author: Edward P. Jones, Special Justice. John A. Fogleman, Justice,

text:
    William Goodwin TUCKER v. STATE of Arkansas
    CR 76-27
    549 S.W. 2d 285
    Opinion delivered April 25, 1977
    (In Banc)

      Pollard, Cavaneau <3f Hatfield, for appellant.

      Jim Guy Tucker, Atty Gen., by. Jackson Jones, Asst. Atty. Gen., for appellee.
   Edward P. Jones, Special Justice.

William Goodwin Tucker (also known as Billy) age sixteen was convicted of killing his mother and sentenced to ten (10) years imprisonment for second degree murder. His appeal contends that a confession and subsequent admission made by him were not voluntarily obtained.

The evidence indicates that a few minutes after 12:00 a.m. on April 3, 1975, Billy Tucker walked approximately three blocks from a friend’s home in Judsonia, Arkansas to the home of Billy Tucker and bis mother. A short time later he returned to his friend’s home and told the people there that his mother had been killed. Law enforcement authorities were contacted and the investigation reflected that Mrs. Tucker, the mother of Billy Tucker, had been beaten and stabbed to death. During the next two hours Billy Tucker was present at his home with numerous law enforcement officials and was not questioned until approximately 2:00 a.m., when Officer Doug Fogley of the Arkansas State Police arrived at the Tucker home. Officer Fogley advised Billy Tucker of the rights afforded him under the U. S. Constitution and obtained from him a written waiver of those rights. At that time Billy Tucker denied any involvement in the death of his mother.

At approximately 4:00 a.m. the Defendant was placed in a cell in the juvenile section of the jail at Searcy, Arkansas. At approximately 6:00 a.m. Officer Fogley took the Defendant from the cell and fingerprinted and photographed him. A trace metal detection test or TMDT was performed to determine whether or not Defendant’s hands had come into contact with metal.

Following that test Officer Fogley took the Defendant to an office and interrogated him for approximately one hour. During this interrogation, attended only by Officer Fogley and the Defendant, Officer Fogley purposely created, according to his own testimony, a friendly relationship with the Defendant. The Officer advised the Defendant that the trace metal detection test indicated that the Defendant’s hands had come in contact with metal objects during the preceding hours and further advised the Defendant that a latent fingerprint had been found on broken glass near the body of the deceased and that the print would probably turn out to be Defendant’s. It is clear that the purpose of advising the Defendant of the metal test results and the fingerprint was to create the impression with the Defendant that physical evidence existed proving his involvement and guilt. At this interrogation of Billy Tucker, Officer Fogley knew but did not tell the Defendant that the metal test was by no means conclusive evidence that the Defendant had stabbed his mother. He also knew but did not advise the Defendant that the print found on the glass piece was only a partial print and probably could not be determined to belong to the Defendant. It is interesting to note that even if the print had been Defendant’s it also would not have been convincing evidence as to the guilt of the Defendant since the Defendant lived in the house and could easily have touched the glass other than while killing Mrs. Tucker.

Officer Fogley then described to the Defendant his theory of how the crime was committed by the Defendant. Thereafter Defendant indicated that he desired to make a statement and after a witness in addition to Officer Fogley was present the Defendant Billy Tucker admitted the killing of his mother and further described two knives used. After giving this statement the Defendant accompanied the officers to the kitchen of the Tucker home and indicated to the officers the two knives involved.

Billy Tucker was sixteen years of age at the time of his confession and age is a factor to be considered by this Court in determining the voluntariness of a confession.

The Defendant was living with his mother in Judsonia, but his father, William A. Cook, was living in North Little Rock, Arkansas. After hearing of the death of Mrs. Tucker the father traveled from North Little Rock to Judsonia and talked with his son prior to the time Billy Tucker was taken to jail. Mr. Cook testified that he was not aware that Billy was a suspect and also was not aware that he was taken to jail until after the confession was made by his son. He spoke to Officer Fogley at the scene of the crime but did not advise the Officer that he did not want the Officer to speak to his son nor did he make any effort to secure the services of an attorney for his son.

The Defendant did poorly in school. There is substantial evidence in the record as to the mental capabilities and capacity of Billy Tucker.

These three factors, namely, age, lack of a parent or some other adult present during interrogation of the Defendant, and the mental capability of the Defendant are all relevant and are important circumstances surrounding the confession of this Defendant.

The other events which are relevant to the voluntariness of the confession concern what occurred following the death of Mrs. Tucker. Defendant urges that the explanation of Constitutional rights and subsequent waiver thereof occurred in an atmosphere of “noise, confusion and milling about by persons not directly connected with investigation of the crime”. He submits that he was impaired by a lack of sleep and that the interrogation which occurred at 6:00 a.m. in the morning was unjustified. Defendant also contends that no voluntary confession occurred because of the length of the interrogation, the false friendly relationship created by the interrogating officer and the trickery and false statements made to the Defendant by the officer.

Undoubtedly, the atmosphere and scene at the Tucker home during the initial investigation of the death and questioning of the Defendant were not ideal circumstances for the interrogation of a witness. However, there is no evidence in this record that the Defendant was not able to hear and understand his rights as they were explained to him or that he did not understand and intelligently waive these rights. As previously mentioned, Defendant at that time denied any involvement in the crime.

it may be true that Defendant was tired from lack of sleep at 6:00 a.m. on April 3, 1975 when the confession was made. But we cannot conclude and the evidence does not indicate that the interrogation of approximately one hour caused truthfulness to be compromised by fatique.

Defendant urges that the several factors set forth above constitute a “totality of circumstances surrounding the confession”, which, when considered together, render this confession and subsequent admissions involuntary. This appeal argues that when all circumstances relating to his confession are examined the conclusion must be reached that the State has failed in its burden of showing a knowing and intelligent waiver of Defendant’s right to counsel and right to remain silent under the principles set forth in Miranda v. Arizona, 384 U.S. 470 (1966). The Defendant contends that allowing the confession and subsequent admission concerning the two knives into evidence was error.

The right of an individual to remain silent and to have available the assistance of counsel is well established. When an in-custody confession is obtained and the voluntariness of a confession challenged we make an independent determination of the issue from a review of the entire record and in making such a review look to the totality of the circumstances surrounding the confession. However, we will not set aside the finding of voluntariness by the trial court unless the finding is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 514 (1974).

In Moseley v. State, 246 Ark. 358, 438 S.W. 2d 311, we concluded that youth of a defendant does not prevent the giving of voluntary confession or the intelligent, knowing waiver of his Constitutional rights. In Shepherd v. State, 239 Ark. 785, 394 S.W. 2d 624 cert. den., 387 U.S. 923, 87 S. Ct. 2038, 18 L. Ed. 2d 977; Dewin v. State, 114 Ark. 472, 170 S.W. 582; and Mitchell v. State, 206 Ark. 149, 174 S.W. 2d 241, lack of education standing alone has been held insufficient to establish that a confession or waiver of rights was involuntary. Although some states require a parent, counsel or guardian present when a juvenile is questioned, such a requirement does not exist in Arkansas. Moseley v. State, supra. Therefore, although relevant, the evidence regarding age, mental capability and lack of adult protection is not persuasive to find an involuntary confession.

The crucial aspects of this case and certainly the two matters which have been most emphatically argued by this Defendant concern the relationship between Defendant and Officer Fogley created and cultivated by Officer Fogley and the statements made by Officer Fogley to the. Defendant concerning fingerprints and the trace metal detector test. It is asserted that these two elements, coupled with the events previously discussed above, bring into being a “totality of circumstances” rendering the confession involuntary. We do not agree with this conclusion.

Officer Fogley testified that after fingerprinting and photographing the Defendant and conducting the metal test he took the Defendant to his office and they talked together alone for one hour prior to the confession. That scene is described by Officer Fogley and in essence substantiated by the testimony of Defendant. Officer Fogley attempted to gain the confidence of the Defendant. He described his relationship with Defendant as that of a “dutch uncle.” He stated that he attempted to “love him to death,” and that the information concerning the fingerprints and the metal test were probably a “ruse” and “con. ” This friendly relationship is seen by Defendant in his appeal as creating a notion in the mind of Defendant that by making a confession he could expect leniency and that the fingerprint and metal detection information was a trick or artifice which violates notions of fair play and which are impermissible in Arkansas. He cites as authority Brown v. State, 198 Ark. 921, 132 S.W. 2d 15 (1939). As a review of that case will show, the Defendant in Brown was clearly subjected to duress and coerced into making the purported confession. Such simply did not occur with the Defendant here, Billy Tucker. Limitations on the use of trickery and deceit by law enforcement officers have been considered by the United States Supreme Court as well as by courts of other jurisdictions. In Frazier v. Cupp, 394 U.S. 734 (1969), the opinion by Justice Marshall stated:

“After the questioning had begun and after a few routine facts were ascertained, petitioner was questioned briefly about the location of his Marine uniform. He was next asked where he was on the night in question. Although he admitted that he was with his cousin Rawls, he denied being with any third person. Then petitioner was given a somewhat abbreviated description of his Constitutional rights. He was told that he could have an attorney if he wanted one and that anything he said could be used against him at trial. Questioning thereafter became somewhat more vigorous, but petitioner continued to deny being with anyone but Rawls. At this point, the officer questioning petitioner told him, falsely, that Rawls had been brought in and that he had confessed. Petitioner still was reluctant to talk, but after the officer sympathetically suggested that the victim had started a fight by making homosexual advances, petitioner began to spill out his story. Shortly after he began he again showed signs of reluctance and said, ‘I think I had better get a lawyer before I talk any more. I am going to get into trouble more than I am in now.’ The officer replied simply, ‘You can’t be in any more trouble than you are in now,’ and the questioning session proceeded. A full confession was obtained and, after further warnings, a written version was signed.” (Emphasis added.)

The Court concluded:

“The fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible.”

In the case of Moore v. Hopper, 389 F. Supp. 931 (M.D. Ga. 1974) the court was asked to determine whether or not a false statement to an accused by a law enforcement officer that the murder weapon had been obtained, was such fraud, deceit or trickery as to cause a subsequent confession to be inadmissible. There the court concluded that confessions are not inadmissible when obtained by such methods, provided the means employed are not calculated to procure an untrue statement and provided further than the confession is otherwise freely and voluntarily made. See also Moore v. State, 230 Ga. 839, 199 S.E. 2d 243 (1973); Hudson v. State, 153 Ga. 695, 113 S.E. 519.

Therefore, we conclude that the friendly relationship created by Officer Fogley in this case did not cause a false hope of leniency in this Defendant. Furthermore, we also con-elude that the misleading statements concerning the fingerprint did not prompt or cause Billy Tucker to make an untruthful confession.

In summary, we find that when considering the “totality of circumstances” surrounding the obtaining of the confession of Billy Tucker that the cumulative effect of the particular characteristics of this individual Defendant as well as the events relevant to and surrounding his confession do not constitute duress or coercion. This Defendant was advised of his right to remain silent and his right to counsel but did not choose to avail himself of those opportunities. Actually, his own statement reflects that he was entirely familiar with the procedure of being “given his rights” by police officers, stating that on prior occasions he “wouldn’t doubt” but that his rights had been explained to him more than six times and that he understood them even before they were explained on the occasion in question.

This judgment is affirmed.

Fogleman and Holt, JJ., dissent.

Hickman, J., not participating.

John A. Fogleman, Justice,

dissenting.

I must respectfully dissent from the affirmance of this conviction and the refusal of the court to hold the confession in this case to be involuntary and the subsequent admissions of Billy Tucker the fruit of that poisonous tree. The court has given lip service to the rule first stated in Harris v. State, 244 Ark. 314, 425 S.W. 2d 293, and almost monotonously repeated since then, i.e., that this court makes an independent determination of the voluntariness of a confession from the totality of the circumstances; however, the majority has failed to face up to the “totality of the circumstances,” being content to separately view each circumstance in isolation, as if there were no other circumstances, and say of each, one by one, this did not render the confession involuntary. This was done somewhat like examining a wagon wheel by removing each spoke, one by one, viewing it and saying,“Why, this is not a wheel! ” and repeating the process until all have been removed, examined and discarded because it is not a wheel, and then, viewing the detached rim and exclaiming, “Behold, this is not a wheel, at all; it is only a large hoop!” If instead, the spokes had been inserted in the hub and the rim (each a circumstance), the assembled whole (or totality of the circumstances) would have obviously been a wheel.

If the totality of the circumstances is the test, then we should face up to our responsibility, however distasteful it may seem, and say that this confession was involuntary or frankly say that the “independent determination, based on the totality of the circumstances” is no longer suitable and we will only make an independent determination of voluntariness by examining the circumstances one by one, and if no one circumstance makes a confession involuntary, then voluntary it shall be. The rule of Degler v. State, 257 Ark. 388, 517 S.W. 2d 515, of which I was the prime advocate (Fogleman, J., concurring in Vault v. State, 256 Ark. 343, 507 S.W. 2d 111) was not adopted as a screen behind which the court could shed its responsibility to perform the duty it assumed in Harris. Any such intention is negated by the language of Degler. In Harris, we said that the respect and weight to be accorded to the factual determination by the trial judge cannot be permitted to frustrate the independent responsibility of this court to determine the voluntariness of a confession. I fear the majority has forgotten.

I cannot disagree with the majority in viewing each circumstance in isolation, but when I assemble all the circumstances, their totality can logically result only in a finding that the confession was involuntary. Viewing the totality of the circumstances is no innovation in Arkansas law resulting from a new interpretation of the United States Constitution by the United States Supreme Court. Over sixty years ago, this court said in Dewein v. State, 114 Ark. 472, 170 S.W. 582:

It may be said, also, that in determining whether a confession is voluntary or not the court should look to the whole situation and surrounding of the accused. Hence it is proper to consider his age, the strength or weakness of his intellect, the manner in which he is questioned, the fact he is in jail, and everything connected with his situation. ***

That rule has been followed until today. See Brown v. State, 198 Ark. 920, 132 S.W. 2d 15; Porter v. State, 206 Ark. 758, 177 S.W. 2d 408; Moore v. State, 229 Ark. 335, 315 S.W. 2d 907, cert. den. 358 U.S. 946, 79 S. Ct. 356, 3 L. Ed. 2d 353; Watson v. State, 255 Ark. 631, 501 S.W. 2d 609 and cases cited.

Enumerating each of the circumstances that may constitute a part of the totality is virtually impossible, but we have spoken of critical factors many times. We spoke of many of them in Watson v. Stale, supra, where we said:

Among the factors to be considered in determining this issue are: the age and the intellectual strength or weakness of the defendant, the manner in which he is questioned, the presence or absence of threats of harm or inducements in the form of promises or favor (Dewein v. State, supra; Williams v. State, 69 Ark. 599, 65 S.W. 103; Barnes v. State, 217 Ark. 244, 229 S.W. 2d 484), and the delay between the advice of constitutional rights required by Miranda and the giving of the confession. Summerville v. State, 253 Ark. 16, 484 S.W. 2d 85; Scott v. State, 251 Ark. 918, 475 S.W. 2d 699. Where threats of harm, or promises of favor or benefit are used to wrest a confession, it may be attributed to those influences. Brown v. State, 198 Ark. 920, 132 S.W. 2d 15. In order to be admissible, a confession must be free from official inducement proceeding either from hope of gain or the torture of fear. Bullen v. State, 156 Ark. 148, 245 S.W. 493. Holding out to a simple person that she would be awarded a very light punishment, if she confessed having stolen money, has been held sufficient inducement to make her confession involuntary and its admission into evidence reversible error. Porter v. State, 206 Ark. 758, 177 S.W. 2d 408.

Of course, a defendant’s youth, standing alone, does not prevent his giving a voluntary confession or knowingly waiving his constitutional rights. Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311. But it is a circumstance which is a factor. Neither diminished mental capacity nor lack of education will suffice to render a confession involuntary. Sheppard v. State, 239 Ark. 785, 394 S.W. 2d 624, cert. den. 387 U.S. 923, 87 S. Ct. 2038, 18 L. Ed. 2d 977; Dewein v. State, 114 Ark. 472, 170 S.W. 582; Mitchell v. State, 206 Ark. 149, 174 S.W. 2d 241. But both are circumstances which may be factors. The lack of parental advice is not a prerequisite to a voluntary confession, but is a circumstance to be considered. Length of interrogation will not invalidate a confession. Vaughn v. State, 252 Ark. 505, 479 S.W. 2d 873. But this is another circumstance to be considered. Persistent questioning based upon the interrogating officer’s assumption of the prisoner’s guilt will not make a resulting confession involuntary. Greenwood v. State, 107 Ark. 568, 156 S.W. 427. It can be a significant circumstance. The interrogating officer’s promise to help, if not conditioned upon a confession, will not be sufficient to invalidate a confession. Hargett v. State, 235 Ark. 189, 357 S.W. 2d 533; Crosnoe v. State, 190 Ark. 691, 80 S.W. 2d 625. But it is a pertinent circumstance. Deception by the officer, standing alone, would not invalidate an otherwise voluntary confession, if the means employed are not calculated to procure an untrue statement. Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969); McGee v. State, 451 S.W. 2d 709 (Tenn. Crim. App., 1969). see also, Johnson v. State, 378 S.W. 2d 76 (Tex. Cr. App., 1964). But it is another circumstance to be considered. In Dewein, this court, quoting from Greenwood v. State, supra, 107 Ark. 568, said:

*** Where a confession is obtained from defendant by persistent questioning by officers, but without deception, threat, hope of reward, or inducement of any kind, it is admissible as a voluntary confession.

When we consider the totality of the circumstances, all are relevant. See Kasinger v. State, 234 Ark. 788, 354 S.W. 2d 718, and cases cited. And all are present. And more, too.

Billy was 16 years, 3 months of age, when he confessed. He had been enrolled in school only through the seventh grade, which he had repeated. Even though his IQ score was 99 (average), the composite score of his achievement tests indicated that he had been performing in school only on the fourth grade level, and, significantly, had always ranked low in reading and English. A police officer described him as “a little off.” He apparently had a problem with drugs. His father, a colonel in the National Guard, had never been married to his mother, with whom Billy lived. About midnight, Billy reported to some neighbors that his mother had been killed. He called his father, who lived some miles away. The father did not come then because he did not recognize Billy’s voice and thought the call was an “April Fool” prank. An officer at the scene described Billy as scared, frightened, upset and worried. Billy expressed concern to some of the investigating officers when his father did not arrive. The father came when the coroner called him. The father found Billy distraught and disturbed and tried to “quieten” him down. The father talked with Criminal Investigator Doug Fogley. Thereafter, Billy’s father left and returned home without anyone telling him or his otherwise learning that Billy was a suspect. He did not learn of Billy’s arrest until after Billy’s confession, although he had remained at home until 6:00 a.m., when he went immediately to his office at North Little Rock. He received no calls at either place and called the White County officials after Billy had confessed.

Billy was first questioned at 2:25 a.m. by Officer Fogley who described the interrogation substantially as follows:

He told Billy he wanted to ask him some questions, then stated and explained his rights under the United States Constitution. He told Billy that it was required that he read the rights form to every suspect who is to be questioned. There was quite a lot of milling around by officers and others in the room at the time. After stating appellant’s rights, Fogley took him to a quieter room for interrogation. He recalled that Billy told him that he did not know what happened. He had come home from playing cards and found his mother dead. He said he didn’t know why anybody would kill his mother and he did not know who could have done it. In explaining a bleeding cut on his thumb, Billy told Officer Fogley that he cut his thumb on some glass when he first came in the room and found his mother and that there was glass “all over.” He said he got blood on his clothing when he was checking his mother. When this interrogation was concluded, Fogley told Billy that he probably would want to interview him later.

Billy was taken to the White County jail and placed in the juvenile quarters therein at 4:00 a.m.

After completing his investigation at the scene Officer Fogley went to the jail to see the defendant. He arrived at 6:10 a.m. He fingerprinted and photographed the defendant and then performed a trace metal detection test. Before this test was made, Fogley again advised Billy of his rights. This was done in lay terms from memory without reference to the form used by the officer on other occasions. The officer explained to the defendant what the test would show. After the test was completed, Fogley told Billy that it showed a definite pattern. He also told the defendant that he had found defendant’s fingerprint on some broken glass at the murder scene and asked Billy to explain the results of the test and the fingerprint. (In fact, Fogley had not found a usable print on the broken glass and if he had, it would have been of no value because Billy lived in the house.) Fogley testified that the defendant then said he didn’t know what happened and asked for a cigarette. Fogley gave him a cigarette then proceeded to tell the defendant in detail what he thought had happened and why. Fogley said that prior to that time Billy had refused to tell him anything. Fogley testified that he used his “buddy-buddy” technique on the defendant, talked to him about school, hobbies and pool in order to gain his confidence. He said Billy was very distraught at the time. The evidence shows that in talking to the boy he used a technique which he described as “to love him to death,” and which he said he may have called treating him like a “dutch uncle.” He had also described his technique as a “con.” He said he wanted Billy to feel that “it was not the most terrible, horrible thing.” He referred to the statement about the fingerprint as “a ruse.” Fogley testified to the following conversation with Billy:

“Now isn’t that the way it happened?” and he said, “No, it’s not,” and he said, “What is going to happen to me?” I said, “Billy, I don’t know what is going to happen to you.” I said, “I can’t make any promises.” I said, “I would like to help you,” and at that time he said, “All right, I did it, but I didn’t know I did it when I was out at the house.”

Fogley said that he did discuss with Billy what cooperation could mean to him. He never discussed with Billy the possible punishments for the offense and actually never mentioned punishment at all. He said that he had thereafter interrogated Billy for over an hour before he finally said he was ready to talk.

At 7:25 a.m. Officer Fogley called Sheriff Woodruff to come to the station to witness the defendant’s statement. The officer testified that Billy seemed more relaxed after making the statement. The statement was recorded on a standard form ordinarily used when the subject does not wish to make a statement. The officer had filled it out early in the interview but had put it aside intending to write that the subject did not wish to make a statement at that time. After giving the statement Billy, Fogley and Woodruff went to the defendant’s house, where the crime was committed, and Billy showed them two kitchen knives. The officers claim he told them he had used them in the murder, and then washed and replaced them in a kitchen drawer.

Billy testified that he had no recollection of Fogley’s advising him of his rights during the morning, oe of his making the statement. He did recall that he had asked that he be permitted to call his father, but that his request was denied. He also recalled Fogley reading “something off to him” and asking him “if that was right” and his answering, “Yeah.7 He said he could not remember what was read to him.

In determining whether the finding of the trial judge is clearly against the preponderance of the evidence, we consider many elements. Appropriate considerations to the determination are the age and intellectual strength or weakness of the defendant, the manner in which he is questioned, the presence or absence of inducements in the form of promises or favor, and deprivation of food or sleep. Watson v. State, 255 Ark. 631, 501 S.W. 2d 609; Perkins v. State, 258 Ark. 201, 523 S.W. 2d 191.

The hope of leniency excited by statements by persons in authority is also an important consideration. A confession must be free from the taint of official inducement by the “flattery of hope,” and there must be an absence of any promise of temporal reward or advantage in respect to the charge. Greenwood v. State, supra. Even though an officer makes no express promise to one from whom a confession is sought but specifically states that he has no authority to do so, when an incriminating statement is made by one who is justified in the light of all the circumstances in feeling that there was an implied promise of leniency, conditioned upon a confession, the statement must be held involuntary. Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909; Sullivan v. State, 66 Ark. 506, 51 S.W. 828.

After inspiring confidence, the officer’s assurance that he would like to help Billy might well have been taken by an uncounselled, sleepless, distraught youth of Billy’s mentality as a promise that some advantage might be gained by confessing a crime he had been led to believe was not so serious. In view of the fact that the officer deceived Billy as to the evidence and narrated his version of how the crime was committed, it was reasonable for Billy to believe that the incriminating evidence against him was overwhelming. Fogley’s assumption that Billy was guilty and his manner of letting Billy know that, including the use of a “ruse” to emphasize the belief, is significant, particularly in view of Billy’s youth and mentality. Hardin v. State, 66 Ark. 53, 48 S.W. 904; Porter v. State, 206 Ark. 758, 177 S.W. 2d 408; Brown v. State, 198 Ark. 920, 132 S.W. 2d 15. See also, Sullivan v. State, supra.

In weighing the factors involved here and in determining whether, on the totality of the circumstances, the finding of the trial court must be overturned, we must not forget what we said in Smith v. State, 240 Ark. 726, 401 S.W. 2d 749, viz:

We realize the difficulties encountered by law enforcement officers in cases of this nature, and particularly those officers who have felt it was a part of their duties to solve reported crime. However new guide lines in this field have been announced in recent years by the courts which often present borderline questions, but we feel it our duty to resolve doubtful questions in favor of individual rights and their constitutional safeguards.

Using deception to influence one in custody to make a statement is a critical matter in considering the propriety of the manner of interrogation. Greenwood v. State, supra. Brown v. State, supra. Misrepresentation of facts becomes even more significant, when it is accompanied by not only an amiable, sympathetic and paternal approach but also a constant reminder of the crime and evidence incriminating him. Brown v. State, supra. When I view the totality of the circumstances and apply the precepts of Smith, I can only conclude that the trial judge’s finding was erroneous, because of appellant’s age, his low mentality, his lack of sleep at the time, his distraught condition, the manner in which the advice of his rights was given, the technique used in obtaning the statement by inspiring a false confidence in the interrogator, the use of false statements about the results of the officer’s investigation, the detailed recitation of the officer’s concept of what had happened, the persuasion used to make appellant believe that the crime was not serious, and the lack of guidance or counsel, particularly in the light of the failure of the officer to inform Billy’s father that the boy was suspected.

If we are ready to abandon the independent determination of voluntariness, according appropriate weight and respectful consideration to the findings of the trial judge, in favor of the substantial evidence standard, which would permit resolving all possible reasonable inferences in favor of that finding, I will not protest. See Fogleman, J., concurring, Vault v. State, 256 Ark. 343, 507 S.W. 2d 111. I do object to reaching that result by erosion.

I am authorized to state that Mr. Justice Holt joins in this opinion.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    CITY OF CROSSETT v. Tommie Russell RILES and Wife
    76-394
    549 S.W. 2d 800
    Opinion delivered May 2, 1977
    (Division I)

      Thomas S. Streetman, City Atty., for appellant.

      Switzer, Switzer & Draper, for appellees.
   George Rose Smith, Justice.

This is an action against the city of Crossett for breach of contract, a municipality not being suable in tort.

In 1961 the plaintiffs were living in a home near the city. In order to relieve a flooding problem the city obtained from the plaintiffs an easement, 30 feet wide, for a drainage ditch across the plaintiffs’ land. Through the years the city passively failed to keep the ditch in good repair. In 1975 a heavy rain caused the water in the ditch to overflow and rise to a depth of several inches within the plaintiffs’ house, with extensive property damage.

The plaintiffs brought this action for damages on the theory that the instrument granting the easement imposed upon the city a duty to maintain the ditch so that the plaintiffs’ property would be protected from such damage as that which occurred. The city denied the existence of any such duty. The trial judge considered the written instrument to be ambiguous and submitted its meaning to the jury, which returned a $7,500 verdict for the plaintiffs.

We agree with the city, for either of two alternative reasons. First, we find no real ambiguity in the written agreement. It grants to the city “a right of way and easement for the purpose of constructing, maintaining and repairing a drainage ditch over, across, and through’.’ a 30-foot strip across the plaintiffs’ land. The grantee is given rights of ingress and egress “for the purposes herein contained.” The grantee agrees that in the construction and maintenance bf the ditch no stumps, brush, trees, limbs, or debris shall be placed, piled or moved so as to create a fire hazard, damage any property of property owners in the vicinity, or otherwise damage nearby standing trees. The grantee agrees to indemnify, defend, and hold harmless the grantors against claims for damages to persons or property arising from acts or omissions of the grantee relating to the construction and maintenance of the drainage ditch.

We can find no language in the instrument, and counsel for the appellees point to none, expressly or impliedly binding the city to construct or maintain or repair the ditch. The instrument is just what its title says, “Grant of Easement.” It is essentially a conveyance by the grantors to the grantee, of certain privileges, with limited protective language in favor of the grantors. Absent any language imposing an affirmative duty of maintenance upon the city, no such duty existed.

Secondly, even if the appellees’ insistence that the instrument is ambiguous be accepted, the proof still does not support the jury’s finding of liability on the part of the city. The parol evidence rule is actually a rule of substantive law. Hoffman v. Late, 222 Ark. 395, 260 S.W. 2d 446 (1953). Under that rule, all antecedent proposals and negotiations are merged into the written contract, which cannot be added to or varied by parol evidence. Rearing v. Crawford, McGregor & Camby Co., 102 Ark. 575, 145 S.W. 266 (1912); Comment, Scope and Operation of the Parol Evidence Rule in Arkansas, 4 Ark. L. Rev. 168, 169 (1949).

The appellees were allowed (erroneously, we think) to introduce oral evidence of intent, but even that evidence does not sustain the verdict. The plaintiff Riles was asked if he had any discussion with the mayor, when the contract was signed in 1961, about who would be responsible for the condition of the ditch. Riles answered, “Yes, sir,” but did not say what the discussion was. Even if he had said that the mayor promised to assume responsibility, the testimony would have been inadmissible.

Riles also testified that within five years before the trial he asked the mayor on several occasions to clean out the ditch. On one occasion the mayor answered that the city was “broke,” on another that he had no one to do the job. Such casual conversations, occurring some ten years after the contract was signed, fall short of establishing a new agreement, supported by a consideration, binding the city to maintain the ditch. We find no competent testimony creating an issue of fact with respect to the city’s asserted obligation to maintain the ditch.

The judgment is reversed and the cause dismissed.

We agree. Harris, C.J., and Holt and Roy, JJ.


author: John A. Fogleman, Justice.

text:
    Jesse ELLERSON Jr. v. STATE of Arkansas
    CR 76-219
    549 S.W. 2d 495
    Opinion delivered May 2, 1977
    (Division II)

      Spencer & Spencer, for appellant.

      Bill Clinton, Atty. Gen., by: Terry R. Kirkpatrick, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

This case is an appeal from a revocation of the suspension of a sentence imposed on a plea of guilty, entered on March 7, 1975, to a charge of possession of stolen property. The sentence was for five years less credit for 29 days’ pretrial incarceration. Four and one-half years of the sentence were suspended. On March 26, 1976, appellant was charged with burglary and theft of three chain saws and a gasoline can from the Molnaird Tie Mill. One John L. Green was also charged with this burglary and theft. On May 20, 1976, the prosecuting attorney filed a petition for revocation of the suspension. It was alleged in the petition that the suspension was conditioned upon appellant’s good behavior and that the “facts and circumstances surrounding the charges [of burglary and theft] constitute violations of the conditions of the defendant’s suspended sentence.”

Jack Molnaird, owner o'.' the tie mill and a deputy sheriff, testified that he discovered the burglary and found three Model T-40 chain saws and one gas can were missing and that he later identified the chain saws in the sheriff’s office. He said that he was able to identify them because of his familiarity with them through seeing them every day during the operation of his tie mill; and that he bought 12 of these saws, at least once a year, from a distributor and that he was considered a dealer in them. He had no serial numbers and admitted that it would be difficult to distinguish between two saws subjected to approximately the same use over a period of three to five months. He did point out that one of the saws had a new side piece and a new pull cord. Molnaird said that John L. Green had been employed by him for approximately three or four months on March 23, and 24, and that he questioned Green about the burglary on the morning he discovered it. He testified on cross examination that he first met John Lee Clemons when he sat in on a conversation between Clemons and Deputy Sheriff Camp Middlebrook, in the sheriff’s office the day after the burglary. The conversation concerned Jesse Ellerson and the burglary at the mill. He stated that Clemons had said that he had heard Ellerson and Green talking about some chain saws. Molnaird had heard that Clemons had been an informer for the sheriff’s office and said that a deal was made with Clemons to pay him $50 if he obtained information concerning Jesse Ellerson and the taking of the chain saws. Molnaird left $50 with the detective division and knew that it had been later paid to Clemons.

Green testified that, after he and Ellerson had drunk and gambled at different places in El Dorado, they went to Molnaird’s mill and took the three chain saws and a five gallon gas can, after having pried the lock off the door of the building in which they were kept. He said they put the saws and can in the trunk of his car, took them to Morningstar Road, and hid them in an old camper, refueling the car with the gasoline.

Green said that he had at first taken all the blame, but had been influenced to tell the truth by the remarks of a preacher. Green admitted a previous convictic n of burglary. He also admitted that he had previously said that Ellerson was not involved in this burglary and theft, because Ellerson was afraid that he would get more time than Green. He denied that John Lee Clemons had been with him when the saws were stolen and that he had talked with Clemons about them. He heard a recording of his saying that the saws were hidden on the Southfield road, but did not remember having said that. Green also testified that before the robbery he and Ellerson had played dice or craps at a local club, and that Ellerson had gambled with money.

Middlebrook investigated the burglary after it and the absence of Green from the mill had been reported by Molnaird. Clemons reported to this officer that he had some information about Green and Ellerson, and after Middlebrook arranged for a $50 “tip” for information, Clemons called the deputy and told him to pick up his car, that he had the chain saws in the trunk. When the officer stopped the car it was being driven by Clemons and Ellerson was a passenger. The car was taken to the police station with Clemons driving it. Clemons gave the officers permission to search the vehicle. They did and found the saws later identified by Molnaird. Ellerson was then arrested. Subsequently Green was arrested, but Clemons was not. Green made a confession implicating Ellerson, but exculpating Clemons. Clemons had not previously given information to Middlebrook.

Appellant first argues that he was denied due process of law in that the allegations of the petition for revocation gave inadequate written notice of the claimed violation of the suspension. The language in question is quoted as follows:

“That the facts and circumstances surrounding the above charges are violations of the conditions of Jesse Ellerson, Jr.’s suspended sentence. That based on these violations, the suspended sentence should be revoked, and Jesse Ellerson should be sentenced accordingly.”

This statement was preceded by an allegation that appellant had been charged on March 26, 1976 with the crimes of burglary and theft, by Information No. CR 76-66. We deem the petition sufficient to comply with the requirements of Ark. Stat. Ann. § 41-1209 (2) (Crim. Code, 1976) to meet due process requirements, and to support the trial court’s finding that appellant had committed the burglary and theft as charged by the state. We also note that appellant made no objection to the form and content of the petition for revocation at the time of the hearing, so these arguments are made for the first time on appeal.

Appellant argues that it was error to permit evidence about appellant’s participation in a dice game and that the petition did not specify this ground for revocation of the suspension. We would agree that the petition did not give appellant notice that revocation was sought on this ground. No objection was made to this testimony when it was offered, so appellant can hardly say that he was taken by surprise. Appellant also cross-examined Green about the dice game; and appellant admitted in his own testimony that he had been shooting dice on the evening before the burglary and theft were committed.

The court’s order of revocation constituted a clear and unequivocal finding that it had been established by a preponderance of the evidence that appellant committed the crimes and that the prosecution witnesses were more credible than appellant; but it further included a statement that, from appellant’s own testimony, he had violated the laws of the state by entering into a dice game in a public place and had thereby violated the good behavior terms of his probation. We do not consider that the revocation was based upon the conduct relating to the dice game but that the court merely called attention to the uncontradicted evidence on this score.

Appellant also argues that the court abused its discretion in revoking the suspension. The behavior of the defendant, in such cases as this, is regarded as a question of law for the trial court, and the exercise of its broad discretion in the matter cannot be reviewed in the absence of gross abuse of discretion. Fortner v. State, 255 Ark. 38, 498 S.W. 2d 671; Calloway v. State, 201 Ark. 542, 145 S.W. 2d 353; Jones v. State, 252 Ark. 477, 479 S.W. 2d 548. Of course, it would be an abuse of discretion to revoke a suspension of a sentence arbitrarily without any foundation in fact. Spears v. State, 194 Ark. 836, 109 S.W. 2d 926. Where the decision turns, as it does here, upon the credibility of the witnesses, this court cannot say that there was an abuse of the circuit court’s discretion. The trial court specifically found that the state’s witnesses were the more credible.

We do not agree with appellant that revocation of a suspension for a subsequent crime prior to conviction of that crime is an abuse of discretion in all circumstances. Under the circumstances prevailing, there was not an abuse of discretion. It is true that we have, as appellant points out, referred by way of dictum in Hawkins v. State, 251 Ark. 955, 475 S.W. 2d 887, to the American Bar Association “Standards Relating to Probation” in which it is said that a revocation proceeding based solely on another crime ordinarily should not be initiated prior to the disposition of that charge. It is significant, however, that this standard has not been adopted in Arkansas, in spite of the fact that it was specifically pointed out in 1971 that Arkansas law, as expounded in Gross v. State, 240 Ark. 926, 403 S.W. 2d 75 was contrary to the standard. See, Criminal Procedure: A Survey of Arkansas Law and the American Bar Association Standards, 26 Ark. Law Rev. 169. The decision in Gross, which stated many policy reasons for the Arkansas position remains the law in Arkansas.

Neither the same quality or degree of proof is required for the exercise of the court’s discretion to revoke the suspension of a sentence as is required for a finding of guilt beyond a reasonable doubt. Smith v. State, 241 Ark. 958, 411 S.W. 2d 510. Only a preponderance of the evidence was required for a revocation in this case [see Ark. Stat. Ann. § 41-1208 (4) (Crim. Code, 1976)], but a conviction would have required a finding of guilt beyond a reasonable doubt. The evidence incriminating appellant in a trial on the information charging him would have been based to a great extent upon the testimony of an accomplice and that of an informer, who might have also been an accomplice. (The latter was not a witness at the revocation hearing.)

Failure to corroborate the testimony of these two witnesses might have been fatal in a trial. Appellant asserts, however, that there was an abuse of discretion in that the testimony of the accomplice was not sufficiently corroborated at the revocation hearing. The requirement of corroboration is purely statutory [see Ark. Stat. Ann. § 43-2116 (Repl. 1964)], and it prohibits a felony conviction of an accused upon the uncorroborated testimony of an accomplice. 3 Wharton’s Criminal Evidence, 351, § 645 n. 53; 30 Am. Jur. 2d 327, Evidence § 1151; 23 CJS 82, Criminal Law § 810 (1) a. The statute does not relate to or govern the revocation of a previous suspension of sentence. Moreno v. State, 476 S.W. 2d 684 (Tex. Cr. App., 1972), 51 ALR 3d 684; Dunn v. State, 159 Tex. Cr. R. 520 (1954), 265 S.W. 2d 589. So, the uncorroborated testimony of an accomplice is sufficient basis for the revocation of a suspension of sentence. Hulsey v. State, 447 S.W. 2d 165 (Tex. Cr. App., 1969); Frick v. State, 509 P. 2d 135 (Okia. Cr., 1973). Furthermore, the circumstances surrounding the recovery of the stolen property might be taken as sufficient corroboration.

Otherwise, appellant’s principal attack is on the credibility of Green and is based upon Green’s having made prior conflicting statements and upon Green’s being accorded leniency. These facts were disclosed to the trial judge, and we cannot say that his holding on the question of credibility was erroneous.

We find no error on the points asserted by appellant, so the judgment is affirmed.

We agree. Harris, C.J., and Roy and Hickman, JJ.


text:
    James MATTHEWS v. STATE of Arkansas
    CR 77-7
    549 S.W. 2d 492
    Opinion delivered May 2, 1977
    (In Banc)

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

      Bill Clinton, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant James Matthews was found guilty of burglary and grand larceny. At his trial, a confession was introduced in evidence after the trial judge had held that it was voluntary. The sole point for reversal is the contention that the court erred in so holding.

Appellant contends that his confession in this case was involuntary, not because he was not advised of his rights when he confessed on December 28; 1975, or because the confession was the result of threats, physical force or inducements offered at that time, but because he contends that he was under the influence of coercion some 11 months earlier, when he confessed to a crime for which he was never prosecuted.

Appellant is 21 years of age and reached the ninth grade in school. He was arrested and questioned by Deputy Sheriffs Stan Ledbetter and Cecil Dobbs. Dobbs said that he was out of the room during part of the time the interrogation was conducted and the confession obtained. Matthews testified that he was arrested in January of 1975, taken to the sheriff’s office for the investigation of burglaries and saw Deputy Sheriffs Ledbetter, Pierce and West physically abusing Ricky Hood, who was also being interrogated about these burglaries. He said he saw them pull Hood’s hair and hit him in the stomach and later heard Hood scream when they took him behind closed doors. Matthews said that when he was being interrogated, they pulled his hair and hit him on the back with a blackjack and also used their hands to hit him on the back. He had been arrested about 9:00 p.m. on Monday, confessed about 3:00 p.m. on Wednesday to having taken a CB radio from a car on a roadside and had been released at 5:00 p.m. on the same date, according to his testimony. He was not prosecuted for that crime and never heard about it again. He said that his current confession was induced solely because of what had happened on the previous occasion; that he was afraid of Ledbetter, Dobbs and Pierce, and was afraid that if he did not confess he would be beaten up again.

There was corroboration of the mistreatment of Ricky Hood by Hood and Michael Castleman, then an attorney in the public defender’s office. Hood said that he and Matthews were at the sheriff’s office on the same day and that when Jimmy and two others came out of the interrogation room into which they had been taken one at a time, their hair was “sticking out all over.” Castleman testified about the physical condition and appearance of Hood after having been interrogated on this occasion. The only contradiction of this testimony was by Ledbetter, who denied that he had ever made any threats to Matthews at any time, that he had been in the presence of anyone who did or that he had been present when any member of the sheriff’s office struck Matthews or pulled his hair. He was not sure whether he was present when Ricky Hood was interrogated, but did not see any officers strike him in an effort to get him to make a statement. He could not remember who else was present and did not know whether either Pierce or West was present. He could not remember the date, because Ricky Hood had been brought into the office at different times in connection with different offenses.

The real question presented is whether the state met its burden of proof. In Smith v. State, 254 Ark. 538, 494 S.W. 2d 489, we held that whenever the accused offers testimony that his confession was induced by violence, threats or coercion, then the burden is upon the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence. We held in Smith v. State, 256 Ark. 67, 505 S.W. 2d 504 and Russey & Way v. State, 257 Ark. 570, 519 S.W. 2d 751 that an objection to the absence of officers who participated was not necessary; that an objection to the confession as being involuntary was sufficient to require the state to present all material witnesses or adequately explain their absence. In Northern v. State, 257 Ark. 549, 518 S.W. 2d 482, we held that it was up to the state, not the defendant, to produce the absent witnesses and applied the rule as to the burden on the state. Of course, neither Pierce nor West participated in obtaining the controverted confession.

It is well established that coercion can be accomplished psychologically as well as physically. Whether psychological coercion exists depends upon a weighing of circumstances of pressure against the power of resistance of the confessor. The question may be answered only by reviewing all the circumstances surrounding the confession. Whether a confession subsequent to one obtained by unlawful pressure is voluntary depends upon whether an inference as to the continuing effect of the coercive practices may fairly be drawn from the surrounding circumstances and is determined by a conclusion as to whether the accused, at the time of the second confession, was in possession of mental freedom to confess or deny his suspected participation in a crime. The effect of earlier abuse may be so clear as to forbid any inference other than that the later confession is involuntary. On the other hand, one making a confession which is involuntary is not perpetually disabled from making a voluntary confession after the conditions of abuse have been removed. Lapse of time is an important consideration. See Annot, 1 L. Ed. 2d 1735 (1957); 4 L. Ed. 2d 1833 (1960); 12 L. Ed. 2d 1340 (1965); 16 L. Ed. 2d 1294 (1967); 29 Am. Jur. 2d 595, Evidence § 543; 23 CJS 194, Criminal Law § 817 (10).

We cannot say that the holding of the trial court was clearly against the preponderance of the evidence before it. The question whether the previous incident was too remote to consider in connection with an interrogation about a wholly unrelated crime was a matter for the trial court’s determination after hearing the witnesses and we cannot say that the trial judge erred in that respect. We decline to extend the rule of Smitk, Smith, Russey and Northern to a case where the accused has been at liberty for eleven months after his alleged mistreatment and the interrogation is about a wholly unrelated crime.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    ERWIN, INC. et al v. ARKANSAS LOUISIANA GAS COMPANY
    76-399
    550 S.W. 2d 174
    Opinion delivered May 2, 1977
    (In Banc)
    [Rehearing denied June 6, 1977.]

      Wright, Lindsey & Jennings, for appellants.

      Wayne Boyce and Griffin Smith, for appellee.
   Conley Byrd, Justice.

Following an explosion in Newport, Arkansas the several appellants filed an action against appellee, Arkansas Louisiana Gas Company for damages they allegedly had received. All of the appellants claimed damages in excess of the sums that their insurer Houston General Insurance Company had paid under its policies. After the passage of some time the appellee reached an agreement for settlement of all claims except those of Houston General. The order of settlement reads:

“On Motion of the parties, it appearing to the Court that this cause has been partially compromised and settled, the complaints of all the plaintiffs are hereby dismissed with prejudice EXCEPT THE COMPLAINTS OF THE FOLLOWING PLAINTIFFS WHICH ARE DISMISSED WITH PREJUDICE ONLY AS FOLLOWS:
Plaintiff Dismissal
Erwin, Inc. All claims in excess of
$260.00
The remaining claims of the above-named plaintiffs are not dismissed, but the trial thereof is continued in accordance with the ruling of this Court of July 11, 1975.”

Following the entry of the compromise order, appellee pointed out that Houston General was the real party in interest as to the remaining claims and moved that it have summary judgment on the basis that, since Houston General was not a formal party to the action, its claims were barred by the statute of limitations. The trial court in reliance upon Ark-Homa Foods, Inc. v. Ward, 251 Ark. 662, 473 S.W. 2d 910 (1971) granted appellee’s motion for summary judgment.

We hold that the trial court erred. Ark-Homa Foods, Inc. v. Ward, supra, involved a situation in which the insurance company had paid the total loss and brought the action in the name of the insured for the amount paid out. Here, however, Houston General paid only a portion of appellant’s losses. In that situation we held in McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S.W. 2d 566 (1950), that the insured was the real party in interest and stood in the relation of trustee to the insurer for the amount of the loss it had paid. Under our law, the proper commencement of an action tolls the running of the statute of limitations. King & Houston v. State Bank, 13 Ark. 269 (1853). Consequently, by agreeing to the splitting of the cause of action against it, appellee could not prevent the tolling of the statute of limitation as to Houston General.

While the record indicates that the First National Bank also sued for monies in excess of the amounts paid by Houston General, the briefs indicate that perhaps all of the First National Bank’s claims were covered by insurance. As to this claim, we also deem the affidavits of William R. Wilson and William Overton sufficient to make a factual issue before the Court as to whether there was an agreement between the parties that would estop the appellee from making the assertion here presented. Since there was a factual issue, the trial court erred in granting a motion for summary judgment because the burden was upon the movant for summary judgment to show that there were no factual issues.

Reversed and remanded.

Roy, J., not participating.


text:
    Stephen M. LANGLEY v. STATE of Arkansas
    CR 77-12
    549 S.W. 2d 799
    Opinion delivered May 2, 1977
    (Division II)

      Bob Frazier and Charles G. Vaccaro, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

For reversal of a manslaughter conviction, appellant Stephen M. Langley raises the issues hereinafter discussed.

The undisputed evidence shows that Danny Gossage was killed in the home of appellant with a shot gun held by appellant. The State offered proof that appellant and the decedent were arguing and that appellant to better his position in the argument was pointing the loaded shot gun at decedent. The testimony on the part of appellant was that he got the old shot gun from his bedroom to talk to decedent about how to reblue the gun. Appellant denied that he and decedent were having an argument. He testified that when he started to get up out of the chair to put the gun up, it accidently went off. The proof also shows that the shot gun had gone off on appellant once while squirrel hunting and once while quail hunting. The Criminal Investigator with the Arkansas State Police testified that the gun had a hair trigger and was not safe. Furthermore, a trace metal test showed no trace of metal on appellant’s trigger finger.

Appellant requested an instruction on the lesser included offense of negligent homicide, Ark. Stat. Ann. § 41-1505 (Ark. Grim. Code 1976), which the trial court refused. To sustain the action of the trial court the State takes the position that the evidence does not justify the giving of the instruction on negligent homicide. However, as we view the record, the evidence made a fact issue for the jury. Consequently, the trial court erred in refusing the offered instruction on negligent homicide.

Appellant also complains of an instruction given by the court in the language of Ark. Stat. Ann. § 41-2246 (Repl. 1964) which was repealed by the Arkansas Criminal Code 1976. Because of the error above pointed out, we need not determine whether the objection made was sufficient to raise the issues now argued. However, we do point out for purposes of retrial that the burden of proof in a criminal case is now controlled by Ark. Stat. Ann. § 41-110 (Ark. Crim. Code 1976).

Reversed and remanded.

We agree: Harris, C.J., and Fogleman and Hickman, JJ-


author: Darrell Hickman, Justice.

text:
    Jimmy SMITH, Administrator of the Estate of James Albert SMITH, Deceased v. The GOODYEAR TIRE & RUBBER COMPANY
    76-351
    549 S.W. 2d 798
    Opinion delivered May 2, 1977
    (Division II)

      Murphy & Carlisle, for appellant.

      Erwin L. Davis, for appellee.
   Darrell Hickman, Justice.

This case is an appeal from a summary judgment granted to Goodyear Tire and Rubber Company and its local store against Jimmy Smith, Administrator for the estate of James Albert Smith. The Washington County Circuit Court granted the judgment because the attorney for appellant, Jimmy Smith, Administrator, failed to file a response to the requests for admission of facts within the ten days required by Arkansas law.

Only two issues are raised on appeal. The appellant argues the trial court abused its discretion in granting the judgment because the responses were not timely filed and there remained material facts in dispute.

The facts necessary to make a decision are essentially undisputed. Goodyear filed suit against Smith, Administrator, on a promissory note alleged to have been signed by the deceased, James Albert Smith. Smith filed a motion to quash the summons and service. It was overruled. Smith filed a demurrer and an answer generally denying the allegations of the complaint. Goodyear filed fort-y-six requests for admission of facts on November 12, 1975, attaching to the requests copies of the promissory note, a deed and various certificates of title to vehicles. It is not disputed that the attorney for appellant called the attorney for appellee and stated he would get the answers filed on the 25th of November. They were not filed until November 26th, fourteen days after the requests were filed. Most of the answers to the requests were either “denied” or “unknown — neither denied nor admitted”.

The Arkansas law provides that answers to requests for admission of facts will be filed within ten days from service. Ark. Stats. Ann. § 28-358 (Repl. 1962). The appellant admits that the answers were pot filed within the time period required by the statute, nor were they filed on the date appellant agreed to file them. Furthermore, the appellant did not request from the court additional time to answer. Perhaps more important, the responses to the requests were almost all unresponsive. We have held that where a fact cannot be admitted, the reasons must be set forth in detail. See White River Limestone Products Company v. Mo.-Pac. Railroad Company, 228 Ark. 697, 310 S.W. 2d 3 (1958). If the answers are not responsive, we deem the admissions requested to be admitted. Brown v. Lewis, 231 Ark. 976, 334 S.W. 2d 225 (1960). We have held that the trial court has not abused its discretion by failing to grant summary judgment when requests for admissions have been filed three days late. See Gatlin v. Cooper Tire and Rubber Company, 252 Ark. 839, 481 S.W. 2d 338 (1972). In this case, however, the answers were not only filed late, without good cause, but also they were unresponsive. We cannot say that the trial court abused its discretion in granting the summary judgment.

We have reviewed the record and find no merit to the appellant’s argument that there remain essential facts in dispute.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Byrd, JJ.


author: Darrell Hickman, Justice. George Rose Smith, Justice, John A. Fogleman, Justice,

text:
    Rufus Roland FAULK v. STATE of Arkansas
    GR 77-8
    551 S.W. 2d 194
    Substituted Opinion on Rehearing delivered June 13, 1977
    (In Banc)

      Robert S. Blatt, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Rufus Roland Faulk was charged with forgery, uttering and possession of stolen property in Sebastian County, Arkansas. He waived a jury, was found guilty of uttering, and sentenced to five years in the penitentiary.

Faulk’s argument on appeal only goes to the question of a speedy trial. Faulk argues that he was denied a speedy trial, and the Arkansas law either requires dismissal of the charge or violates the Arkansas and United States Constitutions by denying an individual a speedy trial.

We find that Faulk was not denied a speedy trial, nor is the Arkansas law unconstitutional.

Before the Arkansas Rules of Criminal Procedure were adopted, the right to a speedy trial was governed by statute. See Ark. Stats. Ann. §§ 43-1708 and 43-1709. Since January 1, 1976, Rule 28 of the Rules of Criminal Procedure governs the right of an individual to a speedy trial. The statutes and Rule 28 are both relevant since the time in this case transits both 1975 and 1976. However, before examining the law, the dates and facts in this case should be discussed in detail.

February 11, 1975 Faulk was charged.

March 10, 1975 The information was amended.

April 15, 1975 The case was set and ready for a jury trial. It was continued on the motion of Faulk. Faulk moved to fire his lawyer and asked for a continuance. Both motions were granted.

May 21, 1975 Set for trial June 16th.

May 28, 1975 Faulk made bond.

June 2, 1975 He voluntarily surrendered to the State of Oklahoma.

June 9, 1975 He pleaded guilty in Oklahoma to two charges of unlawful distribution of a controlled substance and was sentenced to two years in the penitentiary.

June, 1975 Sometime prior to June 16th, Faulk filed a lawsuit in the Oklahoma courts to resist the efforts of Arkansas to bring him to trial.

June 13, 1975 Extradition instituted by Arkansas.

June 16, 1975 Trial date.

June 18, 1975 Extradition granted by the State of Oklahoma.

July 11, 1975 Case again set for trial July 14th.

July 14, 1975 Reset for the 21st of July on the motion of the State.

July 21, 1975 Trial date.

July 29, 1975 Oklahoma courts deny Faulk’s request to stop extradition.

September 24, 1976 Case was again set for trial.

October 20, 1976 Faulk found guilty.

in this case, Faulk argues that he was out on bail, three terms of court had run, and, therefore, the charges should be dismissed. We have two Arkansas statutes which govern the facts in this case during 1975. Ark. Stats. Ann. § 43-1708 provides that a person committed to prison must be brought to trial before the end of the second term of court unless the delay happens on the application of the prisoner. Ark. Stats. Ann. § 43-1709 provides that if a person is out on bail, the state must bring the case to trial before the end of the third term of court. In this case, Faulk was in jail in Arkansas during the first term of court, applied for a continuance and it was granted. He was never free on bail because he voluntarily surrendered to the Oklahoma authorities before his second trial date; and, because of his application to the Oklahoma courts, there was another delay. We have distinguished the case of an individual free on bail in this state, or in an Arkansas jail or prison, from the case of an individual in an out-of-state prison. We have held that when a person is in prison in another state for a different crime, that person must affirmatively request a trial in order to activate these statutes and avail himself of its protection. State v. Davidson, 254 Ark. 172, 492 S.W. 2d 246 (1973). In the Davidson case we stated:

However, one incarcerated in an institution of the federal government or that of some other jurisdiction must affirmatively request a trial in order to activate the statute and to avail himself of its protection. Lee v. State, 185 Ark. 253, 47 S.W. 2d 11 (1932). See also, Bedwell v. Circuit Court of Lawrence County, 248 Ark. 866, 454 S.W. 2d 304; Pellegrini v. Wolfe, Judge, 225 Ark. 459, 283 S.W. 2d 162 (1955).

Faulk did not request a trial at any time, and thereby activate the statute.

The Rules of Criminal Procedure, which we adopted January 1, 1976, govern part of the time in question. These rules also recognize that a person free on bail, in jail or prison in Arkansas, or in prison in another state must be treated differently. Essentially, the rules incorporate the two statutes that have been discussed. In computing time in which a prisoner must be brought to trial, certain periods of time are excluded. Rule 28.3 (e) provides any period of delay resulting from the resistance of a prisoner to being returned to this state for trial will be excluded in computing time. In other words, if Faulk resisted return to the State of Arkansas, then the delay occasioned by his resistance, will be excluded in computing the time in which a prisoner must be brought to trial.

We find that Faulk resisted every effort to bring him to trial, both while he was in Arkansas and while he was in the penitentiary in Oklahoma. The first time his case was set for trial, on the date of the trial, he asked the court to permit him to discharge his attorney and grant him a continuance. Both motions were granted. After his case was set for trial the second time, but before the trial date, he voluntarily surrendered to the authorities in Oklahoma, pleaded guilty, and was sentenced to two years in the Oklahoma penitentiary. When Arkansas attempted to extradite him for his second trial date, he filed a lawsuit and resisted all the efforts of Arkansas to bring him to trial.

Faulk argues that if his motion to dismiss the charges because he was denied a speedy trial is not granted as a result of Arkansas laws, then the laws are unconstitutional in violation of the Arkansas and the United States Constitution. We disagree.

The statutes of Arkansas and the rules of Criminal Procedure are designed to insure that individuals who want a speedy trial can have one. Also, they are designed to grant relief where the state neglects to try its cases within a reasonable time as defined by the statutes and rules. However, each case must also be examined for prejudicial factors. The criteria for judging the denial of the right to a speedy trial have been defined by the U.S. Supreme Court and adopted by this Court. See Barker v. Wingo, 407 U.S. 514 (1972), and Curan v. State, 260 Ark. 461, 541 S.W. 2d 923 (1976). We find no evidence of a violation of these criteria in this case. There is no evidence that the defendant asserted his right to a speedy trial at any time, was prejudiced by the length of delay, or that the delay was unreasonable. Faulk did not want a trial, speedy or otherwise. The constitutional right to a speedy trial cannot be a haven gained by legal trickery. It is a constitutional right that is available and enforced where the state fails to pursue a case to the prejudice of a defendant. We do not mean to imply that the representative of the state or the trial court pursued this matter in an urgent manner after the Oklahoma courts denied Faulk’s petition. The record is simply silent regarding any negligence on the part of the state, or the trial court, and the record contains no evidence of any prejudice to Faulk as a result of the delay. We find no merit to any of the arguments of Faulk.

Affirmed.

George Rose Smith and Roy, JJ., concur; Fogleman and Byrd, JJ., dissent.

George Rose Smith, Justice,

concurring.

I join in the majority opinion, but I would also emphasize the last sentence in Rule 28.3 (e) of the Rules of Criminal Procedure (1976), which expressly excludes from the computation of time:

(e) The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial.

When the State knows where the defendant is, he is to be considered unavailable either (a) if his presence for the trial cannot be obtained or (b) if he resists being returned to the state for trial. The two impediments to trial are stated disjunctively; either is sufficient. Alternative (b) cannot mean if the defendant successfully resists being returned or as long as he successfully resists, for those possibilities are already covered by alternative (a). In that restricted view, alternative (b) would add nothing to (a) and would therefore be meaningless. Hence alternative (b) should be taken to mean just what it says, that the defendant is to be considered unavailable if he resists being returned for trial, as this appellant did. By that resistance he declared in a positive way that he did not want a speedy trial in Arkansas. Having taken that stand, he should not be in a position to complain of a delay in his trial without first putting himself on record as asking for a trial. Otherwise he enjoys the contradictory benefits of having avoided a trial by his resistance and at the same time of taking advantage of that resistance to seek a dismissal of the case for want of a speedy trial.

Roy, J., joins in this concurrence.

John A. Fogleman, Justice,

dissenting.

Í respectfully dissent, because I think the majority has not really reached the gist of appellant’s alternative argument. He correctly contends that more than three terms of court elapsed after he was available to the Arkansas authorities for trial. Extradition sought by the State of Arkansas was granted. Appellant’s resistance terminated on July 29, 1975, when appellant’s petition for habeas corpus was denied and the extradition order remained in effect. This was during the June, 1975, term of the Circuit Court of Sebastian County. Faulk was then available to the Arkansas authorities at any time during the remainder of that term and, more importantly, during the ensuing three terms of court, i.e., the October, 1975, term, the February, 1976, term and the June, 1976, term. See Ark. Stat. Ann. § 22-310 (Supp. 1975). The June, 1976 term expired on the first Monday in October, 1976. There was no trial setting prior to October 14 and his trial was not held until October 20. The only step taken by Faulk which could have delayed the trial, after his petition for habeas corpus was denied July 29, 1976, was his motion to dismiss because of a denial of a speedy trial, filed October 6, 1976, after the case had been set for trial on October 14. The period excluded under the Rules of Criminal Procedure ended on July 29, 1975, in my opinion. As I have pointed out, three terms of court commenced and ended between that date and the trial date of October 14, 1976, which was a flay of the fourth term after the excluded period. I find nothing in the speedy, trial rules which mandated a demand for trial by Faulk after he was available to the Arkansas authorities. The record discloses no reason why he could not have been brought to trial during any of the three terms that came and went. The court is, improperly in my opinion, imposing a burden on an accused to show when an excluded period ended. In effect, we are saying that a person available for trial at any time must demand trial or he cannot avail himself of the provisions of our speedy trial rules. This is certainly contrary to the spirit of Holland v. State, 252 Ark. 730, 480 S.W. 2d 597, which I took to end for all time the necessity for such a demand by one available for trial.

1 would reverse the judgment and dismiss the case.

I am authorized to state that Mr. Justice Byrd joins in this opinion.


author: Hardy W. Croxton, Special Justice. Conley Byrd, Justice, Herman L. Hamilton Jr., Special Justice,

text:
    Eleanor W. REID, Annie Mae BANKHEAD, Jean T. GORDON, Kathleen CHERRY, Lena M. BROADWAY, Calvin T. SCRIBNER, Elizabeth McALLESTER, Ruth L. WILLIS, Tommy SIMMONS and Jane MENDEL v. Jimmie “Red” JONES and Nancy J. HALL, Auditor and Treasurer, Respectively, of the State of Arkansas
    76-134
    551 S.W. 2d 191
    Opinion delivered May 2, 1977
    [Supplemental opinion on denial of rehearing June 6, 1977.]

      U. A. Gentry, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Lewis D. Smith, Asst. Atty. Gen., for appellees and cross-appellants.
   Hardy W. Croxton, Special Justice.

This is a taxpayer’s action challenging the constitutionality of Act 101 Oof the General Assembly, 1976, because it is contrary to the terms of Article 5, Section 30 of the Constitution of the State of Arkansas. Article 5, Section 30 provides:

“General and Special Appropriations. The General Appropriation Bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the state; all other appropriations shall be made by separate bills, each embracing but one subject.”

The parties have stipulated that Act 1010 is not an amendment to the General Appropriations Bill and, therefore, the only question before this Court is whether or not Act 1010 contravenes that portion of Section 30 of Article 5 of the Constitution, which requires that all appropriations other than the General Appropriations Bill, shall be made by separate bills embracing but one subject.

The question of bills embracing but one subject has been considered in prior cases. In State v. Sloan, 66 Ark. 575, 53 S.W. 37 (1899), the Court remarked reviewing the constitutional provision that:

“Similar questions have arisen under a clause of the constitutions of many states which declared that no act should relate to more than one subject, and that should be expressed in its title. Under this clause, the courts have uniformly held that the unity of the subject of an act was preserved, and there was no violation of the constitution, so long as the different parts of the act relate, directly or indirectly, to the same general object fairly indicated by its title; and that the unity of object must be looked for in the ultimate end, and not in the details or steps leading to the end; for it is within the province of the legislature to determine and provide what means will contribute to the accomplishment of the general object of an act, and it may include under its title every means convenient or necessary or that might tend to carry into effect the main design, without regard to the secondary objects thereby accomplished.”

The Court went on to say in this case that, “The unity of the subject of an appropriation is not broken by appropriating several sums for its several specific objects, which are necessary or convenient or tend to the accomplishment of one general design, notwithstanding other purposes than the main design may be thereby subserved.”

In the case of Cottrell v. Faubus, 233 Ark. 721, 347 S.W. 2d 52 (1961), this Court struck down an appropriation measure as a contravention of Section 30, Article 5, of the State Constitution. In that case, the appropriation bill in question appropriated the total of $800,000.00 for municipal aid fund making 16 appropriations for construction, improvement and repairs of state agency; another appropriation for District and County livestock shows; another appropriation for salaries of classroom teachers; and five additional appropriations for the construction and improvement of certain state agencies and institutions. The purposes embraced by the act in the Cottrell case, the court remarked, were so disconnected that the Appellees did not even argue that their appropriations were related to the single subject matter, but instead, argued that the act disposed of surplus funds and, therefore, the funds could be the only subject of the bill satisfying a constitutional requirement. Obviously, the Court was correct in that case in holding that the subject matters were not related and that the only consistency was their inconsistency.

It is clear that Act 1010 seeks to defray the necessary expenses of the General Assembly for the 1973 session and for the 1976 extended session of the 70th General Assembly and, as such, is embraced within the unity of the bill and the subject matter to defray the expenses of the members of the General Assembly. The lower court further found that expenses and compensation to attorneys for representing certain Senators in a collateral proceeding and the expenses and compensation to attorneys representing the taxpayers in a collateral proceeding, do not come within the unity of the subject matter of Act 1010 and, therefore, are in contravention of Section 30 of Article 5 of the Constitution of the State of Arkansas. This Court will in no way disturb this finding of the lower court, since the Appellees and Cross-Appellants herein failed to file their Notice of Appeal.

We agree that the separability clause of Act 1010 is valid. Such clauses are treated as evidencing a legislative intent that an express provision found to be unconstitutional should be disregarded without disturbing the remainder of the statute. (Cromwell v. Benson, 285 U.S. 22, 77 L. Ed. 598, 592 S. Ct. 285 [1931]).

Assuming, therefore, that the trial court was correct in holding the aforementioned portion of the act invalid, the remaining portions are complete in themselves and capable of execution.

Affirmed.

Chief Justice Harris, Justice Byrd and Special Justice Hamilton concur.

Holt and Hickman, JJ., not participating.

Conley Byrd, Justice,

concurring.

I agree with the majority opinion, but, had a cross-appeal been filed, would go further and hold the entire act valid.

I am authorized to state that the Chief Justice joins in this concurrence.

Herman L. Hamilton Jr., Special Justice,

concurring. We have reviewed the basic legislative issues in this case on numerous occasions, and in view of prior decisions I agree with the majority here, but because of the manner of appeal feel it necessary to express my view of Act 1010 as a whole.

Act 1010 of 1976 provided (1) for payment of 1976 extended session expenses for the State Senate, (2) for payment of 1973 regular session expenses for the State Senate, and (3) for reimbursement of litigation expenses incurred in determining that the law governing payment of Senate expenses during the 1973 regular session was not constitutional. The trial court held (1) and (2) to be constitutional, but that (3) was not. This appeal was taken by the parties attacking the validity of Act 1010, but no appeal was taken by the proponents of the act. Therefore, that portion of the decree holding the act unconstitutional as to (3) is final, and only the portion of that decree sustaining (1) and (2) is open for review by this Court.

Article 5, Section 30, of our Constitution provides . . . “one subject”. We have construed that to mean a “unity of subject” and that the concept is preserved so long as the different parts of an act relate, directly or indirectly, to the same object. I concur with the majority that items (1) and (2) certainly are within the “unity of subject” concept and should be sustained.

I would go further, however, and state for the record that had the proponents of Act 1010 filed appropriate cross-appeal, on that portion of the trial Court’s decree finding (3) to be unconstitutional, I would reverse that portion of the decree. Although I personally do not approve the idea, in concept, of State tax money paying attorneys’ fees for litigation, we have also held that we cannot upset legislation simply because we would not have so arranged the law, had we been legislating. Hooker v. Parkin, 235 Ark. 218, 357 S.W. 2d 534 (1962). In view of our prior decisions interpreting Article 5, Section 30, I would hold that with (3) properly before this Court, it would also meet the “unity of subject” test of Act 1010.

Supplemental Opinion on Denial of Rehearing delivered June 6, 1977

Rehearing denied.

On petition for rehearing, appellee files copy of notice of cross-appeal which was given in this case on May 3, 1976, and which was apparently mistakenly left out of the record. It is argued that the issue raised on the cross-appeal is of public interest and that the Court should permit appellee and cross-appellant to supplement the original record, adding the notice of gross-appeal which was erroneously omitted. We decline to do so, but add that the majority of the Court are of the view that the chancellor’s holding was entirely correct. Rehearing denied.

Harris, C.J., and Byrd, J., would grant the rehearing.


text:
    Harry BRACE v. John BUSBOON, d/b/a CONCOURS AUTO MARKET
    76-386
    549 S.W. 2d 802
    Opinion delivered May 9, 1977
    (Division Í)

      Blevins & Pierce, by: James W. Stanley, for appellant.

      Matthews, Purtle, Osterloh & Weber, by: Roy Gene Sanders, for appellee.
   George Rose Smith, Justice.

In 1974 the appellee obtained a $3,610 default judgment in Dallas, Texas, against the appellant, a resident of Arkansas. The service of process upon Brace was effected under the Texas long-arm statute. In this suit by the appellee to register the judgment in Arkansas, Brace denied having received notice of the Texas proceeding and questioned the validity of the Texas judgment. This appeal is from a summary judgment holding the Texas judgment to be valid and registering it in Arkansas.

The appellee prefaces his brief with a motion to dismiss the appeal, on the ground that the appellant did not abstract the record as required by our Rule 9. We find appellant’s purported abstract to be wholly deficient; but as Rule 9 (e) states, motions to dismiss the appeal on that ground are not recognized. Instead, as we have explained, if the appellee considers the appellant’s abstract to be deficient, he has the option of supplying the deficiency or leaving it unsupplied. Royster v. Royster, 232 Ark. 684, 339 S.W. 2d 607 (1960). Here the appellee elected to submit a proper abstract, thereby waiving any objection to the defect. (Pursuant to our per curiam order of September 20, 1976, amending Rule 9 [e], the appellee’s attorney has submitted, as an appendix to his brief, certificates showing that his supplemental abstract took three hours to prepare and cost $38.40 to print. An allowance to the appellee of $188.40 will be mgde, to be taxed as costs.)

On the merits, we begin with the basic principle that statutes providing for service of process upon nonresidents must be strictly construed, reasonable notice to the defendant in a lawsuit being essential to due process of law. Kerr v. Greenstein, 213 Ark. 447, 212 S.W. 2d 1 (1948). In Texas, long-arm statutes must be strictly complied with, as a basis for jurisdiction. Scucchi v. Woodruff, 503 S.W. 2d 356 (Tex. Civ. App., 1973); Country Clubs v. Ward, 461 S.W. 2d 651, ref. n. r. e. (Tex. Civ. App., 1970); Aetna Cas. & Sur. Co. v. Dobbs, 416 S.W. 2d 869 (Tex. Civ. App., 1967). The record must affirmatively show that the court had jurisdiction of the defendant’s person. Whitney v. L & L Realty Corp., 500 S.W. 2d 94 (Tex., 1973); Aetna v. Dobbs, supra. The defendant’s actual knowledge of the suit, absent proper service, does not put him in court. Scucchi v. Woodruff, supra.

Under the Texas long-arm statute, a nonresident natural person who engages in business in Texas is deemed to have appointed the Secretary of State as his agent for service in any suit arising out of that business. The plaintiff is required to deliver copies of the process to the Secretary of State, with the name and home address of the defendant. The Secretary of State must then forward to the defendant a copy of the process by registered mail, return receipt requested. Vernon’s Ann. Tex. Stats., Title 42, Art. 2031b (19f>4).

In this case the name and address of the defendant, as furnished to the Secretary of State, were: Harry Brace, 3110 South University, Little Rock, Arkansas. According to the printed postal-department form that was used, a sender of registered mail is offered a choice of four available services. The cheapest one, costing 15 cents, entitles the sender to a return receipt showing only “to whom and date delivered.” An alternative service, costing 65 cents, directs that the registered mail be delivered only to the addressee, with the receipt to be signed by him.

In this instance the sender selected the 15-cent service. The return receipt was signed, “Betty Fleming,” with the date. Thus, when the Texas court entered the default judgment against the defendant, Harry Brace, there was no indication whatever that Brace had received the registered mail or had any reason at all to know that he had been sued in the Texas court. Thus it can hardly be seriously argued that the record affirmatively showed, as required by Texas law, that the court had personal jurisdiction over the defendant.

The trial court, in sustaining the validity of the Texas default judgment, doubtless relied upon the fact that Brace, in this proceeding in Arkansas, admitted, in response to the plaintiff’s requests, that his business address (not his home address, as the Texas statute specifies) was 3110 South University, Little Rock, and that Betty Fleming (who signed the receipt) was an employee of Harry Brace Roman Spa, inc. Even so, the Texas long-arm statute was not strictly complied with, and under Texas law Brace’s actual knowledge of the suit, if that knowledge existed, did not subject him to the personal jurisdiction of the Texas court.

Reversed.

We agree. Harris, C.J., and Holt and Roy, JJ.