author: George Rose Smith, Justice. J. Fred Jones, Justice.

text:
    Larry McCabe and Wayne Cooper Willhite v. State of Arkansas
    5383
    434 S.W. 2d 277
    Opinion Delivered December 9, 1968

      Harold Hall for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   George Rose Smith, Justice.

Tbe appellants, Mc-Cabe and Willhite, were convicted of grand larceny for having stolen a color television set from the Broadway Motel in North Little Rock and were each sentenced to six years in prison. The principal question is whether the court correctly refused a requested defense instruction telling the jury that if they found Kenny Gross to have been an accomplice they could not convict the defendants upon Gross’s testimony unless it was corroborated by other evidence tending to connect the defendants with the commission of the offense. Ark. Stat. Ann. § 43-2116 (Kepi. 1964). The instruction also explained the meaning of “accomplice.”

On July 27, 1967, the defendants registered at the motel under fictitious names and paid a week’s rent in advance. After the two men departed near the end of the week, apparently without formally checking out, it was found that the television set which had been in the room was missing. As a result of routine police inquiries at pawnshops the set, identified by serial number, was discovered in the possession of Kenny Cross, who surrendered it to the police.

Kenny, who was still in school, was a part-time employee in his uncle’s pawnshop in North Little Kock. He testified that on the afternoon of August 1 the defendants came to the shop to find out if they could pawn a television set without producing any identification. Kenny told them that something such as a driver’s license or social security card would be required. The defendants were unwilling to do business on that basis.

Kenny then became interested in buying the set for himself, not knowing, so he says, that such a transaction was contrary to his uncle’s rules. That night Kenny met the defendants at a friend’s apartment and bought the set for $55, although he knew it was worth several hundred dollars. He testified that although he was not actually told that the set was stolen, “I had a good idea in the back of my mind, but I was just so . . . carried away with getting a TV set for my room for $55.00 that I just — .” The next day Kenny, upon his father’s advice, reported the incident to his uncle, -who told the police about it when they made inquiries.

The case is governed by our holding in Murphy v. State, 130 Ark. 353, 197 S.W. 585 (1917), which is exactly in point. There a department store employee stole merchandise and sold it at very cheap prices to Cynthia Carmichael, who denied having known that it was stolen. The jury, however, might not have believed her. There, as here, the court refused to give an instruction submitting the theory that Cynthia was an accomplice of the defendant. The case being one of first impression, we reviewed the authorities and concluded that the instruction should have been given. From the opinion: “The opinions on this subject are more or less abstruse and deal with learning more or less ancient, but without attempting to review all these cases, we announce our conclusion to be that the receiver of stolen goods and the thief from whom he received them are accomplices within the meaning of section 2384 of Kirby’s Digest [our present statute], which provides that a conviction can not be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense.” That case was followed in Hester v. State, 149 Ark. 625, 233 S.W. 774 (1921), and Long v. State, 192 Ark. 1089, 97 S.W. 2d 67 (1936).

A. new trial being necessary, we add that we do not agree with the appellants’ other contentions — either that the evidence was insufficient to support the verdict or that the court should have instructed the jury that Kenny Gross was an accomplice as a matter of law.

Reversed.

Haréis, O.J., and Jones, J., dissent.

J. Fred Jones, Justice.

I do not agree with the majority that the trial court erred in its refusal to give defendants’ requested instruction No. 6, as follows:

“A conviction may not be had upon the testimony of an accomplice unless it is corroborated by such other evidence as shall tend to connect the defendants with the commission of the offense.
To render a person an accomplice he must in some manner knowingly and with criminal intent aid and abet or have advised and encouraged the commission of the criminal act charged.”

The trial court also refused defendants’ requested instruction No. 5 which was as follows:

“You are instructed that the witness, Ken Gross, under the law, and facts as developed in this case, is an accomplice.”

It is my view that defendants’ requested instruction No. 6 would only have been proper if No. 5 should have been given, and to have given instruction No. 5 would have, in my opinion, constituted gross error under the facts of this case. As I interpret the effect of the majority opinion, a trial court must always give the accomplice instruction upon request, at any time one who receives stolen property testifies against the thief, regardless of the circumstances under which the witness received the property and regardless of any other facts and circumstances in the case.

The appellants were on trial for stealing a television set. They had a right not to testify, but in exercising that right the testimony against them stood uncontradicted. Had appellant contradicted any of the evidence offered against them, then perhaps the question of accomplice should have been submitted to the jury. As I view the evidence in this case, Ken Gross had nothing whatever to do with stealing the television set and the appellants did not contend, or even infer, that he did. There was simply no point in submitting that question to the jury under the testimony in this case.

I distinguish this case on the facts from the case of Murphy v. State, 130 Ark. 335, 197 S.W. 585, cited as precedent in the majority opinion. In the Murphy case the appellant was employed at the Blass department store. The prosecuting witness for some time, had been assisting the appellant in disposing of articles of merchandise which he had stolen. When the prosecuting* witness learned that appellant had been accused of larceny, and that a search was being made for goods which had been stolen, she hid certain of the stolen articles, and when they were found in her possession, she admitted that she had obtained them from appellant. She testified, however, that she sold goods for appellant at very cheap prices, he having reported to her that he was able to obtain goods at the wholesale price. The appellant denied that the prosecuting witness had obtained goods from him at all, thus leaving a question of fact as to whether the appellant or the witness had stolen the goods, and certainly leaving a question of accomplice.

The instruction requested and refused in the Murphy case told the jury that if the prosecuting witness knew when she received the goods that they were stolen, she was an accomplice, and that a conviction could not be had upon her testimony unless it was corroborated by other evidence tending to show that appellant had committed the crime charged.

In the case at bar the witness, Ken Gross, explained how he came in possession of the television set, and states:

“I don’t know if they [appellants] had any [documentary evidence of identification]. It turned out that they didn’t want to pawn it, so I inquired about buying it for myself, which was wrong of me. It is against store policy. It was wrong, but at the time I didn’t know it was wrong, and so I inquired about purchasing it for myself away from the store. * * * The next day I was talking to my father about it and he thought it best that I tell my uncle in case something did happen. I think it was two days later, Lt. Smith of the North Little Rock Police was inquiring about a stolen TV, so my uncle had to tell them that I had bought one that he knew nothing about. We turned the set over to him the next day.”
Detective Lt. Tucker testified:
“I received a call from Square Deal Pawn Shop in regard to a TY and we recovered it from Ken Gross, an employee. "We carried it to Boom 35 of the Broadway Motel where it was identified. ’ ’

On cross-examination, Detective Tucker testified that the television set was never registered on the pawn shop police register; that the television set was reported missing at 1:50 p.m. on August 2, 1967, and that he subsequently talked to James McCaa.

Summarizing the evidence as to the prosecuting witness being an accessory to the theft of the television set in this case, the witness, a school boy, was working in his uncle’s pawn shop part-time. The appellants inquired about pawning a television set. After being informed that some evidence of identification was necessary, they decided not to pawn the television set. The witness did not know whether they had the required evidence of identification or not. The witness inquired about an outright purchase of the television set. Outright purchases at the pawn shop were against pawn shop rules so arrangements were made by the witness and the appellants to meet at the apartment of McCaa, another pawn shop employee, where the television set was demonstrated by the appellants and it was purchased by Gross for $55 which he considered to be a bargain price. "When young Gross told his father of his bargain, his father advised him to tell Ms uncle at the pawn shop about the transaction, which young Gross did. According to Detective Tucker, he received a call from the pawn shop in regard to the television set and recovered it from the witness Gross.

I find no evidence in this case that yonng Gross was an accessory to the theft of the television set, his explanation of its possession was logical and nncontradicted. In the Murphy case, supra, the prosecuting witness hid the merchandise when she learned that a search would be made. In the case at bar the prosecuting witness made known to his father and uncle, and through them to the police, that he had purchased the merchandise from the appellants before he had any reason to suspect that it had been stolen, except for its bargain price and the appellants’ inquiry as to identification requirement before pawning.

Under the uncontradicted evidence in this case, I find no evidence whatever from which the jury could have found that Ken Gross in some manner knowingly and with criminal intent aided and abetted or advised and encouraged the commission of the criminal act charged against the appellants, as defined in appellants’ requested instruction No. 6. The uncontradicted evidence is to the contrary and I would affirm the judgment of the trial court.

Harris, C.J., joins in this dissent.


source: Caselaw Access Project

author: Paul Ward, Justice.

license: Public Domain

text:
    Clyde Sarratt d/b/a Waldron Stave Company v. Crouch Equipment Company, Inc., et al
    5-4727
    434 S.W. 2d 286
    Opinion Delivered December 9, 1968

      Donald Poe for appellant.

      Bethell, Stocks, Callaway & King and Wright, Lindsey & Jennings; by Phillip S. Anderson for appellees.
   Paul Ward, Justice.

The sole issue on this appeal relates to the question of venue. The facts presently summarized are not in dispute.

On January 18,1968, Clyde Carratt, d/b/a Waldron Stave Company (appellant) filed a Complaint in the circuit court of Scott County against Crouch Equipment Company, Inc. (appellee — referred to as Crouch) and Cummins Diesel Sales Corporation (appellee — referred to as Cummins). The complaint contained, in substance, the following material allegations: (a) Appellant, located in Scott County, operates a stave business and owns a truck used in long distance hauling; (b) appellant delivered said truck to appellees for purpose ‘£ of installing a rebuilt motor” and making other repairs for which work they were to receive $4,500 and which he had paid; (c) appellees carelessly and negligently installed a defective motor (supplied by Cummins), pistons and other parts, which caused the motor to break down, resulting in damages to the truck in the amount of $7,000, and also caused a loss of time to the extent of $2,990. The prayer was for judgment against appellees in the amount of $9,990.

Summons was issued by the clerk of Scott County to the sheriff of Pulaski County for service on Cummins, and, to the sheriff of Sebastian County for service on Crouch.

In proper time both appellees filed separate Motions to Quash said issuances of service on the ground that the circuit court of Scott County “lacked venue over the parties and subject matter of this cause of action”.

After the submissions of memorandum briefs the trial court sustained both Motions and dismissed the cause of action. This appeal follows.

The thrust of appellant’s argument for a reversal is that this is an action based on tort and not on breach of contract, and that, therefore, venue is controlled by Ark. Stat. Ann. § 27-611, which reads:

“Any action for damages to personal property by wrongful or negligent act may be brought either in the county where the accident occurred which caused the damage or in the county of the residence of the person who was the owner of the property at the time the cause of action arose.” (Emphasis ours.)

This construction of the statute however has been construed by this Court contrary to appellant’s contention.

In the case of Intl. Harvester Co. et al v. Lyle Brown, Circuit Judge, 241 Ark. 452, 408 S.W. 2d 504, we construed the cited statute, based on facts similar to those here, and said:

“We construe this section to apply only where there has been ‘personal injury’ or where there has be.en actual force or violence — such as a collision between two automobiles.”

Here, appellant does not even contend any “personal injury” or any “force or violence” is involved. He does however distinguish the cited case from this case on the ground that it was based on breach of warranty and not on contract — as here. We point out, however, that this distinction was obliterated by our decision in Evans Laboratories, Inc. and Elmer Pearson v. Russell C. Roberts, Circuit Judge, 243 Ark. 987, 423 S.W. 2d 271. There this same question arose, and we said:

“Regardless of whether a suit for a breach of warranty is on contract or in tort, venue for an action is not controlled by such classification, but is controlled by venue statute.”

It is our conclusion that the decision of the trial court was correct, and it is, therefore, affirmed.


text:
    Sondra K. Crouch v. Twin City Transit, Inc.
    5-4752
    434 S.W. 2d 816
    Opinion Delivered December 9, 1968
    [Rehearing denied January 13, 1969.]

      Tom Gentry for appellant.

      House, Holmes & Jewell by Donald T. Jack, Jr. for appellee.
   Paul Ward, Justice.

This is an appeal from a jury verdict in a damage suit involving a collision between a bus and an automobile.

Sondra K. Crouch (appellant) was severely injured when the car in which she was a passenger collided with a bus owned by Twin City Transit, Inc. (appellee) on West 13th Street in North Little Rock. The car was owned by Veloria Allison (mother of appellant) and was being driven by Ruby Reeves who was a visitor in the home of appellant and her mother.

On March 11, 1967, appellant filed a Complaint in the Saline County Circuit Court against appellee, alleging that negligence on the part of the driver of the bus was the proximate cause of the collision, and asking for damages (for personal injuries) in the sum of $25,000. In answer, appellee denied the allegation of negligence, and affirmatively pleaded; that appellant was in possession and control of the car; that she procured the services of Ruby Reeves to drive the car; that Ruby was “at all times the agent and employee of” appellant, and; that any injuries received by appellant were proximately caused by the negligence of herself and/or Ruby Reeves.

Along with other instructions the court gave, over appellant’s objection, its own Instruction No. 1 which reads:

“Ladies and gentlemen, in this case I am going to find as a matter of law that the driver of the vehicle occupied by the plaintiff was an agent of the plaintiff and thereby imputing any negligent act of that driver to this plaintiff.”

The jury returned a verdict in favor of appellee, hence this appeal:

Point for Reversal

The only ground urged by appellant for a reversal is that the trial court erred in giving the instruction quoted above. For reasons presently explained, we have concluded the court erred in giving the instruction.

The decisive question here presented is: Does the undisputed evidence show that Ruby Reeves was acting (at the time of the collision) as an agent for appellant? Restatement, Agency § 1, reads:

“The relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents to the act. The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on the principal’s behalf and subject to his control.”

A. M. I. 701, in material parts, reads:

“An agent is a person who by agreement with another called the principal acts for the principal and subject to his control. The agreement may be oral or written or implied from the conduct of the parties and may be with or without compensation.
If one person has the right to control the actions of another at a given time the relationship of principal and agent may exist at that time, even though the right to control may not actually have been exercised.”

In our opinion the facts in this case do not justify the conclusion, as a matter of law, that Ruby Reeves was acting as an agent of appellant — -as defined above. There is testimony in the record from which a jury could have found: (a) the car was owned by the mother of appellant; (b) Appellant had never driven a car, and she did not have a driver’s license; (c) Euby Eeeves was a friend who had been visiting in the mother’s home for several days; (d) Euby had a driver’s license, and was a capable driver, and had been driving the car in question; (e) On the morning of the accident the mother left home to go to her place of employment, leaving the key to her car (and the car) with Euby; (f) the mother left the car in charge of Euby; (g) on the day of the collision appellant asked Euby if she would drive her to a certain place of business in North Little Eock where she hoped to obtain employment.

In view of the above it cannot be said, as a matter of law, that appellant had any control over the car or the driver. On the contrary, there is substantial evidence from which a jury could find the mother had control of the car or, if not, that she had relinquished control to Euby and not to appellant.

Accordingly, the judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.


author: Lyle Brown, Justice.

text:
    Curtis Smith v. Victor Urban, Superintendent State Penitentiary
    5390
    434 S.W. 2d 283
    Opinion Delivered December 9, 1968

      James M. Barker for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   Lyle Brown, Justice.

Curtis Smith was given a life sentence, having been found guilty of being an accessory to the murder of a filling station attendant. Robbery was alleged to have been the motive of the attack. There was no appeal. The matter is here on collateral attack pursuant to our Criminal Procedure Rule No. 1. The trial court refused relief and the defendant appeals. The point determinative of the appeal is Smith’s contention that the State failed to disclose evidence favorable to him and which would have been material to his defense. The trial court specifically found there had been no suppression.

Some six weeks after the crime, M. C. Talley became a prime suspect. Deputy Constable B. C. Courson of Ashley County, accompanied by the prosecuting attorney, went to Monroe, Louisiana, to interview Talley, who was in jail. He gave a detailed and written confession. He stated that he was the only participant. He related that he went to the filling station alone and that after the crime he ran and walked all the way to his home in Hamburg; and that he caught a bus the next morning and went to Monroe.

Some few months thereafter Talley repudiated the Monroe confession. His second statement still admitted his participation in the crime but the significant change from the Monroe statement was that he implicated appellant Curtis Smith. Allegedly, Smith picked up Talley in Crossett and drove him to the scene of the crime at Hamburg, parking by the side of the service station; that Talley gave most of the money to Smith; and that Smith drove him away from the station.

In December 1965, Smith was tried and Talley was a principal witness for the State. Again Talley implicated Smith as an accessory. During the post-conviction hearing at the trial level, Smith’s attorney asserted that he had no personal knowledge of the Monroe confession, that being the confession in which Talley asserted that he committed the crime alone. On appeal, counsel for Smith contends that the failure of the State to make available to him the Monroe confession, amounts to a suppression of evidence; and that the confession would have been valuable in cross-examining Talley at Smith’s jury trial, particularly in that it would have been damaging to Talley’s credibility. It should be noted (1) that there is no charge of bad faith concealment, and (2) Smith’s counsel does not contend he sought and was denied access to the statement. No evidence was introduced tending to show that Smith’s counsel even knew of the existence of the Monroe statement as of the time of Smith’s trial.

The question of concealment, or nondisclosure, of evidence by the prosecution has been the subject of considerable discussion in case law of the past decade. We shall refer to four such cases.

Brady v. Maryland, 373 U.S. 83 (1963). After Brady was convicted of murder in a state court lie learned of an .extrajudicial confession of his accomplice wherein the accomplice admitted the homicide. That confession was not made available to Brady, notwithstanding his counsel had asked in advance of trial to examine the accomplice’s extrajudicial statements. The court held that the suppression amounted to a violation of the due process clause of the Fourteenth Amendment. The United States Supreme Court said:

“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution.”

Giles v. Maryland, 386 U.S. 66 (1967). Factually this case is quite different from ours. We refer to it as another case which condemns the withholding by the State of records beneficial to the accused and the denial of the petitioner’s request to examine statements given by the prosecuting* witness prior to trial which were contradictory of her later testimony. In Giles the ‘ suppressed evidence” went to the credibility of the prosecuting witness and was declared to be important to the outcome of the case.

United States v. Wilkins, 326 F. 2d 135 (1964). After conviction for robbery in a state court, petitioner’s counsel discovered the existence of two witnesses which would have been helpful to the defense. Sometime before the trial, those two witnesses had been called by the police to headquarters to identify the defendant. They replied that petitioner was not one of the men they saw at the scene of the crime. Of course the State did not use those witnesses, nor did it reveal them to the defendant. Petitioner was convicted on the testimony of the store manager and another identifying witness. This case differs from Brady in that here the petitioner never requested the disclosure of evidence from the prosecution; but in Wilkins the Court said that such a request is not an indispensable requisite to establish the duty of disclosure.

Petition of Wright, 282 F. Supp. 999 (W.D. Ark. 1968). Judge Miller’s holding in that ease is in harmony with the reasoning in Wilkins. Wright was convicted of rape in the Circuit Court of Sebastian County. The victim lost her purse on the night of the attack. After the conviction but before the presentation of Wright’s motion for new trial, the purse was found under a house in which another rape suspect had lived. 'The purse was immediately delivered to the police. At least ten days before the overruling of the motion for new trial the finding of the purse was made known to the prosecuting attorney. Those findings were not revealed to Wright’s attorneys or to the trial court. The existence of the “suppressed evidence” was not known to Wright’s attorneys until after this court had affirmed the conviction, so Wright’s only avenue for relief was by a petition for a writ of habeas corpus. In deciding that Wright’s petition should be granted, Judge Miller made this analysis of the law:

“Fairness is a requirement of due process. In United States ex rel. Meers v. Wilkins (2 Cir. 1964, 326 F. 2d 135, the court discussed the constitutional right to the revelation of material evidence to assist the defense, and outlined the prosecuting attorney’s duty in that regard. At page 136 the court said:
“ ‘The law has been established since Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935), that the conduct of state prosecuting officers may be grounds for finding a defendant’s right to a fair trial violated and to authorize the federal courts to grant writs of habeas corpus.’
“Whether or not a prosecuting attorney in a criminal case must disclose evidence in his possession favorable to the accused depends on many factors, and a case-by-ease judgment must be made.”

We hold that the circumstances of this case dictate that the Monroe confession of M. C. Talley should have been made available to Curtis Smith’s counsel. It certainly would have been material in the cross-examination of Talley. Not only could it have cast light on his credibility but it could well have been important to the jury in passing on the guilt or innocence of Smith. We do not have the complete trial record in the case of State v. Curtis Smith; however, the State’s brief concedes that “Talley testified on behalf of the State and implicated Smith as an accessory to the crime.” Certainly Talley’s testimony was introduced to bolster the State’s theory that Smith was guilty of the charge. Now if the jury had been informed of Talley’s Monroe statement, it could have raised a reasonable doubt of Smith’s guilt. Certainly we cannot say Talley’s credibility was unimportant to the outcome of the case.

Other circumstances should be mentioned because many factors enter into a determination of the duty to disclose. That is because every case must rest on its own particular facts. Smith was a pauper and was described by one doctor as having borderline mentality, the latter of course affecting his ability to cooperate with counsel; Smith claimed to have had very little education; the court-appointed attorney did not have the financial facilities possessed by the State to make investigations; Attorney Barker served temporarily as counsel at arraignment and for a short period thereafter; and he was then relieved but was again appointed approximately one week before the trial.

The petition for discharge is granted, but of course the State may, if it so elects, proceed with a new trial on the charges contained in the information.


author: John A. Fogleman, Justice.

text:
    Jeannette J. Locke v. C. N. Cook and Matthew B. Cook
    5-4745
    434 S.W. 2d 598
    Opinion Delivered December 9, 1968

      Shaver, Tackett & James by Daman Young for appellant.

      John C. Finley, Jr. for appellee.
   John A. Fogleman, Justice.

This appeal involves an order determining heirship^ of Nolle McCrary Reynolds, insofar as tbe parties to this proceeding are concerned. Appellees C. N. (Chalmer Nathan McCrary) Cook and Matthew A. (Matthew Alexander Locke) Cook are brothers. 'They instituted the proceeding claiming to be entitled to share in the estate of Mrs. Reynolds as second cousins on her paternal side, with the additional circumstance that their father and Mrs. Reynolds’ father had been double first cousins. We will refer to them as “McCrary heirs.” While it was indicated in the court below that there might be others standing in tbp same (or nearer) degree of kinship with the decedent as appellees in tlie McCrary line, this question has been reserved by the probate court. The petition was resisted by Jeanette Joyner Locke, the only surviving first cousin of Mrs. Reynolds. It also developed during' the hearing' that there were descendants of two brothers of Mis. Locke who would be entitled to share with her, per stirpes, in any inheritance on the maternal side. ’ "We shall refer to these heirs, collectively, as the “Joyner heirs.”

It was stipulated that the property involved was a new acquisition by Mrs. Reynolds, at least insofar as the parties involved are concerned. For the purposes of this proceeding, we may consider that Mrs. Reynolds died intestate.

The probate court held that both the “McCrary heirs” and the “Joyner heirs” were entitled to one-half of the estate. Although the probate judge considered this difficult question of first impression at length and reviewed the authorities exhaustively in an excellent memorandum opinion, he recognized that the matter was unsettled in Arkansas and actually encouraged this appeal in an order subsequent to that from which the appeal was taken. With all due respect, we reach a conclusion different from that of the trial court.

The solution of the problem depends upon the interpretation to be given our statutes of descent and distribution, particularly Ark. Stat. Ann. §§ 61-101 and 61-111 (1947). For a better understanding of the result we reach, these sections are reproduced as follows:

“61-101. General law of descent. — When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow’s dower in the following manner:
First: To children, or their descendants, in eqnal parts.
Second: If there be no children, then to the father and mother in equal parts, or, if one parent be dead, then the whole to the surviving parent; if no father or mother, then to the brothers and sisters [or their descendants], in eqnal parts.
Third: If there be no children, nor their descendants, father, mother, brothers, or sisters, nor their descendants, then to the grandfather, grandmother, uncles and aunts and their descendants in equal parts, and so on in other cases, without end, passing to the nearest lineal ancestee [Ancestor], and their children and their descendants, in equal parts.”
“61-111. Descent where no father or mother. —The estate of an intestate, in default of a father and mother, shall go as follows: one-half to the brothers and sisters, and their descendants of the father; and the other one-half to the brothers and sisters, and their descendants, of the mother; provided, that if such line of either the father or the mother shall be extinct, then the entire estate shall go to such line of the other. This provision applies only where there are no kindred, either lineal or collateral, who stand in a near['.er] relation, and does not apply to ancestral estates.”

Mrs. Reynolds left no descendants. Her mother, father and all grandparents predeceased her. All her brothers and sisters died when very young, leaving no issue. She left no uncles or aunts surviving her. She was the daughter of Jessie Joyner and Nathan C. Mc-Crary.

Jessie Joyner, Mrs. Reynolds’ mother, was the daughter of William and Martha Joyner, and the sister of Henry Joyner. Henry Joyner was the father of appellant. He also had five sons, none of whom were living at the time of Mrs. Reynolds ’ death, although two of the deceased sons each left a child surviving them.

Nathan Chalmer McCrary, the father of the decedent, was the son of M.artha Ann Isabella Cook, who married Matthew P. McCrary. Matthew McCrary’s sister, Fannie, married Nathan Judson Cook, the brother of M.artha Ann Isabella. Martha and Nathan were the only children of Thomas Barnes Sims Cook who lived beyond childhood. Nathan Judson Cook and Fannie McCrary had one son, Thomas Brice Sims Cook, who was the father of appellees and the double first cousin of Mrs. Reynolds’ father.

We will first dispose of a contention on the part of appellees that presents little problem. They contend that their relationship as double cousins to the decedent makes them related to her in the same degree as Mrs. Locke, contrary to the finding of the probate judge. Arkansas follows the canon or common law rule in determining degree of relationship. Meek, Descent & Distribution, Arkansas Bar Association Desk Manual, ¶ II(6), p. 13; Kelly v. Neely, 12 Ark. 657. William Joyner was the common ancestor of decedent and appellant. Thus, appellant was related to Mrs. Reynolds in the second degree. The common ancestor of Mrs. Reynolds and appellees was Thomas Barnes Sims Cook, which would make their relationship in the third degree. Appellees have cited no authority to support their argument and we know of none. On the other hand, appellant has cited Franklin v. Hastings, 253 Ill. 46, 97 N.E. 265. We think that the holding of the Illinois court is correct. Of course, the degree of relationship of appellees to the decedent would be determined by the nearest common ancestor.

We agree with the probate judge that § 61-111 provides the guideline for determination of the issues here as to real estate, but do not agree with his construction of the pertinent portions of that provision. It is to be noted that the general scheme of the Arkansas statutes of descent and distribution is establishment of certain “levels” of inheritance. As to new acquisition real property, they are, generally:

1. children or their descendants,
2. parents,
3. brothers and sisters and their descendants, and
4. uncles and aunts.

In arriving at these “levels” it is necessary to be aware that §61-111 defines the manner of descent of real estate where subsection 3 (third) of § 61-101 applies. Todd v. Thedford, 221 Ark. 436, 253 S.W. 2d 961.

The critical point in this case, however, is not the degree of relationship of the adverse claimants, but the construction and application of the meaning of the proviso in §61-111, i.e., “that if such line of either the father or the mother shall be extinct, then the entire estate shall go to such line of the other.” The trial judge held that the father’s line was not extinct, apparently because of the survival of appellees. This is the point on which we disagree with the trial court. We hold that the line on the paternal side became extinct when there were no brothers and sisters (or their descendants) of Nathan Chalmer McCrary, the father of Nelle Reynolds. In so doing, we give consideration to the use of the word “such” to describe the lines mentioned in the proviso. It seems to us that it can only refer to the extinction of the specified collateral kin, i.e., brothers and sisters and their descendants, rather than to complete extinction of the bloodline. If the latter meaning were intended, the word “such” could be eliminated in favor of the word “the” in both places it precedes the word “line.” The word “such” would be surplusage only. A statute should be construed so that no word is void, superfluous or insignificant and meaning and effect must he given to every word contained therein, if possible. Wilson v. Biscoe, 11 Ark. 44; State v. Embrey, 135 Ark. 262, 204 S.W. 1139; Watson v. Harper, 188 Ark. 996, 68 S.W. 2d 1019; Wiseman v. Affolter, 192 Ark. 509, 92 S.W. 2d 388; Holt v. Howard, 206 Ark. 337, 175 S.W. 2d 384; Monsanto Chemical Co. v. Commissioner of Labbor, 229 Ark. 362, 314 S.W. 2d 493. Our construction is not out of harmony with the legislative intent of the act. It seems to be in harmony with the excellent treatise by Mr. Harry Meek cited above. See, Problems in Land Descents, first problem, p. 6, Descent & Distribution, Arkansas Bar Association Desk Manual, 11 (28), p. 34.

The descent of real estate in this case is not governed by the decision in Dean v. Stuckey, 234 Ark. 1103, 356 S.W. 2d 622, relied upon by appellee, because there were brothers or sisters (or both) of both the mother and father of the decedent in that case.

While all parties have treated the case as if only realty were involved, the greater part of the estate actually consists of personalty. Section 61-111 has no application to the devolution of personalty. It is governed exclusively by § 61-101. Kelly’s Heirs v. McGuire, 15 Ark. 555, 585. The effect of § 61-101 is declared in the following language in the cited case:

“The effect of the 1st section is, to constitute the persons, who take the personal property, whether per capita, or per stirpes, and whether of the whole or half blood, the absolute owners. Nor is it material, whether those persons are of the paternal or maternal, or the lineal or collateral line. ’ ’
It was also held in that case that the rules of per capita and per stirpes apply to personalty as well as to realty, to wit:
‘ ‘ As, by its express language, it relates to both real and personal property, it was manifestly the design of the Legislature, when there were descendants of the intestate, to send down both to them per capita, if in equal degree, and per stirpes, if in unequal degree, without any regard to the fact as to how the property had been acquired. And as to personal property, where there are no descendants of the intestate to distribute it to, collaterals will take in the same way as descendants, if there had been any: that is to say, without any inquiry as to how it was acquired, and, per capita, if in equal degree, and per stirpes, if in unequal degree. This was manifestly the design of the Legislature.”

These holdings were followed and applied in Byrd v. Lipscomb, 20 Ark. 19. See, also, Meek, Descent & Distribution, Arkansas Bar Association Desk Manual, p. 38, et seq.

The third section of § 61-101 provides for distribution of personal property, in the absence of children (or their descendants), parents, brothers or sisters (or their descendants), to the grandparents, uncles and aunts and their descendants, in equal parts, “and so on in other cases without end, passing to the nearest lineal ancestee [ancestor], and their children and their descendants, in equal parts.” [Emphasis ours.] The nearest lineal ancestor of Nelle Reynolds, under this statute, was William Joyner. The Joyner heirs are his descendants. We conclude that the purpose of the word “nearest” in the statute was to maintain the “levels” of inheritance and to exclude very remote relatives on one side in fav- or of those of a closer degree on the other. This would mean, as suggested by Mr. Meek in his addendum to Descent & Distribution, supra, p. 11, that the search for distributees will not go “uphill” if there are descendants of grandparents surviving. The McCrary heirs are descendants of great-grandparents, one step “uphill” from William Joyner on Nelle Reynolds’ maternal side. Thus, the personalty should be distributed to the Joyner heirs p.er stirpes.

Reversed and remanded for further proceedings consistent with this opinion.

      See Daniels v. Johnson, 216 Ark. 374, 226 S.W. 2d 571.


author: J. Fred Jones, Justice.

text:
    MFA Mutual Insurance Co. v. Wesley C. Pearrow
    5-4681
    434 S.W. 2d 269
    Opinion Delivered December 9, 1968

      Odell Pollard for appellant.

      Lightle & Tedder for appellee.
   J. Fred Jones, Justice.

The appellee, Wesley O. Pearrow, purchased a fire insurance policy from the appellant, MFA Mutual Insurance Company, under the terms of which, appellee’s house and furniture were insured against loss by fire. The house was insured for $4,000 and the furniture for $2,000. Appellee’s house and furniture were damaged by a fire and he made demand upon the appellant for the policy limits of $4,-000 on the house and $2,000 on the furniture. Appellant refused payment and appellee brought suit in the White County Circuit Court for $6,000, plus statutory penalties and attorney’s fees. The appellant defended on the ground that appellee had either burned his house, or had conspired with others to have it burned, and that the fire did not result in such total loss as to require payment of the face amount of the policy.

After hearing the evidence at the trial, the court instructed the jury that there was no substantial evidence upon which a finding of arson or conspiracy to commit arson could be based, and the case was submitted to the jury solely upon the question of extent of loss and how much appellee should recover from appellant. The jury returned a verdict in favor of the appellee for $4,000 for loss of the house and $1,000 for damage to the contents. A judgment was entered on the jury’s verdict, and appellee was awarded an attorney’s fee of $1,000 and a statutory penalty of $480.

Upon appeal to this court, appellant relies on the following points for reversal:

“The trial court committed error (a) in instructing the jury that there was no substantial evidence on which to base a finding’ that appellee had either burned his house or conspired with others to have it burned and (b) in refusing to give defendant’s requested instructions No. 1 and No. 2, which instructions would have submitted these issues to the jury.
The trial court committed reversible error in permitting appellee to give hearsay testimony which was so prejudicial as to prevent appellant from obtaining a fair and impartial trial.
The trial court committed reversible error in allowing appellee to recover an attorney’s fee and a statutory penalty when the jury’s verdict was for less than the amount which appellee sought to recover.”

The appellant’s defense of arson, or conspiracy to commit arson, was based on circumstantial evidence of a very unusual nature. The house involved was a vacant rent house facing east on the west side of the highway about one mile from the town of Balb Knob. Mr. and Mrs. Harrell lived across the highway from appellee’s house and a Mr. Loueks lived about two hundred and fifty yards west of the house. Mr. Loueks’ private road leaves the highway just north of the appellee’s house aiid runs from the highway along the north side of appellee’s house.

Mr. Loueks testified that between 1:00 p.m. and 2 -.00 p.m. on August 3, 1905, he had started to his home from Bald Knob and as he passed along the side of appellee’s house, one Raymond Feagin whom he knew, and another man rushed from the rear door of the house into some drooping limbs of a weeping willow tree; that he saw the tree limbs shaking’ and thought the men were fighting. He drove on home and went to work on his tractor. About 5:00 p.m. he heard that there had been a fire in the appellee-’s house.

Mr. and Mrs. Harrell testified that as they were eating a late lunch between 1:00 and 2:00 p.m. on August 3, they saw appellee’s definitely identified truck drive into the road beside his house and turn into the drive in the back of the house. It only stayed a very short time during which its horn sounded, then it left in a hurry as it had come. About thirty minutes later, the Harrells observed smoke coming from the Pearrow house. The city fire department extinguished the fire and found a five gallon oil can, the odor of gasoline about .the premises and ample evidence that the fire was of incendiary origin. About midnight, members of the .fire department extinguished another fire at the same house and this time they found sponges soaked in gasoline, or other flammable fluid, on the roof of the building and a strong odor of fuel oil or gasoline was about the premises, the same as detected on the afternoon of August 3.

Raymond Feagin and Ronald Anthony Turpin were convicted of arson on pleas of guilty in connection with the fire. Turpin was sentenced to five years in the penitentiary and Feagin was given a suspended sentence. They both testified at the trial. Turpin testified that he did not know the appellee, but that on the morning of- August 3 he discussed burning the house with Feagin at a cafe across the street from a used car lot, and then Turpin testified as follows:

“Q. Did you have an opportunity to discuss the burning’ of'the Pearrow home at any place or at any time other than the discussion at the bus stop cafe?
A. Yes.
Q. Where did the other conversation take place?
A. At the used ear lot across the street.
Q. Whose used car lot?
A. Billy Ward’s used car lot.
Q. Where, in that used car lot, did the conversation take place?
A. Raymond and I talked about it in the trailer. Q. Y/hose trailer?
A. Billy’s.
Q. What is that trailer used for?
A. I believe just a business office.
Q. Is that where he conducts his business?
A. Yes, sir.
Q. Was anybody else present when the conversations was had?
A. On one occasion.
Q. Who was present?
A. Only it was between he and I, not between me and Raymond.
Q. Who did you discuss it with? Not what was said.
A. I talked with Billy about it.
Q. Where did you talk to Billy about it?
A. In the trailer.
Q. "What day did these conversations take place? A. The same day I burned the house.
Q. How did yon know where the house was?
A. Raymond took me and showed me the house. Q. Had yon ever been to the house before?
A. No, sir.
Q. Why were you going to burn it?
A. I was going to burn it for one hundred dollars. I don’t know what he was going to burn it for.
Q. Who was going to give you the hundred dollars?
A. Raymond.
Q. Did Billy know it?
A. There was no way he could know it.”

According to this witness he and Feagin left the ear lot in Feagin’s automobile and drove by and saw the house. They then returned to the cafe and talked about it some more and then went to Billy Ward’s used car lot and obtained a five gallon gas can from behind the trailer. Turpin then drove Feagin’s automobile to a gas station, had the can filled with gasoline, then returned and picked Feagin up and they both drove out to appellee’s house in Feagin’s black and white Buick automobile. According to this witness, they arrived at the appellee’s house with the gasoline about 1.30 or 2:00 p.m. They saturated the rugs and walls of the building with gasoline. The electricity had been turned off in the house, but the pilot light to the hot water tank had been left burning and an explosion occurred, blowing out one window of the house and blowing the witness into another room of the house. He says that he had to fight with Feagin to get him out of the house, that Feagin was on fire and that he extinguished the fire on Feagin out in the back yard. They then drove back to town. They then drove back to the house and saw that it ha.d not burned.

“A . . . I know we drove back and saw we hadn’t accomplished anything and he said he was through with it.
Q. You and he drove back that afternoon?
A. Yes, sir, I had enough beers in me that I decided I would finish the job.
Q. Raymond had enough after the first trip?
A. Yes, sir.
Q. "When did you go back out there?
A. I guess about ten o’clock at night, I thought it ■was earlier, but everybody said it burned later that night.
Q. What did you do about burning it the second time?
A. I had bought a bunch of sponges at Vaughan’s Super Market and I saturated them and threw them on top of the house and I let the gas run down the walls and set the blaze from the side of the house and it went up in flame.”

This witness testified that he had never heard of the appellee. On recall he testified that he sent his wife to Feagin for the $100 Feagin had promised to pay him, but that Feagin had no money. He denied that he sent his wife to appellee for money and denied that he knew anything about his wife going to appellee for money.

Feagin testified that he had known appellee for a number of years but had not talked with him except to speak when passing. He says that he did not know that the appellee had a house where it was located; that Turpin told him that he had a score to settle with the Pearrows and requested him to drive Turpin out to appellee’s house.

“A. He just asked me to drive him out there, that he had a score to settle with the Pearrows.
Q. What did you do?
A. I went out there, I didn’t know this gas was in my car, and he jumped out and run in the house and I sat in the car a couple of minutes and I went to the door and about the time I got to the door the thing exploded.
Q. Where were you?
A. I just got to the door and Eon was back in the house.”

Feagin denied that he promised to pay Turpin anything, denied that Turpin tried to collect from him and testified that he later apologized to the appellee for the part he played in burning the house.

We are of the opinion that the trial court erred in instructing the jury that there was no substantial evidence on which to base a finding that appellee had either burned his house or conspired with others to have it burned. Appellee was not being prosecuted for burning his house. He was the plaintiff in a civil action to recover on an insurance policy and the preponderance of evidence rule applied.

In Meyers v. Hobbs, 195 Ark. 1026, 115 S.W. 2d 880, this court said:

“ ‘The settled rule, which has been many times approved by this court, is that a well connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence, and frequently outweighs opposing direct testimony, and that any issue of fact in controversy can be established by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions.’ Hanna v. Magee, 189 Ark. 330, 72 S.W. 2d 237; Pekin Wood Products Co. v. Mason, 185 Ark. 166, 46 S.W. 2d 798; 23 C.J. 48.”

and earlier in St. Louis, I.M&S. Ry. Co. v. Owens, 103 Ark. 61, 145 S.W. 879, we said:

“... it is ... well settled that any material fact in controversy may be established by circumstantial evidence, and that, though the testimony of witnesses may be undisputed, the circumstances may be such that different minds may reasonably draw different conclusions therefrom. Such a state of case calls for a submission to the jury of the questions at issue; and where the circumstances are such that different minds may reasonably draw different conclusions therefrom, and the result is not a mere matter of conjecture without facts or circumstances to support the conclusion, then it is the duty of an appellate court not to disturb the finding of the jury.”

Also in Burcher v. Casey, 190 Ark. 1055, 83 S.W. 2d 73, we said:

“ ‘If the evidence is conflicting, it is error for the court to grant a nonsuit or direct a verdict.’
In determining whether a case should be submitted to the jury, all evidence which is introduced by the party who asked that such evidence be submitted must be regarded as true, and every inference which can fairly be drawn from the evidence must be drawn in favor of such party.”

and in Barrentine v. The Henry Wrape Co., 120 Ark. 206, 179 S.W. 328, we said:

“In determining on appeal the correctness of the trial court’s action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury. Williams v. St. Louis & S.F.R. Co. 103 Ark. 401, 147 S.W. 93; Phoenix Cement Sidewalk Co. v. Russellville Water & Light Co., 101 Ark. 22, 140 S.W. 996; Curtis v. St. Louis & S.F.R. Co., 96 Ark. 394, 131 S.W. 947.”

It is perfectly obvious, from the record before us, that there were a lot of loose ends left at the conclusion of the trial in this case. Most of the appellant’s evidence, as well as its argument, is directed at appellee’s lack of inquiry and apparent lack of concern about the fires in his house during the time of the fires and after the loss. He made no inquiry of the neighbors or of the police or fire department. Lack of inquiry or apparent interest standing alone would not support a verdict against him, but from all the circumstantial evidence, both ¡explained and unexplained in the record before us, we conclude that if the jury had returned a verdict for the appellant there would have been some substantial evidence to have sustained the jury verdict.

The appellee testified that he moved from the house in April or May and even though a real estate agent testified that the house was rented at one time while he was showing it for sale, no one testified how long it had been vacant yet the pilot light was burning on the hot water tank, on the 3rd day of August when Turpin saturated the place with gasoline between 1:30 and 2:00 p.m. in broad daylight and in sight of neighbors on that day. Indeed from some vague reference in the record as to another fire in which Turpin was implicated, the jury might even have found that a bold and vicious system was developing in the community of burning houses for profit.

The most damaging circumstantial evidence against appellee in this case, however, is that appellee’s own pickup truck was positively identified by the neighbors as being at the house at the same time Turpin says that he and Feagin were there attempting to burn the house. The fire occurred only a few minutes after appellee’s truck left the premises and Turpin and Feagin were seen rushing from the back door of the house by still another neighbor who was close enough to recognize Feagin. Apparently no one saw Feagin’s black and white Buick automobile on the premises at any time.

Turpin testified that he did not know the appellee and had never heard of him. Feagin testified that he casually knew the appellee, but that he didn’t even know appellee owned a house at the location where he drove Turpin. Feagin admits that he drove Turpin to the house, but says that he did not know that Turpin had a five gallon can of gasoline in the back of Feagin’s Buick automobile. The appellee testified that he had known Feagin for twenty years but he was not asked if he knew Turpin. The fire in the early afternoon was extinguished by the fire department and the five gallon can was found. Turpin knew where he purchased the sponges he used that night when he returned alone and finished the job, but he -was not asked where he obtained the gasoline with which he saturated the sponges on that occasion.

Turpin said he discussed burning the house with Feagin, as well as Billy Ward. He says that he purchased an automobile that same day from Billy Ward and used it in his final trip to burn the house that night. Ward was not called as a witness.

There is no evidence here that either Turpin or Feagin were pyromaniacs, and there is no evidence at all that the house was burned for spite or out of malice toward the appellee. Uncontradicted evidence places appellee’s truck at the scene of the fire within the same period of time Turpin and Feagin were there in the commission of arson. This evidence is uncontradicted and remains unexplained.

We conclude, therefore, from the overall evidence in this case, that the trial court erred in directing a verdict for the appellee on the question of arson, and that the cause should be reversed and remanded for a new trial for that reason.

We also take note of appellant’s second point since this case is being remanded for a new trial.

On cross-examination Turpin testified as follows:
“Q. You sent your wife to Wesley Pearrow?
A. No. I didn’t. I sent my wife to Raymond to collect the hundred dollars and Raymond told her he didn’t have any money.
Q. She didn’t report to you about going to Wesley Pearrow?
A. Did she go to Wesley Pearrow?
Q. I ask you if she did go to him?
A. Not that I know of.”

On. direct examination of the appellee, the record is as follows:

“Q. You heard the testimony about Mrs. Turpin, tell us about it?
A. She tried to blackmail me.
mr. pollard: I object to this. Counsel for plaintiff was informed when he called Ron Turpin back and he was informed after he explained about him sending his wife to Mr. Pearrow that he would not be in position to plead surprise. Mr. Lightle said he knew what Mr. Turpin’s answer would be, for that reason he was not surprised at what Mr. Turpin’s answer would be. It is not proper rebuttal for that reason.
mr. lightle: For impeachment purposes I have a right to it.
the court: On this issue, your own defense.
Q. What did his wife tell you?
A. She told me to give her a hundred dollars to get Ron out of jail or he was going to smear me and my friends all over if I didn’t give her the hundred dollars. She came to my house on a Sunday morning.
mr. pollard:
I object to that. Mrs. Turpin is not a party to the law suit.
the court:
The objection is overruled.
me. pollard:
Note my exception.”

This testimony was elicited and admitted under the guise of impeachment, but we hold that the trial court erred in admitting it over appellant’s objections. Mrs. Turpin had not testified at all, the appellee had not testified on the point involved, and Turpin only testified that he did not send his wife to see the appellee and that if she did contact the appellee he didn’t know anything about it. The testimony of appellee on this point clearly does not impeach the testimony of any witness. It is clearly hearsay testimony and is clearly inadmissible. We assume, however, that since this case is reversed on appellant’s first point, the other points raised on this appeal will not arise again at a new trial.

Reversed and remanded.


text:
    Charles William Petty v. State of Arkansas
    5374
    434 S.W. 2d 602
    Opinion Delivered December 9, 1968

      Tiner & Henry for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   J. Fred Jones, Justice.

The appellant, Charles Petty, was tried before a jury and convicted of the crimes of burglary and grand larceny in the Poinsett County Circuit Court. He was sentenced to the state penitentiary for terms of fifteen years on each charge, the terms to run consecutively with minimum time to be served fixed by tbe court at ten years. Upon appeal to this court tbe appellant relies on tbe following three points for reversal:

“That the court erred in refusing to declare a mistrial when the prosecuting attorney in his opening statement remarked that the appellant had not been brought to trial at an earlier date because he had been in custody in another state.
That the court erred in giving instruction thirteen (13) since the instruction as given violates article 7 section 23 of the Arkansas Constitution.
That the court erred in fixing the minimum time to be served by appellant in the department of corrections at ten years.”

As to appellant’s first point, the remarks to which he objects are contained in an exchange between the attorneys and the court as follows:

“DEPENDANT’S ATTORNEY: At this time the Prosecuting Attorney in his opening statement just told the jury the reason this case didn’t come on for trial is that the defendant was in custody in another State. At this time we move the Court to declare a mistrial in this case for the reason that he has mentioned the fact that the defendant was in custody in another State implying that he had committed another offense and we are asking the Court to declare a mistrial at this time.
PROSECUTING- ATTORNEY: If the Court please, the State in the opening statement in making that remark was merely repeating or reiterating the statement that was made by defense counsel to the jury on voir dire examination as an explanation as to why the delay or the difference between the 1964 offense and now. It could not be prejudicial because the defense had already made this information available to the jury. Certainly I would not have done so if it had not been pointed out to the jury on voir dire.
# # *
THE COUBT:
In view of the fact that Counsel for the defense in qualifying the jury brought out the fact that he had been previously convicted and you qualified the .jury on that point, you opened the door for the Prosecuting Attorney to also make reference thereto, your motion will be denied and your exceptions noted. ’ ’

We find no error in the trial court’s denial of appellant’s motion. This point was decided contrary to appellant’s contention in Bethel and Wallace v. State, 180 Ark. 290, 21 S.W. 2d 176, where this court said:

“It is well settled that trial courts have a wide discretion in the supervision of trials before them, including matters pertaining to opening statements, and this court will not reverse unless a manifest abuse of discretion is shown. Nelson v. State, 139 Ark. 15, 212 S.W. 93; Stanley v. State, 174 Ark. 743, 297 S.W. 826; Adams v. State, 176 Ark. 916, 5 S.W. 2d 946; Bowlin v. State, 175 Ark. 1115, 1 S.W. 2d 553.”

We find no abuse of discretion in this case.

As to his second point appellant objects to the trial court’s action in submitting to the jury the following instruction:

“The possession of property recently stolen without reasonable explanation of the possession is evidence which goes to you for your consideration under all the circumstances of the ease to be weighed as tending to show the guilt of one in whose hands such property is found. But such evidence alone does not impose upon you the duty of convicting even though it he not rebutted.”

Appellant specifically objects to this instruction on the basis that the instruction singles out and calls the jury’s attention to particular evidence; that it is an instruction on the weight of the evidence, and therefore an invasion on the province of the jury. This court has also held contrary to appellant’s contention on this point.

In McDonald v. State, 165 Ark. 411, 264 S.W. 961, the appellant sought reversal of his conviction for the crime of stealing cattle. One of his assignments of error was that the court erred in giving the very same instruction as the one objected to in the case at bar. McDonald insisted in that case that the instruction was improper as being an instruction on the weight of the evidence, and in approving the instruction, this court said:

“This court has held that similar language in an instruction means no more than telling the jury that such evidence may be considered for the purpose of determining the guilt or innocence of the defendant. Hogue v. State, 93 Ark. 316.
The next objection to the instruction is that it is upon the weight of the evidence because it instructs the jury that the possession of property recently stolen, without explanation of the possession, makes it the imperative duty of the jury to convict, and thus becomes a charge upon the weight of the evidence. We do not think so. A fair interpretation of the instruction would warrant the jury in convicting the defendant, but does not tell it as a matter of law that it must convict if it should find that the stolen cattle had been recently found in the possession of the defendant, without explanation on his part. In fact, the instruction tells the jury that the finding of such fact does not make it the imperative duty of the jury to find the defendant guilty. The court has no right to tell the jury what ¡effect it should give the evidence, and it did not do so in this case.
On the other hand, instead of pointing out what inferences the jury should draw from particular facts or circumstances, it left the whole matter of the guilt or innocence of the defendant to the jury, and left the jury free to draw whatever inference it should see fit from the fact that it might find that the stolen cattle were found in the possession of the defendant soon after the larceny was committed, without explanation on his part. Spivey v. State, 133 Ark. 314, and Pearrow v. State, 146 Ark. 182.”

See also Johnson v. State, 190 Ark. 979, 82 S.W. 2d 521.

Appellant’s third point is without merit. No objection was made to the entry of the judgment or the penitentiary commitment thereon nor was this point presented to the trial court in a motion for a new trial. The rule is well settled that “no issue can be raised in this court which was not raised in the trial court . . .” Gulley v. Budd, 209 Ark. 23, 189 S.W. 2d 385.

Affirmed.

Fogleman, J., disqualified and not participating.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice.

text:
    Arkansas State Highway Commission v. W. D. Davis, et al
    5-4692
    434 S.W. 2d 605
    Opinion Delivered December 16, 1968

      Thomas B. Keys and Virginia Tackett for appellant.

      Graves & Graves for appellees.
   Carleton Harris, Chief Justice.

This case involves a condemnation by tbe Arkansas State Highway Commission of 3.37 acres out of two tracts comprising 97 acres of land owned by appellees, W. D. Davis and wife, Yera Davis. A Hempstead County jury found that appellees were entitled to compensation in the amount of $18,000, and from a judgment entered in that amount, appellant brings this appeal. For reversal, two points are relied upon, which we proceed to discuss.

The principal item of damage contended for by appellees relates to the value of six commercial egg layer houses, located on land not taken, which appellees contend are now without value (except for salvage), because of the proximity of the new Interstate Highway No. 30. Evidence was offered on behalf of appellees that their contract with Corn Belt Hatcheries, under whiph contract they were furnished layers by the company, had been cancelled because of the construction. It is asserted by appellant that the evidence offered by appellee was speculative, and that no facts were shown which justified the award made. It is also contended that the Circuit Court erred in refusing to admit testimony about the sale of dirt by appellees to appellants’ contractor, such dirt being taken from a strip of the condemned land, which was land-locked.

The evidence reflects that in 1958, appellees entered into a contract with Delight Egg Farms, owned by Corn Belt Hatcheries, to produce eggs for Delight. The layers were placed with the Davises, and the contract remained in force until May of 1967. To house the flock, six chicken houses were built, and these were valued by appraisers at the time of the taking as worth approximately $20,000.00. Wayne Russell, manager of Delight Egg Farms since April, 1957, testified that the company felt that it could not renew the contract after learning that the new highway would be constructed, and after making an investigation of how this would affect the Davis operation. He stated that he met with one of the highway officials who had a plat giving the approximate location of the highway, this plat showing the proximity of the laying houses to the interchange during construction and after. He said that the interstate highway was too close to these houses for the program (commercial layers) to be successful:

“We made our decision based on the past knowledge that we have concerning what constitutes a good situation as far as our placing birds in an environment that would at least give us an even break, or an even chance to come out. Our business, like Mr. Davis’, is production, and our income off of our birds is eggs, and it’s a mighty fine line between making profit and realize loss. And it’s our considered opinion, and we exercised that opinion, by advising Mr. Davis that we would not place birds with him beyond the termination of the existing flock, and we have followed through on that decision by withdrawing our contract agreement with Mr. Davis.”

lie testified that the layers were affected by noise and light, and that the lights of vehicles, as they left the Hope highway and turned onto the ramp leading to the interstate highway, would shine directly toward the poultry house. In explaining the effect upon the birds, Mr. Bussell said:

‘ ‘ These birds are bred for high production, and when I say high production, I am talking in terms of a national average from the commercial egg industry, and is probably in the realm of 220 eggs per hen house. And our program is at least as good as the national average, I suspect. Being bred for such high production carries with it some characteristics, or traits, of the general breed of bird, not ours only but other birds — other breeds, as well, that makes them highly susceptible to conditions that we might consider to be normal, but yet to birds are highly abnormal. Sudden light, sudden noise, commotion, the activity around a poultry house is best held to a minimum. I believe I heard Mr. Davis testify that even a stranger coming into the poultry house could produce an adverse effect. This is true. I find it my responsibility to visit poultry farms that we are involved in, and from personal experience I know that even myself walking down through the poultry house, regardless of the style or type, produces the same reaction from the birds.
“They are extremely fractions type livestock, and they will seemingly try to take the roof off the building, and this activity, or excess activity, around the birds, or in the chicken house itself, is detrimental to production. It will almost always produce a drop in production, and if it were allowed to run rampant, it could certainly produce a disastrous experience as far as production is concerned. ’ ’

He compared the difference between this highly bred strain of layers and the barnyard hen to the difference between a race horse and a plow horse. Davis indicated that cannibalism (whereby these birds use their beaks to pull feathers and eat themselves and other birds) is related to, or at least aggravated by, sudden noises and sudden lights. In his opinion the chicken houses were of no further value. The witness stated that the facility could not be used for heavy breeders, because there were not enough houses, and the houses were not large enough.

Russell said that Davis’ operation had been satisfactory, though he indicated that, had the contract been continued, the company would have required some improvements in the layer houses. This was the only witness offered by Davis relative to the commercial layer project being destroyed by the building of the highway (thus making his houses worthless), and we think the evidence falls short of establishing this contention.

For instance, though stating that the lights would point directly at the houses, Mr. Russell did not go to the point where, in turning, vehicles would allegedly shine their lights toward the houses; he did not know the distance from the houses to this point,' nor did he make any experiments with actual noise and light. He only reached his conclusions from a sketch which was not drawn to scale; in other words, he did not actually know for' a fact that the lights would shine into the chicken houses. There was also testimony by one of appellant’s witnesses that there were obstructions between the ramp and the chicken houses that would prevent the lights hitting them; the main lanes and the referred to ramp of the interchange will be constructed at distances of 250 to 450 feet from the chicken houses. Mr. Bussell’s testimony loses much of its value when it is shown that he has no personal knowledge of the matters mentioned in this paragraph. Of course, there is no direct evidence that the hens stopped laying*, since the last birds were moved from the farm in May, 1967, but neither is there specific evidence of losses suffered in other similar operations where layers were subjected to unusual noise and flashing lights.

It might also be mentioned, as far as noise is concerned, that the ITope-Nashville highway has run parallel to a part of this property for a long period of years, in some places as close as the ramp which leads to the interstate highway (and much closer than the interstate highway itself), and apparently the noise had no effect. We recognize that there is more travel on an interstate highway, but we think the fact that some of the houses have always been near to a well traveled highway has some pertinence.

There is no testimony that appellees tried to obtain a flock from some other company, or that the possibility of erecting artificial barriers to prevent light from shining into the houses was considered.

We think that, as the matter now stands, the evidence was too much based on conjecture and speculation ; on the other hand, the evidence offered by appellant was not satisfactory on this point. 'Two appraisers testified for the Highway Department, one stating that he had farmed most of his life, and was familiar with the chicken industry from observation and talking to people in other areas. However, the witness had never raised chickens, except when he was in 4-H Club work. It would not appear that either of these witnesses could be classed as experts with regard to commercial layers, though the record does indicate that there were experts in the general area (so regarded by both sides) who were not called upon to testify.

For the reasons herein set out, the judgment will be reversed, and the cause remanded, which will afford an opportunity for the parties to present more positive and more explicit evidence relative to the issue of whether the Davises’ commercial laying houses are now a total loss because of the proximity of the new interstate highway.

We think it well to pass upon appellant’s second point, since this question might also arise in a retrial of the case.

The condemnation of a part of the land desired left 18 acres belonging to appellees south of the interstate completely severed from the main portion of appellees’ lands, which are located north of the interstate. This 18 acres is “landlocked.” Davis testified that this acreage was “pasture land,” but it was of no use to him, because “there is no way I can get to it.” Counsel for appellants closely examined Mr. Davis relative to any other use being made of this landlocked area, and the witness replied, “I don’t know of any use. I don’t know of anything I could use it for.” After several questions were overruled, the court went into chambers for the purpose of making a record. At that time, Davis was asked if he had a contract with the Freeto Construction Company for the sale of dirt. He answered in the affirmative, and was then asked if the contract provided that Freeto would buy no less than 300,-000 cubic yards of dirt at a royalty of $.04 per cubic yard. Again, the reply was in the affirmative. An offer of proof was made that a miminum of $12,000.00 income from this landlocked area would be received by this appellee, and further, that the contract was entered into approximately six months after the declaration of taking. The court held the evidence inadmissible, and it is argued that this ruling constituted error.

It is the contention of the department that the value of Davis’ property was actually enhanced by the taking, for the reason that Freeto entered into this contract solely because of the close proximity of this 18 acres to the site where the highway was being constructed. “We have held that where a public use for which a portion of a landowner’s land is taken so enhances the value of the remainder as to make it of greater value than the whole before the taking, the owner has received just compensation for his property in benefits; also, we have held that the benefits which will be considered must be those which are local, peculiar, and special to the owner, i.e., benefits not enjoyed by the general public. McMahan v. Carroll County, 238 Ark. 812, 384 S.W. 2d 488. Though the amount received in the contract is not as great as the value of the entire acreage before the taking, it is argued that a special benefit to appellees was created by the condemnation which should have been considered by the jury. "We disagree, for the special benefit referred to in our cases is the benefit accruing to the property owner from the completed highway, i.e., a benefit from the Improvement. Ark. Stat. Ann. § 76-521 (Rep-1. 1957); Herndon v. Pulaski County, 196 Ark. 284, 117 S.W. 2d 1051. Also, the value of the dirt on this 18 acres was not occasioned by the fact that a part of Davis’ lands was condemned; if the condemned land had belonged to a third party (and Davis had only owned this 18 acres) the dirt would have been just as close to the site, and would have had just as much value for contract pur poses. The construction of the interstate highway is the circumstance that created the value. There may well be other landowners in the vicinity whose lands have not been condemned, but who also can sell dirt to the contractor because of the location of their properties.

In the court below, in seeking a new trial, appellant argued that this testimony was admissible as going to the credibility of Davis after the latter stated that he did not know of any use for the land. This particular point was not argued here for reversal, since it did not occur during the trial itself, though appellant’s brief submitted to the trial court, at the time of filing his motion, is included in the abstract filed in this court. Had this reason for admitting the testimony been advanced to the court during the trial, it would have been admissible for that purpose, and should the same, or a similar situation, arise in a new trial, the sale of the dirt to the contractor is entirely pertinent as affecting the credibility of Davis.

Because, as set out under the first point, the evidence was conjectural and speculative, the judgment is reversed, and the cause remanded.

It is so ordered.

Fogleman, J., concurs in part and dissents in part.

John A. Fogleman, Justice.

I am persuaded that the reversal of the judgment in this case is required for want of substantial evidence to remove the determination of just compensation from the realm of speculation and conjecture as to the availability of the residual property for the poultry business theretofore conducted thereon.

I dissent, however, from that part of the court’s opinion relating to the examination of W. D. Davis with reference to his contract for the sale of fill dirt. I agree that the testimony was not admissible to show special benefits to appellees as a result of the taking. The point on which appellant relies is:

“The Trial Court erred in refusing to admit testimony as to the sale of dirt by appellees to appellant ’s contractor. ’ ’

Appellant relates an offer of proof of a contract between appellees and a contractor constructing a part of the highway for the sale of not less than 300,000 cubic yards of dirt at four cents per cubic yard, or $12,000, or more. The entire argument made here has to do with appellant’s contention that the contract showed that special benefits accrued to appellees’ residual lands by reason of the taking. Not one word of that argument has anything to do with the credibility of W. D. Davis or the weight to be given to his testimony. Matters not argued here are deemed waived. Gordon v. Street Imp. Dist. No. 1 of Gillett, 242 Ark. 599, 414 S.W. 2d 628.

In spite of this, the majority undertake to justify the admission of the rejected evidence. Nothing whatever was said by Mr. Davis on direct examination about the value of his land, either before or after the taking. Furthermore, nothing was said by him, on direct examination, about the use to which his remaining land could be put. He did say that it could not be used in the poultry business. The matter appellant sought to inject had nothing whatever to do with impeachment of Mr. Davis or with his credibility or the weight to be given to his testimony. On cross-examination, Davis did respond that he could not get to the 18-acre tract south of the highway. Appellant started to ask Davis if he had not used the land for purposes other than pasture, when the trial court sustained an objection by appellees’ attorney for immateriality. Appellant’s attorney argued then, as now, that the testimony went to the enhancement of the property. Appellees’ attorney stated that there was no contention that this property was damaged in any manner other than by being severed. Later, appellant’s attorney, not appellees’, asked Davis his opinion as to the highest and best use of the land after the taking. He stated that since poultry raising was cut out, and the remainder not large enough for a cattle operation, he did not know. In response to a later question as to what he considered to be the highest and best nse of the 18-acre tract after the taking, Davis replied that he could not get to it and it was landlocked.

In making an offer of proof for the record, appellant sought to prove the above mentioned contract entered into some six months after the taking. The court again refused to admit the testimony. Not a word was said by anyone about impeachment, credibility, or weight to be given the testimony. Appellant’s attorney flatly stated that the offer was made simply to place “in the record the amount of profits he has gotten off of dirt off that same portion of land.” Appellant argued in the lower court, as it does here, that testimony of this nature is admissible by authority of City of Little Rock v. Moreland, 231 Ark. 996, 334 S.W. 2d 229. However, that ease has nothing to do with impeachment, credibility, or weight to be given to an owner’s testimony.

The arguments made by appellant are not even suggestive of the propriety of admission of the evidence for the limited purpose stated in the majority opinion or to any limitation of that consideration by admonition to the jury. Be that as it may, points not properly raised in the court below cannot be considered here. Widmer v. Ft. Smith Vehicle & Mach. Co., 244 Ark. 971, 429 S.W. 2d 63; Greiner Mtr. Co. v. Sumpter, 244 Ark. 736, 427 S.W. 2d 8; Insured Lloyds v. Mayo, 244 Ark. 802, 427 S.W. 2d 164; Ingle v. Marked Tree Equip. Co., 244 Ark. 1166, 428 S.W. 2d 286. This rule prohibits consideration of the impropriety of a court’s action upon grounds other than those stated in a specific objection made by an appellant. Industrial Farm Home Gas Co. v. McDonald, 234 Ark. 744, 355 S.W. 2d 174. The specific objection made by appellant waived all other objections. Woods v. Pearce, 230 Ark. 859, 327 S.W. 2d 377; Wagnon v. Barker, 236 Ark. 55, 364 S.W. 2d 314. The basis for admission of the testimony upon which the majority relies, not having been asserted at trial, should be unavailing here. Missouri St. Life Ins. Co. v. Fodrea, 185 Ark. 155, 46 S.W. 2d 638. Any other rule is unfair to the trial court, which has never been presented with the issue or given a chance to rule upon it. This is an appellate court and the issues we can raise are limited largely to questions of jurisdiction, or to matters which support the action of the trial court.

I have been unable to determine how the majority ever reach this point. It seems odd indeed to say that testimony elicited by appellant from its adversary on matters not covered on direct examination opens the gate to it to bring otherwise inadmissible and prejudicial testimony through the back way. This statement of the matter seems to me to be quite unfair to appellees, who have never had an opportunity to meet this argument either in the trial court or here. Appellees’ attorney might well have argued that the trial court should exercise its discretion to limit the cross-examination of the owner so as to exclude the matters appellant sought to show. See, 5 Nichols on Eminent Domain, 3d Ed., 277, S. 18, 45 [2], This might result in exclusion of the price to have been paid for the dirt to be sold from the land, or of the quantity to be sold, or of all facts pertaining to the contract. Conceivably, there would be other arguments which do not come to mind upon abstract consideration, but which would readily occur to an able advocate faced with the question. It is significant to me that the majority were unable to (or at least did not) cite a single authority for its ruling on this point.

A motion for new trial should not be made a vehicle for decision of questions not properly presented during the trial. It has long been the rule in this state that objections not made in the course of the trial cannot be set out for the first time in a motion for new trial. Mills v. Robertson, 201 Ark. 170, 144 S.W. 2d 731; Haley v. Brewer, 220 Ark. 637, 249 S.W. 2d 128.

I am aware of, and subscribe to, this court’s practice of deciding questions which might arise upon a retrial ordered on reversal, when that question is properly before the court. I consider the decision of questions either not properly raised in the court below or presented here, as well as those which have been waived by an appellant, to be highly improper. The practice of searching out and deciding all questions which might be said to be presented in a record was long ago rejected by this court in favor of decisions only upon those questions upon which a decision is invoked. Western Clay Drainage Dist. v. Day, 138 Ark. 181, 210 S.W. 338. See, also, Bradley County Road Imp. Districts Nos. 1 & 2 v. Jarratt, 144 Ark. 260, 222 S.W. 14. Upon appeal we can consider only those issues which arose and were decided by the trial court. Carter Truck Line v. Gibson, 195 Ark. 994, 115 S.W. 2d 270. Actually, as an appellate court, we have no jurisdiction to decide questions not decided by the trial court. Sauve v. Ingram, 200 Ark. 1181, 143 S.W. 2d 541.

Even if the point were properly before us, I would not reverse because of it. The circuit court and this court both have held that the evidence was inadmissible to show special benefits. Appellant was quite candid with both the trial court and this one in taking the position that evidence of these “profits” would be taken to show an enhancement in value of the property after the taking. Whether or not offered testimony was admissible as going to the credibility of Davis or the weight to be given to his testimony (which I do not concede), its value for that purpose is so insignificant that it should be excluded because the danger of the jury’s misuse for the incompetent purpose is apparently great. McCormick, Evidence, 136, § 59; Shepard v. United States, 290 U.S. 96, 54 S. Ct. 22, 78 L. Ed. 2d 196; Southwestern Publishing Co. v. Horsey, 230 P. 2d 319 (9th Cir. 1956); State v. Schleigh, 310 P. 2d 341 (Ore. 1957); 29 Am. Jur. 2d 310, Evidence, § 262.

I respectfully submit that tbis question should be reserved until it has arisen, been decided by a trial court, and presented in a manner which, affords tbe advocate for the party against whom the rule would be applied an opportunity to present arguments from tbe perspective of his client.

       The houses could not be moved because of their length: One measured 24 by 132 feet; one, 24 by 612 feet; two, 17 by 123 feet, and two houses (actually, one L-shaped) had a combined footage of 24 by 264.


text:
    Myrl Fanning v. Hembree Oil Company, Inc.
    5-4780
    434 S.W. 2d 822
    Opinion Delivered December 16, 1968

      Pearson & Pearson and Walter R. Niblock for appellant.

      Putman, Davis & Bassett for appellees.
   Lyle Brown, Justice.

This is an appeal from a judgment on a promissory note. The trial court, sitting as a jury, awarded judgment to Hembree Oil Company, Inc., against Myrl Fanning, holding that Fanning signed the note in his personal capacity and not in his capacity as an officer of Razorback Asphalt Co., Inc. The single purpose of the appeal is to test the sufficiency of the evidence to support the verdict.

Several pertinent facts are undisputed. Roy Hembree operated the Hembree Oil Co., Inc., engaging in the oil and gas business. Myrl Fanning and Darrell Winters were incorporated as Razorback Asphalt Co., Inc. Winters was president and Fanning was secretary. They were engaged in the selling and laying of asphalt. Razorback, under prior ownership, had run into financial difficulties and sold the business to Winters and Fanning. At that time, Razorback owed a small balance to Hembree for merchandise. The new owners continued to do business with Hembree. By July 1966, the account exceeded $2000. At that time, Hembree went to Winters and Fanning and demanded a personal note as security for the account as a condition precedent to continued business relations. A note was then and there executed. Darrell Winters signed on the top signature line; and, just above his signature, Razorback’s secretary typed “Razorback Asphalt Co., Inc.” Myrl Fanning signed on the second signature line. No representative capacity of the signers was placed on the note.

Hembree being the successful party, we examine his version of the execution of the note in search of substantial evidence to support the verdict. Because of an outstanding account, Hembree went to see Fanning when Fanning and Winters bought Bazorback; it was then agreed that when Hembree extended credit to Bazorback, he would look to Fanning for payment; and Hembree knew that Winters had no financial rating. Hembree was not aware that Bazorback was a corporation. (The letterheads and billings which are in the record and which came into Hembree’s hands in the regular course of business styled the company “Bazorback Asphalt Co.”; and Bazorback assigned an account receivable to Hembree, and that assignment was not executed in the name of Bazorback, rather it was over the signatures of Winters and Fanning.) When Hembree went to see Fanning and obtained the note in litigation, he asked for a personal note from Fanning; the latter protested signing in his personal capacity; but, nevertheless, he did sign the note. Hembree wanted a note signed personally by Fanning because Hembree felt the signature of Winters would not add anything to Hembree’s security; and Hembree did not know the name, “Bazorback Asphalt Co., Inc.,” had been inserted in the note. At the time the note was signed and delivered, Hembree gave this account:

“the court: State what was said, the conversation.
A. Well, he just didn’t want to sign it. I don’t know, he had always promised me what he would do about paying these bills, but then he just didn’t want to sign it then . . .
Q. Was there anything said then by Mr. Fanning about who was to pay that note1?
A. He said, ‘I will see to it that you get your money.’ ”

After Hembree obtained the note, he extended credit to Bazorback on open account and in substantial amount.

Fanning’s version of the execution of the note was extremely opposite that of Hembree. He was positive that Hembree asked for a personal note “and I told him I would not do that, that I would sign it as a corporation officer only.” He was corroborated by Winters and by Fanning’s secretary.

The single point for reversal is that the judgment in favor of Hembree “is not supported by a preponderance of the evidence”. Determining the preponderance of the evidence is in the province of the trial court. On appeal, we examine the evidence in light of its substantial nature. In doing so, we give the jury finding (or court sitting as a jury) the most favorable conclusion that may be arrived at to support the verdict, as was said in New York Life Ins. Co. v. Weeks, 201 Ark. 1160, 148 S.W. 2d 330 (1941). We do not disturb the finding of fact merely because of contradictions in the testimony and circumstances; we must be able to say there is no reasonable probability that the incident occurred as found by the trial court sitting as a jury. Lumbermens Mutual Ins. Co. v. Cooper, 245 Ark. 81, 431 S.W. 2d 256 (1968).

As we interpret the Uniform Commercial Code, the burden was on Fanning to affirmatively show there was an understanding between him and Hembree that Fanning was signing the note in a representative capacity.

“Unless the instrument clearly indicates that a signature is made in some other capacity it is an indorsement.” Ark. Stat. Ann. ^ 85-3-402 (Add. 1961).
“(2) An authorized representative who signs his own name to an instrument
(al [not here applicable];
(b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.” Ark. Stat. Ann. § 85-3-403 (Add 1961).

In light of the quoted statutes we think the burden was on Fanning to affirmatively show an understanding between him and Hembree that Fanning would not be personally liable on the note. Leahy, Ex’x. v. McManus, 206 A. 2d 688 (Md. 1965). In that case the note bore the stamped name of the corporation; immediately below the stamped name appeared the signatures of McManus and Delauney, without designation of representative capacity. McManus defended on the ground that he signed solely as an officer of the corporation. The court held McManus to be prima facie liable. The case further states that, as between the parties, McManus would not be liable if he affirmatively showed an understanding that he was not to be personally liable.

In addition to the evidence, the trial court made mention of some significant circumstances: A note which bound only Razorback would have been of little value considering its financial condition; after the note ■was signed, Hembree extended substantial credit to Razorback; Hembree had little education and was not a good reader; “Mr. Fanning had a secretary, typewriter, had charge of making out the note and he was perfectly capable of putting president, secretary, or anything he wanted in it, so I can’t ignore that fact.”

Viewing the evidence and circumstances in light of the law and the circumstances we have recited, we find there was substantial -evidence to support the verdict.

Affirmed.