    73-287
    509 S.W. 2d 539
    Opinion delivered May 13, 1974
    [Rehearing denied June 17, 1974.]

      Smith, Williams, Friday, Eldredge & Clark, by: George Pike, Jr., for appellants.

      Warner & Smith, by: J. //. Evans, for appellee.
   George Rose Smith, Justice.

This is a will contest. The testator, William W. Leigh, died in Little Rock in 1972, at the age of 87. His widow, the appellee Alice E. Leigh, offered for probate a will that had been executed by her husband more than six years earlier, on September 6, 1966. The probate of that will was resisted, on the related grounds of undue influence and lack of testamentary capacity, by the Union National Bank, which Mr. Leigh had named as his executor in an earlier will, and by Edmond Dale Leigh, the decedent’s only child (by an earlier marriage). After an extended trial involving much testimony and many exhibits, the probate judge handed down a written opinion sustaining the validity of the challenged will. The only question here is whether the trial court’s judgment is clearly against the weight of the evidence. Our study of the case convinces us that the trial court was right.

Opposing counsel are so nearly in agreement about the controlling principles of law that we hardly need to refer to our prior decisions. Although the burden of proving the invalidity of the will was upon the contestants, Alice Leigh’s confidential relationship with her husband cast upon her the burden of overcoming a rebuttable presumption of undue influence. Orr v. Love, 255 Ark. 505, 283 S.W. 2d 667 (1955). We do not, however, regard her participation in the drafting and execution of the will as having been so dominating or so overpowering as to call for proof beyond a reasonable doubt — a test that was mentioned in McDaniel v. Crosby, 19 Ark. 533 (1858).

Mr. Leigh was admitted to a Little Rock nursing home on January 11, 1966, and executed the questioned will almost eight months later, on September 6. Every Factual aspect of the case really turns upon the events that took place between those two dates. Indeed, there is so little conflict in the testimony about the testator’s earlier life that we may pass quickly over that phase of the proof.

Mr. Leigh was born in 1885. He was engaged in the insurance business in Little Rock throughout most of his life, finally retiring in 1963. At the age of 55 he married his first wife, Edith Dale, in 1940. Their only child, Edmond Dale Leigh, was born in 1942. Mrs. Leigh died ten years later. In 1955 Mr. Leigh married the appellee, a woman 23 years younger than he, who had children by an earlier marriage. There is no indication of any friction or dissension while Edmond Dale was growing up in the home of his father and stepmother. Edmond Dale graduated from the University of Pennsylvania in 1963 and from the University of Oklahoma law school on June 1, 1966. Since 1965 he has lived in Oklahoma City, where he practices law. He has been married twice and has no children.

The appellants offered for probate a will executed by Mr. Leigh on September 30, 1964. That will was drafted by H. B. Stubblefield, who had been the testator’s attorney since 1931. It divided the testator’s property equally between his wife and son. On September 10, 1965, the testator signed a codicil, also drawn by Stubblefield, changing the executor from A. S. Fox, an accountant, to the appellant bank. All the parties admit the competency of Mr. Leigh when he executed that will in September, 1964, and the codicil in September, 1965. From that point on, however, there is much conflict in the testimony. We set forth what we regard as its essential substance, without stopping to analyse minor conflicts that would not be determinative no matter which way they were resolved.

In December, 1965, Mr. Leigh was suffering from severe headaches. Drugs were prescribed; but Mr. Leigh, by selecting his own dosages, took them in such excessive quantities that his health and clarity of mind were affected. His physicians, Dr. Smith and Dr. Levy, decided that their patient should be placed in a nursing home (no hospital accommodations being immediately available), where the administration of drugs could be carefully supervised.

Mr. Leigh was admitted to the Arkansas Nursing Home, in Little Rock, on January 11, 1966. According to his doctors he was suffering from generalized arteriosclerois with recurrent headaches — a condition that had been constant for four years. He also had a possible acute brain syndrome from drugs and moderate to marked senile change. The doctors noted in their records that the patient was markedly improved by January 22 and still more improved by January 26. Apparently the improvements were the result of the patient’s reduced intake of drugs.

Edmond Dale came from Oklahoma to visit his father on January 20, 21 and 22. He found his father so weakened and confused that he could not carry on an extended conversation. He would stop in the middle of a sentence and say something like: “I’m tired. Why don’t you come back later?” Edmond Dale also said that his father referred to him as Gilbert, which was the name of Mr. Leigh’s nephew.

Edmond Dale decided to call in another physician and selected Dr. Morris, a specialist in geriatrics. Dr. Morris, who had known Mr. Leigh previously, examined him on January 22. Dr. Morris noted that Mr. Leigh seemed oriented throughout the examination. The patient could carry on a conversation; his speech was clear. Dr. Morris said that Mr. Leigh had moderately advanced arteriosclerosis, which ordinarily includes some brain damage. He added, however, that he and others in the courtroom had some degree of arteriosclerosis and brain damage — conditions that are suffered by most people in their seventies and eighties. Dr. Morris’s testimony is significant, for, although he was selected by Edmond Dale and appeared in his behalf, the doctor did not say at any time that Mr. Leigh was not mentally competent to make a will.

On January 16 Mr. Leigh’s attorney, Stubblefield, learned that his client was in a nursing home. On January 17 Mrs. Leigh called Stubblefield and asked him to prepare a deed conveying certain of her husband’s property to her. Stubblefield said that he would have to talk to Mr. Leigh first. Mr. Leigh also called and asked Stubblefield to come out, but when the lawyer got there his client did not remember having called him. Stubblefield visited with Mr. Leigh then and continued to call upon him at the nursing home, not less often than every two weeks, from January, 1966, until September, 1968.

Mr. Stubblefield was actually the only witness who testified positively that the testator was incapable of making a will. It was Stubblefield’s opinion that Mr. Leigh’s condition became progressively worse after January, 1966, that the will of Alice Leigh had supplanted the will of her husband, and that Mr. Leigh was not mentally competent to make a will at any time after Stubblefield first saw him in January.

The sincerity of Stubblefield’s opinion is not open to doubt, but the great mass of the testimony points in the opposite direction. Dr. Levy, the testator’s personal physician and therefore a key witness, testified that his patient was in fairly good general physical condition at the time of his admission to the nu,rsing home. The effects of Mr. Leigh’s excessive use of drugs cleared up. The doctors decided to discontinue the use of several drugs, beginning on July 27, 1966. The patient’s blood pressure dropped, and his headaches ceased — improvements that continued until October (after the execution of the will in September). The records made by the nurses are to the same effect. Initially those records stated that the patient was confused, but there is no reference to confusion from July 8, 1966, until August 7, 1967. There are frequent notations that the patient was ambulatory, that he went to the dining room for meals, that he walked around outside the nursing home, and that he went riding with his wife.

Mr. Leigh executed two wills in 1966, after entering the nursing home. Both were drafted by Edgar Bethell, a respected member of the Fort Smith bar, whom Alice Leigh employed because she and Bethell’s mother were friends. The earlier will, signed on February 25, 1966, was substantially similar to the 1964 will drawn by Mr. Stubblefield, leaving half the estate to Alice Leigh and half to Edmond Dale Leigh. That will was witnessed by John H. Willingham, who was a business associate of the testator, and by Dr. Levy, the testator’s physician. Although the appellants contend that Mr. Leigh was then incapable of making a will, the testimony of Bethell, Willingham, and Dr. Levy is highly persuasive evidence to the contrary.

The second will, now in issue, was executed on September 6, 1966, and was witnessed by Dr. Levy and by George W. Dickinson, a close business associate of Mr. Leigh’s who visited him frequently at the nursing home. Mr. Leigh himself telephoned Dickinson and asked him to come to Dr. Levy’s office (not at the nursing home) and witness the will. Both witnesses testified clearly and positively that Mr. Leigh appeared to be capable of executing the will. Mrs. Leigh was not present at the execution of the will, which was supervised by Mr. Bethell.

The appellants’ strongest argument — and one which we have studied carefully — is that the September will made an unnatural disposition of the testator's estate, in that all the property was left to Alice Leigh, to the exclusion of the testator’s only child. Of course that fact alone is not of controlling weight, for counsel concede that under many decisions of this court a person is free to dispose of his estate in any way that he chooses.

As a matter of fact, Mr. Leigh’s disposition of his property was not really as unnatural as counsel would have us hold. The testator’s estate, when he entered the nursing home, was worth about a million dollars. The challenged will, after leaving all the estate to Alice Leigh, then left the entire estate to Edmond Dale if Alice predeceased the testator, and continued with this language: “I desire to note, in connection with this disposition of my Estate that I have, prior to this time, given my son a substantial share of my estate, and his means have been augmented by inheritance from other relatives, as well as by prudent investment on his part. It is my intent and purpose to insure that my wife, who has been so devoted and faithful in her attention to my needs, shall want for nothing within my means to provide.”

The declarations were true. Edmond Dale testified that his personal holdings, acquired by inheritance, were worth about half a million dollars. His father had given him $30,000 directly. In addition, Mr. Leigh had given his first wife — Edmond Dale’s mother — property worth $250,000, which she in turn bequeathed to Edmond Dale. He had also received substantial inheritances from other relatives. Moreover, the proof shows that after Mr. Leigh entered the nursing home his wife was with almost every day, from reasonably early in the morning until after the two had supper together late in the afternoon. That constant companionship continued long after the execution of the September 6 will, until Mr. Leigh’s mind finally failed in 1969. By contrast, Edmond Dale was living away from Arkansas and visited his father only infrequently during the same period of time.

Counsel for the appellants also stress the fact that Mr. Leigh had given most of his property to Alice Leigh at various times between his admission to the nursing home and the execution of the will in September. Certainly those gifts could have been taken to indicate undue influence; but the probate judge, who had the great advantage of observing the parties and the witnesses, did not so find. We have already noted that Mr. Leigh gave his first wife property worth a quarter of a million dollars, which we think to be of significant importance. Moreover, the gifts to Alice Leigh were not made surreptitiously. When real estate was involved the deeds w'ere promptly placed upon the public records. All the gifts were reported in federal gift tax returns, prepared by Mr. Leigh’s certified public accountant and duly filed. (We are told that the validity of those gifts is being challenged in a separate suit, but counsel recognize that the affirmance of the judgment in the case at hand will moot that case.)

In conclusion, we observe that the contestants of the will in controversy were confronted with a difficult task in their attempt to prove testamentary incapacity. That is, they take the position that Mr. Leigh had full testamentary capacity when he executed a will in September, 1964, and a codicil to that will in September, 1965. But they then had the burden of proving that the testator’s mind had failed before the execution of the will now in issue, in September, 1966. If there had been any such abrupt cessation of testamentary capacity, we should expect it to be reflected in the testimony of the tw'o doctors. Dr. Morris and Dr. Levy. There is, however, no such testimony. To the contrary, the evidence given by the medical expert witnesses is essentially favorable to the validity of the will. We find no basis for declaring that the probate judge’s decision is contrary to the weight of the evidence.

Counsel for the appellee have re-abstracted all the testimony, upon the theory that the appellants' abstract is incomplete, and ask reimbursement for the costs involved. We deny that motion, because a complete re-abstracting of the record was not necessary for a fair presentation of the case, even if the asserted deficiencies in the appellants’ abstract be admitted.

Affirmed.

BYRD, J., dissents.


text:
    Roy E. DAVIS v. STATE Of Arkansas
    CR 74-24
    509 S.W. 2d 547
    Opinion delivered May 13, 1974
    [Rehearing denied June 17, 1974.]

      Harold L. Hall, Public Defender, by: Robert L. Lowery, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Richard Alattison, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is an application for postconviction relief under Criminal Procedure Rule 1. The petitioner was convicted, under Ark. Stat. Ann. § 41-3938 (Repl. 1964), of having knowingly possessed stolen goods — a television set — with the intent of depriving the true owner thereof. He was sentenced, as a habitual criminal, to imprisonment for 21 years. He now contends that his conviction was a violation of the constitutional prohibition against dou-blejeopardy, in that at an earlier trial he had been acquitted of charges of burglary and grand larceny, involving the same television set. The trial judge denied the petition, finding that the crime of possessing stolen goods is not a lesser offense included in the charge of burglary or larceny.

We will assume, without having to so decide, that the petitioner did not waive the present constitutional question by not raising it (as we must suppose to be the case) at his trial upon the charge of possessing stolen goods. Even so, the record made at the Rule 1 hearing is so deficient that we must hold that the petitioner has not established his right to post-conviction relief.

The record before us contains no proof: No witness testified, no exhibits were proffered. It is quite apparent that the opposing attorneys — the deputy public defender and the deputy prosecuting attorney — both assumed that they and the trial judge fully understood the facts. But those facts, whatever they may be, were not made of record in such a way as to enable us to know what they are. There was no formal stipulation about the facts. We have before us discussions between counsel, the following excerpt from the record being the principal source of information:

[Deputy prosecutor]: We will admit to the facts; that he was acquitted on June the 28th in Case Number 74816, charges alleging burglary and grand larceny; that he was subsequently tried on November the 15th, 1972, in Case Number 75110, for possession of stolen property, the property he was accused of possessing being the same property that had previously [been] alleged to have been stolen in Case Number 74816. I think, essentially, that is the factual situation.
[Deputy defender]: But the only difference is that the witness Bosby was not used for the second trial.
[Deputy prosecutor]: The witness, the deaf mute who was unable 4o make the identification in the burglary trial, was not used in the possession of stolen property. And it all arose out of the same transaction, also. Well, essentially it is the same. In the second case, he is charged with having in his possession property stolen in the burglary he was previously tried on. There is no dispute as to the facts. It is strictly a legal issue whether possession of stolen property is a lesser included offense and whether trial on P.S.P. following acquittal on burglary and grand larceny constitutes double jeopardy. . . .

We invariably regret having to decide a case other than on its merits, but here we can find no alternative. So much information is lacking that we are presented with what is in fact an academic question of law — hardly a sound basis for determining the validity of a 25-year sentence. The precise wording of the two informations (or indictments) is unquestionably important, but those charges are not in the record. Many specific facts, such as the dates and places involved in the particular crimes, might have a bearing upon the case, but that information is wanting. The difference, whatever it may have been, between the testimony that resulted in an acquittal at the first trial and the testimony that resulted in a conviction at the second trial, must surely be of importance, but none of that testimony is before us.

Even if there may be situations — a point we do not reach — in which a conviction or an acquittal upon a charge of larceny would be a bar to a prosecution of the same person for possession of the stolen property, there can also be situations in which the first prosecution would not be a bar to the second. In the case at hand the record is so incomplete that we cannot state with confidence which possible situation is presented. Consequently we cannot say that the circuit court was wrong in its decision, especially when it is remembered that the burden was on the petitioner to prove his right to relief in the trial court and his right to a reversal here.

Affirmed.


author: LYLE Brown, Justice. Carleton Harris, Chief Justice,

text:
    REBSAMEN FORD, Inc. v. Anna Irene KING
    74-22
    509 S.W. 2d 543
    Opinion delivered May 13, 1974
    [Rehearing denied June 17, 1974.]

      Moses, McClellan, Arnold, Owen & McDermott, for appellant.

      Alexander, Southern, Vess & Kelly, for appellee.
   LYLE Brown, Justice.

Appellee Anna Irene King instituted this suit to recover possession of an automobile which she intended to trade in on a new car. She also sought $2500 damages for alleged wrongful conversion of the car. Appellant responded by alleging that appellee had executed a purchase order for a new car and traded in the old car as a down payment. The jury awarded damages of $1220.

Appellee, being interested in trading her 1970 model car for a new 1972 model, went to appellant's place of business on Saturday afternoon, August 19, 1972. Salesman Luther Tull showed Mrs. King several cars and she found one she liked. After considerable discussion about prices, Tull obtained the assistance of the sales manager, James D. Puckett. The trade-in allowance, the balance to be paid, and the amount of monthly installments were agreed upon. Thereupon a document styled “Retail Buyers Order” was executed by appellee and accepted in writing by Puckett on behalf of appellant. At the bottom of the order was a space for a finance company to approve the credit. It being late on Saturday afternoon the office of the Ford Motor Credit Company was closed, and it was anticipated the credit company would be contacted the following Monday. Appellee left her 1970 trade-in with appellant and was furnished a demonstrator to drive. The facts thus far recited are undisputed.

In support of her compalint appellee testified, along with her son and the salesman, Luther Tull. Appellee testified she had never before bought a car on time payment and that she did not understand the terms of the purchase order. “I thought it was to check my credit; and if that was okay, I could take it .... I did make a deal to trade if my credit was alright.”

Appellee testified she talked to several people over the weekend and that on Monday morning around 9:00 o’clock she called Mr. Puckett and told him she could not take the new car because she was not financially able. Then on Tuesday morning appellee delivered the demonstrator back to appellant’s place of business. She requested her 1970 car be returned to her and appellant declined to do so, taking the position that the parties had made a binding sale and purchase. (Three months later the car was returned to appellee “without prejudice”.)

Charles Russell King, appellee’s son, testified he accompanied his mother on August 19 to Rebsamen’s. He said his testimony would be the same as that of his mother. He also said that while his mother’s car sat on appellant’s lot for three months a hole was knocked in the gas tank and the motor rusted.

Witness Luther Tull, the car salesman, testified he had been in the automobile business since 1929; that at the time of the subject transaction he had worked for appellant for three years; and that he had an opinion about the amount appellant’s 1970 car depreciated while it was on appellant’s lot. He estimated the depreciation to be $700. With regard to the purchase order signed by appellee he said: “I told Mrs. King this was a buyer’s order and a contract, but it wasn’t a contract where I worked before.” He said he heard Mr. Puckett tell appellee she was singing a contract “if we get the title and pay-off”. He said the purpose of sending appellee home in a demonstrator “was to lock up the deal so she couldn’t go someplace else and buy a car”.

The first witness for appellant was Gene Beavers, appellant’s business manager. He said the buyer’s order signed by appellee was accepted by appellant and by the finance company. However, he stated that the date the finance company approved appellee’s credit was not shown on the buyer’s order, nor did he have knowledge as to when it was accepted. He said that appellee did not sign the finance company’s credit contract.

James D. Puckett testified he was the finance manager for appellant at the time of the transaction. He said he had the duty to “call the deal to the finance company and wait for their approval”. Luther Tull called on the witness to assist him with the trade with appellee. The witness rejected the offer made by Mr. Tull and after conferring with the used car manager, Puckett made an offer to trade with appellee for a difference of $2400. Puckett said the figure was acceptable to appellee, that she signed the buyer’s order and Puckett signed for appellant. “I told her that I would not be able to call on the credit because it was Saturday and I probably called the deal in around 8:15 or 8:30 Monday morning and informed Mrs. King that everything was set to go.” He said he may have spoken to appellee on the telephone Monday afternoon. The witness said credit approval is handled by telephone and ofttimes takes no more than thirty minutes to get a report. Gene Beavers, Rebsamen’s Credit manager, said that credit company did not open until around 9.00 a.m.

The title certificate to the trade-in was not delivered to appellant on Saturday, August 19. In fact it was in the hands of the Bank of Cabot to whom appellee owed a balance of $400 on the car. Appellee had previously given the money to a relative to pay the bank but it was not paid. Appellee informed Puckett that the title was clear. Puckett, who apparently called the bank on Monday, was at that time informed of the balance owed.

Appellant takes the position that as a matter of law the buyer’s order executed on August 19 was a contract of sale and purchase; that being true, appellant urges, it had a reasonable length of time in which to secure the approval of a responsible finance company.

The instrument here involved is titled “Retail Buyers Order’’. Immediately above the signature appears the following paragraph:

This order is not valid unless signed and accepted by dealer and approved by a responsible finance company as to any deferred balance.

To some extent the foregoing language when considered with the other language in the instrument is ambiguous. It can be construed both as a contract to buy upon condition of credit approval of a responsible finance company as to the deferred balance and also as an offer to purchase requiring not only the acceptance by the “dealer’’ but also the approval of a responsible “finance company as to any deferred balance” before there is a valid contract.

“The right, before acceptance, to revoke an ordinary offer, or an offer not supported by consideration is unquestioned.” See 17 Am. Jur. 2d Contracts § 35. It is also “ . . . fundamental that an acceptance must comply with the terms of the offer — that is, in order to form a contract, the offer and acceptance must express assent to one and the same thing, and there must be no substantial or material variance between them.” See 17 Am. Jur. 2d Contracts § 62.

The term “order” has many meanings but when used in the phrase “Retail Buyers Order”, it can take on the connotation of an offer by a would-be purchaser; American Seeding Machine Co. v. Commonwealth, 152 Ky. 589, 153 S.W. 972 (1913). Consequently, if the connotation of offer be substituted for the word “order” in the language of the instrument here involved then it would read:

This offer is not valid [a binding contract] unless:
(1) signed and accepted by dealer and
(2) approved by responsible finance company as to any deferred balance.

The jury, because of the ambiguity of the language involved, had a right to construe the language of the instrument in that light. When read in that light the instrument would remain an “offer” until there was both an acceptance by the “dealer” and an approval by a “responsible finance company as to any deferred balance”. When viewed in this light the approval of a “responsible finance company as to any deferred balance” was a condition to the acceptance of the offer or order as a contract. Now of course, parties can enter into a binding contract to sell and purchase when the purchaser’s credit is approved by a responsible finance company and in those instances the dealer would have a reasonable time within which to secure the approval of a responsible finance company. However, as demonstrated above, the language here is susceptible of two interpretations and we can not say that the jury erroneously concluded that the approval “by a responsible finance company” was a term or condition prerequisite to the acceptance of the offer as a contract between the parties. It was also a jury question as to which came first, the acceptance by the finance company or the rejection by appellee.

We also think it is significant that the deal could not have been closed in accordance with the financing terms expressed in the buyer’s order; that was because at the time the order was executed on Saturday neither party was aware that the indebtedness existed at the Bank of Cabot. Therefore, if the finance company had paid the bank, then that amount, $400, would have to be added to the contract. It may well be that when appellee discovered the money she posted to pay the bank had not been paid, she decided that she was not financially able to consummate the deal.

Affirmed.

Harris, C.J., and Holt, J., dissent.

Carleton Harris, Chief Justice,

dissenting. I dissent because, in my opinion, the instrument in question was just exactly what it was titled, “Retail Buyers Order”. It was accepted by both Mrs. King and Rebsamen Ford, Inc., and the carrying out of its provisions was subject only to the approval of a finance company. The transaction occurring on Saturday afternoon, no contact could be made with the Ford Motor Credit Company since it had closed for the day. The testimony reflects that the credit company was contacted on Monday, although the exact time is not established; it thus is not clear whether Mrs. King advised Rebsamen that she was not going to purchase the car before or after the credit company was called. However, that particular point is immaterial to me since, in my view, Rebsamen was entitled to a reasonable time in which to obtain the approval of a responsible finance company, and since the Rebsamen company representative took action on the very first business day following the execution of the agreement, I feel that the contract was binding upon appellee. In the case of Gentry v. Hanover Insurance Company, 284 F. Supp. 626, the United States District Court for the Western Division of Arkansas, Hot Springs Division, through Judge John E. Miller, Senior District Judge, quoted 17 C.J.S. Contracts § 43, p. 686, as follows:

“Where an agreement is made subject to the consent of a third party, it must be looked on as a conditional agreement, dependent on such consent being given within a reasonable time, in default of which the agreement must be taken not to have become effective ...”

The Court of Appeals of Kentucky, in the case of Green River Steel Corp. v. Globe Erection Company, 294 S.W.2d 507, stated the same view, as follows:

“The general rule is that where an agreement is made, subject to the consent or approval of a third person, it must be looked on as a conditional agreement, dependent on such consent being given within a reasonable time, in default of which the agreement must be taken not to have become effective. [Citing cases.]”

My basic disagreement with the majority is simply that, under my interpretation, the contract was not an “offer”, but was an “order”, subject only to approval by the credit company. Since appellant, which, in my opinion, was the only party having the right to raise the question of credit approval, is satisfied, I would hold the contract binding and reverse the judgment.

I also suggest that, under this decision by the majority, automobile dealers had best re-examine their customer order agreements.

Holt, J. joins in this dissent.


author: Lyle Brown, Justice.

text:
    Fred Lee ORR v. STATE of Arkansas
    CR 74-13
    508 S.W. 2d 731
    Opinion delivered May 13, 1974

      Charles A. Banks, Public Defender, for appellee.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings, Jr., Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant was convicted in 1972 of assault with intent to kill and sentenced to twenty-one years. From a denial of any relief under his Rule I petition he appeals.

Appellant first contends it was error not to give him a preliminary hearing. Ark. Stat. Ann. § 43-601 (Repl. 1964). We have many times held the statute granting a preliminary hearing in a case of arrest without a warrant is directory and not mandatory. Ellingburg v. State, 254 Ark. 199, 492 S.W. 2d 904 (1973). Furthermore, appellant does not allege any prejudice.

He next contends he was arrested without a warrant. Such an arrest is proper when there are reasonable grounds for believing a felony has been committed. Ark. Stat. Ann. § 43-403 (Repl. 1964). Appellant readily admitted he committed the homicide so the officer certainly had reasonable grounds to make the arrest without a warrant. Also, appellant went to trial without making known his objection; that fact constituted a waiver. Ellingburg v. State, Supra.

Finally appellant urges he had ineffective assistance of counsel. Appellant does not set out specific allegations. He makes the conclusionary statement that the attorney did not handle the case to the best of his ability, and “I can tell when a person is really trying and when he isn't”. Attorney Dan Burge is a respected member of the Blytheville bar and has been so for more than twenty years. Although his work is primarily in the civil field he said he had been appointed in “from six to ten criminal cases a year since I have been practicing”. He conceded he was not entirely happy about representing appellant under court appointment. That was because the appellant while out on bond had a steady job for several months. Nevertheless, Burge testified that he represented appellant, and free of charge, to the best of his ability. He said he had eight days in which to get ready for trial. The attorney obtained from the police department the complete file on appellant's investigation. He said he went over the whole file with appellant and issued subpoenas for four witnesses. He said he was as well prepared under the circumstances of the case as he would ever have been. He said appellant admitted the killing but insisted on claiming self-defense, which defense the attorney felt to be very weak. The record is completely void of any evidence that appointed counsel failed to meet the standards set out in Franklin v. State, 251 Ark. 223, 471 S.W. 2d 760 (1971).

Affirmed.

FOGLEMAN, J., not participating.


author: JOHN A. Fogleman, Justice.

text:
    James R. WEBER v. Mildred Anne WEBER
    74-3
    508 S.W. 2d 725
    Opinion delivered May 13, 1974

      Laser, Sharp, Haley, Young & Boswell, P.A., for appellant.

      Jack L. Lessenberry, for appellee.
   JOHN A. Fogleman, Justice.

Mildred Anne Weber and Dr. James' R. Weber were married October 3, 1964, in Jacksonville, Arkansas, where James Weber engaged in the general practice of medicine. They have one child, Dana Elizabeth, now aged eight years. On January 31, 1973, Mrs. Weber filed suit for divorce, alleging indignities to her person as grounds. She specified abuse, ridicule and neglect as elements of the charge. She asked for alimony, property distribution and custody of the child. Dr. Weber filed an answer denying Mrs. Weber’s allegations, counterclaimed for divorce on the same grounds and also sought custody of the minor child. On July 8, 1973, the chancellor granted Mrs. Weber’s prayer for divorce, awarded custody of the minor child to the mother and awarded alimony and child support. For reversal, appellant contends that the decree granting the divorce and dismissing his counterclaim was against the preponderance of the evidence. We do not agree and affirm the decree.

The burden was upon appellant to demonstrate error in the chancellor’s findings. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W. 2d 848 (1974); Holt v. Holt, 253 Ark. 456, 486 S.W. 2d 688; City of Little Rock v. Sunray DX Oil Co., 244 Ark. 528, 425 S.W. 2d 722. We will not reverse them unless they are clearly against the preponderance of the evidence. Hampton v. Hampton, 245 Ark. 579, 433 S.W. 2d 149; Hendrix v. Hendrix, supra; Williams v. Campbell, 254 Ark. 592, 495 S.W. 2d 512; Marine Mart v. Pearce, 252 Ark. 601, 480 S.W. 2d 133. Where, as here, there are sharp conflicts in the testimony which must be resolved, to a considerable extent, upon evaluation of the credibility of witnesses, we must defer to the judgment of the trial judge because of the superiority of his position in making that determination. Green v. Owens, 254 Ark. 574, 495 S.W. 2d 166; Marine Mart v. Pearce, supra; Dodds v. Dodds, 246 Ark. 313, 438 S.W. 2d 54; Hampton v. Hampton, supra.

The evidence presented in behalf of appellee related to alleged incidents of physical abuse, appellant’s association with one of his nurses, allegedly false accusations of appellee made by Dr. Weber, and conduct on his part which was embarrassing to Mrs. Weber. Appellant contends that the testimony showed nothing more than incompatibility, that it was not sufficiently corroborated and that any misconduct on his part had been condoned by appellee. We do not agree with any of these contentions. We state the testimony, insofar as plausible, in generalities, endeavoring to avoid details, because we feel that the best interests of the parties and their young daughter, whose custody is involved, require no more. Mrs. Weber told of two instances when violent conduct on the part of Dr. Weber caused her to flee to homes of neighbors. On the later occasion she said that he inflicted bruises and that he subsequently came to the neighbor’s home and pursued the quarrel. The most critical incident in the breakup of the marriage occurred in October 1972, when a 20-year-old nephew and Mrs. Weber were visiting and Dr. Weber, having left the house after dinner, returned about 10:30 and found Mrs. Weber and her nephew alone together. The versions of the witnesses as to what had occurred are sharply conflicting. Her version was that the doctor was intoxicated, made unfounded accusations, threatened to kill her, the nephew and her brother, the nephew’s father, and administered a severe beating over a period she estimated to be 20 or 30 minutes, and then left the house. She said there were other instances when Dr. Weber inflicted physical violence upon her. According to her. Dr. Weber had consulted a psychiatrist after the first incident. She related that about the time of the final separation, January 23, Dr. Weber told her, after they had left a conference with his attorney at which she had refused to sign a settlement proposal made by the doctor, that he would kill her if she tried to see her brother or an attorney. She told of having seen her automobile, then being driven by her husband, parked after midnight, on two occasions, at the home of a nurse employed by him. She claimed to have met the two when they were returning in a motor vehicle from a farm in which Dr. Weber was interested and said that they were sitting unusually close together.

We deem this testimony, viewed as a whole, sufficient to constitute the grounds for divorce alleged by appellee, if her testimony was believed. The corroboration need be only slight in this case, because no one could ever assert that this bitterly contested case was collusive. Lewis v. Lewis, 255 Ark. 583, 502 S.W. 2d 505 (1973); Morlan v. Morlan, 255 Ark. 799, 502 S.W. 2d 628 (1973).

Mrs. Weber’s brother recalled a telephone call by the doctor in October 1972, threatening to kill both the brother and his són and accusing Mrs. Weber and her nephew of misconduct. He described his sister’s appearance when he saw her five or six days later as shocking, because of the extent and number of bruises about her body. Dr. Ernest Harper recalled examining Mrs. Weber about this time and finding numerous bruises. A lady who attended a therapy group with Mrs. Weber recalled seeing her with a black eye and bruised face in October 1972. Dr. Weber admitted having struck Mrs. Weber and inflicting bruises, but said that it was done in anger attributable to his surprising appellee and her nephew in shocking misconduct. He denied beating her. Another witness, formerly employed by Dr. Weber stated that the doctor had said his wife had been guilty of adultery. Dr. Weber admitted he had accused his wife of adultery on the basis of suspicion only.

On the occasion of a Christmas visit in 1970, Mrs. Weber’s mother recalled having seen bruises about her daughter’s face and arm, which appellee said were inflicted by appellant. This witness said her daughter expressed her fear of her husband on this occasion. The mother said that, in her .presence, Dr. Weber generally treated his wife in a very degrading, condescending, brutal manner, and she gave illustrative instances. This, according to the witness, was very embarrassing, both to her and her daughter. Appellee’s father also observed his daughter’s black eye about Christmas 1970. He testified he had noticed a strained marriage relationship over a two-year period. He thought Dr. Weber was too harsh with appellee and too demanding of her. There was also substantial corroboration by the neighbor to whose home Mrs. Weber went on her second flight.

While appellant points out conflicts in the testimony on behalf of appellee, and argues forcefully about the credibility and weight which should be accorded it, we are in no position to say the chancellor erred in these matters.

Appellant contends his misconduct was condoned. Con-donation seems to have been first asserted by him in his brief on appeal. We find no intimation that appellant was relying on this defense in the trial court. Be that as it may, we do not find that there was a condonation as a matter of law. Appellant relies upon appellee's admission that the two might have slept together once or twice after her having been beaten by Dr. Weber in October of 1972. This could, of course, constitute evidence of condonation. But standing alone, it is not enough. An act of sexual intercourse after an act of cruelty is evidence of condonation, but is not conclusive unless wholly voluntary on the part of the injured spouse. Buck v. Buck, 205 Ark. 918, 171 S.W. 2d 939. Continued cohabitation will condone acts of cruelty, but there are exceptions where the life or health of the innocent party is involved, or where cohabitation is continued in the hope of better treatment. Shirey v. Shirey, 87 Ark. 175, 112 S.W. 369. The rule is somewhat relaxed when the wife is the innocent party because of the greater difficulty of her withdrawal from the marital domicile attributable to her greater dependence upon the husband for protection and support. Shirey v. Shirey, supra. We refused to apply the rule when the wife testified that her living with her husband as man and wife after a separation was not due to a reconciliation but for the purpose of obtaining the custody of her child. Greer v. Greer, 193 Ark. 301, 99 S.W. 2d 248. If the testimony of Mrs. Weber is believed, and it is obvious the chancellor did believe it, we would not be justified in reversing this decree on the ground of con-donation.

Mrs. Weber testified she remained in bed all the next day after the October 1972 beating. She said she then discovered that her car keys were missing, so she remained in bed several days before going to see Dr. Harper, because she knew she had to wait until her husband left on a planned trip to California. She stated she consulted an attorney on the same day she saw Dr. Harper, but did not advise Dr. Weber of her seeking legal assistance because he had threatened to kill her if she did. When Dr. Weber came back from California, he returned to the residence where the parties had lived, but not to their bedroom, according to Mrs. Weber. She said he slept in a back room, that their relationship was very strained and that she tried to stay out of his way and to avoid their sleeping together. She justified her remaining in the home and the occasions when the two slept together by stating her desire to wait until after Christmas to separate in the interest of her daughter. She said that over a two-year period she had been afraid to leave Dr. Weber because of her fear that he would hurt her if she did. The actual separation did not take place until January 23, 1973. She explained that Dr. Weber had already taken an apartment, but told her that he would not move out until she signed some papers “about a divorce.”

Dr. Weber’s own testimony falls far short of establishing condonation, and is somewhat corroborative of Mrs. Weber. He testified that, at Mrs. Weber’s request, he moved out with the feeling that his marriage was completely dead, and that he thought in retrospect that it had been for a year or two. He also testified that his wife had lost all interest in sex with him and estimated that the parties engaged in sexual intercourse not more than three or four times during all of 1972, and asserted that he had slept in the guest bedroom all that year. He said he chose to remain at home that year, principally on account of his daughter. He knew, when he came back to the house after the episode involving Mrs. Weber’s nephew, that divorce was inevitable. He had not intended to move out, even after he and she had gone to his attorney’s office, but did so on the advice of counsel one week before appellee filed suit for divorce.

Appellant also invokes the doctrine of recrimination. A factor to be considered in deciding whether it is to be applied is the apparent lack of possibility of reconciliation. Ayers v. Ayers, 226 Ark. 394, 290 S.W. 2d 24. That possibility seems totally absent here. Where both parties are at fault, it is appropriate that relief be granted against the greater and first offender. Longinotti v. Longinotti, 169 Ark. 1001, 277 S.W. 41. See also, Hensley v. Hensley, 213 Ark. 755, 212 S.W. 2d 551. This is sometimes referred to as the doctrine of comparative rectitude. See Lewis v. Lewis, 248 Ark. 621, 453 S.W. 2d 22. Even though we feel that Mrs. Weber should bear some share of the blame for the wrecking of this marriage, the matter of credibility is again important. If her testimony, and that on her behalf, are given full credit, and that by and on behalf of Dr. Weber is not, then she was entitled to a divorce, at least on the basis of comparative rectitude. A divorce should be denied upon the basis of recrimination only when it is found that the fault of the parties is equal in degree, so that neither is in position to demand the interposition of the court. Lewis v. Lewis, supra. Another factor to be considered in determining whether a divorce should be denied upon the ground of recrimination is the potential effect of further cohabitation upon the safety of either of the parties. See Healy v. Healy, 77 Ark. 94, 90 S.W. 845; Cate v. Cate, 53 Ark. 484, 14 S.W. 675. Since there seems to be general agreement that this marriage is beyond redemption and there is evidence which would justify a belief that further cohabitation might well be hazardous to appellee’s health and safety, there was no error in failing to apply the doctrine of recrimination.

Appellant also contends that dismissal of his counterclaim for divorce and custody of his daughter was error. Dr. Weber testified he and his wife had a relatively happy, stable marriage until two or three years previous to the trial, when Mrs. Weber underwent a personality change. He said she became extremely irritable and argumentative, given to temper flareups, neglectful of housekeeping and meal cooking, extravagant about spending on credit, inappropriately hostile, extremely forgetful and paranoid. He stated that she not only accused him of wanting to kill her but of many illicit affairs. He related that her living routine changed in that she often would stay up ail night and then sleep until noon or, sometimes, all day. He told of occasions when she assaulted or threatened him. According to him, she had kept company with other men. Dr. Weber’s version of the incident in October 1972 would have justified indignation on his part, if his version was accepted as correct. There was some corroboration of Dr. Weber’s testimony, which, if accepted at face value, would probably have been sufficient to have justified the granting of a divorce to him. Appellee, however, offered testimony tending to contradict much of the corroborating evidence. Although we cannot say that Mrs. Weber was without fault, we cannot say that a finding that Dr. Weber was more to blame was clearly against the preponderance of the evidence.

The major thrust of Dr. Weber’s contention on the counterclaim, however, is directed toward the matter of custody of the child of the parents. There is convincing evidence from which it would be fair to conclude that both parents have a genuine love for their daughter, which is reciprocal. So long as the best welfare of the child does not otherwise require, there is a decidedly humanitarian preference for placing a child or tender years, particularly a daughter, in the custody of the mother. Townsend v. Lowery, 238 Ark. 388, 382 S.W. 2d 1; Wimberly v. Wimberly, 202 Ark. 461, 151 S.W. 2d 87; Andrews v. Andrews, 117 Ark. 90, 173 S.W. 850; Roberts v. Roberts, 216 Ark. 453, 226 S.W. 2d 579; Taylor v. Taylor, 163 Ark. 229, 259 S.W. 395; Gibson v. Gibson, 156 Ark. 30, 245 S.W. 32. Even infidelity may not constitute sufficient grounds for denying a mother the privilege of bringing up her child. Gilbert v. Swilley, 235 Ark. 974, 363 S.W. 2d 412; Aucoin v. Aucoin, 211 Ark. 205, 200 S.W. 2d 316. The chancellor’s findings oh this must also be affirmed unless clearly against the preponderance of the evidence. Stephenson v. Stephenson, 237 Ark. 724, 375 S.W. 2d 659. There is no case in which the opportunity of the chancellor to observe the parties is accorded more weight. Holt v. Taylor, 242 Ark. 292, 413 S.W. 2d 52; Cheek v. Cheek, 232 Ark. 1, 334 S.W. 669. In order for us to overturn the award of the custody of this young daughter to her mother, we must find that Mrs. Weber’s unfitness as a mother was established by a clear preponderance of the evidence. See Cassell v. Cassell, 211 Ark. 489, 200 S.W. 2d 965. This we cannot do.

It should be noted that appellant once agreed that his wife might have custody of the daughter, but changed his mind. His change of mind, according to him, resulted from investigations he made after the divorce suit was filed, through which he discovered that Mrs. Weber had been taking an inordinate amount of prescription drugs. Many of these drugs were prescribed by different physicians, apparently without any of them knowing what the others may have prescribed. Dr. Weber now is of the opinion that this indiscriminate use of drugs by Mrs. Weber was the real cause of her changes in attitude, personality and conduct. Mrs. Weber described some of them as diuretics, sleeping pills, anti-depressants, diet depressants, antihistamines, cortisone skin creams, antibiotics and kidney medicines. She admitted having obtained some of them from drug salesmen, but said that she did so at the suggestion of her husband so that he might be spared the trouble of asking for them. Dr. Weber offered evidence that she had also taken drugs which were samples kept rather insecurely in his office. Dr. Weber said that some of the drugs she was taking could cause permanent mental deterioration and any might occasionally cause toxic psychosis resulting in loss of touch with reality, paranoia and hallucinations. He feared the dangers of withdrawal reactions, such as convulsions and the potential dangers when mixed with alcohol. The withdrawal reactions could be helped by psychiatrists, according to Dr. Weber.

A medical expert called by appellant identified the various drugs disclosed by pharmacy records to have been furnished to Mrs. Weber. Three of them he identified as “scheduled” drugs, each prescribed by a different physician. All were potentially addictive. One taking either of two of them should be restricted as to activities, such as driving an automobile. He described potential effects similar to those stated by Dr. Weber, and mentioned possible synergistic reaction with alcohol, and of one drug with another. He said that different persons reacted differently to these drugs and that the attending physician could best make the decision as to prescribing them. He found no addictive pattern from charts showing quantities furnished.

A psychiatrist who had been consulted by Mrs. Weber stated that he had found her very depressed and had prescribed medication as an anti-depressant, but had difficulty in getting her to take it as often as she should. He stated there had been a marked improvement in her condition and expressed the opinion she had the ability to maintain herself and her child. He found no evidence of drug addiction or of withdrawal symptoms. A school teacher who is a neighbor frequently.transports the daughter to and from school. She testified that the child is always well groomed. She visits in the home where Mrs. Weber and the child are living and said that she found it as well kept as most homes and saw no evidence of excessive use of alcohol by Mrs. Weber. This witness said that the child is her mother’s main interest and that she had seen Mrs. Weber in the yard entertaining her daughter and other neighborhood children. The wife of one of the men with whom Mrs. Weber was accused of keeping company said she was a frequent visitor and companion of Mrs. Weber. She said Mrs. Weber had been entrusted to keep her children while she and her husband went to New Orleans. She said she had not seen Mrs. Weber intoxicated, but had seen her emotionally upset before Christmas 1972. According to this witness, Mrs. Weber’s emotional condition had improved since January 1973. She was of the opinion that Mrs. Weber was very capable of taking care of herself and her family.

Mrs. Weber testified she had not taken any of the drugs previously prescribed for her in two or three weeks, and that she had discontinued one of the three scheduled drugs in November 1972 and another in January or February 1973. She professed to have no withdrawal symptoms and attributed her .improved condition since the separation to relief from merftál stress which she attributed to the strained relations between her and her husband. Another witness described her as a good mother.

It seems obvious to us that the chancellor accepted Mrs. Weber’s version of the drug use and her witnesses’ evaluation of her conduct and ability to properly care for the child. We cannot say that this was error or that the chancellor incorrectly weighed the evidence.

Since we cannot say that the chancellor’s findings were clearly against the preponderance of the evidence in any respect, we affirm the decree.