text:
    Robert Lewis WILLIAMS v. STATE of Arkansas
    CR 76-7
    535 S.W. 2d 842
    Opinion delivered May 3, 1976

      Charles D. Barnette, for appellant.

      Jim Guy Tucker, Atty. Gen., by: B. J. McCoy, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Robert Lewis Williams filed a petition for post-conviction relief from his conviction of possession of heroin, a felony, after trial on June 4, 1973, resulting in a sentence to seventy years’ imprisonment on three counts. He also filed a motion for disqualification in the post-conviction proceeding of Circuit Judge John W. Good-son, who had presided over his trial. In support of this motion, appellant Williams filed an affidavit in which he stated that immediately preceding the jury’s being excused from the courtroom to begin its deliberations in his trial, Judge Good-son had stated to the jury that he saw no reason why the defendant Williams should not be found guilty as charged. Thereafter, Williams was charged with and convicted of perjury in violation of Ark. Stat. Ann. § 413001 (Repl. 1964) in the making of this statement under oath.

For reversal, Williams first contends that the court erred in denying his motion for directed verdict. His argument on this point is not well taken. He contends that the matter pending before the court was his petition for post-conviction relief and that the alleged false statements were not material to the issues raised by it, since the affidavit was in support of his motion for disqualification of the presiding judge only. He relies on Lednum v. State, 169 Ark. 396, 275 S.W. 699. There are three factors that made the denial of the motion proper. In the first place, reliance on Lednum is inappropriate. The governing statute has been amended since that decision. We held that a perjury conviction cannot be based upon a false affidavit which does not show upon its face that its subject matter is material in a cause, matter or proceeding before a court, tribunal, body corporate or other officer having authority to administer oaths. The amendment has materially changed the definition of the crime of perjury upon which the holding in Lednum was based. This amendment was made by Initiated Act No. 3 of 1936. The statute, as amended, appears as Ark. Stat. Ann. § 41-3001 (Repl. 1964) which now reads as follows:

Perjury in the first degree is the’ wilful and corrupt swearing, testifying or affirming falsely to any material matter in any cause, matter or proceeding before any court, tribunal, body corporate or other officer having by law authority to administer oaths, or to any affidavit, deposition or probate authorized by law to be taken before any court, tribunal, body politic or officer. (Italicized words were added by amendment.)

Secondly, appellant’s contention is unsound in that perjury in the second degree is a lesser included offense. People v. Samuels, 284 N.Y. 410, 31 N.E. 2d 753 (1940). That crime is defined in Ark. Stat. Ann. § 41-3002 (Repl. 1964) which, in pertinent part, reads as follows:

A person who swears . . . that any . . . affidavit. . . by him subscribed, is true, in any action of any kind, or in a special proceeding, or upon any hearing, or inquiry, or on any occasion in which an oath is required by law, or is necessary for the prosecution or defense of a private right, or for the ends of public justice, or may lawfully be administered, and who in such action or proceeding, or on such hearing, inquiry or other occasion, wilfully and knowingly testifies, declares, deposes or certifies falsely, in any matter, or states in his testimony,. .. affidavit, or certificate, any matter to be true which he knows to be false, and who is not guilty of perjury in the first degree, is guilty of perjury in the second degree . . .

The third factor is that the statements in the affidavit were certainly material, as a matter of law, to the proceeding before the court, which was the motion to disqualify, not the petition for post-conviction relief. Where there is no dispute about the facts sworn to, any question of materiality is one of law for the court. Bryant v. State, 208 Ark. 192, 185 S.W. 2d 280; Carter v. State, 181 Ark. 665, 27 S.W. 2d 781.

Williams also asserts that there was error in the court’s refusal to give his requested instruction that if the facts sworn to were not material to the proceedings before the court, the defendant should be found innocent. It seems to us that there was no question of fact for the jury as to materiality. Furthermore, the materiality of the statements in an affidavit is not an essential element of perjury in either degree under the statutes applicable to this prosecution. Ark. Stat. Ann. § 41-3001,3002 (Repl. 1964). In this respect our statutes make the crime with which appellant was charged that which was known to the common law and in many statutes as “false swearing.” To constitute that offense, the false statement need not be material, even though it should be relevant. Beckley v. State, 443 P. 2d 51 (Alaska, 1968); State v. Ellenstein, 121 N.J.L. 304, 2 A. 2d 454 (1938); Barkley v. Commonwealth, 264 S.W. 2d 297 (Ky. 1954); People v. Samuels, 284 N.Y. 410, 31 N.E. 2d 753 (1940); State v. Byrd, 28 S.C. 18, 4 S.E. 793, 13 Am. St. Rep. 660 (1888); State v. Miller, 26 R.I. 282, 58 A. 882 (1904).

The instruction offered was not a correct statement of the law, so its refusal was not error. Walker v. State, 241 Ark. 300, 408 S.W. 2d 905, appeal dism. and cert. den. 386 U.S. 682, 87 S. Ct. 1325, 18 L. Ed. 2d 403, reh. den. 387 U.S. 926, 87 S. Ct. 2027, 18 L. Ed. 2d 987.

The third point for reversal is well taken. Appellant elected not to testify and offered no evidence. He had entered a plea of not guilty. By so doing, he availed himself of any defense and all matters of justification and excuse available under the law, which are not required to be specifically pleaded. Baker v. State, 236 Ark. 91, 365 S.W. 2d 119; Flake v. State, 156 Ark. 34, 245 S.W. 174. He put all material facts alleged in the information in issue. Ark. Stat. Ann. § 43-1223 (Repl. 1964); Hill v. State, 253 Ark. 512, 487 S.W. 2d 624. Even the most patent truths were in issue. Roe v. U.S., 287 F. 2d 435 (5 Cir., 1961); cert. den. 368 U.S. 824, 82 S. Ct. 43, 7 L. Ed. 2d 29. This plea was a continuing denial of every bit of evidence and every statement of every witness who testified against him. State v. Whitney, 7 Ore. 386 (1879); United States v. DeAngelo, 138 F. 2d 466 (3 Cir., 1943); State v. Godwin, 227 N.C. 449, 42 S.E. 2d 617 (1947). More importantly, he invoked his right to the presumption of his innocence and put the burden upon the state to prove his guilt beyond a reasonable doubt, as well as the right to remain silent in the hope that the jury would not be convinced of his guilt beyond a reasonable doubt. State v. Hardy, 189 N.C. 799, 128 S.E. 152 (1925); State v. Godwin, supra.

The presumption of innocence is so strong that it serves an accused as evidence in his favor throughout the trial and entitles him to an acquittal unless the state adduces evidence which convinces the jury beyond a reasonable doubt that he is guilty of the crime charged. Cranford v. State, 156 Ark. 39, 245 S.W. 189. It is a fundamental right in the American system antedating any constitution and an essential of due process of law. Reynolds v. United States, 238 F. 2d 460 (9 Cir., 1956); Shargaa v. State, 102 S. 2d 814 (Fla., 1958), cert. den. 358 U.S. 873, 79 S. Ct. 114, 3 L. Ed. 2d 104; State v. Cynkowski, 19 N.J. Super. 243, 88 A. 2d 220 (1952); aff’d. 10 N.J. 571, 92 A. 2d 782 (1952); People v. Morris, 260 Cal. App. 2d 848, 67 Cal. Rptr. 566 (1968); People v. Weinstein, 35 Ill. 2d 467, 220 N.E. 2d 432 (1966); People v. Di Mamo, 15 Misc. 644, 182 N.Y.S. 2d 937 (1959). It alone puts in issue the truth and credibility of all of the evidence offered against an accused. State v. Lackey, 251 N.C. 686, 111 S.W. 2d 891 (1960); State v. Hardy, supra.

In spite of this, the deputy prosecuting attorney in opening the arguments to the jury stated, “To me it is just a pure and simple matter of a man lying who has been convicted, is now in the penitentiary, and is coming up here and lying to the Court, and he is lying to the jury to get himself out of a pickle.” Prompt and proper objection was made and overruled. The last clause certainly reminded the jury immediately that appellant had not testified. Even though this, in and of itself, may not have constituted reversible error, had it not, at the same time, carried the clear implication that, by remaining silent, as he had a constitutional right to do, and by not offering any evidence, his plea of not guilty, which he had a clear right to enter even if he had no doubt in his own mind about his guilt, constituted lying to the jury, rather than just relying on the presumption of his innocence and putting the burden on the state to prove his guilt beyond a reasonable doubt. This, of course, was a misstatement, even though we are confident that, instead of being intentional, it resulted from the prosecutor’s zeal and the natural indignation that he would feel when convinced that wholly unwarranted and baseless charges had been made against the presiding judge of the court.

The statement constituted error beyond doubt. Closing arguments must be confined to questions in issue, the evidence introduced and all reasonable inferences and deductions which can be drawn therefrom. Simmons v. State, 233 Ark. 616, 346 S.W. 2d 197. Whenever trial counsel argues matter that is beyond the record and states facts or makes assertions not supported by any evidence that are prejudicial to the opposite party, there is clearly error. Walker v. State, 138 Ark. 517, 212 S.W. 319; McElroy v. State, 106 Ark. 131, 152 S.W. 1019; Willyard v. State, 72 Ark. 138, 78 S.W. 765; Fakes v. State, 112 Ark. 589, 166 S.W. 963.

When objection is made, the presiding judge should appropriately reprimand counsel and instruct the jury not to consider the statement, and in short, do everything possible to see that the verdict of the jury is neither produced nor influenced by such argument. Walker v. State, supra. The failure to sustain a proper objection to argument of matters not disclosed by the record is serious error, because it gives the appearance that the improper argument has not only the sanction but the endorsement of the court. Miller v. State, 120 Ark. 492, 179 S.W. 1001; Hays v. State, 169 Ark. 1173, 278 S.W. 15; Elder v. State, 69 Ark. 648, 65 S.W. 938. It has even been said that the overruling of a proper objection to a statement amounting to a declaration of law is tantamount to the giving of an instruction to that effect. Autrey v. State, 155 Ark. 546, 244 S.W. 711. It is true that the trial judge has a wide latitude of discretion in the control of arguments to the jury, but it is not unlimited. Holcomb v. State, 203 Ark. 640, 158 S.W. 2d 471; Todd v. State, 202 Ark. 287, 150 S.W. 2d 46. It has been said that this court will always reverse where counsel goes beyond the record to state facts that are prejudicial to the opposite party unless the trial court has by its ruling removed the prejudice. Adams v. State, 176 Ark. 916, 5 S.W. 2d 946. We have also said that failure of the trial court to interfere calls for a reversal. Hays v. State, supra.

We have carefully considered the record in an effort to determine whether this error could be said to be harmless, because the guilt of appellant seems rather clear. When we consider, however, that in this case, the jury, which could have meted out punishment ranging from a fine of $50 to 15 years’ imprisonment, fixed the sentence at seven years, we cannot say that the prestige of the prosecuting attorney who made the statement enhanced by the prestige of the circuit judge, did not make the error prejudicial to appellant.

For this reason, the judgment is reversed and the cause remanded for a new trial.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    ALUMINUM COMPANY OF AMERICA v. Virgil D. McCLENDON
    75-318
    535 S.W. 2d 832
    Opinion delivered May 3, 1976

      Rose, Nash, Williamson, Carroll, Clay & Giroir, by: Phillip Carroll, for appellant.

      Hardin & Rickárd, by: Robert N. Hardin, for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case in which the self-insured employer, Aluminum Company of America, appeals from a circuit court judgment which affirmed a Commission award of compensation to the appellee, Virgil D. McClendon, on a finding that Mr. McClendon was totally and permanently disabled because of a back injury.

Mr. McClendon was 62 years of age and was contemplating retirement when he injured his back in attempting to lift a heavy piece of machinery in the course of his employment as a mechanic. The appellant and appellee agree that the only question on this appeal is whether there was any substantial evidence to support the Commission’s finding that Mr. McClendon was permanently and 100% or totally disabled because of his injury and we conclude that there was not.

The recorded evidence consists of the testimony of the appellee-claimant; the letter reports and testimony by deposition of two medical specialists, Dr. Thomas M. Fletcher, a neurosurgeon, and Dr. Walter G. Selakovich, an orthopedic surgeon. We shall discuss the medical evidence first.

According to Dr. Fletcher, he first saw Mr. McClendon on May 10, 1973, at which time Mr. McClendon complained of low back pain with radiation into the right hip and leg following an accident which occurred on the previous day when Mr. McClendon’s foot slipped while he was lifting a heavy object and “he jerked his back and hip.” X-rays showed some degenerative changes in the spine with a narrowing of the L-5 S-l interspace and Dr. Fletcher suspected a ruptured disc. Mr. McClendon showed gradual improvement under conservative treatment by Dr. Fletcher and on July 31, 1973, Dr. Fletcher reported that Mr. McClendon had shown slow but definite improvement, but that he still complained of some pain with activity and exhibited a slight limp while walking. In this report Dr. Fletcher reported a moderate limitation in back motion but deep tendon and motor functions as normal. He reported that since Mr. McClendon’s work activity included climbing ladders, stairways, squatting, etc., he would require a longer recovery period before returning to work and stated he would re-examine Mr. McClendon at the end of one month.

Dr. Fletcher re-examined Mr. McClendon on August 2, 1973, after which he reported that Mr. McClendon was still having difficulty from back pain, stiffness and limitation of motion, and that nerve root irritation in the right lower extremity continued to persist. He advised Mr. McClendon to enter the hospital for physical therapy and that if he did not show improvement within a reasonable period of time after conservative treatment, he would recommend the performance of a myelogram in contemplation of surgery.

On September 19, 1973, Dr, Fletcher reported that Mr. McClendon had shown good improvement following physical therapy in the hospital for approximately eight days and was able to greatly increase his activity, but that on the previous Tuesday he bent over while engaged in some slight activity and experienced the recurrence of his back pain. On this examination Dr. Fletcher found paraspinal muscle and other symptoms normally associated with a disc lesion and he discussed with Mr. McClendon the probable necessity of a myelogram. Mr. McClendon advised Dr. Fletcher that he had had a myelogram about 12 years previously and that he had experienced considerable attending pain and was reluctant to have a myelogram done unless absolutely necessary. Dr. Fletcher expressed doubt that Mr. McClendon would be able to return to regular work activity without surgery and expressed an opinion that Mr. McClendon would eventually have to have a myelogram to completely evaluate the problem.

Dr. Fletcher last saw Mr. McClendon on February 5, 1974, at which time he diagnosed the condition as lumbar disc disease with disc protrusion and he concluded his report as follows:

This patient has degenerative lumbar disc disease and disc protrusion and he states that he can remain relatively free of pain as long as he remains inactive but with even significant degree of walking and any bending, lifting or stooping he gets recurrence of pain. I would estimate that he has a permanent partial disability of approximately 10 percent of the body as a whole as regards his lower back problem and I think that his problem is a permanent one which will prevent him from returning to regular work activity.

On February 20 and March 3, 1974, apparently in response to inquiries from the employer, Dr. Fletcher expressed the opinion that Mr. McClendon reached the end of his healing period as of January 1, 1974, with a permanent partial disability estimated at ten per cent to the body as a whole and expressed the opinion that Mr. McClendon’s problem would prevent him from returning to regular work activity at the same occupation he had prior to injury.

On September 20, 1974, over seven months after he was last seen by Dr. Fletcher, Mr. McClendon was referred by the referee to Dr. Selakovich for orthopedic evaluation of his low back complaints. Dr. Selakovich reported that Mr. McClendon gave a history of having had a myelogram performed some 14 years previously in connection with a similar type injury and in this connection with the old injury, Dr. Selakovich said:

His acute symptoms at the initial injury persisted for a number of weeks, however, he gradually returned to his usual activities and has worked the intervening time without apparent difficulties. Relates he has a work record at Alcoa of at least 20 years, it has been some months since Dr. Tom Fletcher has seen this man.

Dr. Selakovich then reported as to his own findings and recommendations as follows:

Today’s examination reveals recurrent low back pain complaints aggravated by posture patterns, carrying or any type of back bending movements or moderately strenuous work. He relates some referral of pain into the left buttocks but does not specifically relate paraesthesias or weakness referable to the lower extremities. Although movements are slow and deliberate they are at least 80% of normal. Straight leg raising is slow and deliberate also with 80% on the right and 70% on the left. Laseques, Bragard’s and Fabers testing and sciatic nerve stretch test are considered negative. Neuromuscular examination is considered normal except for a slight decrease m the left achilles reflex which is improved with reinforcement. There is no sensory deficit. A full lumbosacral series was obtained and a review of these films reveal: There is an obvious decrease in the intravertebral disc space at the L5S1 level and this is associated with sclerosis of the contigious bony surfaces about the disc space. There is also irregularity and degenerative changes about the facets in this area. There also appears to be degenerative disc disease at the L1L2 levels with definite narrowing and degenerative arthritic changes being present. There is no evidence of a list or straightening of the normal lumbar lordosis. The sacroiliac joints and hip joints are normal.
Apparently there has been some general improvement in regard to the objective findings since this man was last seen by Dr. Thomas Fletcher. At this time I do not feel the myelogram is warranted but will concur with Mr. McClendon that a 10% permanent partial physical impairment to the back as a whole does not justify the persistent disability that he has. Also, it is felt that should he obtain a lumbosacral support in addition to continued conservative non surgical management of his problem that he would probably have less symptoms and be able to carry on light type of activities. It is felt that he cannot return to the strenuous type of work that he had been doing at Alcoa. A permanent partial physical impairment of 25% to the back as a whole appears proper. It is recommended that Mr. McClendon obtain the above mentioned support.

Dr. Fletcher’s testimony by deposition did not add a great deal to his previous medical reports. Under his deposition Dr. Fletcher said that when he last saw Mr. McClendon he was definitely of the opinion he had a protruding disc that could be relieved by surgery, but that prior to recommending surgery in Mr. McClendon’s case, he would desire confirmation by myelogram. However, Mr. McClendon definitely resisted the performance of a myelogram because of pain he had experienced 10 or 12 years previously following a myelogram. He said it was his opinion that Mr. McClendon had at least a fifty-fifty chance of being returned to practically normal employment following surgical removal of the offending disc and, as to Mr. McClendon’s condition when Dr. Fletcher last saw him, he stated as follows:

I felt after seeing him initially that he had degenerative changes in the lumbar spine and that he had a lumbar disc protrusion or ruptured disc. Under treatment for this he reached a point where he was more or less in a static phase in that as long as he limited activities he didn’t have symptoms of much severity, but he wasn’t able to return to activities that would be strenuous or even of a moderate type which would involve his work activity, of course.

The substance of Dr. Selakovich’s testimony by deposition was to the effect that Mr. McClendon did have a narrow disc space at L-5 S-l but that the roentgenograms indicated an old disc problem antedating Mr. McClendon’s last injury. He said that Mr. McClendon had apparently improved considerably since he was last seen by Dr. Fletcher and Dr. Selakovich was of the opinion a myelogram or surgery was not indicated at the time he saw Mr. McClendon. In this connection Dr. Selakovich said:

A. ... I’m saying I don’t think that this man has the acute symptoms and findings to warrant performing a major operation on his back because I don’t think he has enough findings there that that is necessary. * * *
Q. Do I understand that it’s your opinion that he doesn’t have a protruded disc but that he just has degenerative disc disease of long standing?
A. Well, actually it amounts to two things. I think he has disc disease as a basic underlying problem. I don’t feel that at the present time of my examination that the protrusion is such as to produce the symptoms which would warrant doing a myelogram. You see when you do a myelogram, like I mentioned earlier, it prepares the surgeon for a better appreciation of the problem. When he takes the disc out he takes it out because it’s got pressure on the nerve sufficient to cause the nerve not to function properly. Now Mr. McClendon’s nerve to my mind appears to be functioning properly. In other words, he doesn’t have the symptoms of acute pressure on the nerve root and it’s for that reason that you do protruded disc removal. You take away this disc that’s popped out and eliminate the pressure on the nerve. * * *
A. He doesn’t have those symptoms now as far as the nerve pressure to indicate he needs that. And like I said earlier, I’d like to know if in fact Dr. Fletcher has checked him in the recent past to state that he still feels the same way. You told me it’s February. Well, you know a ruptured disc, a lot of people get well without s irgery. Q. Well, then I take it that you feel that if Mr. Mc-Clendon back in February was showing neurological signs which caused Dr. Fletcher to recommend the myelogram and possible surgery, that you didn’t find those same neurological signs in September? A. That’s correct. * * *
Q. But you now say he has improved. Do you feel that he is capable of being a productive individual?
A. I think he can do light type of work that doesn’t necessitate a lot of heavy lifting, carrying; a job that doesn’t require him to do a lot of back-bending movements, awkward lifting, things like that. Now a light type of job — and I told him to use his support which would assist in that — I think he can do that kind of work.
* * *
A. ... I think in his own mind too he knows that there has been some change, improvement, and really you could take my examination or you could get an examination of somebody else and I venture to say that with the findings that I noticed on the 20th of September I doubt if anybody would recommend a myelogram.
Q. Now you came up with a permanent partial impairment of 25 percent to the back, although you state he had improved over the condition apparently that he had back in February when he was examined by Dr. Fletcher, and Dr. Fletcher had assessed only a 10 percent disability.
A. I gave that physical impairment because there is obvious evidence as far as I’m concerned on roentgenograms that he’s got the type of back that will not permit him to do things that I’ve outlined, that he’s got a back that will not tolerate strenuous work. He’s got evidence of disc problems at three levels. This man’s worked for 20 years at one establishment. I have to assume that he’s probably incurred that whole thing there to begin with. But irregardless he’s had enough changes there that he’s got a back that will not tolerate strenuous type of work anymore.
* * *
A. ... If he can get a light job where he’s not constantly bending and picking up and carrying things, heavy type work, awkward lifting, I think he’ll function with his support quite well.

On cross-examination Dr. Selakovich testified as follows:

Q. Doctor, how long will it be necessary for him to wear this back brace that you’ve recommended for him?
A. Off and on it might be from now on. It could be. He could get to the point where he felt real good and then wean himself from it and just use it for those times when he would give himself some stress. They’re going to drive to Dallas or some long trip, or go out fishing, what have you, things like that. I think he’s the king of guy that shouldn’t ride, for instance, farm equipment with a lot of bouncing and jerking. He ought to use it if they go hunting or something, go across some rough country roads. Because he just doesn’t have that shock absorber effect of a normal disc.

The claimant-appellee, Mr. McClendon, testified that he was 62 years of age and was a maintenance mechanic for the appellant and had worked at that employment for around 22 years. He said that prior to when he went to work for the appellant he had done automobile mechanic work, and in this connection he testified as follows:

A. Well, I done mechanic work for several years back prior to that.
Q. Is that similar to the mechanic work you were doing for Alcoa?
A. Yes. Similar to it. Only in a way. It’s the same name, but otherwise it’s not hard work. Alcoa had a heap harder work. Heavy lifting.
Q. I take it when you are talking about your earlier years employment, you are talking about auto mechanic?
A. Auto mechanics. Yes, sir.
Q. And when you talk about mechanic work for Alcoa, that is not auto mechanics, is it?
A. No, sir.
Q. And you say the work for Alcoa was lighter type work than the auto mechanic work?
A. No, sir. It was a heap more times heavier.
Q. I didn’t understand you. Which one was lighter?
A. Car mechanic is lighter.
Q. Is lighter than the work you were doing for Alcoa?
A. Yes. Alcoa work, say, like I had a lot of machinery pumps, heavy machinery pumps, heavy motors, this, that, and the other, lifting and prizing, this, that, and the other, that they work on. So, it’s a heap harder work than the work on a car, you know. On a car, you use a jack to jack them up and you are working underneath them or on top of them. Ain’t no heavy lifting to it like there are over there.
Q. Is that about the only line of occupation you have ever followed during your lifetime?
A. Yes, sir. Back the years before when I was home before I was married, I done farm work.

Mr. McClendon said he had a tenth grade education; that he had lived in and around Benton all of his life; that he owned and lived on a farm of about 50 acres near Benton where he would keep about 50 head of cattle, but he had sold the cattle because he was not able to attend to them in that he was not able to cut, bale and carry hay in feeding them. He said that prior to his injury on May 19, 1973, he was in good health and able to work. He said he made a garden at his home prior to his injury but that since his injury he had not been able to make a garden like he used to do it. He said he had a garden tractor and that climbing up and down on the garden tractor made his back and head hurt, and that he is unable to push a lawn mower to do any good since his injury. As to making a garden, he said his wife makes most of it. He said his wife does about all the mowing of their lawn but that it is necessary for him to hire someone to fix his fences. He said that prior to his injury he enjoyed fishing and hunting some but that he is unable to fish now like he did. He said he just couldn’t work and get out around or lift anything. He then testified as follows:

Q. Can you tell us using specific instances of your day to day activities of how this has affected you? Things that you cannot do now that you did before?
A. Well, just a lot of times my back and hip hurts. It hurts maybe two or three days’ time. I can hardly get around, limp around on it. Maybe clear up and get by pretty good on it. . . .

Mr. McClendon said he takes aspirin for pain at night but the pain interferes with his sleep quite often. He then testified as follows:

Q. Now, Mr. McClendon, have you attempted to seek out any type of new employment?
A. No. I wouldn’t be able to. I’m just not able to.
Q. All right. I’ll ask you that question then. Why have you not sought other employment?
A. Well, because, like I say, I ain’t able to do a day’s work for anybody. Can’t even hold up to do a day’s work.
Q. I take it you discussed with Doctor Fletcher your possibilities of going back to your job at the plant, did you not?
A. Yes.
Q. And he has indicated or he has said very plainly in his reports that you are unable to go back to that work? A. Yes. That’s what he told me.
Q. And since him telling you that, you have not tried to get other employment?
A. No, sir, I haven’t. Sure haven’t.
Q. My question is, why have you not tried to get other employment?
A. I just ain’t able to do a day’s work. Ain’t able to do work. I don’t believe thebe’s any use in trying to go out and get a job when I ain’t able to do it, can’t do it. Can’t do my work around the place there even.

On cross-examination Mr. McClendon said that he had worked as an automobile mechanic for several years before he went to work for the appellant. He said he had worked as an automobile mechanic for Mr. Wickman, George Stroud and then at the Pontiac place in Benton. He said at times he had owned his own garage and had employees working under him. He said he injured the right side of his back about 12 or 14 years ago while helping to lift a large pump and carry it up some stairs. He said he was hospitalized on that occasion and was given a myelogram which was very painful. He said he was fitted with a brace on that occasion and was off work for quite awhile but finally became able to go back to work. He said that after he became able to return to work on that occasion, he was able to continue, and did continue, whatever work was assigned to him. He said that after he went back to work following his previous injury, his back hurt part of the time but that it hurt worse now since he has sustained the injury to the other side of his back. Mr. McClendon then testified on cross-examination as follows:

Q. You haven’t made any effort to look around and see what work might be available for you that you could do even though your back hurts you?
A. I don’t know of anything. Like I say, I wouldn’t want to go out hired — Alcoa won’t give me a job back and that’s where Í worked. Why don’t they give me a job back where I can go back to work if I’m able to work. If they won’t take me nowhere and do what I can and what I’m able to do, just set a pencil in my hand writing down a number or something, I’ll be glad to do it, but as far as getting out there lifting, doing hard work, I ain’t able to, and I won’t go out on a job unless I’m able to.
Q. But you consider yourself capable of doing work where you write down numbers with a pencil, is that it?
A. I could do that, yes, sir.
Q. And anybody who has a job that’s — Any employer who has work that involves sitting, keeping records or keeping time records or anything, you could do that, couldn’t you?
A. Yes, sir, I could. Yes, sir.

At the conclusion of the testimony the appellant’s attorney suggested that Mr. McClendon be returned to Dr. Fletcher for a current examination for a determination of whether he was better or worse than when Dr. Fletcher last saw him, and whether he would now recommend surgical intervention. As an alternative the appellant’s counsel expressed the desire to take Dr. Fletcher’s deposition. The appellee’s counsel objected to further delay in the matter and argued that in the light of the doctors’ reports and a previous statement by the appellant’s counsel, that he did not desire to cross-examine Dr. Fletcher, that the right to orally examine Dr. Fletcher had been waived by the appellant. The referee permitted the taking of Dr, Fletcher’s deposition and in doing so stated:

I’m going to do that without requiring another examination. I don’t think that would gain anything. Doctor Fletcher knows as much about Mr. McClendon’s condition as he’s ever going to know at this point. I will give each of you a chance. The Respondents can ask him what he thinks one way or the other, and you can point out the Claimant’s age and everything else and make sure that he fully considers it.

“Disability” within the Workmen’s Compensation Law means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury. Ark. Stat. Ann. § 81-1302 (e) (Repl. 1960). Whether or not a claimant in a workmen’s compensation case has sustained such injury and the extent thereof, are questions of fact to be determined by the Commission from the competent evidence and courts do not disturb the Commission’s findings if the evidence on which they are based is substantial. But the question as to whether such evidence is substantial is a question of law.

Substantial evidence has been defined as “evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture.” Ford on Evidence, vol. 4, § 549, page 2760. Substantial evidence has also been defined as “evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.” Wigmore on Evidence, vol IX, 3rd ed. § 2494, footnote at page 300. See also Tigue v. Caddo Minerals Co., 253 Ark. 1140, 491 S.W. 2d 574; Goza v. Central Ark. Dev. Council, 254 Ark. 694, 496 S.W. 2d 388.

Apparently Dr. Fletcher in the case at bar considered Mr. McClendon a likely candidate for the surgical removal of a protruding disc and considered that his symptomatic pain could be eliminated or greatly reduced by such procedure, and that there would be at least a fifty-fifty chance that Mr. McClendon would be able to return to his regular employment. Mr. McClendon resisted such procedure because of prior pain he had experienced from a myelogram which Dr. Fletcher also recommended for the purpose of confirming his opinion as to the extent and exact location of the suspected protruding disc prior to surgery. Dr. Fletcher found that Mr. McClendon’s condition was improving up to his last examination of him.

Ark. Stat. Ann. § 81-1311 (Supp. 1975) provides as follows:

. . . where an injured person unreasonably refuses to submit to a surgical operation which had been advised by at least two (2) qualified physicians and where such recommended operation does not reasonably involve risk of life or additional serious physical impairment the Commission may, in fixing the amount of compensation take into consideration such refusal to submit to the advised operation.

Of course, in the case at bar only two qualified physicians examined Mr. McClendon and Dr. Selakovich found that his condition had greatly improved over what it evidently was when Dr. Fletcher last saw him.

Ark. Stat. Ann. § 81-1319 (i) (Supp. 1975) provides as follows:

The Commission may upon its own initiative at any time where compensation payments are being made without an award, and shall in any case where the right to compensation has been controverted or where payments of compensation have been suspended, or where an employer seeks to suspend payments made under an award, or on application of an interested party, make such investigation, cause such medical examination to be made, hold such hearings, and take such further action as the Commission deems proper for the protection of the rights of all parties.

The Commission referee did send Mr. McClendon to Dr. Selakovich whose findings are above set out in some detail and will not be summarized here. Dr. Selakovich, in explaining the difference of his estimate of permanent partial disability and that of Dr. Fletcher, in the light of Mr. McClendon’s apparent improvement, testified that he went beyond the strict functional disability and considered to some extent the types of work Mr. McClendon had done and was capable of doing. From the entire record it would appear that the evidence pertaining to the extent of permanent disability in this case falls somewhere between that submitted in Wilson & Co. v. Christman, 244 Ark. 132, 424 S.W. 2d 863 (1968), and the evidence submitted in Ray v. Shelnutt Nursing Home, 246 Ark. 575, 439 S.W. 2d 41. We deem it unnecessary to review the evidence submitted in those two cases. In Christman the highest medical estimate of permanent partial disability was 30% and we affirmed the Commission’s award of 60%. In that case there was other evidence beside medical and Christ-man’s own testimony pertaining to his unemployable status. In Ray v. Shelnutt Nursing Home Mrs. Ray had undergone the removal of a ruptured disc and had spinal fusion. She was younger than the appellee in the case at bar but like Mr. McClendon she had experience in lighter types of work than she was doing at the time of her injury. While Mrs. Ray did not testify as to things she was unable to do, she did testify that she had not done any work or attempted to work since her injury, whereas, Mr. McClendon testified that he was unable to lift bales of hay in feeding his cattle; that he was unable to work his garden or mow his lawn as well as he did prior to his injury. He testified that he would be able to hold a job such as timekeeper and also testified that he was an experienced automobile mechanic and had owned and operated his own business as such. He said auto mechanic work was many times lighter than the work he was doing when he was injured. Like Mrs. Ray, Mr. McClendon had sought no other employment. The medical estimate of permanent partial disability in Ray v. Shelnutt was 20%; the Commission awarded 40% and we sustained the trial court’s reversal as to the additional 20%. We only cite the Christman and Ray cases for comparison of the evidence and we in no sense suggest that Mr. McClendon’s permanent disability is somewhere between the 20% awarded Mrs. Ray and the 60% awarded Christman. Neither do we suggest that we would not have affirmed a greater award than 60% in Christman, or that we would not have affirmed such award as the Commission may have made in Ray if there had been substantial evidence to support it. In other words, we make it perfectly clear that we do not suggest the extent of Mr. McClendon’s permanent disability. We only say that we find no substantial evidence to support the Commission’s finding that Mr. McClendon was 100% disabled and the Commission’s award of permanent total disability.

The judgment is reversed and this cause remanded to the circuit court with directions to remand to the Commission for further procedure and consideration not inconsistent with this opinion.

Reversed and remanded.


author: Conley Byrd, Justice.

text:
    AFFILIATED FOOD STORES, INC., Oral W. EDWARDS and NATIONAL SURETY CORPORATION v. BANK OF NORTHEAST ARKANSAS
    75-240
    536 S.W. 2d 693
    Opinion delivered May 3, 1976
    [Rehearing denied June 14, 1976.]

      Smith, Williams, Friday, Eldridge & Clark, by. Joe D. Bell, for appellants.

      Parker & Henry, for appellee.
   Conley Byrd, Justice.

Appellee Bank of Northeast Arkansas, as a secured creditor of one William T. Lawson, brought this replevin suit against appellants, Affiliated Food Stores, Inc. and Oral W. Edwards, for the recovery of the secured property which had an alleged value of $54,525.30. Appellant National Surety Corporation became the surety upon the redelivery bond, Ark. Stat. Ann. § 34-2109 (Repl. 1962), executed by Affiliated and Edwards. From a judgment giving possession of the property to appellee and awarding damages against appellants in the amount of $55,105.00 comes this appeal.

The record shows that William T. Lawson, in purchasing the grocery store known as Lawson’s Thriftway from appellant Affiliated Food Stores Inc., borrowed part of the purchase price from appellee and executed a security agreement upon the equipment and fixtures to cover his indebtedness. The unpaid balance of Lawson’s note at the time of filing the replevin action was $66,012.33, plus accrued interest of $1,207.45. After appellee was granted its security interest, Lawson, who became financially embarrassed, assigned his interest to Shur-Value Stamps, Inc. In turn ShurValue Stamps, Inc. leased the store premises and equipment to appellant Affiliated who subleased to appellant Edwards. Neither appellants Affiliated or Edwards were personally liable to appellee. Appellants at first denied that appellee was entitled to possession of the property and executed a redelivery bond with appellant National Surety Corporation as surety. On May 3, 1974, appellants wrote a letter to appellee stating that they intended to surrender the equipment and fixtures to appellee on May 19, 1974. On May 10, 1974, appellants amended their answer by pleading a tender of the equipment to appellee. A hearing was held on May 16, 1974, at which time appellants stated to the trial court that they were making a tender of the equipment and fixtures and that the surety would remain liable on the redelivery bond for any damages due. The trial court at that time held that after the execution of the redelivery bond appellants were not entitled to make a tender of the property in a replevin suit.

Subsequently, the trial court ruled that appellants were not entitled to show the tender and that they were liable for damages and loss of use of the property from February 19, 1974, to the date of trial. In this the trial court erred. Chief Justice English in Norman v. Rogers, 29 Ark. 365 (1874), in distinguishing an action for conversion from replevin states the rule as follows:

“Where the suit is for the property itself, as in replevin or detinue, an offer to surrender the property before suit is a defense. ...”

The statement in Norman v. Rogers, supra, is only a recognition of the general rule “that one cannot recover damages flowing from consequences that he might reasonably have avoided,” Lake Village Implement Co. v. Cox, 252 Ark. 224, 478 S.W. 2d 36 (1972).

Appellee does not really take issue with the foregoing statement of the law but instead contends that the tender made at the May 16th hearing was only a conditional tender — i.e. (1) it was conditional upon relieving appellants of liability for damages for detention; (2) the tender made did not recognize appellee’s rights to dispose of the property on the debtor’s premises pursuant to Ark. Stat. Ann. § 85-9-503 (Supp. 1975); and (3) appellants did not tender all of the items listed in the order of delivery. We find no merit to appellee’s contentions.

The assertion of appellee that the tender at the May 16th hearing was conditional upon exoneration of appellants from liability is not sustained by the abstract of the record. In fact, the record establishes that, on numerous occasions during the hearing on the tender, appellants admitted that their redelivery bond would remain liable for any damages.

Even if we should assume that appellee could have exercised the right to dispose of the equipment on appellants’ premises, it is estopped under the facts in this record from relying upon that alleged right since it did not raise the issue until after the equipment had been dismantled and removed from the premises by the appellants. Furthermore, there is nothing in the record to show that disposal of the equipment on the premises was commercially reasonable for a sale of the collateral as between the rights of appellee and appellants.

The third suggestion of appellee that the tender was insufficient since it did not encompass all of the property listed on the delivery order ignores the provisions of Ark. Stat. Ann. § 34-2103 (Repl. 1962), which provides:

“Where the delivery of several articles of property is claimed, the affidavit must state the value of each.”

Appellants were entitled to credit for the articles tendered and to be charged on execution for the value of the balance together with any damages to the articles delivered. See Harris v. Harris, 43 Ark. 535 (1884), where we stated:

“It was held in Hauf v. Ford, 37 Ark. 544, that the finding of the value was important with reference to this judgment. If a delivery cannot, for any cause, be had, and several articles are sued for, the defendant may be credited for what is actually delivered, and charged on execution with the rest. It is, therefore, important that each article be valued separately.”

We agree with appellants that the trial court should have struck the valuation testimony of William Mercer. The record shows that after qualifying as an expert on equipment values he gave a total before value of 154,525.30 and an after value of $12,665.00. But on cross-examination he was unable to tell the age of the equipment. With respect to a sanitary meat sheer having a new cost of $445.00 in 1967, he assigned a value, as of February 1974, of $550.00 and a value as of date of trial of $100.00. Another example of his incompetence is that the 1967 new price of a 12 foot Warren frozen meat case was $1,390.00. Yet, Mr. Mercer, without knowing that it was 12 years old, assigned it a value in February 1974 of $1,400.00 and a value at time of trial of $100.00, because he could not tell whether it worked. Another example of the inadequacy of Mr. Mercer’s valuation can be seen in connection with some shelving which he gave a before value of $5,552.00. His after value of $1,700.00 was arrived at because he did not know how many feet of shelving was stored and he did not take the time to determine the number of feet. As pointed out in Ark. State Highway Commission v. Jensen, 256 Ark. 478, 508 S.W. 2d 737 (1974), an “expert’s valuation, upon cross-examination must demonstrate a foundation in fact or a reasonable and fair basis” for his opinion or the same will be stricken when it can be determined that no such basis exists. The cross-examination of Mr. Mercer demonstrates that he had no reasonable and fair basis for making his before and after valuations. It follows that his valuations should have been stricken.

Appellants, having executed a redelivery bond in gross and not to particular items, are now estopped to contend that they did not have possession of certain items, Hester v. Finigan, 223 Ark. 927, 269 S.W. 2d 698 (1954).

In view of Ark. Stat. Ann. § 85-9-504 (Supp. 1975), we find no merit in appellant’s contention that appellee’s damages as a secured party should be limited to the legal rate of interest only. That provision of the UCC permits the secured party after default to both sell or lease the collateral in any commercially reasonable manner.

Appellants also contend that they are entitled to recover both moving and storage expenses after May 19, 1974. We find no merit in the moving expenses since the tender by appellants on May 16th was premised on the basis of moving the equipment to a storage place designated by appellee. However, since we are holding that the subsequent tender of the equipment was proper it follows that appellants are entitled to the reasonable costs of storage.

In instructing the jury in determining fair market value of the equipment and fixtures the trial court correctly gave AMI 2d 2220. Appellant does not abstract any other objection to the instruction given.

Appellants contend that the ownership of the gas incinerator, the Doerr air compresssor, the sanitary computer scale and the National adding machine should not have been submitted to the jury under the evidence. Based upon the testimony of Lawson and George Spaeth, we find that there was substantial evidence to go to the jury on those issues.

The other points argued in the briefs are not apt to arise upon a new trial.

Reversed and remanded.


text:
    BANK OF NORTHEAST ARKANSAS v. NATIONAL SURETY CORPORATION
    75-244
    536 S.W. 2d 696
    Opinion delivered May 3, 1976

      Parker & Henry, for appellant.

      Smith, Williams, Friday, Eldridge & Clark, by: Joe D. Bell,
      for appellee.
   Conley Byrd, Justice.

This appeal is a companion case to Affiliated Food Stores Inc., et al v. Bank of Northeast Arkansas, #75-240, handed down this date. On this appeal, Appellant Bank of Northeast Arkansas contends that appellee National Surety Corporation did not file its notice of appeal in case #75-240, supra, in the time permitted by Ark. Stat. Ann. § 27-2106.1 (Repl. 1962). The appellee, on the other hand, contends that the filing of a motion for a new trial by its principals, Affiliated Food Stores Inc. and Oral W. Edwards, extended the time for it to file its notice of appeal pursuant to Ark. Stat. Ann. § 27-2106.3 through § 27-2106.6 (Supp. 1975). We agree with National Surety Corporation that, at least as to a party whose liability stands or falls upon the granting or denying of a motion for new trial, the time for filing of a notice of appeal is determined by Ark. Stat. Ann. § 27-2106.3 through § 27-2106.6.

Affirmed.


author: Frank Holt, Justice.

text:
    William Chester WARD v. CONSOLIDATED UNDERWRITERS and MEDALLION INSURANCE COMPANY
    75-305
    535 S.W. 2d 830
    Opinion delivered May 3, 1976

      Eubanks, Files & Hurley, by: Hugh F. Spinks, for appellant.

      Plegge, Lowe <2? Whitmore, by: Perry V. Whitmore, for appellees.
   Frank Holt, Justice.

Appellee Consolidated Underwriters issued to appellant an automobile liability insurance policy which included an uninsured motorist provision as required by Ark. Stat. Ann. § 66-4003 (Repl. 1966). Appellee Medallion Insurance Company assumed the policy coverage. The policy included coverage for injuries caused by a “hit-and-run automobile” which was defined thusly: “Hit- and-run automobile means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (1) there cannot be ascertained the identity of either the operator or owner of such “hit-and-run automobile. ...”

Appellant suffered physical injuries when he was forced off the road by an unknown driver of a vehicle. Appellant invoked the uninsured motorist coverage of his policy. Appellee Medallion denied coverage on the ground that there was no physical contact between appellant’s vehicle and the unidentified car that allegedly ran him off the road. Appellant brought suit for a declaratory judgment asking that the physical contact limitation be declared void as against public policy of the State of Arkansas. The trial court held that “since this [the hit-and-run policy provision] is greater coverage than the pertinent statute required, **** the ‘impact provision’ is contractual and valid.” Appellant’s sole contention on appeal is that the trial court erred in failing to find that the physical impact provision of the Medallion policy of insurance was void as against the public policy of the state.

Appellant argues that since the uninsured motorist statute is remedial in nature, the court should construe the act liberally to accomplish its remedial purpose. Appellant acknowledges that we have held that the burden of showing the other vehicle is uninsured is on the plaintiff. South. Farm Bur. Cas. Ins. v. Gottsponer, 245 Ark. 735, 434 S.W. 2d 280 (1968). In the case at bar, however, appellant argues that although this may be a proper requirement as to the burden of proof when the driver is known and can be identified, it should not be required where, as here, the driver and vehicle are unknown.

§ 66-4003, which requires uninsured motorist coverage, reads in pertinent part:

No automobile liability insurance **** shall be delivered or issued for delivery in this state **** unless coverage is provided therein or supplemental thereto **** for the protection of persons insured thereunder who are legally entitled to recover damages from the owners or operators of uninsured motor vehicles. . . .

Plainly, the statute only requires that coverage be provided for the protection of persons who are legally entitled to recover damages from the owners of uninsured motor vehicles. As indicated, we have interpreted this statute as requiring that the plaintiff has the burden of showing that the other vehicle is uninsured. South. Farm Bur. Cas. Ins. v. Gottsponer, supra. Here the policy does not require this burden of proof when there is physical contact and “the operator or owner of such ‘hit-and-run automobile’ ” cannot be ascertained. Therefore, it appears the policy in question is a liberalization of the coverage required by our statute. See Amidzich v. Charter Oak Fire Insurance Co., 170 N.W. 2d 813 (Wis. 1969); Phelphs v. Twin City Fire Insurance Company, 476 S.W. 2d 419 (Tes. Ct. App. 1972); and Ward v. Allstate Insurance Company, 514 S.W. 2d 576 (Mo. 1974). In the case at bar, in our view, the physical impact provision in the policy is valid and does not contravene public policy. Appellant recognizes that if the physical contact requirement of the policy is not against the public policy, it is a legitimate objective and contractually binding.

Affirmed.


author: Elsijane T. Roy, Justice.

text:
    Mrs. Mike KARRAZ v. H. A. TAYLOR, Judge
    75-383
    535 S.W. 2d 840
    Opinion delivered May 3, 1976

      Brockman, Brockman & Gunti, by: E. W. Brockman Jr., for petitioner.

      Wayne Matthews, Prosecuting Attorney, 11th Judicial Circuit, for respondent.
   Elsijane T. Roy, Justice.

The City of Pine Bluff (hereafter City) filed a complaint in chancery court alleging ownership of certain real property. Mrs. Mike Karraz, appellee in that action and appellant/petitioner herein, answered claiming ownership of the contested property based upon adverse possession. The City appealed from a decree favorable to Mrs. Karraz, but the case has not yet reached this court.

The City then filed an eminent domain action in the circuit court alleging appellant/petitioner was the “apparent owner” of the contested property and that the City needed immediate possession of this property to avoid interruption in its street improvement and construction program. In addition to possession the complaint sought alternative relief, requesting that if the Arkansas Supreme Court reversed the chancellor’s holding in favor of Mrs. Karraz and vested title in the City, then that the money deposited in the circuit court proceeding be returned to the City.

The circuit court decided the issues in favor of the City, and its order authorizing entry on the lands in pertinent part stated:

It is considered, ordered and adjudged that immediate possession of the tracts of land designated and described in the Complaint filed herein should be given to the plaintiff upon the deposit by the plaintiff in the Registry of this Court an amount adequate for the purposes of making compensation and paying any damages which may be assessed against the municipality. . . .
(Italics supplied.)

The court approved a deposit in the registry of the court as follows:

Property herein described, Mrs. Mike Karraz apparent owner and Unknown Owners, $525.00. Said sum to remain in the deposit of the Court until such time as a final adjudication of this cause be had upon appeal to the Arkansas Supreme Court, and a final determination be made as to the interest of the parties in said property and the entitlement to such sum.

Petitioner filed an answer and motion asking that the complaint of plaintiff be dismissed, and also filed a demurrer raising the question of jurisdiction. The court overruled both the motion and the demurrer. Mrs. Karraz then filed a petition for writ of prohibition which is before us now.

Appellant cites several cases in support of her contention that a condemnor, by initiating condemnation proceedings, admits ownership in the condemnee. We find no fault with the law expressed in those cases, but do not find them controlling as to the peculiar factual situation here. One of appellant’s cited cases is Ark. State Highway Comm. v. Roberts, 248 Ark. 1005, 455 S.W. 2d 125 (1970), which is not pertinent as it involved the intervention of remaindermen excluded from the terms of a condemnation settlement.

Neither can appellant find help in the cited case of City of Englewood v. Reffel, 173 Colo. 203, 477 P. 2d 361 (1970), as there was no allegation in the complaint which put in issue the ownership of the property sought to be condemned. The complaint alleged unqualified ownership in the condemnee, not “apparent ownership” as we have in the case at bar.

Appellant also cites Nichols on Eminent Domain, § 5.2, Vol. 2, pp. 37-38, which notes:

. . . [T]he petitioner may be estopped from showing that title is in the public or in itself, by dedication, prescription or otherwise, if it has alleged in its petition that the respondent is the owner. * * * (italics supplied.)

However, here the City has alleged in its complaint that the respondent is the “apparent” owner and has not pled that the unqualified title is in the appellant/petitioner. The court considered not only the need of the City for the property, but by its order has protected the property owner and no unreasonable delay can result since the appeal from chancery court to this court is already in process.

Neither do we perceive the City’s action to be an effort to circumvent the appeal from the chaneéry court. The condemnor by its complaint in a different tribunal was merely seeking immediate access to the condemned land. No determination as to title was even requested in the circuit court proceeding. A bond was deposited in the court registry to protect appellant’s potential interest. We find pertinent the following quotation from Nichols, supra, § 5.2, Vol. 2, p. 39:

* * * The petitioner is not barred from denying title of a claimant by the fact that it has made him a party respondent, if it is alleged in the petition that his title is doubtful or disputed. * * * The question of title is theoretically preliminary to the assessment of damages, but the petitioner is not obliged to delay condemnation until a final decision upon the title. . . (Italics supplied.)

Here, a delay could work considerable harm to the City’s construction timetable, as indicated by the circuit judge.

Further, Ark. Stat. Ann § 35-906 (Repl. 1962) states in pertinent part:

* * * No delay in making an assessment of compensation or in taking possession shall be occasioned by any doubt which may arise as to ownership of the property, or any part thereof, or as to the interest of the respective owners; but in such cases the Court shall require deposit of the money allowed as cpmpensation for the whole property in dispute; and, in all cases, as soon as a corporation shall have paid the compensation assessed, or secured the payment by deposit of money under the order of the Court, possession of the property may be taken and the public work or improvement progress.

The action of the trial court is in accord with and effectuated the intent of the Legislature as embodied in Ark. Stat. Ann. § 35-906.

Furtheremore, a writ of prohibition is “an extraordinary and discretionary writ, used cautiously [citations omitted]. It is never granted unless the applicant therefor is clearly entitled to the relief and the tribunal against which it is sought is wholly without jurisdiction.” Roberts, supra.

We find the court’s action here in allowing the entry and in granting the alternative relief to be well within the bounds of its authority to hear eminent domain proceedings.

Writ denied.

Byrd, J., dissents.


author: Elsijane T. Roy, Justice. Conley Byrd, Justice,

text:
    George SMITH v. STATE of Arkansas
    CR 75-167
    536 S.W. 2d 289
    Opinion delivered May 3, 1976
    [Rehearing denied June 7, 1976.]

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

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

On July 8, 1974, David Powell, a desk clerk employed by the Rose Motel, was shot in the abdomen while on duty. Two persons outside the motel, hearing the gunshot, observed two black males running out of the motel lobby and saw one throw a sawed-off shotgun in the hedges on the side of the motel. One of the witnesses noted the license number of the vehicle which pulled away. The police were notified, and appellant and two other persons found at the address indicated by the license registration form were arrested. After his arrest appellant signed a rights form and confession which stated that though he was in the motel office at the time of the shooting a companion was responsible for the shooting. Appellant was found guilty by a jury and sentenced to life imprisonment in the state penitentiary. This appeal follows the conviction.

Appellant first contends that the court should dismiss the information because Act 438 of 1973 is unconstitutional. We previously have considered and found this argument without merit since we had occasion to consider similar allegations of constitutional defect regarding Act 438 in Collins v. State, 259 Ark. 8, 531 S.W. 2d 13 (1975), and Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975).

Appellant next argues error in admitting as res gestae hearsay testimony concerning the victini’s statements after the offense was committed. Two witnesses entering the motel immediately after hearing the gunshot testified that as they walked in Powell exclaimed, “They didn’t get the money!” Approximately five minutes thereafter Officer Thomas Bernard arrived to investigate the incident. He questioned the witnesses, then entered the motel and asked the severely injured night attendant, “What happened?” Powell stated two black males had tried to rob him.

The res gestae doctrine suspends the normal caution attending hearsay statements based on the reliability of observation generated by emotion not the product of reflection and reason. When such an exception is sought to be introduced relevant factors to be considered are the time interval which has elapsed between the event and the comment, the gravity of the exciting event and the continuing potential for the event to exert influence over the declarant. In support of his position appellant cites Liberty Cash Grocers, Inc. v. Clements, 193 Ark. 808, 102 S.W. 2d 836 (1937), and Nelson v. State, 257 Ark. 1, 513 S.W. 2d 496 (1974). Both are distinguishable from the case at bar.

In Liberty the statement sought to be introduced under the res gestae exception was the comment of an uninjured motorist, and the court found that the declarant was narrating the act, rather than reacting to the act itself. In Nelson the comment sought to be introduced under this exception was that of a witness to a shooting rather than that of a victim of a shooting. A bystanding witness, as in Nelson, involved only peripherally with the violence done, is far different from the witness-victim in this appeal, whose testimony was under more immediate compulsion since he was still speaking while under the influence of the occurrence.

We are of the opinion the doctrine enunciated in the following Arkansas cases clearly supports the admissibility of the questioned statements here.

In Kansas City Southern Railway Co. v. Morris, 80 Ark. 528, 98 S.W. 363 (1906), the decedent had died as a result of being struck by a train. Before his death he responded to a question asked by someone rushing up to aid him after his accident. This court held his statement admissible as an excited utterance, and said:

* * * It (the statement) was made within a few feet of where he had been mortally injured, and four or five minutes after the accident occurred, and while the excitement caused by the injury was unabated and in all probability controlled and dominated his mind. The injury was overwhelming and appalling, and sufficient at the time to drive from his mind all hope of surviving many hours to bring him in the presence of immediate dissolution and to drive from his mind any intention or desire to manufacture evidence for his benefit, and to force him to speak the truth, and to make his statement an emanation of the accident, "so connected with the cause of his injuries as to preclude any idea that it was the product of calculated policy. ” The statement was admissible, (citations omitted) (emphasis supplied)

In Ft. Smith Oil Co. v. Slover, 58 Ark. 163, 24 S.W. 2d 106 (1893), the statement, being made about thirty minutes after the occurrence and the victim having been moved from the scene, was held inadmissible, but quoting Wharton on Evidence the court said:

The res gestae may be defined as those circumstances, which are the undesigned incidents of particular litigated acts, and are admissible when illustrative of such acts. These incidents may be separated from the act by lapse of time more or less appreciable, (emphasis supplied) Their sole distinguishing feature is that they should be necessary incidents of the litigated act; necessary in this sense, that they are part of the immediate preparations for, or emanations from, such act, and are not produced by the calculated policy of the actors. In other words, they must stand in immediate causal relation to the act, a relation not broken by individual wariness seeking to manufacture evidence for itself. (emphasis supplied) * * *

In the case of Public Utilities Corp. of Ark. v. Cordell, 184 Ark. 878, 43 S.W. 2d 746 (1931), the court held where one fatally burned in an explosion was asked in the ambulance on the way to the hospital what happened his response was admissible as part of the res gestae. In reaching its decision on this issue the court declared:

* * * When we consider the severity of his burns and the condition under which he answered the question, it is practically certain that there was no time or thought of manufacturing evidence, nor was there any element of a device or afterthought. •* • * (emphasis supplied)

And, speaking of the question asked, the court said:

* * * In an excited manner, she asked him how the accident occurred, arid it is reasonably certain that his answer was made with the excited feeling which had lasted from the moment of the accident until the question was asked him. * *' * (emphasis supplied)

Dr. Kent Westbrook testified that Powell’s wound was about ten inches in diameter, that the spleen was destroyed and the large intestine was shot in half and about one-third of the liver had to be removed. The details of the injury leave little doubt that the decedent ten minutes or so after suffering the wound would be incapable of considered deliberation in recounting preceding events. Officer Bernard testified that Powell was “laying in behind the counter on the floor with his intestines exposed, bulging out, and him trying to hold them in”, indicating that the victim’s comments were still under the influence of the traumatic episode at the time he answered Officer Bernard’s question. Having found the statement to Officer Bernard admissible under the res gestae doctrine, indubitably the remark made to the two witnesses immediately after the gunshot wound is admissible.

Appellant also contends the court erred in giving the State’s instructions on felony murder alone and in refusing to give appellant’s instructions on malice and lesser included offenses. The court properly refused to instruct on the lesser degrees of homicide. See Murray v. State, 249 Ark. 887, 462 S.W. 2d 438 (1971), and Johnson v. State, 252 Ark. 1113, 482 S.W. 2d 600 (1972). The evidence here clearly supports the felony murder charge under which appellant was convicted. In Clark v. State, 169 Ark. 717, 276 S.W. 849 (1925), we said:

This court has repeatedly held that where the indictment charges murder in the first degree and the undisputed evidence shows that the accused, if guilty at all, is guilty of murder in the first degree, then it is not error for the court to refuse to give instructions authorizing the jury to return a verdict of guilty of one of the lower degrees of homicide. * * *

Appellant also raised other objections during the trial that he did not argue on this appeal; however, having considered every objection and assignment of error as we are required to do by Ark. Stat. Ann. § 43-2725 (Supp. 1975), we find no error requiring reversal.

Affirmed.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. Like most criminal cases it is difficult to find a good hat for the appellant. If I should accept the evidence most favorable to the jury’s verdict, it is sufficient to sustain a death sentence. If I should accept the evidence in the light most favorable to the testimony given in court by appellant, his conduct is still subject to criticism. However, since this nation’s constitution has been founded on the principle that it is a nation of laws and not of men, I believe that we are depriving appellant of a fair trial by declaring the statements made by the victim in response to the policeman’s interrogations to be part of the res gestae.

The term res gestae, as an exception to the hearsay evidence rule, has historically been defined as the act talking jor itself, not what people say when talking about the act. Typical of our holdings on the subject is Rogers v. State, 88 Ark. 451, 115 S.W. 156 (1908), where the trial court permitted the chief of police to testify: “I asked Fielder who robbed him; he said a white man and a negro; that he did not know who the white man was, but they called the negro Ben Rogers.” In holding the admission of such evidence to be reversible error, we there said:

“The Attorney General seeks to sustain the admission of these statements as a part of the res gestae. Mr. Wharton’s definition and explanation of res gestae, quoted in Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494, has often been approved by this court. He says: ‘Their sole distinguishing feature is that they must be the automatic and necessary incidents of the litigated act; necessary in this sense, that they are part of the immediate preparations for, or emanations of, such act, and are not produced by the calculated policy of the actors. They are the act talking for itself, not what people say when talking about the act.’ In this case the evidence is what the person said when talking about the act, and was not the voluntary emanation of the act itself.”

From reading the majority opinion one could gather that the narration to the policeman by the victim should have been admitted as a dying declaration. However, when the trial court made such a suggestion, the State readily conceded that it was unable to make the requisite showing of a foundation for its admission as a dying declaration.

One of our fundamental concepts guaranteed by the Bill of Rights in both the State and Federal Constitutions is that an accused must be confronted by the witnesses against him. Yet, the majority, by fudging a little on the res gestae rule, here have permitted appellant to be convicted on the testimony of the victim without appellant having been confronted by the victim. While the result of a little fudging on the res gestae rule here may be justifiable because of the appellant’s conduct; yet, as pointed out in Byler v. State, 210 Ark. 790, 197 S.W. 2d 748 (1946):

“It may be unfortunate that the case will have to be retried, but we think it better that a single case should be retried than to approve an improper precedent for the trial of future cases.”

For the reasons stated, I respectfully dissent.

      The record is not clear as to the exact time lapse between the shot and this statement, but the officer testified it would have been about 13 minutes.


author: Carleton Harris, Chief Justice.

text:
    EDUCATORS AND PROFESSIONAL LIFE INSURANCE COMPANY et al v. Robert C. JORDAN
    75-329
    536 S.W. 2d 124
    Opinion delivered May 10, 1976

      Davidson, Plastiras & Home, Ltd., by: Cyril Hollingsworth, for appellants.

      Guy H. Jones, Phil Stratton and Guy Jones Jr., for appellee.
   Carleton Harris, Chief Justice.

This appeal comes before the court on stipulated facts and presents solely a question of law: Does an incontestable clause in a disability insurance policy prevent the insurer from denying liability on the ground that the disability resulted from a disease antedating the issuance of the policy, when the policy expressly excludes coverage of disabilities resulting from such pre-existing ailments?

The stipulation and the pleadings reflect that appellee, Robert C. Jordan, suffered a 25 per cent permanent partial disability to his right arm in 1959, as a result of osteomyelitis. In May, 1970, Jordan purchased a motor vehicle from a Conway dealership, and simultaneously obtained a policy of credit life and disability insurance for the financing of the purchase. That policy, issued by appellant Educators and Professional Life Insurance Company, and reinsured by appellant American Pioneer Life Insurance Company, contains the following relevant provisions:

“This policy shall be incontestable after it has been in force during the lifetime of the insured for a period of one year from the date of policy.
* #> #
“TOTAL DISABILITY BENEFITS PROVISIONS
# * #
.... the insurance afforded by this policy does not cover any disability caused by:
♦ * *
(4) Any pre-existing illness, disease or physical condition contracted prior to the effective date of the policy as to the insured.”

It was further stipulated that appellee has been totally disabled since April 19, 1972, “as a culmination of his illness and disease of osteomyelitis.” Appellants have denied liability solely on the basis that “ [t] he policy does not purport to cover any disability caused by any pre-existing illness, disease or physical condition contracted prior to the effective date of the policy.” The trial court ruled, however, that “the incontestable clause is applicable to the disability provision of the policy,” and that “ft]here is no limiting or qualifying language in the incontestable clause,” and accordingly found that appellants were liable on the policy.

On appeal from the judgment so entered, appellants simply argue that the trial court committed an error of law in its holding.

We agree with appellants, and the great weight of authority is to that effect. Annotation, 13 ALR 3d, pp. 1392 - 1397. A leading case, which clearly recites the reasons for the conclusion reached, is John Hancock Mutual Life Ins. Company v. Hicks, 43 Ohio App. 242, 183 N.E 93. There the court said:

“It is incumbent upon the plaintiff, in seeking to recover upon an insurance contract such as we have under consideration, to establish that the disease from which the permanent and total disability results was the subject of the contract, namely, that it was covered by the policy. The clause in question defining the subject-matter insured against reads as follows: ‘If * * * the insured * * * shall become wholly and permanently disabled by * * * disease * * * contracted after the date hereof, so that thereby he will be wholly, continuously and permanently prevented from the pursuit of any form of mental or manual labor for compensation,’ etc., ‘the payments provided will be made.’
“We are of the opinion that only permanent and total disability from diseases contracted after the date of the issuing of the policies is the subject of insurance in this contract. The incontestable clause does not have the effect of enlarging the diseases or bodily injuries for which the company agrees to compensate the insured or his beneficiary. Had this policy named the specific diseases and injuries the suffering of which would have been compensated, it would not be claimed that any other disease or injury would obligate the company to any liability under the policy. The incontestable clause only prevents the contest by the company respecting any liability incurred by it by the terms of the contract, and does not relieve the plaintiff in the first instance of establishing its right to recover under the specific language of the policy. The incontestable clause would have prevented the company from contesting any answer made by the insured in his application to the effect that he was free from any mental disease, although he then knew that he was so afflicted, unless the claim was asserted by the company during the period in which the incontestable clause was not to be affected; but this would not affect that part of the policy setting forth the nature and extent of the coverage. The clause of indemnity relates to the policy or contract. When it is established by the claimants that the hazard against which the company has insured has been suffered by the insured, then the policy by its terms in that respect is effective and cannot be contested. However, until such proof is made the plaintiff has not established a substantive right to recover. In other words, the company by the incontestable clause has not waived the necessity of allegation and proof that the injury, loss, or risk«¡aimed is the subject of the contract. It was incumbent upon the plaintiff to plead and prove that the insured was at the time of the filing of the petitions suffering from a disease contracted after the date of the issuing of the policies. And the defendant company had the right without respect to the incontestable clause to put the plaintiff upon such proof.”

Likewise, in Apter v. Home Life Ins. Co., 266 N.Y. 333, 194 N.E. 846, frequently cited, the court said:

“ ‘The provision that a policy shall be incontestable after it has been in force during the lifetime of the insured for a period of two years is not a mandate as to coverage, a definition of the hazards to be borne by the insurer. It means only this, that within the limits of the coverage, the policy shall stand, unaffected by any defense that it was invalid in its inception, or thereafter became invalid by reason of a condition broken. ’ Matter of Metropolitan Life Ins. Co. v. Conway, 252 N.Y. 449, 452, 169 N.E. 642. From the inception of the policies the defendant excluded from its coverage disability which originated before the policies became effective. The plaintiff never acquired any insurance against such disability. The provision that after one year the policy shall be incontestable is in effect a stipulation that after one year, fraud or other source of invalidity or forfeiture was waived by the defendant. From that time the presumption that the policies were effective from their inception became conclusive.”

Our own court, in Petty v. Metropolitan Life Ins. Company, 204 Ark. 1054, 166 S.W. 2d 1034, is in complete accord.

Here, there is no contention that fraud was committed by appellee in obtaining the policy. Rather, the sole defense is that Jordan was afflicted with osteomyelitis before the policy was obtained, and thus, was not covered for that particular disease under policy provisions. There is no dispute but that the disease antedated the policy, was the sole cause of his total disability, and it follows that the court erred in holding to the contrary.

Reversed and dismissed.

      Arkansas, in the Annotation previously referred to, is shown, on the basis of this opinion, as one of the states adhering to the view under discussion.


author: George Rose Smith, Justice.

text:
    BULK TRANSPORT, INC. et al v. Odie C. JONES
    76-2
    536 S.W. 2d 134
    Opinion delivered May 10, 1976

      Tackett, Moore, Dowd <S? Harrelson, for appellants.

      Wilson, Gunter & Walker, P.A., by: Charles M. Walker and Garnet E. Norwood, for appellee.
   George Rose Smith, Justice.

The appellee brought this action for personal injuries suffered in a traffic collision. Comparative negligence was an issue at the trial. In response to interrogatories the jury originally attributed 25% of the total negligence to the plaintiff and fixed his damages at $90,-000. After some interrogation by the court and further deliberations by the jury, the foreman of the jury finally informed the court that “we are in complete agreement ... If we are supposed to have a sum down that is a total of 100 per cent, it should be $120,000, and the $90,000 that we arrived at was with the 25 per cent of Mr. Jones’ responsibility already taken away.” Upon that unanimous statement of the jurors’ intention the court entered judgment for $90,000. For reversal the appellants argue that the trial judge should have acted upon the original responses to the interrogatories by entering judgment for only 75% of $90,000.

The trial judge was right. In the words of Judge Frank G. Smith: “The verdicts of a jury should in any and all cases reflect the true and correct and final conclusions of the jury, and if before discharging the jury it was made known to the court that the jury had misunderstood the instructions, no error is committed in permitting the jury to further consider their verdict, after the instructions have been explained.” Clift v. Jordan, 207 Ark. 66, 178 S.W. 2d 1009 (1944). More recently we have said that it is the right and duty of the trial judge to see that the verdict is amended to correctly express the intention of the jury. Miller v. Garner, 241 Ark. 715, 409 S.W. 2d 336 (1966).

Here the basic error lay not with the jurors but with the rival attorneys and the trial judge. Apparently by agreement of counsel, and certainly without objection, the court gave a comparative negligence instruction, AMI Civil 2d, 2102 (1974), which told the jury to reduce Jones’s judgment in proportion to his negligence. Although the Note on Use to that AMI instruction states, “Do not use this instruction when the case is submitted on interrogatories,” that directive was disregarded by everyone. The jurors were required to answer the interrogatories set out in AMI 2402. The jurors were understandably confused, because they were told on the one hand to reduce the damages in proportion to Jones’s negligence and on the other hand to determine the amount of Jones’s damages, presumably without reduction.

When the jury returned its $90,000 response to the interrogatory, a juror indicated that the 25% deduction for Jones’s negligence had already been made. The trial judge at once expressed his belief that both the comparative negligence instruction and the interrogatories should not have been submitted. The judge quite properly corrected the mistake by ascertaining the jury’s true intention and entering judgment accordingly.

Affirmed.


author: John A. Fooleman, Justice.

text:
    Josef V. HOBSON v. Honorable Maupin CUMMINGS
    75-369
    536 S.W. 2d 132
    Opinion delivered May 10, 1976

      Sam Sexton, Jr., for petitioner.

      Jim Guy Tucker, Atty. Gen., by: Lonnie Powers, Dep. Atty. Gen., for respondent.
   John A. Fooleman, Justice.

Petitioner Josef V. Hobson, a member of the bar of this court, and the attorney of record for Brenda Dianne Jeko, Administratrix of the Estate of Gregory Britt Jeko, Deceased, in a cause of action in the Circuit Court of Washington County vs. Lois Stratton, Administratrix, Civ.-75-767, filed his petition for prohibition in this court. He prayed that this court prohibit the Circuit Judge, Hon. Maupin Cummings, from requiring. him to appear at any contempt proceedings before Judge Cummings and from conducting any contempt proceedings on a charge based upon a petition by Hobson’s client that he be cited for contempt of the Circuit Court of Washington County. The charge was based upon an allegation that Hopson had received a portion of a recovery from Lois Stratton, as Administratrix of the Estate of Dayton Frank Stratton, Deceased, under an order of the circuit court approving a compromise settlement of the above-styled cause of action, but had failed and refused to return the sum received by him into the registry of the court. It was asserted that this constituted a failure to comply with an order of the court setting aside the order approving the settlement.

On November 21, 1975, Judge Cummings disqualified himself from further participation in the case, and certified his disqualification to the Chief Justice, who, on November 24, 1975, appointed the Hon. Joe Villines, Circuit Judge in the Fourteenth Judicial District, to preside in the cause. The order of assignment contained this provision:

This assignment includes all ancillary proceedings which may arise in connection with said cause and proceedings subsequent thereto. The hearing of said cause and proceedings subsequent thereto shall be held at such time or times as shall be directed and ordered by Judge Joe Villines.

The order to petitioner Hobson to appear to show cause why he should not be held in contempt of court was issued by Judge Cummings on December 2, 1975. It required Hobson to appear before the court on December 23, 1975.

Respondent takes the position that disqualification did not affect his power to enforce the order made prior to his disqualification. The petition for citation was filed and the order thereon entered in the proceeding in which Judge Cummings disqualified. This was certainly an ancillary proceeding which arose in connection with the cause in which the assignment was made. Whatever the cause of the disqualification, the assignment of Judge Villines included this proceeding. No further proceedings should be taken by Judge Cummings in the contempt proceeding.

The writ of prohibition lies to a court, not a judge. Dunbar v. Bourland, 88 Ark. 153, 114 S.W. 467; Reese v. Steel, 73 Ark. 66, 83 S.W. 335, on rehearing, 83 S.W. 1136. While we have recognized in the cited cases that there may be exceptional cases where the writ would lie to a judge acting in chambers, this is not such a case. Insofar as further action by Judge Cummings is concerned prohibition does not apply. However, petitioner has asked in his brief that we prohibit the Circuit Court of Washington County from proceeding against him in any contempt proceeding arising out of the case. This is premature and the contentions argued here by petitioner should be first presented to the trial court. Furthermore, this relief was not sought in the petition filed here.

This does not mean that there is no relief available to petitioner. We have usually looked to substance rather than form in such instances. See, e.g., Howell v. Howell, 213 Ark. 298, 208 S.W. 2d 22; State ex rel Purcell v. Nelson, 246 Ark. 210, 438 S.W. 2d 33. The response filed, even though by amicus curiae, and respondent’s brief clearly indicate to us that Judge Cummings expects and intends to conduct the hearing on the citation for contempt. A conviction would be reviewed on certiorari, not appeal. Respondent’s argument that petitioner’s remedy on appeal would be adequate is not appropriate.

We have utilized the writ of mandamus to cause a circuit judge who was disqualified to refrain from further presiding in the cases in question there. See Copeland v. Huff, 222 Ark. 420, 261 S.W. 2d 2. We did so because the duty of the judge to withdraw from further participation was only a ministerial act, since ineligibility was clear, as a matter of law, on the undisputed facts. This is such a case, even though the factual background is dissimilar. The disqualification and the order of assignment make the judge’s duty in this case fall within the ambit of our holding in Copeland.

Petitioner’s pleading here is treated as a petition for mandamus to Judge Cummings to refrain from presiding in proceedings pertaining to charges of contempt of court against petitioner arising from actions or omissions in regard to proceedings in the case of Brenda Dianne Jeko, Administratrix v. Lois Stratton, Administratrix, No. Civ. 75-767, in the Circuit Court of Washington County and, as such, is granted.

The Chief Justice did not participate in the consideration or decision of this case.


author: John A. Fogleman, Justice.

text:
    Kenneth Ray CUSICK v. STATE of Arkansas
    CR 75-191
    536 S.W. 2d 119
    Opinion delivered May 10, 1976

      Wiggins & Christian, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Kenneth Ray Cusick entered a plea of nolo contendere to a charge of possession of stolen property and received a sentence of 21 years, with 6 years suspended upon condition of good behavior. He had the assistance of counsel at the time. In January, 1975, he filed a petition for post-conviction relief under Criminal Procedure Rule 1. On August 5, 1975, this petition was denied by the trial court without a hearing on the basis of the transcript of the plea, docket entries, and the sentencing proceedings. Hence, this appeal.

Appointed counsel filed a motion to withdraw as counsel, accompanied by a brief, which is a copy of appellant’s petition with a prayer that his sentence be reduced to that of codefendant’s. Both appointed counsel and the Attorney General submit that this is a non-meritorious appeal. Appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 943 (1967) and his motion to be permitted to withdraw is granted. But we do not agree that there is no merit in the appeal insofar as the denial of a hearing is concerned.

Appellant alleged that the trial court failed to determine the voluntariness of his plea as required by Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and failed to advise appellant of the consequences of his plea. He alleged specifically that no one explained to him the elements of the offense or the range of punishment. We have considered the effect of such omissions where there was a guilty plea in Byler v. State, 257 Ark. 15, 513 S.W. 2d 801. Insofar as the questions raised here are concerned, we perceive no reason why constitutional standards should be less rigid for a plea of nolo contendere than for a guilty plea. The potential sentencing consequences are no different and both pleas constitute a waiver of jury trial.

The principal basis for denial of a hearing on the post-conviction petition was a written Plea Statement Nolo Contendere, signed by appellant. That statement appears to be a form utilized by the Circuit Court of Sebastian County to assure that an accused entering such a plea is advised as to the potential consequences. It begins with a statement that, when the accused answers the judge, he must understand certain things. The accused is admonished to ask his lawyer what sentence he could receive, if he does not already know. He is also advised of his right to a jury trial, and that his plea would be accepted only if his answer to each of six questions therein was “yes.” These questions were:

1. Do you fully understand what you are charged with having done?
2. Do you understand the penalty the law provides?
3. Have you discussed your case fully with your attorney and are you satisfied with his services and. advice?
4. Has your lawyer explained what a plea of nolo contendere means and do you fully understand what can happen if you enter this plea?
5. Are you entering your plea of nolo contendere on your own free will and accord without anyone causing you to do so on account of any promises or threats?
6. If you plead nolo contendere do you understand that your attor; y and the prosecuting attorney have agreed to recomm._.id that you will be sentenced to_?

The accused is further admonished that he should sign the statement if he fully understands everything in it after having talked to his lawyer about any doubts or questions in his mind. Appellant signed the statement which certified that he understood what was being told him, what his rights were, and the questions that had been asked. He also certified that his answer to each of the questions was “yes” and that his plea was entered knowingly and voluntarily.

In Byler, we pointed out that the “Standards Relating to Pleas of Guilty” (1968) promulgated by the American Bar Association cautioned that a court should not accept a plea of guilty without first addressing the defendant personally and, after determining that he understands the nature of the charge, informing him that his plea of guilty or nolo contendere was a waiver of his right to trial by jury and of the maximum possible sentence on the charge. We held in Byler that a simple affirmative answer in open court to inquiries as to whether the defendant understood the elements of the charge and his waiving jury trial by entering a plea of guilty was not sufficient to meet Boykin requirements, at least when no statement or explanation of the minimum or maximum penalty had been made.

We do not see how a writing singed by a defendant which does not explain the nature of the charge, state the possible punishment or specifically mention that the plea is a waiver of the defendant’s right to jury trial differs in the respects we found the record deficient in Byler. It is true that the certificate of the attorney appointed to represent the defendant contains a statement that appellant understood all of that “paper” and the meaning and effect of his plea of nolo contendere and that defendant had been advised that the information correctly stated the charges and that the judge would find him guilty upon a plea of nolo contendere. The record discloses that the trial judge did state the nature of the charge and ascertained from the defendant that he understood. There is nothing whatever to indicate that appellant knew the range of possible punishment.

It certainly is likely that the appointed attorney did advise Cusick of the nature of the charge and the range of punishment and explained that he was waiving the right to jury trial, but this does not sufficiently appear from the files and records in the case to show conclusively that appellant was entitled to no relief, as required for the denial of an evidentiary hearing under Criminal Procedure Rule 1 (now Rule 37.3 a, Rules of Criminal Procedure).

We reverse the order of the circuit court and remand the case for an evidentiary hearing.

The Chief Justice and Byrd, J., dissent.