text:
    Charles NEAL v. STATE of Arkansas
    CR 75-115
    531 S.W. 2d 17
    Opinion delivered December 22, 1975
    [Rehearing denied Jan. 26, 1976.]

      Laster & Lane, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was convicted by a jury of a capital felony murder in violation of Ark. Stat. Ann. § 41-4702 (a) (Supp. 1973) and sentenced to death by electrocution. Appellant, aided by another man during the robbery of a service station attendant, bound the victim’s hands and feet and then shot him. After leaving the station they returned a short time later and, upon discovering the wounded attendant using the phone, the appellant shot him again. Death resulted from a total of seven pistol wounds.

Appellant first contends for reversal that Ark. Stat. Ann. §§ 41-4711 and 41-4712 (Supp. 1973), which permit the jury to consider aggravating and mitigating circumstances, are so vague as to be constitutionally defective. Appellant argues that “ [I]n attempting to overcome the discretionary application of the death penalty proscribed in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the Arkansas legislature specified what matters of mitigation and aggravation the jury is limited to considering in rendering a decision as to the sentence.” Appellant asserts that these provisions are “so vague, indefinite and open to reasonably different subjective interpretations and understandings on the part of a jury that these sections are constitutionally defective.” We cannot agree.

§ 41-4711 provides:

Aggravating circumstances shall be limited to the following:
(a) the capital felony was committed by a person under sentence of imprisonment;
(b) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person;
(c) the defendant in the commission of the capital felony knowingly created a great risk of death to one (1) or more persons in addition to the victim;
(d) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;
(e) the capital felony was committed for pecuniary gain; and
(f) the capital felony was committed for the purpose of disrupting or hindering the lawful exercise of any enforcement of laws.

§ 41-4712 provides:

Mitigating circumstances shall be the following:
(a) the capital felony was committed while the defendant was under extreme mental or emotional disturbance;
(b) the capital felony was committed while the defendant was acting under unusual pressures or influences, or under the domination of another person;
(c) the capital felony was committed while the capacity of the defendant to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, intoxication or drug abuse;
(d) the youth of the defendant at the time of the commission of the capital felony; or
(e) the capital felony was committed by another person and the defendant was an accomplice or his participation relatively minor.

The thrust of appellant’s argument is that “a criminal statute must be sufficiently specific to inform men of reasonable intelligence of the criminal act or omission.” Therefore, “[I]f men of reasonable intelligence should not be required to speculate as to the act or omission proscribed in a criminal statute, [then] as criminal defendants they must be' sentenced by jurors who also are not required to speculate as to the matters of aggravation and mitigation set out in the statute.” The standard of specificity is defined succinctly in United States v. Petrillo, 332 U.S. 1 (1946). There the court said:

The Constitution has erected procedural safeguards to protect against conviction for crime except for violation of laws which have clearly defined conduct thereafter to be punished; but the Constitution does not require impossible standards. The language here challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more.

In the case at bar the jury found in the bifurcated trial that only one aggravating circumstance existed; i.e, the offense was committed for a “pecuniary gain.” In our view that terminology or phrase is a matter of such common understanding and practice that it cannot be said an ordinary man or juror would have to speculate as to its meaning. Likewise, we hold that the other aggravating factors enumerated in § 41-4711 meet this standard. Further, since the jury did not find that any other aggravated circumstance attended the offense, the appellant cannot complain. His exoneration as to the other factors obviously removed any possible prejudicial effect asserted as to them.

We turn now to the mitigating factors listed in § 41-4712. (The jury found none existed.) As to the meaning of the phrase, “extreme mental or emotional disturbance,”'we observe that the jury had the benefit of proof adduced on that subject by the appellant and the state because the appellant interposed the defense of insanity. We are unable to perceive that any of the terminology used by the legislature in naming the various elements of mitigation can be said to be vague and beyond the “common understanding and practices” of the ordinary man or juror. The language used by our legislature is in terms sufficiently distinct and understandable for a fair administration of the law. As stated in Petrillo, supra, our federal constitution does not require “impossible standards” of certainty in a statute which defines criminal responsibility. This is likewise applicable to a statute which specifies aggravating or mitigating circumstances. In summary our view is that the concepts enumerated as mitigating circumstance by the legislature are reaonable and easily understood by the average individual or juror without speculation. State v. Dixon, 283 So. 2d 1 (Fla. 1973).

Appellant contends that Act 438 of 1973, Ark. Stat. Ann. §§ 41-4701 through 41-4716, is unconstitutional in that by imposing the death penalty for certain crimes on a discretionary basis it violates the prohibition against cruel and unusual punishment which is proscribed by the Eighth and Fourteenth Amendments to the United States Constitution. We cannot agree for the reasons stated in Collins v. State also decided today.

Appellant next contends that the court erred in excluding from the jury panel veniremen who expressed general objections to the death penalty. Appellant cites Witherspoon v. Illinois, 391 U.S. 510 (1968). Witherspoon only forbids the exclusion from juries of those veniremen who simply voice general objections to the death penalty and express concientious or religious scruples against its infliction. In the case at bar the court excused for cause those prospective jurors who made known that “regardless of the facts” they “would be unable to consider the death penalty.” Consequently, the court’s ruling comports with Witherspoon v. Illionis, supra; Montgomery v. State, 251 Ark. 645, 473 S.W. 2d 885 (1971); Davis v. State, 246 Ark. 838, 440 S.W. 2d 244 (1969); and O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618 (1972).

Appellant next contends that there was no evidence to support the jury’s verdict as to aggravating circumstances. We disagree. The jury found that a “capital felony was committed for, or in the attempt for pecuniary gain.” Appellant argues that in determining sentence the jury can consider only that evidence presented in the sentencing proceeding which follows the finding of guilty. Therefore, appellant asserts that since the state presented no evidence during the sentencing proceeding, there was a total failure of proof. Ark. Stat. Ann. § 41-4710 (Supp. 1973) provides:

In the proceeding to determine sentence, evidence may be presented as to any matters relevant to sentence and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in Sections 11 [§ 41-4711] and 12 [§ 41-4712] of this act.The State and the defendant or his counsel shall be permitted to present argument for or against the sentence of death. (Emphasis ours.)

Appellant argues that “shall” has to be read as “must” and that by this reading it is incumbent upon the state to introduce its evidence, if any, as to aggravating circumstances during the proceeding to determine the sentence, even if the same evidence, as here, was presented to the jury during the guilty or innocence phase of the trial. We construe this section to provide that at the penalty stage of the trial the state “may” produce evidence of aggravating circumstances in addition to any evidence of that nature previously adduced. In other words, it need not repeat that type of evidence. This construction is supported by the fact that no where in § 47-4710 does the legislature direct that the jury, in reaching their decision as to punishment, be instructed to disregard evidence pertinent to the listed aggravating circumstances that were presented during the guilty phase of the trial.

As to the sufficiency of the evidence with respect to the .jury’s finding of an aggravating circumstance, i.e, that the felony murder was committed “for pecuniary gain,” it is well established that upon appellate review we consider only that evidence which is most favorable to the appellee and affirm if it is substantial. Haynie v. State, 257 Ark. 542, 518 S.W. 2d 492 (1975). Here there was evidence that appellant actively participated in the robbery murder and received approximately SI00 as his part of the robbery proceeds. This evidence was amply substantial to support the jury’s finding that a felony murder was committed “for pecuniary gain.”

Appellant next contends that the jury’s finding of no mitigating circumstances was contrary to the preponderance of the evidence. That was the evidentiary test according to the court’s instruction. In support of this contention appellant relies on the argument previously discussed that the jury can consider only that evidence introduced in the sentencing proceeding. As we have just said, we do not deem it was the legislature’s intent to so limit the jury and, consequently, it could consider all the evidence adduced at each bifurcated phase of the trial. Appellant argues that his unrefuted evidence, at the sentencing proceeding, by a psychologist that mitigating circumstances existed because of appellant’s incapacity to understand the wrongfulness of his conduct and he was mentally impaired and emotionally disturbed was ignored by the jury. However, as indicated, at the guilty or innocent phase of the trial, the state, in response to appellant’s evidence of insanity, adduced evidence from a State Hospital psychiatrist that appellant was examined there by him and the staff pursuant to a court order and appellant was found without psychosis. He testified that appellant “was not psychotic and knew right from wrong at the time I examined him **** and was capable of assisting in his defense and in his trial. ...” The jury is the trier of the facts and it is solely within its function and province to resolve the conflicting evidence. Simmons v. State, 255 Ark. 82, 498 S.W. 2d 870 (1973); and Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225 (1969). In the case at bar the state’s evidence was amply sufficient to justify the jury’s finding that no mitigating circumstances existed.

Appellant next contends that the court erred in giving the state’s requested instruction No. 22, given as the court’s instruction No. 17. Appellant argues that the instruction tells the jury how to impose the death sentence and the effect of the instruction is to usurp the prerogative of the jury and gives undue prominence to the state’s request for the imposition of the death penalty. Suffice it to say that appellant made no objection to the instruction nor offered one. Therefore, he cannot now raise the objection for the first time on appeal. Rule XIII of the Uniform Rules for Circuit and Chancery Courts, Vol. 3A, Ark. Stat. Ann. (Supp. 1973); Cassidy v. State, 254 Ark. 814, 496 S.W. 2d 376 (1973); and Griffin v. State, 248 Ark. 1223, 455 S.W. 2d 882 (1970). The fact that this is a capital case does not change the rule. Fields v. State, 235 Ark. 986, 363 S.W. 2d 905 (1963); and Johnson v. State, 127 Ark. 516, 192 S.W. 895 (1917).

Appellant next contends for reversal that the court erred in finding that the appellant’s confession was voluntary and admissible. Whenever the voluntariness of a defendant’s confession is disputed on federal constitutional grounds, we make an independent determination from a review of the entire record. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974); Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966); and Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968). In doing so, however, we do not set aside a trial court’s finding of voluntariness unless the finding is “clearly erroneous.” Degler v. State, supra. This standard of review is in accord with that of the federal courts. United States v. United States Gypsum Co., 333 U. S. 364 (1948); and Maple Island Farm v. Bitterling, 209 F. 2d 867 (8th Cir. 1954).

At the pretrial proceeding the 19 year old appellant, represented by his then counsel, told the court his confession was true; he actively participated in the alleged crime, he was guilty of the offense and desired to plead guilty and /receive a life sentence without parole. (Appellant later revoked his guilty plea to one of not guilty by reason of insanity and present counsel was then appointed.) However, he told the court that although his statement was true, it was made “out of fear” of the threat of the electric chair made to him by an officer. There is no contention that all of the officers who were material witnesses during his confession did not appear and testify at the Denno hearing. They testified that during the approximate two hours appellant was interrogated, he was first apprised of his constitutional or Miranda rights and signed a “standard rights form” to that effect. Appellant’s narration as to his presence and active participation in the robbery murder was reduced to writing and signed by him. He claimed the actual shooting was done by his confederate. This man testified, however, that the appellant did the shooting. As indicated previously, appellant adduced evidence of diminished mental capacity. A psychologist (who had not observed or tested appellant during the last five years) testified that appellant’s maximum educational attainment would be sixth grade level, his judgment is limited and he is mentally and emotionally disturbed. A school official corroborated this evaluation. However, as indicated, the state adduced evidence from a psychiatrist at the State Hospital, where appellant was examined by the staff pursuant to a court order, that appellant was without psychosis, is responsible for his acts, and knows right from wrong. Furthermore, appellant’s signed confession was uncontroverted at the Den-no hearing and there was no objection to its admissibility before the jury. In the circumstances and after a review of the entire record, we cannot say that the court’s finding that appellant’s confession was voluntary is clearly erroneous and, therefore, against the preponderance of the evidence. Degler v. State, supra. See also Leasure v. State, 251 Ark. 887, 475 S.W. 2d 535 (1972); and Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311 (1969).

The court was correct in denying appellant’s motion for a directed verdict at the close of the state’s case in chief. Appellant’s confession connects him with the robbery murder. “That is all the law requires, it being sufficient for the other proof to show that the offense charged was committed by someone.” Mosley v. State, 246 Ark. 358. 438 S.W. 2d 311 (1969); Mosby v. State, 253 Ark. 904, 489 S.W. 2d 799 (1973); Ark. Stat. Ann. § 43-2115 (Repl. 1964). In the case at bar the testimony of appellant’s acquaintance that appellant had told him he had committed the offense and shot the victim seven times; the testimony of appellant’s accomplice; and the medical evidence that the decedent suffered seven gunshot wounds was abundantly sufficient to meet the statutory requirements of sufficiency of the evidence. Further, a motion for a directed verdict at the close of the state’s case is waived when, as here, the appellant did not stand upon the motion and proceeds to introduce evidence to establish his defense. Brewer v. State, 257 Ark. 51, 513 S.W. 2d 914 (1974).

The appellant objected to the court’s instruction No. 8 which defines an accessory to an offense. The instruction was correct and in conformity with Ark. Stat. Ann. § 41-118 (Repl. 1964). Fleeman and Williams v. State, 204 Ark. 772, 165 S.W. 2d 62 (1942); and Roberts v. State, 254 Ark. 39, 491 S.W. 2d 390 (1973).

After considering every objection and assignment of error, which is required by Ark. Stat. Ann. § 43-2725 (Supp. 1973), and finding no error, the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Elsijane T. Roy, Justice.

license: Public Domain

text:
    FARMERS BANK, Hamburg, Arkansas v. FUQUA HOMES, INC.
    75-202
    531 S.W. 2d 23
    Opinion delivered December 22, 1975
    |Rehearing denied Jan. 26, 1976.]

      It’. E. Johnson, for appellant.
    Arnold, Hamilton & Streetman, for appellee.
   Elsijane T. Roy, Justice.

This appeal follows the trial court’s dismissal of appellant’s complaint for lack of proper venue in Ashley County. The case was presented to the court on the pleadings and a stipulation entered into by the parties. Appellee, Fuqua Homes, a corporation not qualified to do business in Arkansas, sold a number of mobile homes to a John Anthony, d/b/a A & B Mobile Homes in Ashley, Drew and Union counties. The transaction at issue involved a mobile home on which Anthony obtained financing from appellant Farmers Bank. At that time he gave the bank a statement or certificate of origin which was issued by appellee Fuqua on the mobile home and on which the bank relied as security for the loan. Anthony then disappeared, owing Farmers $7,690.21 on the mobile home.

Pleading alternative theories of tort and contract in both the original and amended complaints against appellee, appellant Farmers invoked the provisions of Ark. Stat. Ann. § 27-619 (Supp. 1973) to establish venue in Ashley County. The statute provides:

Contract-actions against a non-resident of this State or a foreign corporation may be brought in the County in which the plaintiff resided at the time the cause of action arose.

More particularly the appellant alleged that appellee was negligent in handling the statement of origin (on which it relied in making the loan) resulting in breach of implied warranties in connection with the title to the mobile home; that appellee had breached an implied and constructive contract which existed by reason of the circumstances of this case and the prior course of dealings between the parties.

Appellee in turn filed three separate “Special Appearance and Motion to Quash” pleadings alleging that Ashley County Circuit Court had neither jurisdiction nor venue under Ark. Stat. Ann. § 27-619 (Supp. 1973) and furthermore that any statute under which venue might be upheld, in Ashley County was unconstitutional.

It was stipulated inter alia by the parties:

That appellee is a foreign corporation not qualified to do business in Arkansas and has no property, nor employee, nor office in the State;
That appellee manufactured and sold mobile homes in Arkansas and sold to John Anthony, d/b/a A & B Mobile Homes, at his places of business in Ashley and other counties during 1973 and 1974 at least 75 units;
That the mobile home in question was sold to John Anthony, d/b/a A & B Mobile Homes, and delivered at his place of business at El Dorado, Arkansas;
That Farmers Bank is an Arkansas corporation with its only places of business in Ashley County, Arkansas, and its resident agent for service and officers reside in Ashley County;
That appellee’s activities included salesmen and representatives calling on dealers, taking orders and entering contracts for the sale of units to dealers, visits to dealers to assist in setting up and marketing units, delivery of units to dealers in Arkansas, delivery of certificates of origin and acceptance of payment for units in Arkansas and advertising in Arkansas through a program whereby they would pay a portion of the dealer’s cost of advertisements for their products.

Appellee contends that all the allegations of the complaint are conclusory and no facts are plead which indicate a contract action. It is true the transcript reveals more detailed facts concerning the negligent handling of the certificate or origin and the warranty issued with it than appellant abstracted for the court. For that reason we are not considering them in reaching our conclusion, although more details would have been helpful. However, since the question is presented to us on motion to quash service we find sufficient facts abstracted in' the briefs to withstand appellee’s motion to quash.

In Mack Trucks v. Jet Asphalt, et al. 246 Ark. 101, 437 S.W. 2d 459 (1969), we said:

Unless the pleadings on their face show that an action was commenced in the wrong county, a defendant objecting to the venue has the burden of proving the essential facts. 92. C.J.S. 772, §74; Tribune Company v. Approved Personnel, Inc., 115 S. 2d 170 (Fla. 1959); Cohen v. Commodity Credit Corp., 172 F. Supp. 803 (W.D. Ark. 1959); Werner v. Braunstein, 20 Misc. Rep. 341, 45 N.Y.S. 757.

We find that the stipulated facts in conjunction with the pleadings reflect that the cause of the action sounds in contract as well as tort. The complaint alleged breach of express and implied warranties. The following is a quote from 77 C.J.S. (Sales) § 302, p. 1117:

A warranty is contractual in nature, .... *** Warranties may be either express or implied, but in either event the relations between the parties arise out of contract and are not based on what is known as tort or on duties imposed by law on any theory unrelated to contract.

See also Downtowner Corp. v. Commonwealth Securities Corp., 243 Ark. 122, 419 S.W. 2d 126 (1967).

Since we determine a contract action is involved, appellee, admittedly a foreign corporation, clearly falls within the provisions of Ark. Stat. Ann. § 27-619 (Supp. 1973), and venue would lie in Ashley County, unless the statute is unconstitutional.

In support of its position that the statute is unconstitutional, appellee places great reliance upon the case of Power Manufacturing Company v. Saunders, 274 U.S. 490, 47 S. Ct. 678, 71 L. Ed. 1165 (1927). However, Saunders is distinguishable from the case at bar because it involved a foreign corporation qualified to do business in Arkansas.

In Kelso v. Bush, 191 Ark. 1044, 89 S.W. 2d 594 (1935), we said:

The difference between petitioner’s status and that of appellant in Power Manufacturing Company v. Saunders, supra, is that petitioner has no place of business or domicile in this State at which to fix local venue or by which to compare her status with that of a domestic corporation or a natural person, and we believe that this difference is substantial and controlling.
* * *
The Fourteenth Amendment to the United States Constitution, as construed by the Supreme Court of the United States, does not prevent or restrict a State from adjusting its legislation to differences in situations, neither does it forbid classification to that end, but only requires that such classification be not arbitrary. (Citations omitted) The necessary requirement is that the classification be pertinent to the subject of classification. As we have heretofore pointed out, petitioner does not occupy the status of a foreign corporation doing business in this State ivith a local domicile or place of business, and she does not occupy the status of a domestic corporation or natural person domiciled in this State, therefore she is subject to a separate classification as to venue in the courts of this State, and such classification does not offend against the Fourteenth Amendment or deny her equal protection of the law, as it is not arbitrary or without substance. (Emphasis supplied)

Appellee is a foreign corporation not qualified to do business in Arkansas so it is subject to “a separate classification as to venue.”

Nor can appellee be heard to complain because the statute makes no distinction between foreign corporations which are qualified to do business in Arkansas and those which are not since it has no standing to raise this issue. In Carter v. State, 255 Ark. 225, 500 S.W. 2d 368 (1973), certiorari denied 416 U.S. 905, 94 S. Ct. 1610, 40 L. Ed. 2d 110, we stated:

It is a long-standing rule of this court, and generally of other courts, that in order for one to have standing to challenge the constitutionality of a legislative act, the act must he unconstitutional as applied to him. (Emphasis supplied)

See also the case of May v. State, 254 Ark. 194, 492 S.W. 2d 888 (1973), certiorari denied 414 U.S. 1024, 94 S. Ct. 448, 38 L. Ed. 2d 315, in which this court held that although the statute might be void as to one party, the party as to whom it was not void had no right to challenge the constitutiorality of the legislative enactment.

Accordingly, we find the trial court erred in dismissing the complaint for lack of proper venue.


author: George Rose Smith, Justice.

text:
    CITY OF ROGERS v. MUNICIPAL COURT OF ROGERS
    75-206
    531 S.W. 2d 257
    Opinion delivered January 12, 1976

      J. Wesley Sampler, City Atty., for appellant.
    No brief for appellee.
   George Rose Smith, Justice.

Barry Pyeatt was charged in the Rogers municipal court with the offense of drunken driving. On motion the court directed the city to turn over to Pyeatt’s attorney, for additional testing, a perchlorate tube (with its contents) which the city police had used in making a blood-alcohol test to determine Pyeatt’s asserted intoxication. The city attorney, contending that the order was beyond the municipal court’s jurisdiction, sought a writ of prohibition in the circuit court. This appeal is from a denial of that writ.

The circuit court was right in refusing to intervene. In 1957, in a civil case, we held that under our discovery procedure the circuit court can direct the plaintiff in a personal injury case to turn over to the defendant, for examination and testing, automobile parts that are alleged to be defective. Vale v. Huff, 228 Ark. 272, 306 S.W. 2d 861 (1957). There we said that the trial court has wide discretion in fixing the terms upon which the examination is to be made.

In 1971 the General Assembly adopted a discovery statute for criminal cases. It provides that upon a defendant’s motion the court may order the prosecuting attorney to permit the defendant to inspect tangible objects within the State’s possession “upon a showing of materiality . . . and that the request is reasonable.” Ark. Stat. Ann. § 43-2011.2 (Supp. 1973). By its terms the act applies to municipal courts. § 43-2011.4. The act uses the word “inspect.” “Inspection is not necessarily confined to optical observation, but is ordinarily understood to embrace tests and examinations.” O'Hare v. Peacock Dairies, 79 P. 2d 433 (Calif. App., 1938), citing several cases. Hence the statute authorizes testing in a case such as this one.

The city insists, however, that the court should not have ordered the police to turn over the perchlorate tube to the defendant’s attorney. Under the Vale case the court might have required a bond to insure the return of the tube, but apparently the city made no such request. In any event, the writ of prohibition goes only to the issue of jurisdiction, and as we have seen, the court had statutory authority for its order. Finally, we think it obvious that the statute prohibiting the giving away of municipal property except upon payment at the usual and regular rates has no application to this transaction. Ark. Stat. Ann. § 19-917 (Repl. 1968).

Affirmed.


author: John A. Fogleman, Justice.

text:
    Janet KNIGHT, Family & Children’s Services of Arkansas Social Services, and Wanda HALL v. Delbert R. DEAVERS and Mary Betha DEAVERS
    75-152
    531 S.W. 2d 252
    Opinion delivered January 12, 1976

      Highsmith, Tatum, Highsmith, Gregg & Hart, for appellants.

      Murphy & Blair, for appellees.
   John A. Fogleman, Justice.

This appeal comes from the refusal of the chancery court to specifically enforce an agreement by foster parents with whom the Family & Children’s Services of the Arkansas Social Services had placed Kimmi Jo Bullock. We find no error and affirm.

The litigation was spawned by the filing of a petition on September 5, 1974 by appellees Delbert R. Deavers and his wife Mary Betha Deavers to adopt Kimmi, who was born August 23, 1969. It was alleged in the petition that the whereabouts of Kimmi’s mother were unknown. A written consent to the adoption by R. C. Bullock, her father, was filed with the petition. Appellant filed an intervention in the adoption proceeding on October 3, 1974. She alleged that the consent of of neither the mother, the father nor Arkansas Social Services, to whom the custody of Kimmi had been awarded by the Juvenile Court of Sharp County on October 2, 1972, had been obtained, that the petitioners had agreed in writing, when the child was placed in their home on or about June 22, 1972, that they would not attempt to adopt the child and that the petitioners were not financially able to adopt or properly care for the child. On October 5, 1974, a written consent of Kathy Bullock, the child’s mother was filed. Appellees responded to the intervention, alleging that the agreement relied upon by appellant was invalid because it contravened public policy and constituted an attempt to contract away the jurisdiction of the probate court over the matter of adoption.

On January 13, 1975, a written revocation by R. C. Bullock of his consent to the adoption was filed. It was stated therein that Bullock did not comprehend or understand the nature and contents of the consent he had signed. Appellees responded by amending their petition to allege that R. C. Bullock had abandoned Kimmi for more than six months prior to the filing of the petition for adoption, so his consent was not necessary. Appellant denied the allegations of this amendment.

On October 16, 1974, the Family & Children’s Services of Arkansas Social Services filed a complaint in the Chancery Court of Fulton County asking that appellees be enjoined from seeking the adoption or mandatorily enjoined to specifically perform their contract that they would not attempt to adopt Kimmi. The allegations of appellant’s intervention in the adoption proceeding were repeated in this complaint with the additional allegation that the agency had been awarded custody of Kimmi prior to June 22, 1972, by emergency order of the Juvenile Court of Sharp County and that the child was then placed in the home of appellees, as foster parents on the basis of the contract relied upon. It was also alleged that the final award of custody by the juvenile court made her a ward of the state, as a dependent and neglected child. After appellees demurred to this complaint, the causes in the probate and chancery courts were consolidated for hearing. R. C. Bullock was granted permission to intervene. Bullock denied that he had abandoned the child and asked custody of her. While the hearing was in progress, Family & Children’s Services filed a petition alleging that a guardian of the person and estate of Kimmi should be appointed and nominated Wanda J. Hall, a service specialist with Arkansas Social Services in Fulton County.

An interlocutory decree of adoption was entered in February 1975, after the chancellor had heard both the probate and the chancery case simultaneously. In the same order he denied the petition for guardianship, held the contract between the Arkansas Social Services and appellees void, declined to decree specific performance of the contract, saying that, even if it was valid, specific performance, under the circumstances of the case, would be against public policy. He also found appellees morally fit and physically and financially able to furnish suitable nurture and education for Kimmi. Appeal from the interlocutory decree of adoption is not before us, and it may have been premature. Appellants have confined their attack here to the chancery court’s order denying specific performance on the following point:

THE TRIAL COURT ERRED IN REFUSING TO SPECIFICALLY ENFORCE THE FOSTER CARE PLACEMENT AGREEMENT AND IN DENYING THE GUARDIANSHIP TO ARKANSAS SOCIAL SERVICES.

Delbert Deavers is 61 years of age and Mrs. Deavers is 59. They have been married for 40 years and have resided in Mammoth Spring since 1962. He has been a Baptist minister since October 2, 1948 and the pastor of the Mammoth Spring Central Baptist Church since September 3, 1961. He also had full-time outside employment until July 3, 1974, but not thereafter. Except for a year and a half that he lived at Thayer, Missouri, Delbert Deavers has lived in Arkansas approximately a quarter of a century. Other places of residence were at Walnut Ridge and Salem. He owns his dwelling house valued at $22,000 and has a total monthly income of $390 - 395 with no obligations other than normal living expenses. A substantial part of this income is interest on savings of $17,000 and another portion from “odd job” employment. Fifty-seven dollars a month was unemployment compensation. Neither of the appellees has any significant health problem. They have no living children. Their only child died when about five months old. During the time Kimmi was in their home, appellees usually received $70 to $86 per month from Arkansas Social Services. This was not a part of the income of Rev. Deavers. He will begin drawing Social Security in January 1976.

There is rather convincing evidence that a good relationship exists between Kimmi and appellees. The strongest evidence of reciprocal love was contained in a report by an Assistant Regional Administrator of Arkansas Social Services. He stated that Kimmi “is definitely their ‘baby’” and that she is “a quiet, shy little girl who seems to thrive on the attention given her by the Deaverses.” The chancellor stated that the affection for the Deaverses shown by the child when she was in the courtroom was impressive. There was testimony from neighbors and acquaintances tending to show that Kimmi was a highly nervous child when she came to the Deavers home, but that she now seems happy and well adjusted and that she is well cared for. The Deavers home is adequately furnished and is equipped with a washer, dryer and deep freeze. Mrs. Deavers does much of her own canning. The child is in kindergarten, where she is doing well, and has several playmates in the immediate vicinity of the Deavers dwelling. She attends Sunday school and church regularly, and goes to the mid-week services in the church Rev. Deavers serves.

In spite of the agreement, appellees both thought they had been assured that foster parents had been permitted to later adopt children placed in their homes if they otherwise met the requirements of the Social Services Agency. There was some justification for this belief. Delbert Deavers denied signing the agreement, but we agree with the chancellor that the preponderance of the evidence shows that he did, even though he may have forgotten having done so, or may have misunderstood the language.

An adoption specialist for Arkansas Social Services testified that none of the proposed adoptive parents in Fulton County, who had been approved, would be acceptable for a five-year-old child. She stated that the experts on the subject say that the period between the ages of two and four years is very important in a child’s personality and general psychic development and that a major change in its living arrangements was disturbing to its sense of security, but her own opinion was at variance with this commonly accepted expertise.

The major objections of the Arkansas Social Services to the adoption are the age differential between the child and the Deaverses, the prospect of overstrictness on the part of the prospective parents because of their religious convictions, and an inclination of the Deaverses to be overprotective. On the other hand, the Family & Children’s Services plan to take the child from the h me in which she had been for more than two years before the application for guardianship was filed and place her in another foster home without placing her for adoption for a period of one year. She would be placed under a visitation program calculated to build up a relationship between her and her natural father. The agency would be acting in cooperation with the father in his regaining custody of the child. During the hearing, it was disclosed that Bullock had withdrawn his consent to the adoption after a visit by the proposed guardian. She told him that his consent was the same as saying he did not want the child, prepared and made available to him a form for revocation of this consent, and encouraged him to believe that a plan could be worked out under which he could make a suitable home for the child and regain her custody. This was done with full knowledge that Bullock had previously failed to appear in response to a.summons to answer the charge that he had neglected the child and that he was openly living in Thayer, Missouri, in a meritricious relationship with a woman, even though neither of them had been divorced from a living spouse. An investigation requested by Arkansas Social Services revealed that the woman’s two children were already living in that home, that neither Bullock nor the woman seemed ashamed of the situation and that the woman seemed to be quite happy with it. The agency was also aware of the circumstances that caused the chancellor to find that Bullock had abandoned Kimmi. With this knowledge, the nominated guardian promised Bullock that, if he planned to get a divorce and remarry she would ask the Arkansas Social Services to hold up the guardianship for a year, to enable him to make a home for the child. Even in their brief here, appellants say:

***The record in this case is replete with the efforts of appellants to return Kimmi Bullock to her natural father, who in this proceeding made an effort to regain his child.

In this case, we do not go so far as to say that the contract clause by which appellees agreed “that we will not attempt to obtain legal custody or adopt this child” is void, as the chancellor did, or that it would not, under any circumstances, be enforceable. We cannot say, however, that the chancellor erred in declining specific performance of this contract. Specific performance is an equitable remedy and courts of equity have some latitude of discretion in granting or withholding that relief, depending upon the equities of the particular case. James v. Medford, 256 Ark. 1002, 512 S.W. 2d 545; Cole v. Salyers, 190 Ark. 53, 76 S.W. 2d 669. See also, Jones v. Byrne, 149 F. 457 (W.D. Ark. 1906), rev. on other points, 159 F. 321 (8th Cir., 1908).

The fact that the agencies involved do allow adoptions by foster parents, and did indicate to appellees that they did, coupled with their circulation of a newsletter to foster parents in the form of a letter from a foster child containing a plea for adoption shows clearly that this particular term of a contract for foster care placement is not always enforced by them. This is a clear recognition that there may be conditions which justify the denial of specific performance of the clause. The question of enforcement should not be left to the uncontrolled discretion of the contracting agencies. In considering the equities, the chancellor correctly stated that the matter should not be viewed as if the child were a chattel, and that no one, not even a parent, has a proprietary right in the custody of a child. Larkin v. Pridgett, 241 Ark. 193, 407 S.W. 2d 374; Woodson v. Lee, 221 Ark. 517, 254 S.W. 2d 326; Coulter v. Sypert, 78 Ark. 193, 95 S.W. 457. See also, Mantooth v. Hopkins, 106 Ark. 197, 153 S.W. 95; In re Giurbino, 258 Ark. 277, 524 S.W. 2d 236 (1975). In every case in which the chancery court deals with child custody, even as between parents, the polestar is the best welfare of the child. Haller v. Haller, 234 Ark. 984, 356 S.W. 2d 9. As demonstrated by the cited cases and many others, this factor may not be totally conclusive, but it is certainly dominant, and the sovereign power of the state as parens patriae may be exercised through the chancellor to see that the child’s interests are protected. When it came to the point of determining whether this child, who came to the Deavers home neglected, abandoned, apparently unloved and mistreated, and highly nervous, be taken from a home where she had been for more than two of the most formative years of her life, where strong ties of love and affection had grown and where she was happy and apparently well adjusted, or whether she be snatched away and kept away from this environment in the fragile hope that the home of her father would become a suitable place for her, we are inclined to believe that the chancellor did act, as he stated, in the child’s best interests. We certainly are unable and unwilling to say that his findings in that regard were clearly against the preponderance of the evidence, which we would have to do in order to reverse his decree. We have repeatedly emphasized that there is no case in which the chancellor’s superior position, arising from his ability to view the parties involved, is to be accorded greater weight that those in which the future custody of the child is to be determined. Perez v. Perez, 256 Ark. 639, 509 S.W. 2d 531; Cousins v. Smith, 254 Ark. 28, 491 S.W. 2d 587; Wilson v. Wilson, 228 Ark. 789; 310 S.W. 2d 500.

Of course, what we have said has been directed primarily to the chancery court’s denial of specific performance, but it applies with almost equal force to the probate court judgment denying appointment of a guardian of Kimmi. True enough, the probate court is a court of law, not equity, but it is also true that a probate judge is invested with a sound legal discretion in the matter of the appointment of a guardian for a minor, and his action will not be overturned except in case of manifest abuse. Sadler v. Rose, 18 Ark. 600, Nelson v. Green, 22 Ark. 367.

Although the statutes are somewhat different from those in effect when the cited cases were decided, the present statutes indicate that the probate court still has discretion in the matter. The petition for appointment of a guardian must state the reasons why the appointment is sought and the interest of the petitioner. Ark. Stat. Ann. § 57-609 (Repl. 1971). The probate court must be satisfied after a hearing that a guardianship is desirable to protect the interests of the incompetent. Ark. Stat. Ann. § 57-614, 616 (Repl. 1971). The scope of our review is the same as it would have been in an equity case. Ark. Stat. Ann. § 62-2016 g (Repl. 1971). The pertinent statutes are indicative of a recognition of discretion in the probate court. We certainly would not reverse an equity case involving an application for guardianship in the absence of a manifest abuse of discretion. We find no abuse here, so we affirm the judgment of the probate court, as well as the decree of the chancery court.


author: J. Fred Jones, Justice. J. Fred Jones, Justice.

text:
    VOLKSWAGENWERK AKTIENGESELLSCHAFT v. Michael Raymond MERRITT
    75-28
    531 S.W. 2d 938
    Opinion delivered January 12, 1976
    [Supplemental Opinion on Denial of Rehearing Feb. 17, 1976, P. 58A.]

      Barber, McCaskill, Amsler & Jones and Herzjeld & Rabin, P.C., New York, N.Y., for appellant.

      Hall, Tucker & Lovell and Patton & Brown, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Volkswagenwerk Aktiengesellschaft, hereafter referred to as VWAG, from a circuit court judgment in favor of the plaintiff-appellee, Michael Raymond Merritt, in a suit for personal injuries allegedly caused by the negligent design of a Volkswagen automobile.

The facts appear as follows: Mr. Jeffus, Mr. Rickett and the appellee, Mr. Merritt, were friends and neighbors living in and near Benton, Arkansas. Mr. Rickett operated a dog kennel and had arranged to obtain some young dogs for his kennel from an individual in Shreveport, Louisiana. Mr. Jeffus owned a “squareback” station wagon type Volkswagen automobile and by prearrangement he was to drive it in taking Mr. Rickett to Shreveport to pick up the dogs, and Mr. Merritt was going along just for the trip. A wire dog crate was placed behind the back seat practically filling the cargo space in the rear portion of the Volkswagen. The three men left Benton before daylight with Mr. Jeffus driving and with Mr. Rickett in the front seat beside him on the passenger side and with Mr. Merritt sitting on the back seat behind Mr. Rickett.

As Mr. Jeffus drove his automobile at about 45 miles per hour into a curve to his right on the blacktop highway, he was met by a vehicle traveling in the opposite direction on his side of the highway. Mr. Jeffus was blinded by the lights of the oncoming vehicle and in order to avoid a head-on collision, he steered the automobile to his right and drove it off the highway. The automobile rolled completely over and came to rest in an upright position about 140 feet from where it left the highway. Mr. Rickett was thrown from the vehicle and died as a result of injuries he sustained, Mr. Jeffus only sustained bruises and Mr. Merritt sustained a compression fracture to the twelfth thoracic vertebra in his spine resulting in complete, and apparently permanent, paraplegia with all its grievous side effects.

Mr. Merritt filed suit for personal injuries against the local dealer and the national distributor of the Volkswagen automobile and also against VWAG, the manufacturer. The trial court directed verdicts for the local dealer and the national distributor and the case proceeded to trial against the appellant-defendant manufacturer. The case was tried on the theory and allegations that the upset of the automobile and resulting injuries to Mr. Merritt were the direct and proximate result of the negligence of VWAG in several respects as to the design of the automobile; the principal ones being a high and misplaced center of gravity, narrow wheel base, over and under steering and a sharp and unpadded metal top of the back of the rear seat. The appellant has designated several points on which it relies for reversal, but we find it unnecessary to discuss all of them because we conclude the judgment must be reversed under the appellant’s first contention that the trial court should have directed a verdict for the appellant.

There was some evidence that the center of gravity in the automobile here involved was slightly (about two inches) higher than the average American made automobile, but there was no substantial evidence that the center of gravity had anything to do with the automobile turning over in this case. According to Mr. Jeffus’ testimony he was driving about 40 miles per hour when he was forced off the highway by an on-coming vehicle with blinding lights. He turned his automobile suddenly to his right and left the highway to avoid a head-on collision. The automobile skidded sharply to the right into a ditch where it turned over according to the police investigator. The ditch was approximately three feet deep according to a civil engineer who testified. The automobile turned completely over at least one time and then continued to roll on its wheels through stumps and bushes until it came to rest in an upright position among the trees, clear off the highway right-of-way 140 feet from where it first left the highway.

According to Mr. Jeffus’ testimony his automobile had been driven 32,000 miles when he purchased it and he had driven it approximately 24,000 miles. He said that when he drove the automobile from the highway, it steered properly; that “it did what he asked it to do.” He said his hands froze to the steering wheel after he drove from the highway and he did not remember whether he turned to the right or left after he left the highway. He said he thought the automobile turned over to his left.

Officer Lawson said each lane of the blacktop highway was 12 feet wide; that there was about six feet of pea gravel with an oil base on the shoulder of the highway adjacent to the blacktop, and that there was evidence the automobile turned over in the ditch.

Mr. Johnny Jones testified that he drove an ambulance to the scene of the accident. He said he found Mr. Rickett lying approximately five feet from the rear of the automobile, and found Mr. Merritt lying in the cargo area of the Volkswagen. He did not recall Mr. Merritt’s exact position in the automobile.

Mr. Merritt’s own testimony is significant. He testified that when Mr. Jeffus swerved to miss the on-coming automobile, he, Merritt, might have blacked out for a few seconds. He said when he came to, he was jammed down into the approximate one-foot space between the dog cage and the back seat. He said he was doubled up with his back against the dog cage and with his knees up against his chest, with his legs at the knees hanging over the back of the rear seat. He said that when the ambulance arrived, someone removed the dog cage from the automobile and that he lay on his back in the rear of the automobile with his legs still over the top of the back of the rear seat until the ambulance took Mr. Rickett to the hospital and returned for him.

Mr. Merritt then testified as to his hospitalization, surgery and attempts at rehabilitation. His testimony as to his present condition, especially as it relates to the well-known side effects of paraplegia, could arouse nothing but sympathy from anyone not void of human emotions, but the question here is not the extent of Mr. Merritt’s injuries. The question is whether his injuries were brought about by the negligence of the appellant in the design and manufacture of the automobile in which Mr.. Merritt was riding.

The back of the rear seat in the vehicle here involved had a metal top edge with little upholstering or padding. Mr. Joseph Harris, a consulting physicist, testified as an expert for the appellee. He attempted to reconstruct the accident and demonstrate to the jury the exact position of Mr. Merritt’s body at all times while the automobile was in motion after it left the highway. He described in graphic detail the exact position of Mr. Merritt’s body at all times while the automobile was rolling completely over. We are not impressed by this witness’s testimony. He winds up by saying there was no real impact between Mr. Merritt and any part of the automobile until the very last moment when Mr. Merritt’s back impacted across the sharp metal top of the back seat rest, thus causing his compression fracture. He said Mr. Merritt probably knocked the dog cage back as he fell on his back across the sharp edge of the back seat rest. We can only conclude that this witness’s conclusion was pure speculation. It is in contradiction to Mr. Merritt’s own testimony that he was wedged into the narrow space between the dog cage and the back seat, and it is in contradiction to the simple mechanics of a compression type fracture of a spinal vertebra described by the neurosurgeon who did a laminectomy on Mr. Merritt’s spine.

Dr. Adametz, the neurosurgeon who attended Mr. Merritt, testified that Mr. Merritt sustained a compression type fracture of the twelfth thoracic vertebral body. He described the fracture as being compressed into a wedge shape on the front side of the vertebral body. He said the back, or posterior portion, of the vertebral body had “exploded” and pushed back into the spinal canal. He said this type injury could only have occurred as a result of acute flexion or bending forward.

Dr. Simmons, a practicing physician, examined the back rest of the back seat of the automobile exhibited in evidence, and also examined the x-rays made of Mr. Merritt’s injured back. He was then permitted, over objections, to express an opinion as to how the injury occurred. He agreed that the x-rays showed a compression type fracture with displacement. He said that in his opinion the vertebral body came in contact with a rather sharp edge while in a hyperflexedposition to cause the compression. On cross-examination Dr. Simmons said such contact would be with the “belly” rather than the “back of the back.” Dr. Adametz examined Mr. Merritt for internal abdominal injuries and found none. He found abrasions to the anterior and posterior portion of the chest area but there was no mention of abrasions or contusions to the abdomen or to the back adjacent to the twelfth thoracic vertebral body. We conclude that Dr. Simmons’ opinion was pure speculation without foundation and we conclude that the jury verdict in this case rested wholly on surmise and conjecture unsupported by any substantial evidence, and that the judgment rendered thereon must be reversed.

We see no reason to discuss the two lines of cases represented by such cases as Evans v. General Motors Corp., 359 F. 2d 822 (7th Cir. 1966), and Larsen v. General Motors Corp., 391 F. 2d 495 (8th Cir. 1968). The evidence in the case at bar does not bring it within the purview of either Evans or Larsen. The evidence as to negligence in design of the automobile is thin enough in the case at bar, but there is simply no substantial evidence that the alleged negligence in design was a proximate cause of the automobile’s overturn or of Mr. Merritt’s injuries. We can only conclude, from the evidence of record, that Mr. Jeffus simply cut his automobile too short for the speed he was traveling and when it hit the ditch, it simply turned over and Mr. Merritt sustained his compression fracture by acute flexion. There was no evidence to the contrary.

Supplemental Opinion on Denial of Rehearing delivered February 17, 1976

The judgment is reversed and the cause dismissed.

J. Fred Jones, Justice.

On petition for rehearing the appellant makes two contentions we consider worthy of further comment by way of clarification of our original opinion. The appellant states:

“The court did not consider the issue of the seat belts, which was independent of the issue of the cause of the roll over.
The court did not consider the film of a demonstration of a roll over and the exactness of the science of physics on the rear seat projection issue.”

We did consider the seat belt issue on appeal but failed to separately comment on it in our original opinion.

Seat belts were optional with the purchase of new Volkswagens of the type and at the time the vehicle in this case was manufactured. The front seat was equipped with seat belts which were not in use at the time of the wreck, and the rear seat had brackets for the attachment of seat belts at the option of the purchaser. The vehicle involved in this case was a previously used vehicle and had been driven 32,000 miles by a previous owner before Mr. Jeffus purchased it. There was no evidence as to whether the rear seat had ever been equipped with seat belts. In any event, we found no evidence that the manufacturer was negligent in designing and manufacturing the automobile without rear seat belts, or that their absence was a proximate cause of the appellant’s injuries.

We did not consider the roll-over film as substantial evidence of what occurred to the appellant in the case at bar. The roll-over film. was produced under more or less controlled conditions and the wreck of Mr. Jeffus’s automobile was not. We did thoroughly consider the back seat extension in our original opinion but found no substantial evidence that it contributed in any manner to the appellant’s injuries.

The judgment is reversed and the cause dismissed.


author: J. Fred Jones, Justice.

text:
    Forrest PARKMAN v. Harry HASTINGS Sr. et al
    75-209
    531 S.W. 2d 481
    Opinion delivered January 12, 1976

      McArthur, Lofton & Wilson, for appellant.

      House, Holmes & Jewell, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Forrest Parkman from circuit court orders dismissing his complaint in a damage suit he filed for defamation of character and reputation against the defendant-appellees, Harry Hastings, Sr., Cecil Hill, Sr., John Wilkins and Gail Ferguson. The complaint was dismissed by the trial court on Hastings’ motion for dismissal and for summary judgment and on the other appellees’ motion for dismissal because the complaint stated a cause of action for slander and was barred by the one-year statute of limitations. Ark. Stat. Ann. § 37-201 (Repl. 1962).

The appellant contends that his complaint stated a cause of action for libel; that his suit was commenced well within the three year statutory period fixed by Ark. Stat. Ann. § 37-206 (Repl. 1962), and that “the trial court erred in ruling that the appellant’s cause of action was slander.”

The complaint is abstracted in the appellant’s brief in narrative statement form but, as taken from the record, the pertinent portions recite as follows:

“That on the 30th day of January, 1974, the Plaintiff learned of the fact that the Defendants, acting on concert, had maliciously accused the Plaintiff of having raped two females against their will. * * * The Defendants made these statements to inspector K. D. Pearson of the Little Rock Police Department. Furthermore the Defendants made these statements as aforementioned knowing the same to be false and untrue.
That the matter published or communicated to a third person as aforementioned did in fact tend to lower the reputation of the Plaintiff, Forrest Parkman.
That inspector Pearson understood the statements made by the Defendants to be in fact an allegation that the Plaintiff, Forrest Parkman, had committed rape upon women against their will on two different occasions. Inspector Pearson understood this statement to refer to the Plaintiff, Forrest Parkman, and he further understood the charges to be that the Plaintiff had committed a serious, morally reprehensible crimes [sic] including rape.
The Defendants intentionally indicated these allegations to inspector Pearson knowing the same to be false and untrue or in the alternative the Defendants failed to exercise due care and hence were negligent in their communicating these allegations to officer Pearson.
That these false and untrue allegations, which were known to be false and untrue by the Defendants, were communicated to a third person and as such were the cause in fact ánd the proximate cause of damages to the Plaintiff, Forrest Parkman.
The Plaintiff has suffered extreme mental anguish, his reputation in the community has been lowered, and the Plaintiff has been damaged in the amount of One Hundred Thousand Dollars ($100,000.00).
That in this case the Defendants have alleged that the Plaintiff has committed a serious, morally reprehensible crime and the Plaintiff should be avyarded punitive damages in the amount of One Million Dollars ($1,000,-000.00) from each Defendant.
WHEREFORE, The Plaintiff, Forrest Parkman, by and through his attorneys, McArthur & Lofton, pray judgment against each Defendant for One Million Twenty-Five Thousand Dollars ($1,025,000.00), for costs and all proper relief.”

It is abundantly clear that the complaint on its face states a cause of action for defamation by slander rather than libel. Black’s Law Dictionary defines defamation, libel and slander as follows:

“DEFAMATION: The taking from one’s reputation. The offense of injuring a person’s character, fame, or reputation by false and malicious statements. The term seems to include both libel and slander.
LIBEL: In Torts. A method of defamation expressed by print, writings, pictures, or signs. Spence v. Johnson, 142 Ga. 267, 82 S.E. 646, 647, Ann. Cas. 1916A, 1195. In its most general sense any publication that is injurious to the reputation of another. Ajouelo v. Auto-Soler Co., 61 Ga. App. 216, 6 S.E. 2d 415, 418. Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55, 60. Libel is written defamation. Locke v. Gibbons, 299 N.Y.S. 188, 192, 193, 164 Misc. 877.
SLANDER: The speaking of base and defamatory words tending to prejudice another in his reputation, office, trade, business, or means of livelihood. Little Stores v. Isenberg, 26 Tenn. App. 357, 172 S.W. 2d 13, 16. Harbison v. Chicago R.I. & P. Ry., 327 Mo. 440, 37 S.W. 2d 609, 616. Oral defamation; the speaking of false and malicious words concerning another, whereby injury results to his reputation. Pollard v. Lyon, 91 U.S. 227, 23 L. Ed. 308; Fredrickson v. Johnson, 60 Minn. 337, 62 N.W. 388; Johnston v. Savings Trust Co. of St. Louis, Mo., 66 S.W. 2d 113, 114; Lloyd v. Commissioner of Internal Revenue, C.C.A. 7, 55 F. 2d 842, 844.”

In Prosser (4th Ed. 1971), Law of Torts, §§ 111, 112, at pages 737 and 751, is found the following:

“Defamation is made up of the twin torts of libel and slander — the one being, in general, written, while the other in general is oral. . .
The erratic and anomalous historical development of the law of defamation has led to the survival until the present day of two forms of action for defamatory publications. One is libel, which originally concerned written or printed words; the other slander, which might be, and usually was, of an oral character.”

In Restatement of Torts, § 568 (1938)( libel and slander are distinguished as follows:

“(1) Libel consists of the publication of defamatory matter by written or printed words, by its embodiment in physical form, or by any other form of communication which has the potentially harmful qualities characteristic of written or printed words.
(2) Slander consist's of the publication of defamatory matter by spoken words, transitory gestures, or by any form of communication other than those stated in Subsection .
(3) The area of dissemination, the deliberate and premediated character of its publication, and the persistence of the defamatory conduct are factors to be considered in determining whether a publication is a libel rather than a slander.”

The Arkansas criminal libel and slander statute, Ark. Stat. Ann. § 41-2401 (Repl. 1964) defines libel as “a malicious defamation, expressed either by writing, printing, or by signs or pictures, or the like,” and Ark. Stat. Ann. § 41-2409 (Repl. 1964) provides in part as follows:

“It shall be deemed slander to falsely use, utter or publish words, which, in their common acceptation, shall amount to charge any person with having been guilty of any other crime or misdemeanor not mentioned in this act [§§ 41-2405 — 41-2412].” (D

Ark. Stat. Ann. § 37-201 (Repl. 1962) provides that actions for slander must be brought within one year from the date the cause of action accrued, and § 37-206 provides that actions for libel must be brought within three years from the date the cause of action accrued.

The complaint, as filed by the appellant, does not state when his alleged cause of action accrued; it only states the date upon which he learned of it. The complaint does not state or indicate that the alleged defamation was placed on electronic tape or reduced to writing, but apparently the appellees were aware that the alleged statements were preserved on tape because on February 19, 1975, the appellee Hastings filed a motion stating that the alleged cause of action stated in the complaint was based on a complaint lodged by the appellee-defendants to Inspector D. K. Pearson of the Little Rock Police Department on January 9, 1974; that the conversation that contained the alleged slanderous material was recorded on magnetic tape with the knowledge of all parties to the conversation; that the tape upon which the conversation was recorded was in the possession of the chief of police of the Little Rock Police Department; that the chief of police refused to voluntarily relinquish the tape for examination by the appellee without court order, and the motion prayed an order for the release of the tape. The motion was granted by order of the court on the same day it was filed.

On February 29, 1975, the other appellees, Hill, Wilkins and Ferguson, filed a motion to make the complaint more definite and certain by setting out, among other matters, the actual date, time and place the alleged statements were made. The record does not indicate that this motion was ever acted on by the trial court or ever complied with by the appellant.

On March 18, 1975, the appellee Hastings gave notice of the taking of the deposition of Inspector Kenneth D. Pearson. Apparently the deposition of Inspector Pearson was taken because in his “Motion to Dismiss and for Summary Judgment” Hastings stated that it was based upon evidence introduced in the deposition of Inspector Pearson. In his “Motion to Dismiss and for Summary Judgment” Hastings stated that the court lacked jurisdiction to entertain the action because it was barred by the statute of limitations. The motion then stated that the defendant’s actions, which constituted the plaintiff’s alleged cause of action, accrued on January 16, 1974, and that the suit was commenced on January 30, 1975. The motion then stated as follows:

“This motion is based upon evidence introduced in the deposition of Inspector K. D. Pearson, Little Rock Police Department, which was taken March 21, 1975, to be presented to the Court for inspection, in camera, at the hearing on this motion; the Affidavit of Roger McNair, Circuit Clerk of Pulaski County, Arkansas, attached hereto as Exhibit A; and the Affidavit of Monroe Love, Sheriff of Pulaski County, Arkansas, attached hereto as Exhibit B; such evidence may be considered by the Court in a decision on this motion as contemplated by Rule 56 (a) (2) [sic] of the Federal Rules of Civil Procedure.
.If the foregoing be uncontroverted, there would be no genuine issue as to any material issue of fact with respect to the instant action being barred by the stated statute of limitations and that this Defendant is entitled to judgment as a matter of law.
WHEREFORE, Movant and Defendant, Harry Hastings, Sr., moves the Court, after hearing on this motion for appropriate granting of this motion, for dismissal of the complaint herein against this Defendant and for entry of summary judgment thereon in favor of this Defendant, and for all other proper relief to which this Defendant may be entitled.”

In support of his motion the appellee Hastings filed the affidavit of the circuit clerk, Roger McNair, certifying that the complaint was filed and summons issued on January 29, 1975, and also filed the affidavit of Sheriff Monroe Love certifying that summons was placed in his hands for service on January 30, 1975, at 9:19 A.M.

On April 22, 1975, the appellant filed a response to Hastings’ motion to dismiss and for summary judgment. In his response the appellant admitted “that the action of the Defendants out of which Plaintiff’s cause of action arose initially occurred on January 16, 1974, although there were subsequent publications.” He also admitted that his suit was commenced on January 30, 1974. The appellant in his response then quoted the three-year statute of limitations from § 37-206, supra, and then stated as follows:

“This response is based on evidence produced in the disposition [sic] of Inspector K. D. Pearson of the Little Rock Police Department, which was taken March 21, 1975, wherein the Deponent testified that the Defendants came to him with their complaint, that the Deponent informed the Defendants that he was recording their statements on magnetic tape to preserve their testimony, and that the Defendants knew or should have known that this magnetic tape would later be transcribed, and the tape heard by other people as well as the transcript read by other people.
That the facts as stated in the original complaint and in this motion adequately state a cause of action for defamation, libleless [libelous] defamation.
WHEREFORE, The Plaintiff prays that this Court deny the motions of the Defendant, Harry Hastings, Sr., give the Plaintiff time to respond to the motion to make more definite and certain filed herein, and to amend its complaint if necessary, and for all other proper relief to which he may be entitled.”

On May 19, 1975, the appellees Hill, Wilkins and Ferguson filed their motion to dismiss the complaint because it was barred by the one-year statute of limitations. On May 16, 1975, the trial court entered its order finding that the cause of action asserted against Hastings was barred by the statute of limitations and the complaint against him was dismissed with prejudice. On May 20, 1975, the trial court entered an order of dismissal as to the appellee-defendants Hill, Wilkins and Ferguson for the same reason.

As already stated, it is clear that the appellant’s complaint stated a cause of action for slander rather than libel. Even under the allegations as to the hearsay evidence in the deposition of Inspector Pearson, there is no contention that the alleged defaming statements were ever reduced to print or writing; or that such statements that may have been recorded on the electronic tape, to preserve the testimony, were ever transcribed or heard by anyone other than Inspector Pearson to whom the alleged statements were allegedly addressed. Summary judgment is proper where a claim is barred by the statute oflimitations. Norwood v. Allen, 240 Ark. 232, 398 S.W. 2d 684 (1966). According to the appellant’s own admission in his response to the motion for summary judgment, his suit was not commenced within the applicable statutory period of one year after his cause of action accrued.

In the light of what we have already said, we deem it unnecessary to discuss the judicial decisions on the subject including Dunaway v. Troutt, 232 Ark. 615, 339 S.W. 2d 613 (1960), in which the defamatory statements were not only placed on electronic tape, but were also published in a printed newspaper.

The judgment is affirmed.

       Rape is not among the other crimes mentioned.

      Vhe deposition or its contents do not appear in the record,

      The filing date does not appear on the instrument.


author: Conley Byrd, Justice. J. Fred Jones, Justice,

text:
    Daniel Albert HOCK v. STATE of Arkansas
    CR 75-123
    531 S.W. 2d 701
    Opinion delivered January 12, 1976

      Holloway & Haddock, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Michael G. Epley, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Daniel Albert Hock was tried and found guilty of the felonious possession of 24 pounds of marijuana for the purpose and with the intent to sell in violation of Ark. Stat. Ann. § 82-2614.2 (Supp. 1973). For reversal of his three year sentence, he makes the contentions hereinafter discussed.

We find no merit to the contention that his in-custody confession was invalidated because of the officers’ failure to give proper Miranda warnings. The warning given to appellant, in so far as here applicable, was as follows:

“. . . You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. You have the right to the advice and presence of a'lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed you, if you wish, if and when you go to Court. .

Appellant points to Reed v. State, 255 Ark. 63, 498 S.W. 2d 877 (1973), and contends that the italicized portion of the warning is deficient. However, in Moore v. State, 251 Ark. 436, 472 S.W. 2d 940 (1971), we had before us this same identical warning, and we there pointed out that, while the warning was deficient to an indigent, it would not be deficient to one who could afford to employ counsel. The record here shows that appellant had funds for the employment of counsel. Consequently, it follows that he is not entitled to complain.

Appellant points to our holding in Northern v. State, 257 Ark. 549, 518 S.W. 2d 482 (197.5), and suggests that the State did not meet its burden of proving the voluntariness of his confession because it did not call all of the officers present when his confession was given. We find no merit to this contention. Appellant failed to offer any testimony that his confession was induced by violence, threats, coercion or offers of reward.

Appellant confessed that he had brought 34 pounds of marijuana with him on his trip and that he had already sold 10 pounds to one Jo Jo Alexander. He contends that such evidence should not have been submitted to the jury because it involved prior crimes. We find no merit to this contention. Such evidence was admissible to show the purpose for which appellant possessed the marijuana — a material element of the crime.

The record shows that prior to contacting appellant, Sheriff Max Brown obtained a search warrant, and that armed with the search warrant, the sheriff with deputies Smith and Talkington went to Lake Chicot State Park looking for the person or persons fitting the descriptions given them by a confidential informant. After finding appellant and his co-defendant and making a search of appellant’s automobile and Cabin #5, the sheriff made the following return on the search warrant, to-wit:

No......
SEARCH WARRANT
State of Arkansas
County of CHICOT
I have this 20 day of March 1975, made diligent search of the described (time Approx. 4:00 p.m.) premises, and searched Cabin §5 at Chicot State Park occupied by Daniel A. Hock & Richard Martin Dickman & Black Pont. Auto — belonging to Daniel Hock — found approx. 24 lbs. Marijuana under sink in two suitcases in Cabin #5 Sheriff Returned and filed 20 March 1975.

At trial on May 15, 1975, the State did not rely upon the validity of the search warrant but, instead, relied upon a consent to search. In that connection during an in-chambers hearing it offered the testimony of the sheriff and Deputies Smith and Coalter.

Samuel Smith, Jr., Deputy Sheriff, testified as follows:

“A. Well, we pulled up at this cabin and there was some men working on the building. And, we asked them if the boys were there, or the people there. They said they were down there fishing. We walked down there where they was. The Sheriff introduced us. Told them that he had heard that they had some of that funny stuff, and he wanted to search the building. And, the boys was so calm, to tell you the truth, I started to come back and not even—
Q. Didn’t Max have the Search Warrant with him?
A. I presumed he did.
Q. Did you see it?
A. I didn’t see him show it to them. No sir.
Q. Now, Mr. Smith, isn’t it true that Max had this Search Warrant in his hand, and said we have a Search Warrant? Didn’t he say that?
A. I can’t remember. I mean, if he did, I can’t remember.
Q. But he did have a Search Warrant in his hand, didn’t he?
A. No, I couldn’t say that.
Q. You don’t know?
A. I don’t know.”

Lewis Colater, Deputy Sheriff, testified that he got there late and the search was already in progress when he arrived.

Sheriff Brown testified as follows:

“Q. What happened when you went to the State Park?
A. We got to the State Park, came out in a couple of automobiles. At that particular time of the year, the cabins were being remodeled. Air-conditionir g units, and one thing and another, being put in them. And, there was workmen working on nearly all of the cabins, including this particular cabin. And, there was cars and pickup trucks parked all along in front of the cabin. Based on the informant, there was a black automobile involved, and it was parked in front of cabin number five. I asked the workmen if it was occupied, and they said that it was. I asked them where the occupants were, and they advised that they were on the lake bank fishing. Clyde Talkington, Samuel Smith and myself walked down to the lake bank where Daniel Hock and Richard Dickman were standing. Dickman was fishing and Daniel Hock was just standing there with him. I introduced myself to him, and showed him my credentials. I introduced them to Deputy Talkington and Deputy Smith. Told him that / had information that there might possibly be some marijuana concealed in his cabin or automobile, and asked him if he minded if I looked for it. At that time, he gave me oral permission to search. I asked him to go to the cabin with me so that he could see just what I was doing. I got back up to the cabin, and at that time Lewis Coalter drove up. He didn’t go out there with us, but he came up at that time. He and Deputy Smith searched inside the cabin while Deputy Talkington and myself searched the automobile. Daniel Hock was very cooperative. He asked if I wanted to look in the turtle hull, and I advised him that f did. He got the keys and opened the turtle hull. We didn’t find anything in the car, but before we finished completely searching the car, Deputy Smith came back outside and told us we had better hold him, and that he was going down on the lake bank and pick up Richard Dickman, which he did. I went in the cabin and they found two suit cases full of marijuana under the sink in the cabin. At that time, I advised them of their rights and told them the charges.
Q. You have got on your Search Warrant where you served the Search Warrant and made your Return on it.
A. I returned it back to the J.P. The circumstances and what I found up there, and so forth.
Q. Did you tell Mr. Hock that you had a Search Warrant?
A. No. He never asked for it.
Q. He just told you to go on in and have at it as you pleased?
A. As a matter of fact, if I were ¿ etting man, I would have said at that particular point that there wasn’t any marijuana anywhere around, because of his attitude.”

In chambers appellant testified on direct examination that the sheriff, after introducing himself, said:

“. . . He said he had a search warrant, you know, to search the place. I first asked him if he wanted to search me, and he said no, and he pulled out his search warrant. He pulled it out, and I got a brief look at it, and he stuck it back in his pocket and turned right around and walked, you know, walked off. . .

Appellant’s cross-examination left much to be desired with respect to credibility.

The latest expression with reference to the burden cast upon the State to show consent to search is contained in Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968), where it is stated:

“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.”

The Supreme Court, in Bumper, supra, cited Judd v. United States, 190 F. 2d 649 (D.C. Cir. 1951), favorably as indicating the extent of the burden placed upon the State to show consent. With reference to searches and seizures made without a proper warrant, the Court in Judd v. United States, supra said:

“Searches and seizures made without a proper warrant are generally to be regarded as unreasonable and violative of the Fourth Amendment. True, the obtaining of the warrant may on occasion be waived by the individual; he may give his consent to the search and seizure. But such a waiver or consent must be proved by clear and positive testimony, and it must be established that there was no duress or coercion, actual or implied. Amos v. United States, 255 U.S. 313, 41 S. Ct. 266, 65 L. Ed. 654; United States v. Kelih, D.C.S.D. Ill. 1921, 272 F. 484. The Government must show a consent that is ‘unequivocal and specific’ (Karwicki v. United States, 4 Cir. 55 F. 2d 225, 226), ‘freely and intelligently given.’ Kovach v. United States, 6 Cir., 52 F. 2d 639. Thus ‘invitations’ to enter one’s house, extended to armed officers of the law who demand entrance, are usually to be considered as invitations secured by force. United States v. Marquette, D.C.N.D. Cal. 1920, 271 F. 120. A like view has been taken where an officer displays his badge and declares that he has come to make a search (United States v. Slusser, D.C.S.D. Ohio 1921, 270 F. 818), even where the householder replies ‘All right. ’ United States v. Marra. D.C.W.D.N.Y. 1930, 40 F. 2d 271. A finding of consent in such circumstances has been held to be ‘unfounded in reason’. Herter v. United States, 9 Cir., 27 F. 2d 521. Intimidation and duress are almost necessarily implicit in such situations; if the Government alleges their absence, it has the burden of convincing the court that they are in fact absent.”

The search warrant that the sheriff obtained and upon which he made his return is obviously invalid. Thus, we must determine, under the foregoing decisions, whether the State has met its burden of proving a consent to search — i.e. the issue is not whether one should believe either the sheriff or appellant but whether the showing made by the State was sufficiently clear and positive to sustain its burden of proof. On this issue we really have only the testimony of the sheriff and appellant, for Smith, the deputy, could not state positively that the sheriff showed or did not show appellant the search warrant. As between the testimony of the sheriff and appellant, the appellant’s testimony is much lacking in credibility. Yet, the return on the search warrant tends to corroborate appellant’s version. Based upon the whole record, we cannot say that the State met its burden of proving consent by clear and positive testimony. It follows that the trial court should have suppressed the evidence obtained in the search.

Reversed and remanded.

Harris, C. J., and Jones, J., dissent.

J. Fred Jones, Justice,

dissenting. It is my opinion that the judgment in this case should be affirmed.

The validity of the search in this case turns on whether the search was conducted with the voluntary consent of the appellant rather than under the search warrant. Sheriff Brown said that although he had the warrant in his possession, he did not present it to the appellant or use it at all in connection with the search. He said he did not find it necessary to use the search warrant, in that the appellant readily agreed for him to make the search and even assisted in searching the automobile. Sheriff Brown’s testimony on this point was confirmed by the testimony of Deputy Sheriffs Smith and Talkington, but this was denied by the appellant. There is no evidence in the record that the appellant had a key to the cabin in which the marijuana was found and there is actually no evidence that any of the appellant’s personal effects were in the cabin or as for that matter, that he had even rented the cabin. There was evidence that there were several cabins in the state park and that the appellant’s automobile was parked in front of cabin No. 5. Sheriff Brown said the cabin door was unlocked and that workmen were working in, around and on the cabin and no one testified to the contrary. In any event, I conclude that the trial court in resolving this fact issue was justified in believing the sheriff’s testimony in regard to the appellant consenting to the search, and that the search was made under such consent. From the testimony of the parties concerned, the court could have easily concluded that it was a part of the appellant’s strategy, in concealing the marijuana from detection, to be so entirely agreeable to a search that it would disarm suspicion and lessen the thoroughness of any search made, and that in the event the contraband was found, the appellant could more convincingly deny his knowledge of its existence. From the testimony of the officers it would appear that if such was the strategy of the appellant, it almost succeeded.

On cross-examination Sheriff Brown testified before the jury as follows:

“Q. Sheriff, what cabin did ya’ll wind up searching?
A. Number five.
Q. You stated that people were working around that particular cabin?
A. They were. Around, on and in.
Q. Around, on and in? Was the door locked or unlocked?
A. No, it was unlocked.
Q. You state that Mr. Hock voluntarily allowed you to search anything you wanted to?
A. He did.
Q. Why, do you suppose, if he had contraband in his room, he would tell you to go on in and search it?
A. I really don’t know sir. I was, at the time he told me, I really didn’t think he had anything from his attitude.”

Sheriff Brown made a return on the warrant but it only stated where he searched and what he found. It did not say or ' indicate that he served it on the appellant or showed it to him.

I would affirm.

I am authorized to state Harris, C.J., joins this dissent.


text:
    BURKS, INC. and ROCKWOOD INSURANCE COMPANY v. Joe BLANCHARD, et al
    75-197
    531 S.W. 2d 465
    Opinion delivered January 12, 1976

      Shackleford, Shackleford & Phillips, for appellants.

      Bridges, Young, Matthews & Davis, for appellees.
   Elsijane T. Roy, Justice.

This appeal involves a Workmen’s Compensation Commission award. Appellee, Joe Blanchard, recovered permanent partial disability for injuries received on October 20, 1970, while in the scope of his employment with Burks, Inc. (Also appellant herein is the insurance carrier, Rockwood Insurance Company). Appellee was conservatively treated by two physicians for injuries to his right leg and back. Finding himself unable to continue his former job skidding logs, appellee thereafter sought the medical services of Dr. Harold Chakales. Dr. Chakales’ examination revealed a ruptured disc and corrective surgery was performed on March 14, 1972. In a report dated June 15, 1972, appellee was rated by Dr. Chakales as having a 10 to 15 percent physical impairment to the body as a whole. Appellants paid temporary total disability for a period of time following the surgery and began paying permanent partial disability based on the 15 percent disability established by Dr. Chakales.

Appellee thereafter pursued other employment and, on November 25, 1972, again suffered injury to his back while working for Holloway and Hicks Texaco Station. The Commission concluded that appellee had suffered a recurrence of his pre-existing back injury and increased his permanent partial disability award from 1.5 to 35 percent. Based on finding of recurrence, liability for the increase was assessed against appellants, and the claims against Holloway and Hicks Texaco Station were dismissed.

For reversal appellants contend that there was no substantial evidence to support an increased percentage disability award; that there was no substantial evidence to support the finding that the injury was a recurrence, as opposed to an aggravation, of the pre-existing injury; and that responsibility for disability benefits after the November 25, 1972 injury should be assessed against Holloway and Hicks Texaco Station.

On appeal if there is any substantial evidence to sustain the finding and award of the Workmen’s Compensation Commission, this court will affirm. Vaccaro-Grobmeyer Co. v. McGarity, 249 Ark. 1132, 463 S.W. 2d 372 (1971).

Appellants place great reliance on the case of Ray v. Shellnutt Nursing Home., 246 Ark. 575, 439 S.W. 2d 41 (1969) in support of their position that there should be no increase in the percentage disability award. However, we find more apposite the case of Wilson & Co. v. Christman, 244 Ark. 132, 424 S.W. 2d 863 (1968), which is cited with approval in Ray. In Christman we held that upon consideration of all pertinent factors including age, education, experience and other matters affecting claimant’s incapacity to earn the same wages, the Commission’s award of 60% permanent disability was supported by substantial evidence even though the highest percentage disability indicated by the medical evidence alone was 30%.

For other cases approving disability ratings in excess of the percentage of disability based on medical evidence alone see Dacus Casket Co. v. Hardy, 250 Ark. 886, 467 S.W. 2d 713 (1971), and Royal Shoe Mfg. Co. v. Armstrong, 252 Ark. 1002, 481 S.W. 2d 737 (1972).

Appellee’s testimony reveals a pattern of physical disability stemming from his October 20, 1970 injury and the recurrence of the injury on November 25, 1972. This testimony is corroborated by the medical observations of Dr. Chakales, appellee’s treating physician. Dr. Chakales’ several reports reflect that appellee will be susceptible to continued problems and that excessive manual labor would probably result in “repetitive flare-ups and low back trouble, and will require further treatment.” From the record it is clear that appellee was at the time of his initial injury a 36 year old male who had a tenth grade education. His previous work experience involved manual labor only, and he was not trained for any other kind of work.

The testimony of appellee shows that following his injury of November 25, 1972, he has been unable to hold employment for any length of time. Appellee’s employment was soon terminated when his physical limitations became apparent at Darco Steel, Blue Grass Shows (a carnival) and as a driver for a pulpwood contractor. The limitations involved at these places of employment were appellee’s inability to lift heavy objects or to handle the driving of heavy equipment, which tasks he had been able to perform previously. The Commission in evaluating the full extent of appellee’s handicap conformed to the test noted with approval in Christmas, supra, and in Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961), where we held consideration should be given not only to medical evidence but also to the claimant’s “age, education, experience and other matters affecting wage loss.” In view of the record here we find substantial evidence to support the award of 35% permanent partial disability.

We now consider whether substantial evidence supports the Commission’s determination that appellee suffered a recurrence, rather than an aggravation, of his pre-existing condition. Appellants allude to the findings of the Commission referee who concluded that the second injury was an aggravation, rather than a recurrence, of the first injury. This finding was reversed by the full Commission. On appeal we consider the findings of the Commission, not of the referee, to ascertain if the award is supported by substantial evidence. Lane Poultry Farms v. Wagoner, 248 Ark. 661, 453 S.W. 2d 43 (1970).

Pertinent to the case at bar is § 95.12 of Larson on Workmen’s Compensation, which reads as follows:

If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second. * * * This group . . . includes the kind of case in which a man has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists and culminating in a second period of disability precipitated by some lift or exertion.

In determining whether the second injury represented a recurrence of the first we note appellee, subsequent to his October 20, 1972 accident, had frequent trouble with his back. Following his surgery appellee began driving a tractor but was unable to continue doing so because his back began bothering him again. It was during this period that appellee was readmitted to the hospital for treatment. Shortly after discharge appellee testified that he began work for Holloway and Hicks Texaco Station mainly greasing big trucks where he had to bend his neck and back considerably. He worked there until November 25, 1972, when, as the apparent result of strenuous ex; '’tion, he reinjured his back and was unable to work further.

It is appellants’ contention that the injury occurred when appellee was forced to catch a large tire to prevent its fall from the service station wall. However, appellee stated that he did not notice anything wrong with his back at that time or suffer any unusual pain. Appellee thereafter went underneath a truck to grease it and, upon emergence, was unable to straighten up because his back was hurting so much. That an injury did indeed occur is corroborated by Dr. Chakales, who states in a medical report that appellee was hospitalized the day after he complained of injury. Moreover, in another medical report taking cognizance of this injury, Dr. Chakales stated “there is no doubt that the working, stooping and bending while working at the service station precipitated this recurrent back trouble.” (emphasis supplied) Contrary to appellants’ contention that the Commission based its conclusion only upon Dr. Chakales’ chacterization of the injury as recurrent, it can be seen that there is additional evidence sufficient to establish the plausibility of such a finding.

As a result of thorough review, we find substantial competent evidence to support the Commission’s order on the recurrence issue as well as disability and the judgment of the circuit court approving same is affirmed.


text:
    George HILLIARD v. STATE of Arkansas
    CR 75-150
    531 S.W. 2d 463
    Opinion delivered January 12, 1976

      Skillman, Dawtt & Davis, for appellant.

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

The appellant, George Hilliard, was charged with the crimes of grand larceny, forgery and uttering. These charges arose as a result of appellant purportedly taking, endorsing and negotiating the Arkansas Social Services check of Patsy Hill. On trial, appellant was found guilty of the offenses charged and from that conviction comes this appeal.

Appellant first assigns as error the allowance by the trial court of the prosecuting attorney’s interrogation relating to prior felony and misdemeanor charges and convictions of the appellant. The record discloses that at trial the prosecuting attorney asked a number of questions dealing with appellant’s past criminal activity. Appellant contends that evidence of other offenses cannot be introduced absent any “permissible relevancy” to the crime at issue when their introduction could only be for the purpose of persuading a jury that the commission of a similar offense indicates likely guilt of the crime charged. When the accused elects to take the stand in his own behalf, as here, his credibility becomes an element to be tested by proper questioning on cross-examination. Edens v. State, 235 Ark. 178, 359 S.W. 2d 432 (1962), cert. denied, 371 U.S. 968 (1965). The record reflects the prosecutor’s queries were for the purpose of attacking appellant’s credibility which is permissible, Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974), and thus considered present no basis for reversal on this appeal.

Appellant’s second assignment of error is his contention that his conviction was based solely on the testimony of an accomplice, Theresa Whittier, contrary to Arkansas law; and that the court erred in failing to give an instruction regarding this testimony. Theresa Whittier was in the company of appellant and George Allen on the day the check was stolen. Ms. Whittier admitted she forged the signature of Patsy Hill on the check and subsequently negotiated the instrument at a West Memphis supermarket, but she testified that appellant forced her to do this, while Hilliard testified he had no part in the crime. An eyewitness to the theft, Michael Minnis, was visiting his mother, Louelle Minnis in West Memphis on the day the theft took place. Louella Minnis is a next door neighbor of Patsy Hill. Minnis testified that on the day in question he saw the appellant take the welfare check from Patsy Hill’s mailbox and begin to run with it. The witness was able to identify the appellant in court as the person he saw commit the theft.

Appellant’s own testimony is that he stopped the car and got out in the vicinity of the offense allegedly to see an “old man” who mysteriously disappeared and appellant did not see him. However, the jury may not have believed this explanation since his proximity to the residence from which the check was stolen accorded with the time at which the theft occurred. Coupled with this was the fact that Hilliard admittedly received money from Theresa Whittier shortly after the time the theft and negotiation took place. Other testimony from James Presley, the arresting officer, and Louelle Minnis, the next door neighbor of Patsy Hill, serves to show the involvement of the appellant in the expropriation of the check. Thus we find there was available a plethora of evidence apart from the testimony of Ms. Whittier upon which the jury could predicate a finding of guilt. Pitts v. State, 247 Ark. 434, 446 S.W. 2d 222 (1969), King v. State, 254 Ark. 509, 494 S.W. 2d 476 (1973).

Since no instruction was requested it was not error for the court to fail to give an instruction on the testimony of an accomplice pursuant to Ark. Stat. Ann. § 43-2116 (Repl. 1964) which prohibits a conviction based on the statement of an accomplice uncorroborated by other evidence which tends to connect the defendant with the offense.

In dealing with this point the court in Morris v. State, 197 Ark. 778, 126 S.W. 2d 93 (1939), said:

Appellant did not request an instruction under this statute, but he contented himself with requesting an instructed verdict on the whole case. If appellant had desired an instruction under the statute it was his duty to have macle such a request and as he failed to do so it is now too late to complain on the appeal of his case. Stinkard v. State, 193 Ark. 765, 103 S.W. 2d 50.

Appellant’s concluding assignment of error is that inadequate representation was afforded him by his retained counsel in the trial. However, this issue was not raised in the trial court and we will not consider it here since the trial court has not had an opportunity to pass upon the appellant’s contention.

No motion for new trial was filed and the trial court is in a better position to assess the quality of legal representation through a motion for a new trial or a motion for post conviction relief than we are on appellate review. Under either method the circuit court then has the opportunity to consider many facets of the cause that by necessity are denied us on appeal. An evidentiary hearing of this caliber would better equip us on review to examine in detail the sufficiency of the representation below. To this effect see Preston v. State of Delaware, 306 A. 2d 712 (1973), and Cross v. U.S., 392 F. 2d 360 (8th Cir. 1968). If the accused did not have adequate opportunity to raise the question in the trial court before appeal, he can raise the question by motion for post conviction relief. Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1 (1973), and Franklin v. State, 251 Ark. 223, 471 S.W. 2d 760 (1971).

Finding no reversible error, this cause is affirmed.