author: Carleton Harris, Chief Justice. Jim Johnson, Associate Justice,

text:
    Pruitt v. Moon.
    5-1913
    328 S. W. 2d 71
    Opinion delivered October 12, 1959.

      Wiley A. Branton, for appellant.

      John A. Davis, III, and Bridges S Young, for appellee.
   Carleton Harris, Chief Justice.

This appeal relates to an order of the Workmen’s Compensation Commission denying and dismissing the claim of appellant for compensation. Jimmie Pruitt alleged that he suffered a total loss of vision in his right eye, the result of being struck in this eye by a piece of stone in October, 1956, during the course of his employment with the Moon Monument Company. A hearing was conducted before a Referee in January, 1957, and the claim denied and dismissed. Appellant’s right eye was removed by operation in February of the same year, and a hearing on his appeal was held before the full Commission on April 16, 1957. Their denial of compensation was affirmed by the Jefferson Circuit Court in a judgment entered September 25, 1958. From such judgment, comes this appeal.

The sole issue before this Court is whether there was sufficient competent evidence in the record to warrant the making of the order by the Commission. The testimony of Pruitt is rather vague, and in fact, conflicting, in that he gave several different versions of the manner in which his eye was injured. According to Dr. Louis Hundley of Pine Bluff, Pruitt stated that he had gotten a piece of steel in his eye three months prior to October 15, 1956 (date of the first examination by Dr. Hundley). He stated to Dr. R. E. Glasscock of Pine Bluff, that he had gotten a piece of stone in his eye about August, 1956. In a signed statement of November 9th, Pruitt stated that he had gotten a piece of stone in the eye about two months prior to the date of the statement, and within an hour after getting the piece of stone in the eye, had also been struck in the same eye by a piece of steel. In his testimony before the Referee on January 18, 1957, he was very positive that the injury had occurred three days before his first visit to Dr. Hundley (which would be October 12, 1956). Harry Humes, a fellow employee, stated that while working with appellant, Pruitt stated that he had been hit by a piece of steel or rust from some iron Humes was sawing, but the witness was unable to give any date, stating that it was in the early part of 1956. J. B. Hughes, a stone cutter for the Moon company, by deposition taken on April 29th, 1957, testified that Pruitt complained of getting a piece of stone in his eye while they were working, but Hughes could not. even state that it had happened in 1956. Dr. Hundley testified that on examining Pruitt on October 15, 1956, he found the right eye red, inflamed, and watering. “The cornea was clear; the pupil was small and showed some adhesions. The lens of the eye was opaque; no foreign bodies or sears were in evidence.” Appellant stated that he had already been to a doctor to get the piece of steel out, but it had not been removed, still scratched, and Dr. Hundley stated that it was hard to convince Pruitt there was no piece of steel in the eye. Upon being interrogated as to whether he found any evidence of injury to the eye, Dr. Hundley replied: “In view of the history that Jimmie gave me at the time, I felt that this was an inflammation as the result of a prior injury.” He found no foreign bodies or scars in the eye. According to the doctor, Pruitt stated that the injury had occurred “about three months prior.” He did not again see Pruitt until December 10th, at which time the condition of the eye had grown worse. The diagnosis of Pruitt’s condition by Dr. Hundley was “acute iridocyclitis of the right eye with complicated cataract. ’ ’ He stated that in addition to trauma, such a condition could be brought about by a severe case of iritis; that iritis can be caused by allergy, and infections in the body, and that the latter two are more common causes for the condition, than injury. He was of the opinion that the instant case was traumatic in origin, though he stated that he had accepted the history as related by Pruitt to the effect that the injury had occurred three months before, and he testified that his findings relative to the eye were consistent with an injury which had occurred that long before. The doctor was definitely of the opinion that the condition had been outstanding for more than a three day period. After the removal of the eye, Dr. Hundley submitted a report in March, 1957, stating that his diagnosis was the same as that previously given, “acute iridocyclitis, right, probably the result of injury.”

Dr. Glasscock examined Pruitt on December 18, 1956, and was told by Pruitt that he (appellant) had gotten a piece of stone in his right eye about four months previously. The doctor found Pruitt suffering from iridocyclitis or endophalmitis, but saw no objective evidence of trauma. Dr. Glasscock stated that appellant’s condition could be caused by an injury, but that the cause is more often the result of an infection in other parts of the body; for instance, in the teeth, tonsils, etc. He testified that he had also examined Pruitt in April of 1955, at which time Pruitt stated he had been struck in the eye with a small piece of rock. Dr. Glass-cock testified that he found only a minor injury at that time. On still another occasion, he had examined appellant (January 10, 1956), and Pruitt gave a history of getting something in his left eye, four days previous to that examination. Dr. Glasscock stated that Pruitt liad iritis in the left eye at that time, but he did not feel that it was traumatic in origin. He also testified that the injury of April, 1955, would not have caused the iritis of January, 1956, for the reason that there was not enough injury. The doctor was unable to state definitely as to the cause of the condition in December, 1956, but was of the opinion that the condition was not due to trauma. It will be noted that neither of these physicians were positive, but this is not surprising in view of the fact that both agreed such a condition could be caused either by infection or trauma, and considering the uncertainty of the date of the alleged injury, it is understandable that the doctors were unable to make a more definite finding.

Neither Dr. Hundley nor Dr. Glasscock ever found any foreign object or substance in claimant’s eye. After the removal of the eye, it was sent to Dr. B. E. McCain, a pathologist, who sectioned the entire eye, and studied it microscopically. The doctor’s report stated: “No foreign body was found grossly or microscopically.” In arriving at their conclusion that appellant had failed to show by a preponderance of the evidence that his condition was the result of injury, the Commission stated:

“ * * * we believe the conclusion reached by Dr. Glasscock is more consistent with the history of this claimant’s ailment and claimant’s prior difficulties of a similar nature with his other eye. The fact that no foreign substance was, upon medical examination, found in claimant’s eye, and that characteristically one suffering from systemic iritis erroneously feels the presence of such a foreign substance, is a persuasive factor in this case.”

We are of the opinion that the record contains sufficient competent evidence to justify the Commission’s findings, and to warrant the making of the order. That being true, it necessarily follows, under numerous decisions of this Court, that the judgment of the Circuit Court should be, and hereby is, affirmed.

Robinson and Johnson, JJ., dissent.

Jim Johnson, Associate Justice,

dissenting. There can be no doubt as to this claimant’s permanent loss of vision in his right eye since that eye has been removed and is now gone forever. An abundance of substantial testimony was offered to show that this claimant did actually suffer an injury in the course of his employment and that he was treated for three separate injuries to his eye. Nowhere in the record can it be found that claimant’s present condition is not the result of an accident suffered in the course of his employment. It is true that the testimony relative to the exact date of the last injury is somewhat in conflict. However, the evidence reveals that claimant, who is an ignorant negro, had a very poor memory for dates.

None of the doctors who testified could positively say that the condition of claimant’s eye was not the result of a trauma. There was some testimony that such a condition could result from infection or disease. A careful review of the record will not reflect one scintilla of evidence to the effect that the claimant was suffering from any disease or foci of infection which would cause any spontaneous iritis condition.

It is a well established principle of law that the Workmen’s Compensation Law “should be liberally construed and not strictly construed.” Bales v. Service Club No. 1, Camp Chaffee, 208 Ark. 692, 187 S. W. 2d 321; Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579. We have held many times that in construing the Workmen’s Compensation Act its terms should be liberally construed so as to “provide compensation to an employee actually disabled. ’ ’ Ark. National Bank, et al, v. Colbert, 209 Ark. 1070, 193 S. W. 2d 806. See also: Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S. W. 2d 113. In the recent case of Hollifield v. Bird & Son, Inc., 227 Ark. 703, 301 S. W. 2d 27, we reversed the finding of the Commission on the grounds that the evidence did not support a finding which denied compensation even though there was a conflict in the medical opinions.

Even if this was a doubtful case, we have held that doubtful cases should be resolved in favor of the claimant. Boyd Excelsior Fuel Company v. McKown, 226 Ark. 174, 288 S. W. 2d 614; Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S. W. 2d 211. In the instant case the only question of doubt is whether the appellant lost his vision in his right eye as the result of a spontaneous iritis or from trauma. In Stout Constr. v. Wells, 214 Ark. 741, 217 S. W. 2d 841, we held that where one of two opposing inferences would support a compensation award and the other would defeat it, a construction favorable to claimant ought to be adopted if factually sound even though an equally substantial inference thereby fails. Finding no substantial evidence to support the finding of the Commission, I respectfully dissent.

Mr. Justice Sam Robinson joins in this dissent.


source: Caselaw Access Project

author: Ed. F. MoFaddin, Associate Justice.

license: Public Domain

text:
    Boyd and Byrd v. State.
    4946
    328 S. W. 2d 122
    Opinion delivered October 12, 1959.
    [Rehearing denied November 11,1959]

      W. Harold Flowers, for appellant.

      Bruce Bennett, Atty. General, by Thorp Thomas, Asst. Atty. General, for appellee.
   Ed. F. MoFaddin, Associate Justice.

Appellants, James Boyd and Willie Henry Byrd, were convicted in tbe Miller Circuit Court in December 1958 of the crime of first degree murder for the homicide of M. R. Hamm. They were each sentenced to death; and from such judgments they prosecute this appeal.

This is the second appearance of these appellants in this Court in connection with the homicide of M. R. Hamm. In Moore et al. v. State, 227 Ark. 544, 299 S. W. 2d 838, there were four appellants, being James Moore, Rogers Boone, James Boyd (present appellant), and Willie Henry Byrd (present appellant). After the reversal in the said case of Moore et al. v. State, James Moore obtained a severance. He was again tried, convicted, and sentenced to death; and we affirmed that judgment in Moore v. State, 229 Ark. 335, 315 S. W. 2d 907; and the United States Supreme Court denied certiorari on January 26, 1959. 358 U. S. 946, 3 L. Ed. 2d 353, 79 S. Ct. 356. Rogers Boone likewise obtained a severance; was again tried, convicted, and sentenced to death; and we affirmed that judgment in Boone v. State, 230 Ark. 821, 327 S. W. 2d 87 (opinion of September 14, 1959).

The present appellants, James Boyd and Willie Henry Byrd, waived severance and were jointly tried in December 1958, convicted, and sentenced to death, as aforesaid; and those judgments are now before us on this appeal. This being a capital case, we have reviewed every objection in the record (§ 43-2723 Ark. Stats.); and find no objection that requires a reversal. We discuss, however, some of the objections.

I. Motion To Quash The Information. This motion related to both of the defendants and was urged because the appellants were being tried on an information filed by the Prosecuting Attorney instead of an indictment returned by a Grand Jury. We fully discussed this point and held it to he without merit in Moore v. State, 229 Ark. 335, 315 S. W. 2d 907; and what we there said is applicable here.

II. The Case Against Willie Henry Byrd. Appellant Byrd says that his confession was illegally admitted into evidence. It was shown that M. R. Hamm died on May 9, 1956; that Byrd and the other three thought to be implicated in the murder of M. R. Hamm, were taken into custody on May 15, 1956; that the Prosecuting Attorney’s office was at Arkadelphia, a distance of about eighty miles from Texarkana; that Byrd and the other three accused persons were advised that they would be taken to Arkadelphia to the Prosecuting Attorney and then to the State Penitentiary at Cummins Farm south of Pine Bluff; that the four prisoners were on the back seat of the car and three officers in the front seat; that they reached Arkadelphia about 8:00 P. M. and were served with food; that the prisoners were questioned separately and sometimes together; that appellant Byrd was advised that he did not have to make any statement; that Byrd’s statement was made freely and voluntarily; that the statement was signed by him; that Moore and Boone both signed statements; and that all of the prisoners were then taken to the State Penitentiary at Cummins Farm for safekeeping.

The burden was on the State to prove that the confession was voluntary. Love v. State, 22 Ark. 336; Smith v. State, 74 Ark. 397, 85 S. W. 1123; and Cush v. State, 180 Ark. 448, 21 S. W. 2d 616. In determining whether a confession is voluntary, the Court should look to the whole situation and surroundings of the accused. Dewein v. State, 114 Ark. 472, 170 S. W. 582; Brown v. State, 198 Ark. 920, 132 S. W. 2d 15. When the State sought to introduce the appellant’s confession, the hearing was recessed to the Judge’s chambers for the Trial Judge — in the absence of the jury — to see if there was sufficient evidence of voluntariness to submit the issue to the jury. Such is in accordance with our frequently stated procedure. Charles v. State, 198 Ark. 1154, 133 S. W. 2d 26; Brown v. State, 198 Ark. 920, 132 S. W. 15; Hendrix v. State, 200 Ark. 973, 141 S. W. 2d 852; Nolan and Guthrie v. State, 205 Ark. 103, 167 S. W. 2d 503. The Trial Court correctly ruled that there was sufficient evidence offered to take the case to the jury on the voluntariness of the confession of Byrd, and, thereupon, the hearing was resumed before the jury.

We hold that there was abundant evidence to take the case to the jury as against Willie Henry Byrd; that the jury was correctly instructed; that there was abundant evidence to support the conviction; and that there was no error in the record. The judgment against Byrd is, therefore, affirmed.

III. The Case Against James Boyd. The Trial Court refused to allow the alleged confession of Boyd to be considered in any way because one of the State’s witnesses gave testimony which convinced the Trial Court that Boyd’s confession was not voluntary. The said witness — a law enforcement officer — testified as to the following remarks he made to Boyd on May 15,1956 before the body of M. R. Hamm had been found :

“Well, we were walking np and down a ditch there, for half a mile, looking for a hammer. And I was questioning him about the disappearance of Mr. Hamm. And I told him that we believed that he and this other boy, Boone, had killed him. And he denied it; and we were walking up and down this ditch, and we talked all the time about it, and I kept telling him over and over — I guess I told him a hundred times in different forms, that they had killed this man, and that they had hidden his body, and that there was a group of white people looking for him, and that they would believe the same things we believed, under the circumstances, and it would be lots better for him to go ahead and tell me about it. I pointed out to him that he would be in considerable danger if this large group of white people were to find this man’s body and come to the conclusion that he had committed the crime. And we talked along that line for a long time. And finally, he says, ‘I didn’t do it, but I was there’, or words to that effect.”

Because of the foregoing testimony the Trial Court correctly ruled that Boyd’s confession was involuntary, and the Court told the jury:

“Now as to Boyd, you are told that there is no confession as to Boyd and you are again admonished not to consider any testimony as respects any such confession allegedly made by him, the defendant Boyd.”

The Trial Court was correct in refusing to allow the alleged confession made by Boyd to be considered by the jury. As we pointed out in discussing the Byrd confession, the burden is on the State to prove that the confession was voluntary; and in determining whether a confession is voluntary the Court should look at the whole situation and surroundings of the accused. When the law enforcement officer told this Negro prisoner that there was a large group of white people looking for him and if they found Mr. Hamm’s body they would come to the conclusion that he (Boyd) had committed the crime, the voluntariness of the confession was certainly destroyed until it was shown that the Negro had reached a place secure against any such “large group of white people” looking for him.

But on the night of May 15th the four prisoners, Boyd, Byrd, Moore, and Boone, were transported to the State Penitentiary south of Pine Bluff for safekeeping; and on May 18th, three days later, the Prosecuting Attorney, along with two law enforcement officers, went to the penitentiary to see the four prisoners. The statements of Moore and Boone were read to Boyd in the presence of Moore and Boone, after Boyd had been advised that if there was anything in the said statements that was erroneous, he should so state. This was three days after Mr. Hamm’s body had been found; Boyd was safe in the penitentiary and secure from any possible “large group of white people”; so any fear induced by the officer’s statement of May 15th had been dissipated. In their said statements read to Boyd, Moore and Boone each stated that Boyd was in concert with them and assisted in the assault and robbery of Mr. Hamm.

In admitting this testimony of Boyd’s failure to make any reaction to the statements of Moore and Boone, the Trial Court immediately cautioned the jury:

“Gentlemen of the jury, it is my duty — the Court’s duty ■— to remind you at this time that this purports to be a statement of Rogers Boone, who is not a defendant in this trial. It is not to be considered in any manner as a statement made by either or both of these defendants, and the same rule of law applies as to the restricted area in which you may consider their reaction, if they had an opportunity to freely react to this statement, and at the close of all the case the Court will again, as a matter of precaution, admonish you relative to the law as regards this statement and the Moore statement.”

Boyd made no denial of any of the statements which his co-conspirators had made in his presence, and his failure to make such denial was admissible in evidence against him. In Moore v. State, 229 Ark. 335, 315 S. W. 2d 907, we quoted from Martin v. State, 177 Ark. 379, 6 S. W. 2d 293:

“ ‘. . . it is a general rule that the statements of one accomplice made in the presence and hearing of another, which are not contradicted by him, are admissible in evidence against him as an admission on his part for his failure to contradict them. Polk v. State, 45 Ark. 165; Ford v. State, 34 Ark. 654.’

In 20 Am. Jur. 428, ‘Evidence’, § 493, the general rule is stated:

“ ‘The rule precluding the use of the confessions of co-conspirators and codefendants as evidence against those not making the confessions is limited to confessions made in the absence of such other defendants. A confession of a co-conspirator or codefendant made in the presence of the accused and assented to by him, impliedly or tacitly by his silence or conduct, is admissible against him, upon the same principles which permit the introduction of evidence that the defendant stood silent when accused of crime, but it must appear that he did assent to the confession.’
“We, therefore, conclude that there was no error in the Court’s ruling on the point here involved.”

Other witnesses testified as to the four co-conspirators being together on the day of Mr. Hamm’s disappearance; Hamm’s body was found by information furnished by some of the conspirators; and other substantial evidence was introduced. In the instructions the Court told the jury:

“Instruction No. 14. The alleged confessions of Moore and Boone have been introduced in this case. You are instructed that it is the general rule of law that the statements of a conspirator are not admissible in the trial of a co-conspirator. However, if such statements are made in the presence of a co-conspirator, his reaction to that statement is admissible under certain conditions. “So, in this case, if you find from a preponderance of the evidence that the statements of Moore and Boone were freely and voluntarily given; and if you further find beyond a reasonable doubt that the defendants Byrd and Boyd heard and understood those statements, were called upon to freely act or reply and had an opportunity to express themselves concerning such statements, you may consider their reactions thereto.
“You are again cautioned, as the Court told you this morning, that no statements made by Moore or Boone are to be construed as being a statement of Byrd or Boyd themselves.
“Instruction No. 19. You are instructed that while it is the law of this State that all who join in the common design to commit an unlawful act, the natural and necessary consequence of which involved the contingency of taking life, they are responsible for the homicide committed by one of them while acting in pursuance and furtherance of the common design, although it might not have been the contemplation of the parties when they conspired to commit the unlawful act and although the actual perpetrator is not specifically identified; yet, you are further instructed that the homicide, if any, must be perpetrated while in the commission of the crime of robbery and must be the natural and necessary result of the unlawful act, and if you find from the evidence in this ease that the deceased, M. ft. Hamm, died from any cause not the natural and necessary result of an unlawful act, you will find the defendants not guilty of murder in the first degree.”

We hold that there was ample competent evidence to take the ease to the jury as against Boyd; that the Court committed no error prejudicial to Boyd in its rulings; that the jury was properly instructed; and that the evidence amply supports the verdict. We, therefore, affirm the case against James Boyd, just as we did against Willie Henry Byrd.

       The Court instructed the jury as to the confession: “Instruction No. 13. There is evidence here that the defendant Byrd made statements against interests, written, or oral, or both. Before you can consider any statement against interest as evidence, you must find:
      1st. That he did make a statement against interest.
      2nd. That the statement he did make was the one you heard on the witness stand.
      3rd. That when he made it, he told the truth.
      4th. That any statement made by him, the defendant Byrd, was voluntarily made.
      “In order for a statement against interests to be voluntary you must find that it was made without hope of reward or fear of punishment. The basis of the statement, that statements against interest must be voluntary, is that the Constitution of our State says that no person shall ever be compelled to give evidence against himself.” The presumption of law is that any statements made by a defendant, when he is in custody of officers, whether these officers be the sheriff, ■detectives, policemen, the prosecuting attorney, or any other law-enforcement officer, is involuntary and incompetent and cannot be considered by you.
      “The effect of that presumption is to cast the burden of proof upon the State to prove by a preponderance of the evidence that the statements were voluntary. The State must overcome this presumption of law to your satisfaction and show that the statements were voluntary; that is, made freely without hope of reward or fear of punishment.”

      Moore said in his statement: “Boyd slapped him and then I hit him. I hit him on the face. We didn’t hit him too hard. Boone had one hand and Boyd was holding the other hand of the white man . . .
      “Q. What was the man hit with ?
      A. With our fists and hands.
      Q. Did you see any blood on the man ?
      A. Yes, around his eye was a ring and around his mouth.
      Q. Was there a lot of blood ?
      A. Not too much.
      Q. Did you get any on you?
      A. No.
      Q. Did any of the other boys get any blood on them ?
      A. No, I didn’t see any.
      Q. How many times did you knock the man to the ground ?
      A. Several times.
      Q. Did the man ask you not to hit him any more ?
      A. Yes, he said that he would give us the money.
      Q. How many times was the man knocked into the ditch ?
      A. Several times and then Boyd and Boone would reach down and pick him up and hit him again.
      Q. How long did you all beat on this man?
      A. It was not too long, about 15 minutes.
      Q. Where was the man the last time you saw him?
      A. Lying in the ditch on his back on the bank of the road with his feet in the ditch.”
      Boone said in his statement: “ ... we got out and then James Boyd grabbed him on the collar and slapped him and said what have you got and then Pooehie slapped him and said what have you got and I slapped him too and then James Moore slapped him too . . .
      “A. James Boyd and then James Moore hit him over the head with a board and then James Boyd slapped him and turned him loose and the man fell into the ditch and didn’t get up.
      Q. How was the man lying the last time you saw him?
      A. He was lying with his feet toward the highway, on his elbows and his feet toward the road.
      Q. Where was the man’s hat ?
      A. Out in the ditch.”


author: George Rose Smith, J.

text:
    Bryant v. Thomas.
    5-1876 & 5-1877
    328 S. W. 2d 83
    Opinion delivered October 12, 1959.

      J. M. Smallwood, for appellant.

      Robert J. White, Bob Bailey, Jr., Richard Mobley, for appellee.
   George Rose Smith, J.

On the night of September 26, 1957, after dark, a large truck-trailer owned by the appellant Langley and being driven by his employee, the appellant Bryant, developed engine trouble and became disabled as it was ascending a moderate slope on the highway between Dardanelle and Russellville. Bryant tried to get off the pavement by letting his vehicle roll backward, but the rear wheels ran into a pile of gravel on the shoulder of the road. When the rig came to a standstill it was in a jackknife position with the truck occupying the entire right-hand traffic lane and the trailer sitting at an angle across the shoulder.

The record supports the view that Bryant turned off all the lights of his vehicle and descended to the roadway, where he attempted to direct traffic with a flashlight. Another truck approaching from the opposite direction had stopped to let a passenger car go around the stalled truck-trailer, and two other passenger cars stopped behind the disabled rig. The second of these cars was occupied by two of the appellees, Harold Thomas and his wife. Bryant signaled for the other truckdriver to come forward and go on past the truck-trailer and the two cars waiting behind it. As the other truck was moving past the three standing vehicles the Thomas car was struck violently from behind by a pickup truck in which the appellee Brock was riding with a companion, Mayhand, who was driving. Separate suits for personal injuries and property damages were brought against Bryant and his employer by the Thomases and by Brock. The cases were tried together and resulted in verdicts of $700 for Thomas, $10,000 for Mrs. Thomas, and $1,000 for Brock.

The appellants contend primarily that they were entitled to a directed verdict, on the twofold ground that (a) the plaintiffs failed to prove that the defendants were negligent and (b) the sole proximate cause of the collision was Mayhand’s carelessness in failing to see the Thomas car in time to avoid hitting it. We are of the opinion that the evidence on each point presented an issue for the jury.

The jury could have found that Bryant was negligent in at least two respects. First, there is evidence that he had been having trouble with his truck for a week or more and knew that its engine was not functioning properly. This proof is bolstered by testimony that it had taken Bryant two hours or more to travel less than five miles, from Dardanelle to the point of the accident. Secondly, several witnesses say that Bryant failed to leave the lights burning on his disabled vehicle, as the statute requires. Ark. Stats. 1947, § 75-707. We are not convinced by the argument that this omission became immaterial in view of the fact that the lights were burning on the two cars waiting behind the stranded rig. The jury may have thought that the headlights, clearance lights, and taillights of the big truck-trailer would have made an effective contribution toward warning Mayhand of the vehicles in his path. The jury could have found that Bryant’s negligence had created the hazardous situation and that his failure to keep his lights burning had increased the danger.

It is also argued that the sole proximate cause of the collision was Mayhand’s failure to observe the lights of the passenger cars in time to avoid striking the Thomas car. In a very similar fact situation a driver in Mayhand’s position has been held not to have been guilty of contributory negligence as a matter of law. Champieux v. Miller, Mo., 255 S. W. 2d 794. The court stressed the fact that the driver may have believed for a time that the taillights ahead were on a moving vehicle instead of a stationary one. That consideration is especially persuasive here, for there is testimony that the headlights of the oncoming truck were unusually bright and may have had a tendency to blind Mayhancl.

It cannot be said that Mayhand’s conduct, whether negligent or not, became as a matter of law the sole, intervening, efficient cause of the accident. Under the principles stated in Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797, Mayhand’s action did not necessarily become a superseding cause of the accident, for a reasonable man knowing the situation might not regard it as highly extraordinary that the collision happened as it did. The issue was therefore for the jury. See also Coca Cola Bottling Co. v. McAnulty, 185 Ark. 970, 50 S. W. 2d 577; Healey & Roth v. Balmat, 189 Ark. 442, 74 S. W. 2d 242; Comment, 1 Ark. L. Rev. 148.

The appellants’ remaining arguments have to do with the court’s instructions. The court did not err in telling the jury, in the language of the statute, that it is a misdemeanor for a person to drive a vehicle in an unsafe condition, Ark. Stats., § 75-701, and that a violation of this law is evidence of negligence. The testimony about Bryant’s earlier difficulties with the truck was sufficient to justify the court in submitting the issue. Furthermore, we do not think that the statutory reference to an unsafe condition must be limited to a lack of equipment such as lights, brakes, etc. To the contrary, it is plain that § 75-701 refers disjunctively to such, a deficiency and thus makes it an alternative basis for a finding that the vehicle is in an unsafe condition.

Complaint is also made of three instructions by which the court submitted the question of Bryant’s possible negligence in obstructing the highway and in failing to maintain lights upon his disabled rig. Here the appellants’ argument is simply a repetition of counsel’s insistence that Bryant was not negligent in these respects, in which case the objections to the court’s charge would be well taken. But since we are holding that the proof presented issues of fact concerning Bryant’s negligence it follows that the instructions were correctly given.

Affirmed.


author: George Bose Smith, J.

text:
    Rachel v. Johnson.
    5-1894
    328 S. W. 2d 87
    Opinion delivered October 12, 1959.

      Iienry S. Wilson, for appellant.

      Frank Sloan and Marvin P. Watkins, for appellee.
   George Bose Smith, J.

This is a suit by the appellant, Pealie Goodloe Bachel (an insane woman acting by her guardian), to quiet title to thirteen acres of land. The defendants are the plaintiff’s nephew and niece. At the close of the plaintiff’s proof the chancellor sustained a demurrer to the evidence and dismissed the complaint. Under the rule adopted in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, the question is whether the plaintiff produced sufficient evidence to have made a case for the jury if the suit had been tried at law.

The land was formerly owned by the appellant’s father, Philip Goodloe, who died in 1936. He was survived by a son, Thomas, who died intestate and without descendants in 1957, by his daughter Pealie, and by two grandchildren (the appellees), the children of a deceased daughter. It will be seen that by the laws of descent and distribution Pealie now owns a half interest in the land and each of the appellees owns a fourth interest. In claiming title to the whole Pealie relies upon an alleged will by which her father left the property to her and, alternatively, upon adverse possession during the years between her father’s death in 1936 and the institution of this suit in 1958.

Little need be said about the supposed will of Philip Goodloe. The document was recorded in the probate clerk’s office, but there is no proof that it was ever admitted to probate. Under the statute that governed in 1936, as well as under the Probate Code, an unprobated will is not entitled to recognition as evidence of title. Pope’s Digest, § 14531; Dodd v. Holden, 205 Ark. 817, 171 S. W. 2d 948, distinguishing Arrington v. McLemore, 33 Ark. 759; Ark. Stats. 1947, § 62-2126. The appellee James E. Johnson, who, together with his sister, was called as a witness by the plaintiff, testified that the will was prepared while Philip Groodloe lay unconscious, three days before his death, and that the attesting witnesses took the testator’s hand and marked an “X” on the document. He also quotes his Aunt Pealie as having said that the will was just a protection to keep other relatives from getting the property. This testimony establishing the invalidity of the will is undisputed.

We are also of the opinion that there is no substantial evidence to support the claim of adverse possession. Upon Philip Uoodloe’s death intestate in November, 1936, his two surviving children and his two grandchildren became tenants in common. At first Pealie lived on the property with her husband and her brother, but her occupancy was brief, as she was adjudged to be insane and confined to the State Hospital in August, 1937. She is said to have burned the dwelling on the land, presumably before she was confined, and after that her brother built a shack on the property and lived in it for a time before he too lost his mind and became an inmate of the State Hospital.

For Pealie to establish title by adverse possession she has the burden of proving that her hostile claim was brought home to the appellees either directly or by acts so notorious that notice must be presumed. Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809. As in the Happier case Pealie’s actual possession was insufficient to supply the necessary element of hostility. Furthermore, Pealie shared the possession with her brother, another of the cotenants, and he actually became the sole possessor of the land after Pealie entered the state institution.

Apart from Pealie’s brief and ineffectual possession there are only two facts even tending to sustain the claim of adverse possession. First, it is shown that the taxes were paid in Pealie’s name, but this circumstance is here even more effectively rebutted than was similar proof in the Kappler case. During the many years of Pealie’s incompetency the land was managed by her uncle, Jim Goodloe, who collected the rents and paid the taxes. One of the appellees, Edith Johnson Nolen, testified without contradiction that she permitted the rents to be used for the purchase of clothing for Pealie; “she was incompetent and needed it — she raised us, and I felt like I owed her that much.” Thus the payment of taxes cannot be regarded as an indication of a hostile claim by Pealie, if indeed it be assumed without proof that the afflicted woman had sufficient mental capacity to assert a claim of exclusive ownership.

Secondly, the appellant offered to show by one witness that “the general consensus in the community was that the property down there was owned by Pealie Goodloe . . . and the general reputation in the community was that she was claiming to be the owner of it.” There is no proof that this general belief was brought home to the appellees, who were for the most part nonresidents of the state, and in any event the vague assertions of public opinion do not establish notorious acts of such unequivocal character that notice to the appellees must be presumed. Smith v. Kappler, supra; Ball v. Messmore, 226 Ark. 256, 289 S. W. 2d 183.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Green v. State.
    4948
    328 S. W. 2d 89
    Opinion delivered October 12, 1959.

      Ras Priest, for appellant.

      Bruce Bennett, Atty. General, by Clyde Calliotte, Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

Appellant was convicted by a jury of the crime of refusing and neglecting to maintain and provide support for his five minor children as provided in Ark. Stats. § 41-204, and also convicted of the crime of leaving the State of Arkansas after abandoning his children as provided in Ark. Stats. § 41-205. Upon the above conviction the court sentenced appellant to serve two years in the State Penitentiary.

Upon appeal appellant relies upon several points for a reversal, but under the view which we have taken it will not be necessary to consider all of those points.

The first Information against appellant was filed on June 15, 1956, charging him with non-support under the first above-mentioned statute. Another Information was filed against appellant on February 10, 1959, which included the charge contained in the first Information and apparently charged him with leaving the State under the second above-mentioned statute, together with a charge of the habitual criminal statute. In the court’s first instruction to the jury it was stated that “the defendant, Alfred Green, is on trial under an Information filed on the 15th day of June, 1956 . . .”. Nowhere in the court’s instruction is any reference made to the Information filed on February 10, 1959. However, in the court’s Instruction No. 6 the jury was told that it would be its duty to fix appellant’s punishment at imprisonment in the State Penitentiary (pursuant to § 41-205) if it should find that, after abandoning his minor children, the defendant left the State of Arkansas. The jury’s verdict read: “We, the jury, find the defendant, Alfred Green guilty of non-support of minor children as charged in the information and fix his punishment at imprisonment in the State Penitentiary for two (2) years”. There was no specific conviction for leaving the State.

We find from the record not only substantial evidence but an abundance of evidence that appellant did abandon his minor children within the time alleged in the first Information. There is also substantial evidence from which the jury was justified in finding that said abandonment was willful. The penalty for this offense, under said § 41-204, is a fine or imprisonment in the County Jail or on the County Farm for not more than six months.

We are unable, however, to sustain appellant’s conviction of a felony based on the fact that he left the State of Arkansas after the said abandonment. In Instruction No. 6 the court instructed the jury that: “If you further find from the evidence in this case beyond a reasonable doubt that after abandoning or deserting his minor children the defendant, Alfred Green, left the State of Arkansas then it will be yonr duty to fix his punishment at imprisonment in the State Penitentiary for whatever period of time you agree upon for not less than one year or more than five years”. It is our opinion that this instruction was erroneous as will be hereinafter pointed out and also that appellant made sufficient objections by reason of having requested other instructions be given instead of Instruction No. 6. Under said Instruction No. 6 the jury could have found appellant guilty of felony by reason of the mere fact that he left the State of Arkansas regardless of whether or not his leaving was in any way connected with the act of desertion. In other words, under said instructions he could have left the State for a perfectly innocent, legitimate reason and still have been found guilty of a felony. We are convinced that this is not the intent of the law.

We have done considerable research and find that very few states have a statute similar to § 41-205, and, perhaps, for that reason, there are very few, if any, decisions from other jurisdictions relative to the question here raised. We do find, however, among our own decisions, the case of Dunham v. State, 169 Ark. 257, 275 S. W. 325. This decision was rendered in 1925 before § 41-204 and § 41-205 were enacted, but it construed § 41-201 which was in force at that time and which contains essentially the same provisions contained in the former statutes. The decision, therefore, in the Dunham.case should be highly persuasive, if not conclusive, of the view which should be adopted in the case under consideration. The court, after quoting the pertinent portions of Crawford & Moses’ Digest, % 2596 (which is the same as Ark. Stat. § 41-201), had this to say: “It is necessary, therefore, in order for the State to convict appellant of the felony charged in the indictment to prove that he left the State as a part of his act of desertion. That is evidently what the statute means, for the punishment is not for leaving the State, but for the desertion of the wife and children committed in that manner”.

We find no evidence in the record upon which the jury conld have found that appellant’s act of leaving the State was a part of or in any way connected with his act of abandonment. Therefore, even if the court’s Instruction No. 6 had not been properly objected to, we would still have to say that there is no substantial evidence to support the jury’s conviction for a felony in this case.

Under the authority exercised by this court for many years and on numerous occasions we are reducing the conviction of appellant and the court’s judgment from a felony to a misdemeanor. See Brown v. State, 34 Ark. 232; Simpson v. State, 56 Ark. 8, 19 S. W. 99; Pittman v. State, 84 Ark. 292, 105 S. W. 874; Blake v. State, 186 Ark. 77, 52 S. W. 2d 644; and Robbins v. State, 219 Ark. 664, 244 S. W. 2d 156.

In accordance with the holding in the Blake case, supra, we, therefore, fix the punishment of appellant at the maximum provided by § 41-204, i.e., six months in the County Jail, and, as so modified, the judgment of the trial court is affirmed.

Modified and affirmed.


author: Sam Robinson, Associate Justice.

text:
    Dennis v. Binz.
    5-1910
    328 S. W. 2d 85
    Opinion delivered October 12, 1959.

      Robert G. Downie and Thomas E. Downie, for appellant.

      No brief filed for appellee.

   Sam Robinson, Associate Justice.

On May 23, 1958, appellant, Robert C. Dennis, through a real estate agent, Roy T. Morrison, employed by appellees, made an offer of $9,000 to purchase a residence in Little Rock from appellees, Mr. and Mrs. J. A. Binz. The offer was made on a standard Arkansas Real Estate Association “Offer and Acceptance” form and was accompanied by $100 earnest money. Appellant’s wife was not a party to the offer. According to the written instrument and subsequent testimony, appellant’s offer was conditioned on his being able to finance a loan for the entire purchase price other than the down payment. This offer was not accepted by appellees, and a few days later Morrison marked through the figure “$9,000” and above it wrote in “$10,000”. Although the testimony is in conflict, evidently the lower court found this change was made with the consent of appellant. Appellees accepted this altered offer by signing the form in the space provided.

Some days later, appellant, accompanied by Morrison, furnished First Federal Savings & Loan Association of Little Rock pertinent information about both himself and his wife, which the Savings & Loan Association was to use in an application for an F.H.A. commitment to insure the proposed loan. Later when the application was approved, appellant (without his wife) and Morrison went to the Savings & Loan Association office to close the transaction. Upon finding that the purchase price was $10,000, that the loan was in the amount of $9,500 (the down payment being $500), and that the payments would be some $15 a month more than he originally thought, appellant refused to sign the necessary papers to close the loan. Appellees filed suit for specific performance of the contract, ■which, was granted by the lower court; hence this appeal.

Appellant argues that the offer was conditioned upon his being able to finance the loan; that his wife would not join in the loan or mortgage and therefore it would be impossible for him to perform the contract. The testimony of appellant’s wife is to the effect that she was not a party to the offer and would not execute the required papers to purchase the property. Mr. H. C. Johnston of the Savings & Loan Association testified that it is very doubtful if they would make the loan if appellant’s wife did not sign the mortgage; that the purchase price is three times appellant’s income and that his wife’s income certainly would have a bearing on approval of the loan; that the joint income of appellant and his wife is sufficient to justify the loan. Miss Myrtice Patterson, Assistant Loan Officer of First Federal, testified that it is necessary for appellant’s wife to sign the final papers in order to complete the transaction; that the base pay of the wife was shown on the application and was considered by F. H. A.

We long ago held that specific performance would not lie where performance is impossible. Hemphill v. Miller, 16 Ark. 271; Shields v. Trammell, 19 Ark. 51. Equity will not decree the performance of an act which requires the assent or action of a third person where it does not appear that the third person will give the required assent or performance. Williston on Contracts, Yol. 5, § 1422, p. 3973.

Compliance with the requirements of this decree rests solely within the will of a third person not a party to the contract. Appellant would find it impossible to obey the decree. It would be of no avail to decree specific performance when such performance would be impossible.

The decree is reversed, and the cause dismissed.


author: Jim Johnson, associate justice.

text:
    Wilson v. Davis.
    5-1900
    328 S. W. 2d 249
    Opinion delivered October 12, 1959.
    [Rehearing denied November 16, 1959]

      J. Fred J ones, for appellant.

      Sigun Rasmussen, for appellee.
   Jim Johnson, associate justice.

This case involves a dispute over ownership of a five-foot strip of land off the North edge of Lot 13, and a one-tenth foot strip of land off the South edge of Lot 14 of Block 26 of the U. S. Hot Springs Reservation.

Appellant, Marjory M. Wilson, filed an ejectment suit in the Garland County Circuit Court for possession of a five-foot strip of land off the North end of Lot 13, and for damage in trespass.

Appellee, W. M. Davis, filed a cross-complaint against appellant for the same property plus a one-tenth foot strip of land off the South end of Lot 14, claiming adverse possession and requesting the title to said property be quieted in him.

After hearing the evidence presented, the trial court, sitting as a jury, found as follows:

“That the plaintiff is the owner of the property described as follows, to-wit: A five and one-tenth (5.1) foot strip off the North edge of Lot 13, extending in a straight line from West to East and running parallel with the North line of said lot, the property being located in Block 26 of the U. S. Hot Springs Reservation. That the defendant is hereby given the opportunity to purchase the aforesaid strip of real property from the plaintiff within sixty days from this date by paying to the plaintiff the sum of Three Hundred Dollars, the value of said land as determined by this Court and upon the payment of said sum of Three Hundred Dollars title to the aforesaid five and one-tenth (5.1) foot strip of property shall immediately vest in the defendant and the defendant shall be the owner thereof but in default of the payment aforesaid plaintiff shall be the owner of said property and the improvements thereon and the defendant herein is hereby ordered and directed to pay all court costs of this action.”

Notices of Appeal by appellant, and Cross-Appeal by appellee were duly filed; this appeal followed.

For Reversal, appellant relies on the following three points:

1. After having found appellant to be the owner of the property involved and entitled to the possession thereof, the trial court exceeded its jurisdiction in giving the appellee an opportunity to purchase the property from the appellant within sixty days from the date of the judgment by paying to the appellant the sum of $300.00.

2. After finding that the appellant is the owner of the property involved and entitled to the possession thereof, the trial court exceeded its jurisdiction in attempting to vest the title to said property in the appellee and attempting to make him the owner thereof upon the payment of $300.00 to the appellant.

3. The trial court erred in each of the above two particulars, and the judgment of the trial court should be reversed and this cause remanded to the Garland County Circuit Court with directions that appellant be awarded the possession of her property as provided by law.

Appellant and appellee are in agreement that the trial court exceeded its jurisdiction and that this case should be reversed on the points relied on by appellant, but the appellee argues that in reversing this case title should be vested in appellee on the theory that the trial court erred in its finding that appellant was the owner, and entitled to the possession of the property involved, and should have found that appellee was the owner by adverse possession.

We agree that the trial court erred in exceeding its jurisdiction. See: Cloth v. Chicago, Rock Island & Pac. Ry. Co., 97 Ark. 86, 132 S. W. 1005.

Since this is a law case, the verdict is an entirety which we cannot divide by affirming in part. See: Manzo v. Boulet, 220 Ark. 106, 246 S. W. 2d 126. The judgment will therefore be reversed and the cause remanded for a new trial.


author: Carleton Harris, Chief Justice.

text:
    Johnson v. Gammill.
    5-1897
    328 S. W. 2d 127
    Opinion delivered October 19, 1959.

      Brockman <& Brockman, for appellant.

      Jay W. Dickey, for appellee.
   Carleton Harris, Chief Justice.

This action was brought by appellants, Wirrna C. Johnson, el al, against appellees, Lewis H. Gammill and wife, on February 8, 1957, seeking judgment for an alleged indebtedness in the amount of $16,523.48, together with interest, and appellants prayed foreclosure of several real estate and chattel mortgages, which had been given to secure the indebtedness. The various notes (15) were due more; than five years before the filing of the suit, but on January 26, 1952, the parties stipulated in writing as to the amount of indebtedness. After hearing the evidence, the court rendered judgment for appellants in the amount of $8,462.37, plus interest at the rate of 8% per annum until paid. Appellants bring this appeal, contending that appellees were allowed certain credits to which they were not entitled, and appellees cross-appeal, alleging, first, that the indebtedness was barred by the Statute of Limitations, and further, that the court erred in not permitting them to go behind the stipulation for the purpose of showing that a certain $6,000 note was a duplicate of another note in the same amount, rather than each note representing a different indebtedness.

Inasmuch as the contention that the entire debt was barred by limitations, if correct, would terminate the litigation, we proceed to discuss this point first. Arkansas Statutes (1947) Anno!, § 37-209, provides: “Actions on promissory notes, and other instruments in writing, not under seal, shall be commenced five (5) years after the cause of action shall accrue and not after.” The parties entered into a written stipulation on January 26, 1952, as to the total amount of indebtedness due (which agreement will be more fully discussed hereafter), and the suit was brought on February 8, 1957. However, several payments were made subsequent to January 26th, one payment being made on March 21, 1952, at which time, appellant and cross-appellee sent to Mrs. Johnson several checks totaling approximately $1,900. There was no direction as to which note or notes should be credited with this amount, and Mrs. Johnson accordingly had the right to apply this credit as she saw fit. Hawkins v. Hawkins, 200 Ark. 38, 137 S. W. 2d 904. We have held that part payment interrupts the running of the statute. In Smith v. Grimsley, 215 Ark. 279, 220 S. W. 2d 428, this Court said:

“The statute of limitations applicable to a promissory note is five years after maturity, as fixed by § 8933, Pope’s Digest, and § 37-209 of Ark. Stats. (1947) Anno. Part payment, before the bar attaches, forms a new point from which the statute will begin to run. Less v. Arndt, 68 Ark. 399, 59 S. W. 763.”

The stipulation between the parties heretofore referred to, was entered into in writing, sworn to before a notary public, and we hold that this instrument constituted an account stated, and started the running of a new five year period.

In Yol. 1, Ruling Case Law, page 211, it is said:

“An account stated presupposes an absolute acknowledgment or admission of a certain sum due, or an adjustment of accounts between the parties, the striking of a balance, or an assent express or implied, to the correctness of the balance. If the acknowledgment or admission is qualified and not absolute, or if there is but an admission that something is due, without specifying how much, there is no account stated, nor does an account stated exist if there but a partial settlement of accounts, without arriving at a balance, or if there is a dissent from the balance as struck.”

Here, there is an acknowledgment of a specific sum due, without any qualification whatsoever; for that matter, there is no contention in the pleadings that the instrument is in error, or that it was fraudulently obtained. In other words, the account stated has not been attacked.

A large part of the argument in the briefs is devoted to a credit given appellees by the court in the amount of $3,236.66. The controversy over this item relates to a note dated April 26, 1950, in the amount of $6,000, which note was secured by a real estate mortgage. The back of the note reflects figures of $236.66 and $3,000, which are added together, making $3,236.66. There is then the notation, “Amt. paid by ck., 12-2-50”, and it is initialed “L.H.G.” Mr. Gammill testified that this was a payment on the note, which he did not receive credit for, while Mrs. Johnson stated that this was not a payment on the note, and had nothing to do with that indebtedness, but was 1950 rent, which had been figured on the back of the note. The court apparently reached the conclusion that since, admittedly, the amount in question had not been credited on the note, it had not been credited at all, and proceeded to allow this amount as a credit against the total indebtedness agreed to in the account stated. Be that as it may, the payment was made approximately fourteen months before the agreement was reached, stating the account. So, it would certainly appear that the payment was taken into consideration on January 26, 1952, when the parties agreed as to the total amount due. In fact, Mr. Gammill testified that all credits and debits were taken into consideration when the agreement was reached. Inasmuch as no attack is made upon the correctness of the account stated, we are of the opinion that the Chancellor erred in going behind this instrument, and allowing this credit to appellees.

Appellees and cross-appellants allege a mistake in the existence of two notes for $6,000, both dated April 26, 1950, contending that one is a duplicate of the other. We are unable to understand the basis of this assertion, since both notes appear in the record, one being secured by a mortgage on certain town lots in Gould, Lincoln County, Arkansas, due November 15,1950, and the other secured by a deed of trust on land in Jefferson County, Arkansas, and due November 1, 1950. Hence, it appears that the notes were given to cover different indebtment, and the contention is without merit; at any rate, the same reasoning applies here as in the previous paragraph, i.e., the account stated not being attacked, the parties could not go behind it.

On one of these $6,000 notes, appellees gave a mortgage on a house and four lots in Gould. This property was conveyed to Mrs. Johnson by appellees on February 28th, 1953. Mrs. Johnson credited the note with the amount of $4,500, which she testified was the amount agreed upon between the parties. Mr. Gammill testified that Mrs. Johnson agreed to credit him with whatever amount the property brought at sale, and that she had sold it for $6,500. The deed itself reflects the consideration to be $10 and ‘ ‘ other valuable consideration. ’ ’ The Chancellor found, “On the delivery of the deed by the mortgagor to the mortgagee, there was constituted a merger of estates. The mortgage debt was satisfied by the acceptance of the deed.” This resulted in appellees receiving a $6,000 credit, instead of the $4,500 credit, which had been given by Mrs. Johnson. Generally speaking, the law seems to be as stated in Corpus Juris Secundum, Vol. 59, § 440, page 677:

“The question whether a conveyance of the equity to the mortgagee results in a merger of the mortgage and fee is primarily one of intention of the parties, particularly, according to the decisions on the question, the intention of the mortgagee, for the mortgagee has an election in equity to prevent a merger and keep the mortgage alive. ’

Of course, in the instant case, neither party stated there was any agreement to cancel the $6,000 note as a result of the execution of the deed; to the contrary, appellants say a lesser amount was to be allowed, while appellees say that a larger amount was to be allowed. Reading further, however, in § 440 of Corpus Juris Secundum, we find this language:

“The intention of the parties on the question of merger may be expressly declared, or it may appear from the conduct of the parties, the circumstances of the transaction, and the particular equities of the case. In any event, however, the intention to merge must be clear. An intent to effect a merger is indicated where, after acquiring the equity, the mortgagee conveys the property or leases it to a stranger, * * * .”

Admittedly, Mrs. Johnson sold this property, and further, the record indicates that the property was of sufficient value to cover the indebtedness which it secured. We conclude that the Chancellor correctly found a merger, and properly held this mortgage debt extinguished.

The amount of interest allowed appellants is questioned by appellees in their exceptions to the Findings and Decree of the court; however, this is not argued in appellees’ brief, and is therefore waived. Purifoy v. Lester Mill Co., 99 Ark. 490, 138 S. W. 995, Bowling v. Stough, 101 Ark. 398, 142 S. W. 512, Connell v. Robinson, 217 Ark. 1, 228 S. W. 2d 475.

We have examined the entire record, and are unable to say that the Chancellor erred in any respect, other than in allowing appellees the credit in the amount of $3,236.66. The decree is therefore modified to the extent of disallowing this credit, and the cause is remanded to the Jefferson Chancery Court for further proceedings not inconsistent with this Opinion.

       Why Mr. Gammill made this notation, rather than Mrs. Johnson, is not explained by appellees.

       Mrs. Johnson and others had rented a farm to Mr. Gammill for an annual amount of $6,000, her part being $3,000.

       Emphasis supplied.


author: J. Seaborn Holt, Associate Justice.

text:
    Leggett v. State.
    4959
    328 S. W. 2d 250
    Opinion delivered October 19, 1959.
    [Rehearing denied November 16,1959]

      Kenneth Coffelt, for appellant.

      Bruce Bennett, Atty. General, by Thorp Thomas, Asst. Atty. General, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, Emmett Earl Leggett, was on January 25, 1956, charged by information with the crime of first degree murder, and on the same day he was also charged by separate informations with the crimes of raping two different girls. On June 4, 1956, he was tried on the first degree murder charge and the jury- returned a verdict of guilty of first, degree murder as charged. The trial court thereupon sentenced Leggett to death in the electric .chair and this court affirmed the judgment February 18, 1957, Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59. Thereafter, on December 3, 1957, Leggett, pursuant to the provisions of the Uniform Post-Conviction Procedure Act (Ark. Stats. 1947 Anno. Sec. 43-3101), filed in the circuit court a petition for a new trial, asserting that at the first trial he had been denied certain constitutional rights. The circuit court denied his petition and on appeal to this court, we affirmed the action of the trial court, Leggett v. State, 228 Ark. 977, 311 S. W. 2d 521. The next action taken by Leggett was the filing of a petition for a writ of mandamus in the Jefferson Circuit Court on August 19, 1958. The substance of this petition was appellant’s allegation that the Superintendent of the State Penitentiary had acted arbitrarily and had abused his discretion in refusing to call a jury to inquire of Leggett’s sanity at that time. At the hearing on August 21, 1958, Leggett offered no testimony and the court denied his petition and on March 9,1959, this court affirmed the action of the lower court, Leggett v. State, 230 Ark. 183, 321 S. W. 2d 764.

During every step in all of the above proceedings, Leggett was, and is now, represented by able counsel.

By proclamation by the G-overnor of Arkansas, Leggett was scheduled to die in the electric chair on July 24, 1959. On July 14, 1959, Leggett filed a motion in the Pulaski Circuit Court in which he prayed for the dismissal of the two rape charges against him on the ground that “there has been more than two regular full terms of this court passed since he was charged in these cases, and committed to prison. Therefore, under the provisions of Section 43-1708 Ark. Stats, he cannot now be brought to trial, and the charges are a nullity and cannot be enforced, and he is entitled to now have said cases dismissed under the provisions of said statute. There has been no delay in a trial on these charges occasioned by the defendant, and the prisoner himself.” The trial court denied and dismissed this motion and the present appeal followed.

For reversal appellant relies on the following point: “The trial court erred in his refusal to sustain the motions, and to dismiss the charges, under the provisions of Sec. 43-1708, Ark. Stats., and under the admitted and uncontradicted facts and proof in the record. ’ ’

So specifically the question for our decision is whether Leggett is entitled to be discharged on the two rape charges under Sections 43-1708, Ark. Stats. 1947 (Sec. 3132, C. & M. Digest) which is as follows: Sec. 43-1708 — “If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall he discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.”

Appellant insists that on authority of Fulton v. State, 178 Ark. 841, 12 S. W. 2d 777, construing Ark. Stats. Sec. 43-1708, quoted above, he should be discharged on the informations charging him with rape. It is true that in the Fulton case this Court held the statute in question applies to a convict serving a term in the penitentiary, but there is a vast difference in the situation of the defendant as it existed in that case and the situation of the defendant in the case at bar. Fulton was charged with separate robberies in six different indictments. He was tried and convicted on three of the indictments. After the lapse of two terms of court he filed a motion asking for dismissal of the indictments on which he had not been tried. If the untried cases had not been dismissed, he could have been tried on such charges after having served the sentences on which he was committed. In the case at bar, if the judgment of the court is carried out, the rape indictments will be abated.

It will be noticed that the statute (Sec. 43-1708) provides that the defendant “shall be discharged so far as relates to the offense for which he was committed . . .” True, in the Fulton case the language of the statute was construed as applying to offenses for which the defendant had not been committed, but we do not believe the construction of the statute should be broadened to include defendants who have been sentenced to death. In the case at bar the defendant has been convicted and sentenced to death for murder; he has not been committed on the rape charges, and the statute is therefore inapplicable.

Finding no error, the judgment is affirmed.

Johnson, J., dissents.


author: Ed. F. McFaddin, Associate Justice.

text:
    Safeway Stores v. Harrison.
    5-1909
    328 S. W. 2d 131
    Opinion delivered October 19, 1959.

      Mehaffy, Smith & Williams, for appellant.

      Langston S Walker, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a Workmen’s Compensation case. Emmett Allen Harrison collapsed and died while at work for Safeway Stores; and a claim was filed for compensation. The trial referee, and also the full Commission, denied a recovery to the widow and children of the employee. The Circuit Court reversed the Commission and found that compensation should be awarded; and the employer, Safeway, has brought this appeal. Both sides recognize the rule that if the findings of fact of the Workmen’s Compensation Commission are supported by substantial evidence, then such findings must be sustained. J. L. Williams & Sons v. Smith, 205 Ark. 604, 170 S. W. 2d 82.

So the crucial issue on this appeal is whether there is substantial evidence to support the Commission’s findings in denying compensation. The Circuit Court answered in the negative. On this appeal Safeway contends: (a) that “the Circuit Court erroneously shifted the appellee’s burden of proving a causal connection between the death and the employment”; and (b) “the evidence affirmatively shows that it was the deceased’s rheumatic heart condition, and not his employment, which caused his death”.

The basic facts reflect that Emmett Allen Harrison was 26 years of age at the time of his death. He was an employee of Safeway Stores, and had been so employed for several years. While at work on Friday, November 16, 1956, Harrison collapsed and died of a heart seizure. Immediately prior to his collapse he was engaged in manually removing produce from boxes resting on a pulley truck and placing the produce on the counters. Cause of death, according to the death certificate, was coronary occlusion. Safeway contends that Harrison had a “terrible rheumatic heart condition” ever since childhood and that death occurred because of the rheumatic heart condition and not because of the work he was doing. The Commission agreed with Safeway, holding that there was no causal connection between the work and the collapse. But we conclude that there was no evidence to support the Commission’s findings to that effect. We have repeatedly held that when a person has a pre-existing weakness, such as a heart condition, and the work load which the employer requires of the worker causes a collapse, then such employee is entitled to compensation. Some of our cases so holding are: McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S. W. 2d 210; Harding Glass Co. v. Albert- son, 208 Ark. 866, 187 S. W. 2d 961; and Sturgis Bros. v. Mays, 208 Ark. 1017, 188 S. W. 2d 629.

Here, the evidence is nndenied that Harrison had suffered with a rheumatic heart condition since early childhood. Back in 1951 Safeway had him examined by a physician and the report showed that he had a bad heart condition. The doctor’s recommendation was, “reject unless accepted by medical director”. Formerly, Safeway had a man to assist Harrison in the heavy work, but that extra man quit a month or six weeks before Harrison’s collapse. Mr. Conn, who was employed as the produce manager at the Safeway Store where Harrison worked, testified that on the morning of November 16th, the date of Harrison’s collapse, somewhere between 10,000 and 12,000 pounds of produce arrived at the store and it was Harrison’s job to unload it. Mr. Conn also testified as to conditions at the time of Harrison’s collapse:

“A. Allen had fallen on his back and was lying flat on his back, breathing, just gasping; no continuous breathing at all.
Q. Was all the produce you had given him still on the truck or not?
A. No, sir, he had unloaded one crate of potatoes and had put the apple box full of onions on the rack and turned around — it looked like he had fallen then.
Q. Why did it look like after — he fell after the crate with the onions?
A. The potato crate stacked on the buggy was setting on the floor and the apple box had fallen off at the side. It wasn’t on the truck.
Q. What would you estimate the weight of a crate of potatoes such as he had to be?
A. Sixty pounds.”

There is no evidence that contradicts the recited facts. The claimants introduced the testimony of two doctors, one of whom had treated Harrison for several years and testified of his bad heart, and the other doctor testified unqualifiedly that the work was the cause of Harrison’s collapse and death. The said medical testimony was uncontradicted; but the Commission refused to follow the testimony. The case at bar is ruled by such cases as the following: McGregor & Pickett v. Arrington, 206 Ark. 921, 175 8. W. 2d 210; Harding Glass Co. v. Albertson, 208 Ark. 866, 187 S. W. 2d 961; Sturgis Bros. v. Mays, 208 Ark. 1017, 188 S. W. 2d 629; Frank Lyon Co. v. Scott, 215 Ark. 274, 220 S. W. 2d 128; Qaulity Excelsior Coal Co. v. Maestri, 215 Ark. 501, 221 S. W. 2d 38; Triebsch v. Athletic Mining & Smelting Co., 218 Ark. 379, 237 S. W. 2d 26; Scobey v. Southern Lumber Co., 218 Ark. 671, 238 S. W. 2d 640, 243 S. W. 2d 754; Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436; and Bettendorf & Co. v. Kelly, 229 Ark. 672, 317 S. W. 2d 708.

"We therefore conclude that the Circuit Court was correct in reversing the Commission. We affirm the Circuit Court, and direct that the Circuit Court remand the case to the Commission with directions to award compensation.

       The Circuit Court order recites that Safeway “did not offer medical testimony to contradict the medical testimony of the claimants; that the order of the Commission is not supported by substantial evidence and should be set aside”. Tr. Vol. 1, p. 1.

       The Commission said: “Now, in the light of this background, have we evidence which will sustain the burden of proving that the work deceased was doing on the day of his death or on days prior thereto, was causally connected with that death as either- a precipitating or aggravating factor? We think not. The death of deceased from heart failure was to be expected with or without exertion. To say, under these circumstances, that exertion of a degree to which this deceased had become accustomed did in anywise contribute to the death, is sheer speculation. It would be as well to speculate that deceased lived longer because of the very exercise regime he regularly engaged in in his work. Thus we do not think the cases cited herein constitute a precedent making instant claim compensable inasmuch as the causation factor as opposed to a natural death has not been proven. True, the only medical opinion of record, being that of Dr. Anderson Nettle-ship, is to the contrary.”


author: Ed. F. McFaddin, Associate Justice. Jim Johnson, Associate Justice,

text:
    Leggett v. State.
    4960
    328 S. W. 2d 252
    Opinion delivered October 19, 1959.
    [Rehearing denied November 16,1959]

      Kenneth Coffelt, for appellant.

      Bruce Bennett, Atty. General by Thorp Thomas, Asst. Atty. General, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is another chapter in the litigation involving Emmett Earl Leggett, convicted in the Pulaski Circuit Court in 1956 for the murder of Joe King, and sentenced to death.

The judgment in the murder case was affirmed by this Court on February 18, 1957. See Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59, and hereinafter referred to as the “first case”. Leggett later filed in the Pulaski Circuit Court a proceeding under the then existing Uniform Post Conviction Procedure Act (being Act No. 419 of 1957 and found in § 43-3101 Ark. Stats.). That proceeding was unsuccessful when on March 31, 1958 we affirmed the Circuit Court judgment which denied Leggett the relief sought. See Leggett v. State, 228 Ark. 977, 311 S. W. 2d 521, and hereinafter referred to as the “second case”. Leggett then filed in the Jefferson Circuit Court a petition against Lee Henslee, Superintendent of the Arkansas State Penitentiary. The relief sought was a writ of mandamus to require a jury to be empanelled to investigate Leggett’s sanity. From an adverse judgment in the Circuit Court, Leggett again appealed to this Court and was again unsuccessful, when on March 9, 1959 we affirmed the Jefferson Circuit Court judgment. See Leggett v. Henslee, 230 Ark. 183, 321 S. W. 2d 764, and hereinafter referred to as the “third case”.

With the court proceedings thus concluded, the Governor of Arkansas, in accordance with the law (§ 43-2623 Ark. Stats.), set the date for Leggett’s execution to be July 24, 1959. But on July 23rd Leggett filed in the Pulaski Circuit Court a pleading entitled, “Motion to Stay the Judgment of Death Sentence and Electrocution Ordered Thereunder”, and in that pleading it was claimed, inter alia:

“Since the original trial in this case and since the affirmance by the Supreme Court of Arkansas of the original trial record and the sentence imposed in this case, there has been newly discovered evidence, to-wit:
“At the request of state officers and officials, impartial psychiatrists were prevailed upon to examine the defendant as to his sanity. They filed a written report addressed to the Governor of Arkansas which states that the defendant is insane and was insane at the time of the commission of the offense as charged herein. A copy of said report is attached hereto, marked Exhibit ‘A’, and made a part hereof. The State of Arkansas although having acquired this information at its own request has denied the availability of this newly discovered evidence to a jury of defendant’s peers. The defendant in this case was defended as a pauper in the original trial and had no way of acquiring at the time of the trial this additional evidence. Before the additional evidence was discovered at the instigation and request of the State the time had expired for the defendant to ask for a new trial by reason of such newly discovered evidence.”

On the same day (July 23, 1959) the Pulaski Circuit Court entered “Pinal Judgment”, which recited no appearance by anyone for the State, but which denied Leggett’s motion. The same day — July 23,1959 — the transcript of the said Pnlaski Circuit Court proceedings was lodged in the office of the Clerk of the Arkansas Supreme Court. The Court was in vacation (having adjourned in June to August), and Justice Jim Johnson granted the appeal of Leggett and forthwith issued a. stay of execution to the Superintendent of the Penitentiary. The Superintendent of the Penitentiary honored the stay order; and the correctness of such stay order is now before us in this case, hereinafter referred to as the “present case”.

At the outset it must be pointed out that the Pulaski Circuit Court was not the correct tribunal to entertain jurisdiction of the present case: rather, a petition should have been filed in the Arkansas Supreme Court for permission to file a petition for writ of error coram nobis. In State v. Hudspeth, 191 Ark. 963, 88 S. W. 2d 858, we held that where a judgment had been affirmed by this Court, the permission of the Supreme Court should be obtained before applying to the trial court for a writ of error coram nobis, saying:

“We think, however, that the better rule is that, when a judgment has been affirmed by this court, no application for the writ of error coram nobis may be made to the trial court without permission to make such application has been given by this court; and hereafter this rule will be enforced.”

We have continued to adhere to the rule stated in the Hudspeth case. See Black v. State, 216 Ark. 805, 227 S. W. 2d 629; and Jenkins v. State, 223 Ark. 245, 265 S. W. 2d 512. The Pulaski Circuit Court should have dismissed the motion filed by Leggett on July 23rd.

Leggett’s counsel now apparently recognizes the holding's in the cases just cited, because we are asked to treat the present case as a petition for permission to file a writ of error coram nobis In other words, we are asked to treat this case as though the appeal lodged in this Court on July 23, 1959 had been a request for permission to file a petition in the Circuit Court for a writ of error coram nobis-, and we are asked to treat Justice Johnson’s stay order as a temporary stay until this Court en banc could hear the petition on its merits. A discussion of the propriety of such treatment will gain nothing- because we have concluded that, even if this proceeding had been a request for permission to file a petition for a writ of error coram nobis, nevertheless the stay order should not have been granted,* ** since the allegations made for Leggett presented no grounds for a writ of error coram nobis.

We have heretofore copied the allegations about newly discovered evidence, and that is the sole point urged in the present case. The Exhibit “A”, referred to in the quotation heretofore, is a document of eighteen pages. It begins with a 2-page letter from the Menninger Foundation in Kansas to Honorable Orval E. Faubus, Governor of Arkansas. The letter is dated September 6, 1957, and attached to the letter is a report of sixteen pages, dated August 29, 1957, and being a report on the mental condition of Emmett Earl Leggett; and the conclusion of the report is that Leggett was insane at the time of murdering Joe King and at the time of the trial. This letter and document are referred to as the “Menninger Report”; and thereafter the Governor set the date for the execution, as heretofore mentioned.

For a writ of error coram nobis to be granted by this Court on the basis of newly discovered evidence, it must be shown that the issue alleged to involve newly discovered evidence was an issue that was not presented at the original trial. In Jenkins v. State, 223 Ark. 245, 265 S. W. 2d 512, two days before Jenkins was to be electrocuted, this Court was requested to grant permission for the filing in the trial court of a petition for writ of error coram nobis, and it was claimed that Jenkins was insane. We refused the request, saying: given on the court’s own motion and other instructions requested by both the State and appellant.”

“The question of appellant’s insanity at the time of the killing was submitted to the jury in instructions

In the case at bar, we have examined the transcript in the first case — the one in which Leggett was tried for the murder of Joe King, convicted, and sentenced to death. The record contains 856 pages, and shows that Leggett was represented by able and experienced counsel; and Leggett’s alleged insanity was one of the main defenses. We refer to the following matters appearing on the numbered pages in the transcript in the first case:

(a) The Trial Court ordered the defendant committed to the State Hospital for examination as to sanity, in accordance with Initiated Act No. 3 (Tr. p. 5); and the hospital report was filed (Tr. p. 612) ;

(b) The defendant’s counsel asked and obtained access to all files in the office of the State Hospital (Tr. p. 8);

(c) Defendant’s counsel called Dr. Thomas H. Hickey, who testified as to Leggett’s alleged insanity (Tr. p. 718-739);

(d) Defendant’s witness, Dr. Elizabeth Fletcher, also testified as to Leggett’s mental condition (Tr. p. 756-799);

(f) The defense also called Dr. Crawfish (Tr. p. 647-658);

(e) The defense called Dr. Goss of the State Hospital to testify (Tr. p. 607-647);

(g) The defense called Dr. McKelvey on the matter of Leggett’s mental condition (Tr. p. 658-665).

The defendant requested, and the Court gave, three instructions all on the matter of insanity, these being Defendant’s Instruction No. 6 (Tr. p. 835), Defendant’s Instruction No. 7 (Tr. p. 837), and Defendant’s Instruction No. 8 (Tr. 837).

Thus, it is crystal clear: (1) that in the first case (being the one of Leggett’s trial and conviction for the murder of Joe King) Leggett’s mental condition at the time of the homicide was fully explored; and (2) that the “Menninger Report” is only cumulative of the testimony of some of the doctors who testified in Leggett’s behalf in the first case. Since cumulative evidence is not sufficient grounds for the granting of a new trial, it is certainly not sufficient to authorize this Court to grant permission to file a petition for writ of error coram nobis. So, even if we treat the present proceeding as having been a petition for writ of error coram nobis filed in this Court on July 23, 1959, we reach the conclusion that the petition is without merit, and that the stay order should not have been issued.

The stay order is now revoked, and the Clerk of this Court will issue a certificate, under § 43-2724 Ark. Stats., so that the Governor of Arkansas may proceed under § 43-2623 Ark. Stats, and exercise the power delegated to him by law to fix the date for the electrocution of Emmett Earl Leggett.

Smith, Johnson and Robinson, JJ., concur.

Jim Johnson, Associate Justice,

concurring. After prayerful consideration of this entire case on its merits, and after untold hours reviewing the law, I concur with the result reached by the majority. This conclusion is based upon the law and facts in the case and not upon the reasoning set forth in the majority opinion.

The Attorney General argues that neither this Court nor any Judge thereof has the power to suspend an execution after the date has been set by the Governor. The majority opinion in a footnote properly refutes this argument in the following language:

“But such argument overlooks some of the provisions of Act No. 55 of 1913 — as now found in § 43-2617 Ark. Stats. — which provision uses this language: ‘. . . a writ of error from the Supreme Court, or should the execution of the sentence be stayed by any competent judicial proceeding, notice of . . . such writ of error or stay of execution shall he served upon the superintendent of the penitentiary . . . and the said superintendent shall yield obedience to the same . . . ’ The said Act of 1913 constituted legislative recognition. of the inherent judicial power, so the § 43-2621 and § 43-2623 Ark. Stats, cannot have the strict meaning argued for them.”

thereby conceding that I, as a member of this Court, had authority to grant the stay of execution until the full Court could consider the case upon its merits.

This authority was not granted to this Court or a member thereof by the Acts cited by the majority. The Supreme Court of this state is a court created by the Constitution and as such it possesses the inherent power to do all acts necessary to enable it to effectually exercise the jurisdiction conferred upon it. The authority to review and revise necessarily includes the power to enforce the law and administer justice. Independent of any statutory provision, this Court has the power to so frame its judgments and orders as to secure justice to litigants within its jurisdiction since the right of appeal carries with it a right to a judgment awarding justice according to law. The judiciary is an independent department of state government. It derives none of its judicial power from either of the other departments. It is true the General Assembly may create courts under the Constitution but it cannot confer on them judicial power for it possesses none to confer. Therefore, it must be concluded that a member of this Court has the inherent judicial power to stay executions.

Conceding that I, as a member of this Court, had the authority to issue the stay of execution, the question becomes, was it proper for me to use that authority. The majority opinion says: “The stay order should not have been granted”. In so holding, the majority came to this conclusion after more than 80 days of deliberation and consumed 10 pages in so stating. It must be remembered that I had less than two hours to consider this matter of such grave importance involving an issue of life or death. It would have been presumptuous of me to have assumed the grave responsibility of denying the petition without allowing the other members of the Court to review the same. As can be readily seen, in that short span of less than two hours it would have been impossible for me to have reviewed the authorities and the facts in this case and reached an intelligent conclusion. Particularly is this true in view of the concession by the majority that the first Leggett ease alone contains 856 pages. Given the opportunity and time which the majority has had, and which I have now had, no doubt I would have reached the same conclusion that I have now reached. This petitioner was to have been executed within a matter of hours from the time the petition was presented to me. I chose then that if I should make a mistake it would be made in favor of life rather than death. Five members of this Court on the day following the issuance of the stay in this case met to review the action taken by me. After oral argument by the Attorney General and the attorney for petitioner, the majority present refused to disturb the stay until the case could be briefed and heard. Let us assume that after investigation the petitioner was proven to be right and I had denied the relief sought. The result would have been the execution of the appellant and an investigation of his case afterwards. I shudder to think of the consequences that I and each member of this Court would have suffered. The most that we could have done then would have been to have reversed the judgment and to that extent vindicate the memory of the deceased. This is not the justice contemplated by the law. I said then: “If I allowed this young man to die without granting him the benefit of every legal recourse available to him, my conscience would not let me escape the feeling that I had been a party to a lynching.” I gave the appellant the benefit of every legal recourse available to him that was within my power to give. His petition has now been prayerfully considered by the full Court on its merits and found to fall short of the requirements of the law. My conscience is clear. Therefore, in respectfully concurring with the majority opinion in the results reached, nothing, is said in the reasoning of the majority opinion that would ever cause me in the future under the same or similar circumstances to deny to any person, white or hlack, the same relief granted petitioner herein.

For the reasons stated above, I respectfully concur.

       This Act was subsequently repealed by Act No. 227 of 1959.

       The entire text of this judgment was as follows: “On this 23rd day of July, 1959, is presented to the court the written verified motion of the defendant with the exhibits attached thereto, praying that this court stay the judgment of the death sentence imposed on the defendant herein, and the electrocution ordered thereunder; and the court after reading said motion and the exhibits, and after being well and sufficiently advised as to all matters of law and fact pertaining hereto, finds:
      “That said motion should be denied.
      “WHEREFORE, it is the final order and judgment of this court that the motion of the defendant praying that the death sentence imposed on the defendant herein, and his electrocution ordered thereunder be stayed, be, and the same is, hereby denied, and the defendant duly excepts to this judgment and prays an appeal to the Supreme Court of Arkansas which appeal is hereby granted by the court. It is so ordered.”

       Justice Johnson wrote the following, which is affixed to the transcript: “The defendant and his rights are again squarely before this Court. I am called upon by an earnest plea from his counsel to grant a temporary stay of his execution until this case can be presented to the full court on its merits. Serious allegations are made in this record that the State itself, since the original trial, has acquired newly discovered evidence that the defendant is insane which has never been considered by any court.
      “If I allowed this young man to die without granting him the benefit of every legal recourse available to him, my conscience would not let me escape the feeling that I had been a party to a lynching.
      “For the reasons stated above and after prayerful consideration, I am granting the request for a temporary stay of execution and the appeal in this case.”

       It is argued in the briefs for appellee that under § 43-2621 Ark. Stats, and the concluding part of § 43-2623 Ark. Stats, (both sections from the Criminal Code of 1869), neither this Court, nor any Judge thereof, has power to suspend the execution after the date has been set by the Governor. But such argument overlooks some of the provisions of Act No. 55 of 1913 — as now found in § 43-2617 Ark. Stats.— which provision uses this language: “. . . a writ of error from the Supreme Court, or should the execution of the sentence be stayed by any competent judicial proceeding, notice of . . . such writ of error or stay of execution shall be served upon the superintendent of the penitentiary . . . and the said superintendent shall yield obedience to the same. . . .” The said Act of 1913 constituted legislative recognition of the inherent judicial power, so the § 43-2621 and § 43-2623 Ark. Stats, cannot have the strict meaning argued for them.

        “Coram nobis” means, literally, “before ns ourselves”; whereas, “coram vobis” means “before you”. “Writ of error coram nobis” is the legal way of saying, “Motion for new trial in a criminal case filed after the term of court has expired”. “Writ of error coram nobis” early became a writ issued by the higher court (Court of King’s Bench) to the trial court (court of nisi prius); and in that similarity, it is used in our jurisdiction today. See 18 C.J.S. p. 281.

       We have other cases in this Court in which one Judge has made an order which was subsequently disapproved by the full Court. See Carr v. State, 93 Ark. 585, 122 S. W. 631; and Levy v. Albright, 204 Ark. 657, 163 S. W. 2d 529.

       In seeking a new trial for newly discovered evidence under § 43-2203 Ark. Stats, it is essential that the alleged newly discovered evidence be more than merely cumulative. Ary v. State, 104 Ark. 212, 148 S. W. 1032; Hawthorne v. State, 135 Ark. 247, 204 S. W. 841.

       The ease of Black v. State, 216 Ark. 805, 227 S. W. 2d 629, was similar in many respects to the Jenkins case.