author: Darrell Hickman, Justice.

text:
    M. E. RATLIFF v. Allen C. THOMPSON, Jr. et al
    79-275
    590 S.W. 2d 291
    Opinion delivered December 10, 1979
    (In Banc)

      Nance, Nance, Fleming & Wood, by: Stephen K. Wood, and Cotton & Blancett, by: George Blancett, Memphis, Tenn., for appellant.

      Vincent E. Skillman, Jr., oí Skillman & Durrett, by: Jim L. Julian, for appellees.
   Darrell Hickman, Justice.

The only issue on appeal in this case is whether a non-resident of Arkansas, who contracted to buy Arkansas land, is subject to the personal jurisdiction of an Arkansas Court in a foreclosure suit on the land.

This lawsuit involves the sale of land located in Crittenden County, Arkansas. The appellant, M. E. Ratliff, signed a contract to buy the land in November, 1976; in March, 1977, the transaction was closed. However, the named purchaser when the deal was closed was not Ratliff, but the W. D. George Cotton Company, a company in which Ratliff owned half the stock.

Two Mississippi banks held mortgages on the land. When the mortgage obligations were not met, the banks brought a foreclosure action against the seller-appellee, who made the. appellant a third party defendant. The appellant made a special appearance, which he has preserved, to argue that he is not subject to suit in this case in Arkansas. The chancellor held otherwise and we agree with the chancellor’s decision.

It is not disputed that the appellant is a resident of Tennessee, that the negotiations took place in Tennessee, and that the transaction was closed.in Tennessee. The chancellor held that Ratliff had an interest in the land and Arkansas had personal jurisdiction under Ark. Stat. Ann. § 27-2502. That statute reads in part:

C. Personal jurisdiction based upon conduct.
1. A court may exercise personal jurisdiction over,a person, who acts directly or by an agent, as to (cause of action) (claim for relief) arising from the person’s
(e) having an interest in, using, or possessing real property in this State; ...

This part of the statute was held to be constitutional in Bowsher v. Digby, 243 Ark. 799, 422 S.W. 2d 671 (1968). The due process clause of the Fourteenth Amendment to the. United States Constitution requires a defendant have certain minimum contacts with a state before the courts of that state can exercise jurisdiction over him. International Shoe Co. v. Washington, 326 U.S. 310 (1945). We believe the contracts provided for in the part of the statute quoted above are sufficient to justify the exercise of jurisdiction by our courts over causes of action arising out of such contacts. See Krone v. AMI, Inc. 367 F. Supp. 1141 (E.D. Ark. 1973).

The chancellor’s findings were based on conflicting testimony. The appellees offered testimony that because Ratliff was separated from his wife and a divorce action might be filed, the property, contrary to the provisions of the contract, should be placed in some name other than his. At the March closing the papers were changed to show that the W. D. George Cotton Company would be the buyer. The purchase price remained the same. Two witnesses testified that the reason the buyer’s name was changed was because Ratliff might be involved in a divorce action. A lawyer from Mississippi, who was present at the closing, testified as follows:

Q. What I am concerned with, Mr. Freeland, prior to March 4,1977, were the documents or your information or whatever you prepared, was it for M. E. Ratliff, individually, or W. D. George Cotton Company?
A. The contract was between M. E. Ratliff, individually, and Mr. Thompson’s corporations. All of the documents were prepared for M. E. Ratliff, individually.
Q.. Well, what happened about them having to be changed to W. D. George Cotton Company? Were you present when any discussion occurred about this between Mr. Ratliff, Mr. Thompson?
A. On the day of the closing, the morning of the closing
Q. All right, sir.
A. I had the documents prepared for signature by Mr. Ratliff, individually. There was a problem with regard to Mr. Ratliffs wife, whose name, I believe, is La-Donna A. Ratliff. There was a problem as to, whether or not, she would be willing to sign the deed of trust in Tennessee and the mortgage in Arkansas. They were estranged at the time.
Q. Who advised you of that fact?
A. Mr. Ratliff.
Q. All right.
A. And he suggested that —
Q. Now,, who is “he?”
A. Mr. Ratliff suggested that the transaction not be closed in his name, individually, but that it be closed in the name of the W. D. George Cotton Company. And that, as far as I know, was the first time they came into the picture.

Ratliff denied that this was the case. He said his original contract had been abandoned by mutual consent and that he did not suggest the name be changed.

The chancellor, in announcing his findings, said:

. . . But it does appear to the Court that at the time of the execution of the contract by Mr. Ratliff, he became the equitable owner of certain Arkansas realty. That the passing of title to W. D. George Cotton Company, Inc. was done at his request and suggestion. The Court finds there’s never been any abandonment of that contract. And all that has expired subsequent to the execution of that contract was with Mr. Ratliff s knowledge and at his direction.

Therefore, it was simply a question of fact. The chancellor found that Ratliff had an interest in Arkansas realty and that this cause of action arose out of that interest.

On review we look to see if the chancellor’s finding of fact is clearly erroneous. Rules of Civil Procedure, Rule 52. Since we cannot say that the chancellor’s conclusion was erroneous, we affirm the decree.

Affirmed.

Harris, C.J., and Byrd, J., not participating.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Opal NELSON v. Winton Ray NELSON and Ernest NELSON
    79-166
    590 S.W. 2d 293
    Opinion delivered December 10, 1979
    (In Banc)

      Hardin, Jesson & Dawson, for appellant.

      Donald Goodner, for appellees.
   John I. Purtle, Justice.

Appellant was granted a divorce on the ground of general indignities. The bulk of the parties’ real estate holdings was in the name of the husband. The court granted the wife a life estate in one-third of this realty. She was also granted one-third interest in a considerable amount of personal property to which she claimed joint ownership. Her appeal is on the grounds that the court should have found the real and personal property to be jointly owned and she should have received one-half interest in it.

Appellant alleges the court erred in failing to find that the house and lot in the city were owned by the parties subject to an equitable mortgage in favor of the father of the husband; that the other real estate should have been declared joint property; that it was error to give her one-third interest for life in the property alleged to be owned jointly by the parties; that Ark. Stat. Ann. § 34-1214 (Repl. 1962) is unconstitutional; that the court erred in determining ownership of other personal property; that the attorney’s fee allowed to appellant was inadequate; and that appellant should have been awarded alimony. We agree with appellant. that the residence occupied by appellant and appellee was owned by them subject to an equitable mortgage; that the 543-acre farm was joint property; and that the court erred in determining ownership of certain personal property.

Appellant and appellee were married in 1944; they separated in 1977. All of the property, with minor exceptions, was acquired during the marriage. The appellant worked the farm until all the children were grown. During this time she drove a tractor, hauled hay, picked beans, hauled poles, and did general farm type labor in addition to keeping house, preparing meals, and performing all other normal duties of a housewife. After the youngest child was 18, appellant obtained part-time work in the city and later became employed full time as an attendant at the hospital in Waldron. Her salary of about $400 per month was used in the general family operation. The parties were separated for a period of time in 1973 and effected a reconciliation upon the agreement of the appellee-husband to purchase a home for her in town. At that time they were unable to pay cash for a home and it was purchased by Ernest Nelson and occupied by appellant and appellee. During at least part of this time Winton Ray Nelson, the husband, carried insurance and paid taxes on the property in his name. They jointly expended about $9,000 in improving the house in Waldron. They paid no rent to Ernest Nelson, nor did they pay interest or make any payment to him on the purchase of the house. When they were first married, the appellant’s father gave them about 10 head of cattle to start their operation. These cattle, of course, are no longer in existence but they did form the nucleus for starting the cattle business.

Appellee’s mother purchased the 80-acre farm, which was deeded to appellant and appellee after it was paid for from proceeds of the sale of timber from the purchased land. Part of the 543 acres was purchased by Ernest Nelson and subsequently deeded to Winton Ray Nelson only. There is no indication that the husband received an inheritance or other money with which to purchase any of this property. The land, farming equipment, and personal property were acquired through the proceeds of sales of cattle, timber, and other crops raised on the property. Of course, in later years part of the money appellant earned in her outside employment was used for family purposes. Needless to say, no record was kept of how much money each of the parties spent on any particular piece of property. It is undisputed that in the later years of this marriage appellee did most of the farming himself, including raising jackbeans which were the primary source of income for the family. It was appellant who planted the first crop of jackbeans, consisting of one acre. During her outside employment appellant contributed her money to the upkeep of the family and for repairs and improvements to the house on Elm Street.

There is no question but that the chancellor was justified in awarding the wife a divorce on the ground of general indignities. This matter is not argued on appeal and we will not prolong this opinion by setting out the circumstances which justify the wife being awarded the divorce.

We first consider the property located at 815 Elm Street in Waldron, Arkansas. The trial court found this property was owned by Ernest Nelson. Title to the property was taken in the name of Ernest Nelson. However, it was Winton Ray and Opal who located the property and subsequently had Ernest purchase it. After the house was purchased, either Ernest or Winton Nelson prepared a note to be signed by appellant and appellee. Appellant refused to sign the note because she felt she had been promised a house in town if she would resume her marital relationship with appellee. She testified that her husband told her the house was theirs at the time they moved in. They continued to live in this house until the separation. Appellant still occupies the house at this time. After taking possession, they remodeled the house which included bricking the outside, repaneling the inside, laying carpet inside the house, replacing the roof, and other repairs. Part of the remodeling money came from appellant’s outside employment and part of it came from the sale of timber on the 543 acres of land which is in appellee’s name. None of the improvement costs were paid by Ernest Nelson.

At the trial Ernest Nelson testified that a $7,000 note was prepared for the signature of the parties and that is what he.expected them to pay for the house. He had expected to receive $650 down payment and allow the balance of $7,000 to be paid out over a period of time. He stated he did not intend to charge any interest although the note mentioned 7%. The note was set up for annual payments of $500 commencing in March of 1974. He further acknowledged that he knew Winton and Opal were making improvements on the property at the time the improvements were being completed. Ernest Nelson lent money to his son on other occasions for the purpose of purchasing real estate and cattle. Usually title had been taken in the father’s name until the loan was repaid. Title was then transferred to the son. Win-ton Ray Nelson’s mother had loaned him money to purchase the 80-acre tract of land and when it was repaid, from the sale of timber, she deeded it to Winton Ray and Opal Nelson. The father paid for a portion of the 543 acres and held the title in his name until the loan was repaid, at which time he executed a deed to his son. The father further stated he did not change the insurance on the Elm Street property into his name until the divorce action was filed. He further admitted telling the insurance agent he was selling the Elm Street property to Winton Ray and Opal Nelson. Appellee admitted that while he and his wife were separated in 1973 she told him that if he would buy her a home in town she would come back to him.. He then located the Elm Street property and agreed to purchase it. He did not have the money to pay for it but did persuade his father to buy it. He stated: “We put the deed in his name because he did the paying.” He further stated the transaction was not completed because his- wife would not sign the papers. He also admitted paying the taxes and insurance at least a part of the time after its purchase. Appellee testified his father would have deeded the property to him at any time he paid his father $7,500.

It is well established that a court of equity will treat a deed, absolute in form, as a mortgage when it is executed for the loan of money or as security for a debt. A court of chancery is authorized to determine the real character of the transaction by the use of any competent evidence, either oral or written, which tends to show the true character of the instrument. Before a deed, absolute in form, may be declared a mortgage the evidence must be clear, unequivocal and convincing. In other words, the evidence must show the transaction was intended as a mortgage and this proof must be such as to satisfy a reasonable mind without hesitation. Grimes v. Evans, 225 Ark. 770, 285 S.W. 2d 510 (1956); Ehrlich v. Castleberry, 227 Ark. 426, 299 S.W. 2d 38 (1957); and Dixon v. Dixon, 210 Ark. 647, 197 S.W. 2d 43 (1946). When wé consider, in the present case, that appellant and appellee went into possession of the property, paid insurance and taxes, made extensive repairs and remodeled the house, paid no rent to the holder of the title, and it was a condition of reconciliation, we have no hesitancy in finding this instrument was an equitable mortgage. We find this to be established by clear, cogent and convincing evidence. Sturgis v. Hughes, 206 Ark. 946, 178 S.W. 2d 236 (1944).

We next consider the ownership of the 543-acre farm. We have long held that a court has a right to divide property acquired through the joint efforts of the parties on an equitable basis. Stephens v. Stephens, 226 Ark. 219, 288 S.W. 2d 957 (1956). When the parties were married they did not own this property. It was acquired, during the marriage, through the joint efforts of the parties. We are not required to make a determination as to whether more money or effort was expended on the part of one party or the other in reaching this conclusion. For about 18 years all of the efforts of both parties were directed to the acquisition and operation of the farm. Both of them assisted in raising the children as well as doing all other duties necessary to the operation of the farm. After appellant became employed, outside the home, her money was used to pay household expenses, purchase groceries, and repair and refinish the house in Waldron. In discussing the matter of disposition of property in a divorce proceeding, when the property was held only in the husband’s name, we stated in the case of Williams v. Williams, 186 Ark. 160, 52 S.W. 2d 971 (1932):

... If appellee and appellant, by their joint work, labor and management, acquired the property, a court of equity would, even before the recent statutes, protect the wife’s interest in the property.

. It would not be equitable to divest appellant of all interest in this property, except for a life estate in one-third of it, after all the years shie has labored and toiled with appellee in acquiring and retaining this property. It is obvious from the evidence that it was the joint efforts of the parties which acquired the.land, and we hold it would be inequitable to deprive her of the legal and equitable ownership of one-half interest in this property.

We turn to the personal property question at this time. Appellant insists she should have been awarded a one-half interest in the following:

(1) 40 head of cattle, subject to existing loan to Ernest Nelson and the bank of Waldron
(2) A $15,000 check representing proceeds from the sale of jackbeans
(3) A $1500 checking account
(4) Farm equipment
(5) 50 tons of hay
(6) Other items of personal property

We think the law relating to ownership of personal property is the same as that cited in the previous point relating to ownership of real property. The decree of the court awarded appellant ownership of a 1972 Mercury Comet automobile and the household furniture as well as the appliances accumulated during the marriage. She was also granted possession of the house in Waldron, with the consent of appellee. Winton Ray Nelson was awarded ownership of 70 head of cattle, acquired after the separation, and a 1978 Chevrolet 4-wheel drive pickup truck. Neither party raises any question on appeal about the vehicles or the household furnishings and appliances. Appellant does insist she had a one-half interest in the 70 head of cattle acquired by the appellee after the separation. .

We do not find it necessary to treat the other points argued by appellant in view of our holding in this matter. The case will be remanded to the trial court with directions to declare the property at 815 Elm Street to be the joint property of the parties subject to an equitable mortgage in favor of Ernest Nelson in the amount of $7,650 to bear interest at the rate of 7% from the date of purchase in 1973. Unless otherwise directed by the trial court, the estate will be converted to one in common, subject to the above-mentioned mortgage. Possession of the Elm Street property will be awarded to appellant. All of the other property acquired by the parties up to the time of separation will be declared to be owned jointly by the parties. Any valid indebtedness against any of the property will likewise be the joint responsibility of the parties. The $15,000 check for proceeds of the sale of jack-beans is specifically declared to be jointly owned as is the $1,500 joint checking account. The property acquired by the appellee subsequent to the time of the separation is his separate property and the appellant has no interest in it, except such of the jointly held property which may have been used in the purchase of the after acquired property. In view of this opinion, we feel that any additional fees should be paid by the parties respectively. The costs of this appeal are to be assessed against the appellee. The case is reversed and remanded with directions to proceed in a manner consistent with the opinion expressed herein. We have not attempted to deal with every item of personal property because the trial court is in a much better position to make this determination. Ernest Nelson is entitled to be reimbursed for the cost of taxes and insurance which he paid on the house and lot at 815 Elm Street. The trial court may find it necessary to hold an additional hearing and/or receive other evidence for the purpose of complying with this opinion.

Reversed and remanded.

Harris, C.J., not participating.


author: George Rose Smith, Justice..

text:
    Jones MORRISON, et al v. Larone LOWE and Floy Edelle LOWE
    79-103
    590 S.W. 2d 299
    Opinion delivered December 17, 1979
    (In Banc)

      Charles S. Gibson, for appellants.

      Honey & Rodgers, by: Danny P. Rodgers, for appellees.
   George Rose Smith, Justice..

The appellants, Jones Morrison and his two sons, and the appellees, Larone Lowe and his wife Floy, were neighbors in a rural area, living about a quarter of a mile apart. The Lowes had bought their property from another member of the Morrison family, with an access right-of-way across the Jones Morrison land. At first the relationship between the neighbors was good. Eventually, however, the two families became enemies and finally had a shotgun and rifle shoot-out near the Lowes’ house. The Morrisons’ gunfire seriously injured Larone Lowe’s hands.

The Lowes brought this suit for the personal injuries, Mrs. Lowe’s loss of consortium, and punitive damages. This . appeal is from a verdict and judgment in their favor. A new trial must be ordered, because of erroneous rulings allowing the plaintiffs to introduce inadmissible and prejudicial testimony.

The principal errors arose from violations of the hearsay rule, which apparently was not clearly understood in the trial court. Rule 801 of the Uniform Rules of Evidence (Ark. Stat. Ann. § 28-1001 [Repl. 1979]) defines hearsay, but the definition does not make any substantial change in the traditional idea about what constitutes hearsay. It is still not permissible for a witness to relate information he obtained from someone else rather than by his own observation. Counsel cannot avoid the rule, as was attempted repeatedly in the court below, by asking a witness for the substance of an out-of-court statement by someone else rather than for an exact quotation. Robinson v. State, 255 Ark. 485, 500 S.W. 2d 929 (1973). As we said there: “The prohibition against hearsay, would cease to exist if it could be so easily circumvented.”

The plaintiffs , at the beginning of their proof, sought to show how the relations between the two families had deteriorated, but the court allowed that proof to include much hearsay. It would have been permissible, for example, for the plaintiffs to testify that they had been told of threats made against their lives by the defendants. See Lee v. State, 72 Ark. 436, 81 S.W. 385 (1904); McCormick, Evidence, § 249 (2d ed., 1972). Such testimony, although hearsay if offered to prove that the threats had in truth been made by the Morrisons, would nevertheless be admissible, with a proper limiting instruction to the jury, to show that thé plaintiffs had reason to be afraid of the defendants and acted in self-defense in the shoot-out that took place.

The plaintiffs, however, were allowed by the trial coiirt to expand the permissible purpose of such preliminary proof to include out-and-out hearsay. We mention three instances of this kind.

First: Mrs. Lowe was allowed to testify that when the telephone company refused to run a line to the Lowes’ house, she checked with the company and found that Jones Morrison had protested because he wanted to improve the road before the line was laid. In response to the defendants’ objection counsel for the plaintiffs stated: “Judge, she did not testify to a conversation. She testified from looking into the matter at the phone company and reports that she received.” The court overruled the objection. That ruling was wrong. The witness’s entire statement was outright hearsay, no danger to the Lowes being involved. We do not imply that a telephone employee could not have testified that Jones Morrison objected; we merely hold that Mrs. Lowe could not testify that such an employee told her that Morrison objected.

Second: Mrs. Lowe was allowed to testify that the Lowes’ hired hand, Robert Huckaby, told her that he (not the Lowes) had been threatened by the Morrisons. One of the plaintiffs’ lawyers argued, in replying to opposing counsel’s objection: “But that’s not hearsay, Judge. That is not a conversation. It is the report of an event.” The witness’s testimony was undoubtedly hearsay, merely summarizing what Huckaby had told her. (We are aware that this particular error may have become harmless in view of Huckaby’s later testimony to the same effect, but the incident still typifies the errors that occurred.)

Third: Mrs. Lowe was allowed to testify about what Officer Gavin, deceased, had told her as information he had gained by interrogation. When an objection was made, plaintiffs’ counsel restated his argument: “He reported it back to her. That makes it an investigation.” Again the testimony, merely a narrative of facts reported by the officer, was unquestionably inadmissible under the hearsay rule. We need not enumerate other instances. The record is replete with hearsay testimony that was erroneously admitted, over objection. .

A somewhat different error occurred when Jones Morrison was required to admit, on cross examination, that he had been charged with a crime as a result of the shooting. Counsel for the Lowes readily concede in their brief that such cross examination is ordinarily not allowed. Moore v. State, 256 Ark. 385, 507 S.W. 2d 711 (1974). It is argued, however, that the inquiry was permissible as showing a possible motive for a supposedly fraudulent conveyance made by Morrison, to avoid the claims of creditors. In the first place, Morrison’s motive would have been to avoid civil liability, not to escape punishment for a crime. And second, the connection between the conveyance (which may have been in good faith) and Morrison’s possible civil liability had such a remote bearing upon the witness’s credibility that the court should have disallowed cross examination about the specific act, in the exercise of its discretion under Rules 403 and 608 (b) of the Uniform Rules. The error was presumably prejudicial, suggesting to the petit jury that a grand jury or prosecutor'thought Morrison to be criminally responsible for the shooting.

The Morrisons also argue that the court erred in submitting to the jury a form of verdict allowing a finding only against all three defendants, not against one or more of them. The plaintiffs alleged that the father and sons were on a common mission in going to the Lowes’ premises, each armed with a gun, and the evidence was all to that effect. In fact, each appellant separately testified that they went together and carried guns not only to use in their search for some hogs that had strayed but also to protect themselves against threats made by the Lowes. On the evidence presented we perceive no sound basis for the jury to differentiate among the Morrisons as to possible liability. Of course a contrary ruling may be called for if the proof is materially different upon a retrial.

Reversed.

Harris, C.J., & Byrd, J., not participating.


author: George Rose Smith, Justice.

text:
    Michael Wayne DORN v. STATE of Arkansas
    CR 79-167
    590 S.W. 2d 297
    Opinion delivered December 17, 1979
    (In Banc)

      Brockman & Brockman, by: C. Mac Norton, for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is an interlocutory appeal from the trial court’s ruling at a pretrial hearing under the rape-shield statute. Ark. Stat. Ann. §§ 41-1810.1 et seq. (Repl. 1977). The trial court sustained the admissibility of proffered proof concerning prior sexual activity between the prosecutrix and the defendant and concerning a statement made by the prosecutrix suggesting a questionable motive for her charge of rape. The appeal challenges the court’s further ruling that evidence of the prosecutrix’s reputation for chastity and morality and of her prior sexual activity with third persons would not be relevant. We affirm the court’s ruling.

According to the defendant’s proffer of proof, at about 2:00 a.m. on November 9, 1978, the prosecutrix, accompanied by other young people, left the Collegiate Plaza, a night club, and was taken to her home. Before going in her. house the prosecutrix saw the defendant, whom she knew, in his car. After the prosecutrix’s friends left, the defendant returned and honked for the prosecutrix, who came out and got in the car. The two drove away. The defense contends that the two consumed alcohol and engaged in sexual intercourse by consent. The State asserts that there was no alcohol in the car and that the defendant stopped the car, started hitting the prosecutrix, pulled off her clothes, and raped her.

The defendant’s brief states only one point for reversal, but his argument actually includes four separate subordinate contentions.

First, it is contended that, despite the language of the statute, proof of the prosecutrix’s reputation is still admissible, as it used to be, to establish the defense of consent. The statute refutes that contention. Section 41-1810.1 explicitly provides that reputation evidence and specific instances of the victim’s prior sexual conduct are not admissible to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. Section 41.-1810.2 then creates an exception to the exclusion by permitting the defendant, at a pretrial hearing, to proffer relevant evidence (1) directly pertaining to the act upon which the prosecution is based or (2) of the victim’s prior sexual conduct with the defendant or any other person. The exception, however, contains no reference whatever to reputation evidence, which is therefore excluded under the first section of the statute.

Second, it is contended, again in the teeth of the statute, that evidence of the victim’s prior sexual conduct with third persons is still admissible as bearing upon her credibility. Section 1, as we have said, explicitly excludes proof of such conduct to attack the credibility of the victim. Section 2 contains no exception to that exclusion as far as credibility is concerned; so such evidence must be excluded when offered for that reason. Apart from the statute, if such evidence had a genuine bearing upon credibility, then every woman would be exposed to such cross examination whenever she testified in any case whatever, civil or criminal.

Third, it is argued that the statute violates the accused’ s right to confront the witnesses against him and his right to due process of law. Both those arguments were rejected in Marion v. State, 267 Ark. 345, 290 S.W. 2d 288 (1979). To the same effect is the holding in United States v. Kasto, 584 F. 2d 268 (8th Cir. 1978). We need not repeat the reasons given in those cases.

Fourth, it is argued that the statute denies the equal protection of the law, in that the act restricts the defendant’s freedom to introduce evidence with no similar restriction upon the prosecution. To begin with, the prosecution is actually restricted by the principle that it cannot bolster its case by proving that the same defendant committed another rape. Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). In the second place, the classification made by the rape-shield statute is not arbitrary, being based upon permissible considerations of public policy. We agree with the view expressed by an Indiana Court of Appeals in rejecting this same argument:

[T]he rape shield statute was a rational attempt by the Legislature to protect the prosecutrix from harassment that might arise if her prior sex life was disclosed in court. Another closely related justification for rape shield laws is that they will aid in crime prevention because victims, knowing that the statute protects them from the embarrassment of the introduction of evidence of previous sexual activity, will be encouraged to report rape offenses. In light of these legitimate state policies, it cannot be said that the disparate treatment of this statute is without a reasonable basis.

Finney v. State, 385 N.E. 2d 477 (Ind. App. 1979).

Affirmed.

Harris, C.J., not participating.

Byrd, J., dissenting.


author: John A. Fogleman, Justice.

text:
    ROLLINS NURSING HOME, INC. and Calvin D. ROLLINS v. M & LC/STILLWELL MORTGAGE CO.
    CA 79-136
    593 S.W 2d 1
    Opinion delivered December 17, 1979
    (In Banc)
    [Supplemental opinion on denial of Rehearing February 11, 1980]

      Keith G. Rhodes and Marvin H. Robertson, for appellants.

      Hale, Hendricks, Thurman & Capps, by: David L. Hale, for appellee.
   John A. Fogleman, Justice.

This action is a proceeding brought by M & LC/Stillwell Mortgage Company to register a default judgment obtained by it against Rollins Nursing Home, Inc. and Calvin D. Rollins in the Circuit Court of Broward County, Florida on October 24, 1977. Appellants resisted the registration of the judgment upon the ground that the Florida court had no jurisdiction over them under the Florida long-arm statute. The trial court held that appellants were properly served with summons issued out of the Florida court because they were engaged in a business venture in the sense of the Florida statute, and permitted registration of the judgment. We disagree and reverse.

There is no dispute about the facts. Calvin D. Rollins was an officer of Rollins Nursing Home, Inc. He went to Ft. Lauderdale, Florida in December, 1976, to make an application for a loan from appellees in order to buy three nursing homes in Arkansas. These nursing homes were owned by Arkansas residents. He met with Martin Small and filled out the application for the loan, signing it as agent for the corporation. When Small told Rollins he would have to pay a finder’s fee of 1%, an appraisal fee of $2,500 and $4,500 for some item, the nature of which Rollins did not recall, Rollins wrote and delivered the checks on which the Florida suit was based. The checks were not honored because Rollins stopped payment on them three days later, after he had returned to Arkansas. Rollins said that the reason for stopping payment was that the owners of the nursing homes his company was planning to buy backed out on the sale and had advised Small that they were not selling to appellants. Rollins said that no appraisal was ever made because it was not needed.

The applicable Florida statute is Fla. Stat. Ann. § 48.193 (1977). The pertinent portion of that statute reads:

(1) Any person, whether or not a citizen or resident of this State, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(a) Operates, conducts, engages in, or carries on a business or business venture in this state or has an office or agency in this state.

After hearing the evidence, the trial judge held that trying to borrow $1,200,000 was a business venture and not an isolated occurrence, that more than one act was done in furtherance of the attempt, and that Rollins apparently had some conversations beforehand, went to Florida, executed the checks and a contract binding himself, individually and as guarantor, if the obligation was consummated. Since the trial court held these acts sufficient as a basis of jurisdiction under the Florida long-arm statute, the Florida judgment was sustained under the full faith and credit clause of the United States Constitution.

We disagree with the trial court’s determination that the transaction in Florida constituted a business venture in Florida under Florida law. The Florida long-arm statute is strictly construed by the courts of Florida. Lyster v. Round, 276 So. 2d 186 (Fla. App., 1973); Chase Manhattan Bank v. Banco Del Atlantico, 343 So. 2d 936 (Fla. App., 1977); American Baseball Cap, Inc. v. Duzinski, 308 So. 2d 639 (Fla. App., 1975); Esberger v. First Florida Business Consultants, Inc., 338 So. 2d 561 (Fla. App., 1976); Bank of Wessington v. Winters Government Sec. Corp., 361 So. 2d 757 (Fla. App., 1978); Escambia Treating Co. v. Otto Candies, Inc., 405 F. Supp. 1235 (N. D. Fla., 1975); Citizens State Bank v. Winters Government Sec. Corp., 361 So. 2d 760 (Fla. App., 1978); Sausman Diversified Investments, Inc. v. Cobbs Co., 208 So. 2d 873 (Fla. App., 1968); James v. Kush, 157 So. 2d 203 (Fla. App., 1963); Fawcett Publications, Inc. v. Rand, 144 So. 2d 512 (Fla. App., 1962); Spencer Boat Co. Inc. v. Liutermoza, 498 F. 2d 332 (5 Cir., 1974). Furthermore, the Florida statute requires more activities or contacts to sustain service of process than are required by the decisions of the United States Supreme Court. Youngblood v. Citrus Associates of New York Cotton Exchange, 276 So. 2d 505 (Fla. App., 1973).

To reach the trial court’s result requires a very liberal construction of the term “business venture” in the Florida statute — one far more comprehensive than the term has ever been given by a Florida court. In Wm. E. Strasser Construction Corp. v. Linn, 91 So. 2d 458 (1957), the Florida Supreme Court showed by language in its opinion that the facts of this case would not bring it within the Florida concept of business venture. There the Linns, residents of Tokyo, Japan, had, through an attorney-in-fact residing in New York, engaged Strasser to construct a three-unit apartment building on a lot in Miami, Florida owned by the Linns. The court said:

. . . While at first glance the mere execution of the construction contract might appear in and of itself to be lacking in elements of a business venture, a more mature and thorough consideration of the allegations of the complaint suggest that the Linns had invested in a piece of Florida real estate and, by the agreement, contemplated investing further capital in a purely business enterprise. If the building were completed and the owners then proceeded to collect the rents and enjoy the profits of the Florida operation, we believe it could hardly be contended with success that they were not engaging in a business venture in this State. We think it equally clear that by the purchase of the land and the execution of the construction agreement the Linns were initiating the first substantial steps toward setting themselves up in a business venture in this state. . . .

Of course, in this case, appellants proposed to set up and extend a business venture in Arkansas, not one in Florida, so the mere application for a loan and execution of checks to pay fees in connection with obtaining the loan were lacking in elements of a business venture, as that term was construed in Linn and in cases subsequently mentioned.

Although the Florida Supreme Court held in State v. Register, 67 So. 2d 619 (1953), that the listing of an orange grove for sale gave a basis for “long-arm” service when considered along with the business venture initiated by the sellers when they acquired the grove, the court said:

It is Driver’s theory that the Webers were engaged in the business of owning and operating a citrus grove and that the listing of the property for sale with Driver was incidental to the operation of the business. Driver here contends that this was sufficient as a basis to obtain substituted personal service on the Webers, as authorized by Section 47.16, supra.
Although we do not agree that the listing of the grove property for sale was a “transaction or operation connected with or incidental to” the business in which petitioners were engaged in this State, to wit: the maintenance and operation of a citrus grove, we believe that the allegations of the complaint filed by Mr. Driver demonstrate clearly that the purchase of the property and the subsequent listing of the same for sale amounted to engaging in a “business venture” as contemplated by our statute.

These decisions (and some others later cited) were rendered on statutes which were in effect in Florida prior to July 1, 1973, the effective date of Fla. Stat. Ann. § 48-193, but they contain language identical, or virtually so, to § 48.193 (1) (a) quoted above. The Florida Supreme Court seems to have construed these words in the same way, whatever statute is involved. It seems unlikely that any construction different from that given the identical language in the earlier act would be given the later act. Escambia Treating Co. v. Otto Candies, Inc., 405 F. Supp. 1235 (N. D. Fla. 1975). The rule of strict construction still applies to § 48.193. See, Georgia Savings & Loan Service Corp. v. Delwood Estates, Inc., 315 So. 237 (Fla. App., 1975).

Most of the Florida decisions on the particular question involved here have been made by District Courts of Appeals; however, the Florida Supreme Court has spoken significantly on it, not only in the cases hereinabove cited and in DeVaney v. Rumsch, 228 So. 2d 904 (1969), as quoted in Lyster v. Round, infra, but also in Dinsmore v. Martin Blumenthal Associates, Inc., 314 So. 2d 561 (1975). In Dinsmore, the validity of service was questioned on two separate sections of the Florida long-arm statute. The service was held invalid under the business venture section, but sustained under another. In that case a Florida corporation brought suit to recover a brokerage commission resulting from an exchange of stock of D. J. Dinsmore Company, a South Dakota Corporation, for stock in Jim Walter Corporation, a Florida corporation. On only one occasion did any of the defendants come to Florida for a meeting with officers of Jim Walter Corporation. The court said:

In order to determine whether jurisdiction can be acquired over the non-resident defendants pursuant to Fla. Stat. § 48.191 (1), it is necessary to determine whether the individual or corporate defendant, was carrying on a business or business venture in this State. The activities of the person sought to be served pursuant to Fla. Stat. § 48.181 (i) must be considered collectively and show a general course of business activity in the State for pecuniary benefit. DeVaney v. Rumsch, 228 So. 2d 904 (Fla. 1969). A nonresident defendant, which engages the services of brokers, jobbers, wholesalers or distributors, can be doing business in this State pursuant to Fla. Stat. § 48.181 (1) if the nonresident defendant, through brokers, jobbers, wholesalers or distributors was engaged in a course of conduct in Florida for the purpose of realizing a pecuniary benefit. Even if the activities of the defendant were not sufficient to constitute a business or business venture pursuant to Fla. Stat. § 48.181 (1), jurisdiction over the person of a defendant can still be acquired under Fla. Stat. § 48.181 (3) if such defendant sells, consigns or leases within this State personal property through brokers, jobbers, wholesalers or distributors. If Fla. Stat. § 48.181 (3) is complied with, even a single sale, consignment or lease raises a conclusive presumption that the defendant is operating, conducting, engaging in or carrying on a business venture in this State. Thus, a defendant may be carrying on a business venture pursuant to Fla. Stat. § 48.181 (3), although that defendant is not carrying on a business or business venture pursuant to Fla. Stat. % 48.181 (1). The method of service under Fla. Stat. § 48.181 (3) is identical to that explained under Fla. Stat. § 48.181 (1).
Turning now to the applicability of Fla. Stat. § 48.181 (1), the plaintiff failed to show that the defendant was conducting a general course of business activity in this State. The mere giving of a listing to a business brokerage firm which does business in Florida by a nonresident to sell stock in a foreign corporation does not indicate a general course of business activity in this State. See, Hayes v. Greenwald, 149 So. 2d 586 (Fla. 3d DCA 1963). The record does not reflect any acts taken by the plaintiff in this State on behalf of the defendants . . . [Emphasis ours.]

The United States Court of Appeals for the Fifth Circuit has considered the reach of the section of the Florida long-arm statute involved here. That court, in holding in Uible v. Landstreet, 392 F. 2d 467 (1968), that the statute did not apply, said:

The argument that the execution of a promissory note by Landstreet’s group and its delivery in Florida where it was to be performed constitutes a business venture in Florida within the contemplation of section 47.16 Florida Statutes, F.S. A., may be disposed of summarily. The Florida courts have held the contrary, Odell v. Signer, Fla. App. 1964, 169 So. 2d 851, 853; aff'd, Signer v. Odell, Fla. 1965, 176 So. 2d 94; and so must we, e.g., Monarch Ins. Co. of Ohio v. Spach, 5 Cir. 1960, 281 F. 2d 401.
We are also unpersuaded by Uible’s contention that Landstreet’s trip to Jacksonville, Florida, for the closing of the stock purchase was an important jurisdictional element. Florida Investment Enterprises, Inc. v. Ken tucky Co., Inc., Fla. App. 1964, 160 So. 2d 733, upon which he relies is clearly distinguishable. In that case the nonresident defendant executed a lease on a motel in Florida and “by this instrument committed herself to the accomplishment of many affirmative acts which amounted to operating, conducting, engaging, or carrying on a business or a business venture in this state. Furthermore, it is clearly evident from the record that the instant motel business would not be in existence had not Mrs. Hayes executed the lease.” Id. at 740. Land-street’s group made no such commitments.

The court then considered whether other activities of Land-street and his group were sufficient additional circumstances to render the service made under the statute valid. The court added:

. . . Put succinctly, this simply adds up to the purchase of stock in a Florida corporation by a group of nonresidents, attendance by one of them at a stockholders’ meeting, and inquiry about the financial affairs of the corporation. No Florida court has held, or would hold we think, that such investment activities are within the scope of section 47.16. F.S.A., Cf., Unterman v. Brown, Fla. App. 1964, 169 So. 2d 522.

In Spencer Boat Co., Inc. v. Liutermoza, 498 F. 2d 332 (5 Cir., 1974), the same court evaluated the Florida decisions on the questions, saying:

Defendants’ activities in Florida do not fit the literal terms of the statute. To do business or conclude a business transaction is not “to operate, conduct, engage in, or carry on a business or business venture in the state,” and the statute must be construed strictly, not broadly. See Lyster v. Round, 276 So. 2d 186, 188 (Fla. App. 1973) (Citing DeVaney v. Rumsch, 228 So. 2d 904 (Fla. 1969) ); Young Spring & Wire Corp. v. Smith, 176 So. 2d 903 (Fla. 1965). . . .

The case of Lyster v. Round, 276 So. 2d 186 (Fla. App., 1973), involved a check given by a non-resident for the down payment on a house. The non-resident had stopped payment on the check. The First District Court of Appeals after holding that an isolated transaction involving the sale or purchase of a home did not amount to a business venture under the long-arm statutes, stated:

In DeVaney v. Rumsch [228 So. 2d 904, 907] the Supreme Court, speaking through Justice Boyd, propounded the legislative intent in the enactment of the long-arm statute here considered to be: “. . .[T]hatany individual or corporation who has exercised the privilege of practicing a profession or otherwise dealing in goods, services, or property, whether in a professional or non-professional capacity, within the State in anticipation of economic gain, be regarded as operating a business or business venture for the purpose of service under Florida Statute § 48-181, F.S.A., in suits resulting from their activity within the State. As indicated in Matthews [Matthews v. Matthews, Fla. App., 122 So. 2d 571] the activities of the person sought to be served must be considered ‘collectively’ and show a general course of employment and conduct of carrying on business activity in the State for pecuniary benefit.”
Appellees advance the argument that this court should take judicial notice of the expanding economy in Florida and the constantly rising values of real estate in the rapidly growing resort areas of our state. They urge that we proceed from this premise to the assumption that anyone who buys real estate in Florida at this is speculating on the possibility of realizing a profit from his investment even though the purpose of the purchase may be for a home as distinguished from business or developmental property. Although this may have been good argument in the trial court had any evidence been adduced to support such postulates, we do not consider that it can be accepted as a substitute for the clear and convincing proof required under the decisions herein-above cited in order to demonstrate the applicability of the statute.

In a Florida case somewhat like the one before us, Odell v. Signer, 169 So. 2d 851 (Fla. App. 1964), it was held that “the signing of a note and the defense of a law suit are not sufficient acts, in and of themselves, to constitute carrying on or engaging in a business or business venture.” The court held, however, that the additional circumstances did bring the defendants, officers of a corporation doing business in Florida, within the purview of the Florida statute. The court said that the signing of the note would not be considered in a vacuum, but that the circumstances surrounding its signing must be considered. The reasons for holding that the trial court had jurisdiction over the individual defendants were: (1) the note was signed in order to end litigation which arose from business activities in Florida by the defendant corporation and individual defendants who had served as agents of the corporation in conducting those activities; and (2) the activities of the corporation, which was doing business in Florida, were chargeable to the individual defendants because, as agents of the corporation, they would be personally liable to any third person injured by their tortious activity, so the acts of the corporation which constituted doing business in the state were attributable to these individuals for the purpose of determining jurisdiction.

In Hyco Mfg. Co. Rotex Intern. Corp., 355 So. 2d 471 (Fla. App., 1978), the Third District Court of Appeals used this pertinent language:

It has been consistently held that an isolated act will not subject a foreign corporation or a non-resident to the jurisdiction of a Florida court. In the case of Lyster v. Round, 276 So. 2d 186 (Fla. 1st DCA 1973), the court held that an isolated act which, from any objective viewpoint, could not be held to constitute the operation, conduct, engagement in or carrying on a business or business venture, is not sufficient to activate the provisions of Section 48.181, Florida Statutes (1975).

This case is in no wise similar to Horace v. American National Bank & Trust Co., 251 So. 2d 33 (Fla. App. 1971) or to Dublin Co. v. Peninsular Supply Co., 309 So. 2d 207 (Fla. App., 1975). In Horace, a non-resident of Florida contended that his signing of a guaranty agreement in Florida was not sufficient to constitute carrying on or engaging in a business venture in Florida within the meaning of Fla. Stat. Ann. § 48.181. (This statute contains language identical to that in § 48.193). The evidence showed that prior to January 31, 1969, Travel Coach Inc., a Florida corporation doing business in Florida, had a line of credit with American National Bank guaranteed by three individuals. On January 31, 1969, appellant Horace and two other individuals appeared at the bank and substituted their signatures on a guaranty agreement for Travel Coach. Horace and the two others, after informing the bank that they had acquired a 60% interest in Travel Coach, opened a commercial checking account for Travel Coach by executing signature cards. Service upon Horace was held valid. The court held that the acts of Horace, whether considered alone, or coupled with the activities of Travel Coach, created the minimal contacts necessary to meet federal constitutional due process requirements; however, in deciding the question whether the individual defendant in that case was engaged in a business or business venture, the court found that the acts of Horace were such that he came within the purview of the earlier holding in Odell v. Signer, 169 So. 2d 851 (Fla. App., 1964), but did not hold that the signing of the guaranty alone was sufficient basis for application of the Florida long-arm statute. The Florida court said:

When we consider the circumstances surrounding the execution of the guaranty in the case sub judice we likewise find something more than just a mere signing of the guaranty. The rationale of Odell is applicable to the case sub judice so that the acts of Travel Coach can be imputed to Horace for the purpose of determining the existence of jurisdiction. [Emphasis ours.]

The court then said:

Apart from Odell it is our view that the individual acts of the defendant in and of themselves irrespective of the activities of Travel Coach established the requisite minimum contacts so as to permit the maintenance of the suit below.

The latter quotation relates to federal due process requirements only.

In Dublin, the court held that a concern that had sold its products to three Florida distributors for at least five years, grossing at least $13,000 per year therefrom, was “doing business” in Florida and said this about Horace:

* * * Although one act alone within the state viewed in light of surrounding circumstances, can cause jurisdiction to attach, Horace v. American National Bank & Trust Co. of Ft. Lauderdale, 251 So. 2d 33 (4th D.C.A. Fla. 1971), the affidavit states there were several acts here. * * *

It is quite significant that the “one act alone” must be “viewed in the light of surrounding circumstances.”

We do not see how, in the light of the above holdings, the mere signing of the application and the checks involved here could possibly be held to constitute a business venture.

The judgment is reversed and the cause dismissed.

Harris, C.J., not participating.

Byrd and Holt, JJ., dissent.

Supplemental opinion on denial of rehearing delivered February 11, 1980

PER CURIAM.

Appellee has filed a petition for rehearing advancing an argument and relying upon a subsection of the Florida statute that was never mentioned in its original brief. That statute is Fla. Stat. Ann. § 48.193 (1) (g) (Supp. 1979), which appellee incorrectly cites in its petition for rehearing as § 48.193 ... (3) (g). That subsection provides for “long-arm” jurisdiction of actions for breach of contract in the state of Florida by failing to perform acts required by the contract to be performed in that state. Appellee then cites Madax International Corp. v. Delcher Intercontinental Moving Services, Inc., 342 So. 2d 1082 (Fla. App., 1977) scad Professional Patient Transportation, Inc. v. Fink, 365 So. 2d 209 (Fla. App., 1978). The first case involved the non-resident defendant’s failure to pay for services rendered by a Florida corporation when there was an express promise to pay, and the breach consisted of the debtor’s failure to seek the creditor in Florida and make payment, no place of payment having been specified. The latter case simply reversed a judgment quashing long-arm service because the complaint had alleged that the nonresident defendants had breached their agreement to make payment in Florida for services rendered to them by the Florida plaintiff outside Florida. The appellate court held that these facts constituted a breach which amounted to the failure to perform acts required by the contract to be performed in Florida under Fla. Stat. Ann. § 48.193 (1) (g), citing the first case relied upon by appellee here in his petition for rehearing.

The application of the subsection of the statute now relied upon by appellee and of the authorities cited is doubtful, to say the least. In the first place, it does not seem that the “place of payment” was Florida. The checks were drawn on Morrilton Security Bank and the checks bore its address, i.e., Morrilton, Arkansas, so that bank was the payor bank. Sec. .85-4-105 (b) (Add. 1961). The drawer was Rollins Nursing Homes, Inc., whose address was shown on the check as P.O. Box 27, Cabot, Arkansas, 72023. It appears that the place of payment of these checks would have been Morrilton, Arkansas, the address of the payor bank. See Brady on Bank Checks (5th Ed.) 27-7, § 27-4. Thus it is not at all clear that the cases now cited by appellee would have any application at all.

In the next place, appellee’s Florida judgment was based upon a complaint seeking damages for non-payment of three checks “in connection with a business venture in which Defendants were engaged in Broward County Florida, to-wit: contracting with Plaintiff for the furnishing to Defendants of certain financing for property owned by Defendant, Rollins Nursing Home, Inc. and located without the State of Florida.” There was no allegation of breach of contract in the complaint. Thus, jurisdiction of the Florida court was based upon § 48.193 (1) (a) and not § 48.193 (1) (g).

Sec. 48.193 (1) (g) was never invoked in the pleadings in the Florida court in which the judgment was rendered. This “breach of contract” section was barely mentioned in the Arkansas trial court and seems to have been abandoned when appellants’ attorney pointed out to the trial judge that no breach of contract was alleged in the Florida complaint. The point appellees now raise, if it has any merit, has undoubtedly been waived.

Rule 20 (g) of the Rules of the Supreme Court and Court of Appeals provides that the petition for rehearing should be used to call attention to specific errors of law or fact which the court’s opinion is thought to contain and that counsel are expected to argue the case fully in their original briefs. Petitioner is in no position to ask a rehearing under Rule 20.

The petition for rehearing is denied.


author: John A. Fogleman, Justice. John I. Purtle, Justice, Darrell Hickman, Justice,

text:
    John Elliott GRUZEN v. STATE of Arkansas
    CR 77-111
    591 S.W. 2d 342
    Opinion delivered December 17, 1979
    (In Banc)
    [Rehearing denied January 21, 1980.]

      Lessenberry & Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

John Elliott Gruzen was convicted of the capital felony murder of Dana Diane Mize. The jury fixed his sentence at life imprisonment without parole. He has chosen to argue four points for reversal. We will first consider those and later examine other objections to determine whether there was prejudicial error in his trial.

Gruzen pleaded not guilty and not guilty by reason of insanity to the charge that, on April 13,1976, he had committed the crime of capital murder during the course, and in the furtherance, of the kidnap and rape of Dana Diane Mize under circumstances manifesting extreme indifference to the value of human life.

We first treat Gruzen’s argument that the trial court abused its discretion in finding him to be competent to be tried, convicted or sentenced. Gruzen had an extended history of psychiatric problems. At the time of the revolting crime with which he was charged, he was 34 years of age and living at the home of his parents in Maplewood, New Jersey. He was an honor graduate of Rutgers University extension college at Newark, although it had taken him nine years to complete the course of studies.

The crime occurred after Gruzen had left his parents’ home in New Jersey on April 8, 1976. He left a note to his parents that he was leaving New Jersey for a time in order to try to straighten out his problems. He returned home on April 16, 1976, and immediately contacted Dr. Max Pusin, a psychiatrist who had treated him for seventeen years. After his consultation with Dr. Pusin, it was disclosed that a crime of the nature of an incident he had discussed with Dr. Eugene Revitch, a forensic psychiatrist to whom Gruzen had been referred by Dr. Pusin, had been committed in Faulkner County, Arkansas. Extradition was waived and Gruzen was returned to this state. The information on which Gruzen was put to trial was filed on April 27, 1976.

Upon motion of the prosecuting attorney, Gruzen was committed on June 8, 1976, to the Arkansas State Hospital for examination. The usual 30-day period of observation was extended for two weeks at the request of the Commissioner of Mental Health. On July 19, 1976, the hospital reported a diagnosis of schizophrenia, paranoid type, that Gruzen was “with psychosis” and indicated that there was a need for treatment of Gruzen. An additional 120 days’ observation was granted by the trial court upon the prosecuting attorney’s request. There was no change in the diagnosis. Thereafter, a hearing on the competency of Gruzen to stand trial was held. Before formal sentencing, a second hearing on Gruzen’s competency was held.

In the report on the first examination, it was stated that it was the opinion of the examining psychiatrist, Dr. A. F. Rosendale, and the joint opinion of the psychiatric staff that Gruzen was mentally ill to the degree of legal irresponsibility at the time of his examination, that he probably was at the time of the alleged offense, that Gruzen did not have the mental capacity to understand the proceedings against him or to assist in his own defense and that he was probably suffering from mental disease or defect of such a degree as to make him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

On December 15, 1976, a hearing was held in order that the trial court might determine whether Gruzen was mentally capable of standing trial. A deposition of Dr. Max Pusin, which had been taken in New Jersey on December 8, 1976, was read into the record. Dr. Pusin testified that he had first examined Gruzen on December 22, 1959. He described Gruzen as one who spent a lot of time in fantasies, both grandiose and erotic, which replaced very harsh reality. He had diagnosed Gruzen as schizoid, and said that Gruzen had, at age 17, deteriorated into a schizophrenic state. He described schizophrenia as the most common serious psychosis in this country. Dr. Pusin had found the presence of paranoid tendencies. He said that Gruzen’s thinking was tangential. He stated that, in 1974, Gruzen had unsuccessfully attempted suicide after having investigated and researched the subject, and having become preoccupied with suicide as early as 1961. Dr. Pusin said that he had caused Gruzen to be hospitalized, for Gruzen’s own safety, in a mental hospital in 1961, but that Gruzen had left the hospital contrary to medical advice. He said that Gruzen had renewed his research on suicide in March, 1976. Dr. Pusin said that, after Gruzen’s departure from his home April 8, 1976, he returned on April 16 in a great state of excitement, confusion, disorientation and agitation. Dr. Pusin said that he had, on April 17, committed Gruzen to a mental hospital where his diagnosis of paranoid schizophrenia (which Pusin said was acute) was confirmed. Dr. Pusin said that a depressive, progressive depression had been going on since December, 1975 or January, 1976.

Dr. Charles Dean Yohe of Hot Springs, who practices medicine with a specialty in psychiatry, had examined Gruzen three times while he was in the Arkansas State Hospital. Each time took two hours. He had last examined Gruzen the day before the hearing. His diagnosis was schizophrenic reaction, paranoid and catatonic features. His prognosis was very poor. He said he had learned that Gruzen was not taking any medication while he was in jail in Faulkner County. According to him, Gruzen had retreated into fantasies and auditory hallucinations. He expressed the opinion that Gruzen did not know what was going on at the hearing, but had other voices to which to listen. Dr. Yohe had been unable to have full and free communication with Gruzen on any subject and said that Gruzen was incapable of talking “straight” for more than a few seconds and would change the subject three or four times in a single sentence in a very illogical way. In his opinion, Gruzen, in a situation where stress was involved, like a criminal trial, would go “way off the subject.” He doubted that, in a criminal case where the punishment might be death, an attorney would get any relevant material from Gruzen. Dr. Yohe found that Gruzen’s condition had deteriorated considerably between his last observation of him at the state hospital and the one on the day before Yohe testified.

Dr. Albert Rosendale, the examining psychiatrist, testified that before Gruzen was brought before the combined staff of the hospital on July 19, he had concluded that Gruzen had the mental capacity to understand the proceedings against him and to assist effectively in his defense, and that, in spite of the fact that he changed his opinion as to diagnosis and joined in the staff opinion, he had observed Gruzen during his subsequent stay in the hospital and, while he was still convinced as to the staff diagnosis of “schizophrenic, paranoid type,” he was of the opinion that Gruzen had the capacity to assist in his defense and to understand the proceedings against him at the time of the hearing. Dr. Rosendale emphasized the fact that Gruzen said repeatedly that, upon advice of his attorney, he was not to discuss anything concerning the crime with which he was charged. Dr. Rosendale said, however, that he had not seen Gruzen in two months, and did know what his condition was at the time he was testifying. He stated that Gruzen’s condition might have either improved or deteriorated during the two months after he had left the state hospital. He had heard Dr. Yohe’s testimony, and did not question that doctor’s observation that Gruzen had greatly deteriorated mentally. He said that, if Gruzen were sent back to the hospital he would reevaluate him, and that the psychiatric staff had been asked to reevaluate him, but that he would not be able to comment on his condition three months later.

Lt. Ken McFerrin of the Arkansas State Police, who attended Gruzen’s extradition hearing in New Jersey and then brought him back to Arkansas, had visited Gruzen in the Faulkner County jail after the hospital observation and felt that Gruzen was oriented as to time and place and knew where he was. McFerrin said that he and Gruzen had a nice visit, that Gruzen knew him, remembered their association and discussed their trip with him. McFerrin stated that, when he and Gruzen were leaving New Jersey, Gruzen was instructed by his attorney not to talk with “anyone about anything.”

At the conclusion of the hearing, the trial judge stated, “The court holds that this is a question for the jury to decide.” In this, the court erred. No person who, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist effectively in his own defense shall be tried, convicted or sentenced for the commission of an offense, so long as the incapacity endures. Ark. Stat. Ann. § 41-603 (Repl. 1977). It is certain, beyond reasonable doubt, that Gruzen has a mental disease or defect.' When his fitness to proceed with the trial became an issue, it was the duty of the court to make a determination of that issue, either on the report of the Arkansas State Hospital or after a hearing on that issue. Ark. Stat. Ann. § 41-606 (Repl. 1977). This is a matter that must be decided by the trial judge, and it is reversible error for him to leave the matter to the jury to decide. Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979).

The error in procedure on the question of appellant’s competency to stand trial was not in submitting the question to the jury; it was in not making an independent pretrial determination of the issue before putting appellant to trial. In this respect we disagree with the state’s argument that submission of the question to the jury cured the trial judge’s error in not making the determination himself. The state cites Forby v. Fulk, 214 Ark. 175, 214 S.W. 2d 920, where it was held that it was not the purpose of an earlier statute on the subject to deprive the jury selected to determine guilt or innocence of a defendant of the determination of the fact question as to the defendant’s sanity at the time of the trial. The statute there involved and the statute before us are not at all similar and the question presented is very different. In Forby, we simply held that a previous act requiring postponement of trial on the question of guilt or innocence until a jury had determined whether the defendant was, at the time, of unsound mind was repealed by Initiated Act 3 of 1936. We held, however, that Initiated Act 3 did not leave the question of sanity to the Arkansas State Hospital, but merely provided the jury at the time of trial with the assistance of the trained staff of the Arkansas State Hospital on the issue of sanity when it was raised. The statute involved here provides for a procedure completely different from that prescribed prior to the adoption of Initiated Act 3 and from that approved in Forby. The failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L. Ed. 2d 103 (1975).

It has been suggested that we should not reverse this case on this ground because appellant, rather than argue that the trial judge had erroneously declined to decide this issue, argues only that the court’s decision was erroneous. However, in a case where the sentence is life imprisonment without parole, we must examine the record for prejudicial errors. Ark. Stat. Ann. § 43-2725 (Repl. 1977); Collins v. State, 261 Ark. 195, 548 S.W. 2d 106, cert. den. 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed. 2d 158, reh. den. 434 U.S. 977, 98 S.Ct. 540, 54 L.Ed. 2d 471 (1977). Appellant, in order to preserve a question for review on appeal had to do nothing more than make known to the trial court what he sought in the way of a ruling. Ark. Stat. Ann. § 43-2725.1 (Repl. 1977); Ford v. State, 253 Ark. 5, 484 S.W. 2d 90. Clearly, he sought to be declared unfit to proceed with the trial because of his incapacity to understand the proceeding or to assist effectively in his own defense. But, if there is any doubt about the question having been preserved, it is totally dispelled by the fact that immediately after the court’s ruling, Gruzen’s attorney stated: “Save our exceptions.” Thus, even if this question had not been argued in appellant’s brief at all, it would not have been waived, and was not waived, on appeal. Collins v. State, supra; Smith v. State, 259 Ark. 703, 536 S.W. 2d 289; Ark. Stat. Ann. § 43-2725 (Repl. 1977).

The fact that there was a great potential for prejudice in the court’s failure to rule on the issue may be easily demonstrated, if the mere failure to make a ruling cannot be said to be prejudicial in and of itself. During the course of the trial, Dr. Rosendale, upon whose testimony the state relied heavily at the pretrial hearing, even though he had not seen Gruzen for two months, heard news reports, after this hearing, that Gruzen was fasting. Dr. Rosendale then visited Gruzen in the Faulkner County jail one week before the trial began. Dr. Rosendale was called as a rebuttal witness by the state.

On cross-examination, Dr. Rosendale told of his visit a week before the trial to Gruzen in a jail cell in which Gruzen was the sole occupant. Dr. Rosendale said that Gruzen was delusional at that time, had told Rosendale of a revelation from God about secret passageways at Rogers Hall at the Arkansas State Hospital that were used by Rosendale, had given Rosendale a special diet he had worked out for the cure of all mental illnesses in prisons and jails, had related that his attorney Jack Lessenberry had claimed to be his defense attorney, but was not working for him, and that Lessenberry’s services were not needed because God was taking care of him. Based upon this interview, Dr. Rosendale expressed the opinion that Gruzen could not effectively assist Lessen-berry in his defense and that he was of no use whatsoever to Lessenberry in that defense. Rosendale also testified that not only had he failed to gain Gruzen’s confidence, but he did not think that Gruzen had cooperated with Lessenberry any better than he had with him.

The probability that there was prejudice is further demonstrated by the presentence hearing. After the verdict was returned, Gruzen’s attorney Lessenberry moved for a new trial on the basis that Gruzen had been unable to assist his defense counsel in the preparation for and during the trial. When Lessenberry asked that there be a hearing on the motion, the prosecuting attorney resisted on the basis of the pretrial hearing, saying that the purpose had been to determine whether Gruzen was competent to aid in the preparation of the trial and objected to Lessenberry’s being allowed to testify about anything that might have happened during the course of preparations. Lessenberry was permitted to testify. (Gruzen was represented by another attorney at this hearing.) Lessenberry stated that he got no assistance from Gruzen during pretrial preparations or during the course of the trial and that this was the first case in which he had no input or assistance from the defendant. He expressed the opinion that Gruzen was not competent to assist him. He said that he had been unable to separate fact from fantasy in his discussions with Gruzen. We cannot say that the court’s error was harmless, since the evidence at the pretrial hearing that Gruzen had the capacity required for trial pursuant to Ark. Stat. Ann. § 41-603 was not beyond doubt and the resulting potential for prejudice was very great. The case must be reversed and remanded for a new trial because of the trial court’s failure to make a determination of Gruzen’s fitness to stand trial, so we must consider all other matters, either argued on this appeal or, if not argued here, where objections were made in the trial court, unless they are not likely to arise in a new trial.

The first such matter is appellant’s contention that the trial court erred in failing to suppress all evidence obtained as a result of a breach of the psychotherapist-patient privilege. The privilege is recognized in the Arkansas Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), Rule 503. That rule provides that a patient has a privilege to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his mental or emotional condition among himself, psychotherapist and persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including the patient’s family. The state contends that the New Jersey statute governs rather than the Arkansas statute upon which appellant relies. For the purposes of this opinion, we assume, without deciding, that the Arkansas Statute is applicable, even though it is more favorable to appellant than the New Jersey statute.

The question arises from the denial of appellant’s motion to suppress evidence. That motion was directed primarily to suppression of evidence definitely connecting Gruzen with the State of Arkansas, during the period in April, 1976, that he was away from his parents’ home. The evidence was seized under a warrant to search the dwelling house of Gruzen’s parents in New Jersey. The other evidence which appellant contends resulted from the alleged breach of privilege was Gruzen’s name.

The evidence discloses that when Gruzen went to Dr. Pusin upon his return to New Jersey he related a story that seemed to be the cause of his agitated condition, but Dr. Pusin was unable to determine whether it was fact or fantasy. Dr. Pusin felt that this situation called for the services of a forensic psychiatrist. Because he had little experience in that area of psychiatry and because he was having difficulty remaining objective due to the fact that he had grown very close to Gruzen during the 17 years of treating him, Dr. Pusin asked Dr. Eugene Revitch to participate in the diagnosis and treatment of Gruzen. After a two or three hour examination, Dr. Revitch concluded that the incident was factual and that Gruzen was in a psychotic state and potentially suicidal. Dr. Revitch was tormented by the fact that, based on his conclusions, he knew the facts of a horrible crime, but his action was restricted by the patient’s privilege. After conferring about the situation with two consultants and an unsatisfactory review of the literature on the subject, Dr. Revitch decided that it was his obligation to find out about the crime. Capt. Donald Vallatt of the office of the prosecutor for Union County, New Jersey had been afriend of Dr. Revitch for 25 years, so Revitch called his friend for information, seeking to confirm his suspicion that he was dealing with reality, not fantasy. Revitch asked Vallatt to find out whether there had been any murders or girls reported missing in Arkansas within the preceding few days. As a result of this inquiry, Lt. John Mason called the North Little Rock Police Department and asked them to check with the National Crime Information Center, and, as a result, learned that an offense such as that described by the doctor had recently occurred in Arkansas. According to Dr. Revitch, when Vallatt asked that he be given the name of the person Dr. Revitch was talking about, the doctor refused at first, but when the officer started shouting, he stated that the person’s first name was John. Capt. Vallatt said that Dr. Revitch did not give him any name.

Gruzen’s parents were naturally concerned about their son’s condition. They were unaware of the story Gruzen had related to the psychiátrists. Either Revitch or his wife told the Gruzens to call Capt. Vallatt if they wanted information about John. When the Gruzens called Vallatt, he quickly connected their call with his conversations with Dr. Revitch and realized that John Gruzen was a suspect in the murder of Dana Diane Mize. He conveyed this information to Lt. John Mason, who, after discussing it with authorities in North Little Rock, applied for a warrant to search the Gruzen residence, relying upon the information received from Vallatt to establish probable cause. Since Gruzen’s parents had given their telephone number to the police, the police were able to obtain the address of the Gruzen residence. The items seized enabled Arkansas authorities to make a case against Gruzen, although prior to the disclosures made by Dr. Revitch, they had no substantive clues whatever as to .the identity of the little girl’s slayer.

In approaching this question, we must remember that Dr. Revitch was not called to testify at the trial and the state was not endeavoring to introduce any statement made by him. Appellant is attempting to invoke the exclusionary rule developed by such cases as Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) and applied to the states by such cases as Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081 (1961). The exclusionary rule was developed as a deterrent to unlawful action of police officers. It is not applicable to action by private citizens, even when they inform state officers of matters coming to their knowledge. Walker v. State, 244 Ark. 1150, 429 S.W. 2d 121; United States v. Burton, 475 F. 2d 469 (8th Cir., 1973).

Appellant seeks to invoke the “fruit of the poisonous tree doctrine,” citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963). This doctrine, which had its inception in Silverthorne and gained its name in Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939), is another facet of the exclusionary rule which has application only when the tree is poisoned by unlawful action by police officers. In Silverthorne, it was said that it is knowledge gained by the government’s own wrong that cannot be used. In Wong Sun, the United States Supreme Court dealt with evidence obtained as the result of an unlawful arrest and an unlawful invasion of the dwelling place of the accused to make the arrest. It was said in that case that the exclusionary rule does not apply when the government independently obtains knowledge of the evidence apart from its own unlawful activity. Appellant’s argument that, in cooperating with Capt. Vallatt, Dr. Revitch acted on behalf of the state is neither convincing, nor accompanied by citation of any authority, and we find no merit in it. There was no unlawful action by police officers in discovering the identity of Gruzen. The violation of the privilege by the psychiatrist was not police action.

We do not find the case of Lewis v. State, 265 Ark. 132, 577 S.W. 2d 415 (1979) analogous to this situation, as appellant suggests. That case involved a holding that the petitioners there were entitled to a hearing on a petition for post-conviction relief on the ground that their constitutional right to counsel had been violated by communication of confidential and privileged information by their retained attorney and an investigator employed by that attorney.

The prosecuting attorney introduced photographs of the body of Dana Mize taken when it was removed from a stock pond on the farm of Richard Hendrickson, where it was discovered by Hendrickson on April 16. One of them showed the position of the victim’s body as it floated in the pond, and two of them, taken after the body was removed from the pond, showed injuries to Dana’sface. No objection was made to the first of these photographs, but appellant’s counsel objected to the two photographs showing damage to the girl’s face on the ground that they were inflammatory. Appellant concedes that the question of admissibility of photographs lies largely in the discretion of the trial judge. See Stewart v. State, 233 Ark. 458, 345 S.W. 2d 472, cert. den. 368 U.S. 935, 82 S.Ct. 371, 7 L.Ed. 2d 197; Tanner v. State, 259 Ark. 243, 532 S.W. 2d 168. Of course, if a photograph serves no valid purpose and can only result in inflaming the passions of the jury, it is inadmissible. Perry v. State, 255 Ark. 378, 500 S.W. 2d 387. A photograph is admissible when it tends to corroborate the testimony of a witness, show the nature and extent of wounds or the savagery of an attack, or is useful to enable a witness to better describe objects portrayed or the jury to better understand the testimony. Davis v. State, 246 Ark. 838, 440 S.W. 2d 244; Perry v. State, supra; Stewart v. State, supra; Tanner v. State supra. If a photograph, although it may be inflammatory, does serve a valid purpose, we will not reverse the decision of the trial court, even in a capital case, unless it is shown that there was a clear abuse of the trial court’s discretion. Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73, cert. den. 439 U.S. 882, 99 S. Ct. 220, 58 L. Ed. 2d 194. See also, Tanner v. State, supra; Milam v. State, 253 Ark. 651, 488 S.W. 2d 16.

The two photographs in question show the flesh on the jaw of the victim torn away from the body, exposing the lower maxillary and the jaw. Dr. Rodney Carlton, then State Medical Examiner, was called to the stock pond on the Hendrickson farm where the body had been found by Hendrickson. Dr. Carlton testified about the appearance of the face and the tearing of the flesh of the lower jaw, and said that it was consistent with the striking of a blunt force, or with the person having been dragged over a freshly cut stub, or something of that nature. Dr. Carlton said that the photographs accurately depicted the facial injuries he described, and that they indicated a glancing injury. He was not aware of the fact that the pond was being used to grow catfish, but he had assumed that there were fish and turtles in the pond. Dr. Carlton expressed the opinion that Dana was alive when she was put in the pond.

Hendrickson saw the face of Dana Mize when her body was removed from the stock pond. He testified that the flesh around the right side of her mouth was hanging down. Lt. Ken McFerrin was present when the body was taken from the water. He testified that the photographs accurately depicted the condition of the body and the facial injuries. Dr. Bob Bannister, Coroner of Faulkner County, who was also present when the body was removed, testified that the photographs depicted the body as he saw it.

Even though those photographs were corroborative of the testimony of these witnesses, appellant says that the photographs should not have been admitted into evidence because there was no evidence to show who or what caused the tearing of the flesh. It is true that there is no direct evidence in this regard, but there are circumstances from which a jury might draw an inference. Hendrickson said that he kept the area around the pond “bush-hogged.” He kept cattle of various colors and breeds there. Dr. Carlton testified that, when he examined the body, he found hair upon it that was of non-human origin. In addition to the facial tear, there were superficial scratches and abrasions about the face which, according to Dr. Carlton, could have been caused by fingernails or briars. It would not be unreasonable for a jury to believe that Dana had been dragged across the field before she was put into the pond or to accept the idea that the facial tear resulted from her face having been dragged across a stub in the field, and that the facial scratches supported such inferences. Dr. Carlton found bruises on Dana’s neck which he said were consistent with manual strangulation.

In Rodgers v. State, 261 Ark. 293, 547 S.W. 2d 419, we said that the test should always be whether any necessarily inflammatory tendency of a photograph is outweighed by its probative value. We there recognized that this determination lay in the sound judicial discretion of the trial court. In this case, we are unable to say there was an abuse of discretion. We note that Rule 403 of the Arkansas Rules of Evidence [Ark. Stat. Ann. § 28-1001, Rule 403 (Repl. 1977)] now governs this question. Under that rule relevant evidence may be excluded only if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. It may be seen that the rule stated in Rodgers has been changed by tipping the scales in favor of the probative value of a photograph. We also note that error may not be predicated upon a ruling admitting evidence unless a substantial right of the objecting party is affected. Ark. Stat. Ann. § 28-1001, Rule 103 (a). This does not affect our previous holdings that weighing of the opposing factors lies within the sound judicial discretion of the trial court, which will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion. We find no abuse here.

Appellant argues that the photographs should not have been presented to the jury when it cannot be stated with any certainty that he actually caused the damage depicted by them. A short answer to this argument is that the test of the trial court’s discretion is simply not that rigid. There was circumstantial evidence connecting him with the disappearance of the young girl. The fact that she was last seen with appellant is significant. See Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822.

Appellant also argues that the photographs should have been excluded because of the bifurcated trial in capital cases. He points out that neither the savagery of the attack nor the sadistic mind of the attacker is an aggravating circumstance the jury is allowed to consider in the second or sentencing phase of the trial. See Ark. Stat. Ann. § 41-1303 (Repl. 1977). Furthermore, he contends that, under the capital murder statute, no culpable mental state is required under the applicable section of the statute, which is Ark. Stat. Ann. § 41-1501 (1) (a) (Repl. 1977). The statute does require a showing, however, that the death of the victim was caused under circumstances manifesting extreme indifference to the value of human life, and the photographs were relevant on that subject. We cannot say, therefore, that the photographs were not relevant to shed light on that issue. There was certainly no prejudice to appellant in the second stage of the bifurcated trial, because the jury chose the lesser punishment.

Appellant also contends that the jury arbitrarily disregarded the testimony on the issue of appellant’s mental disease or defect and, therefore, their verdict is against the weight of the evidence. We do not determine the weight of the evidence on this appeal. The question is whether there is any substantial evidence to support the verdict. Actually, in arguing this point, appellant concedes that he bore the burden of proof on this affirmative defense and that the real question is whether there is any substantial evidence to support the verdict. See Campbell v. State, 265 Ark. 77, 576 S.W. 2d 938 (1979). But appellant says that the jury arbitrarily disregarded the evidence showing that because of mental disease or defect he lacked capacity to conform his conduct to the requirements of law or to appreciate the criminality of his conduct. The testimony which the appellant says the jury disregarded was that of expert witnesses who expressed opinions on the issue. No useful purpose would be served by a review of all the evidence on this point, other than to show that there was substantial evidence to support the jury verdict which prevents us from saying that the jury arbitrarily disregarded the testimony. As we have previously said, the expert testimony that Gruzen has a mental disease or defect is undisputed. This does not mean, however, that he was necessarily without capacity to conform his conduct to the requirements of law or to appreciate the criminality of his conduct.

A jury is not bound to accept opinion testimony of experts as conclusive, and it is not compelled to believe their testimony any more than the testimony of other witnesses who testify. Mutual Benefit Health & Accident Ass’n. v. Moore, 196 Ark. 667, 119 S.W. 2d 499. It may consider an expert’s opinion in the light of the expert’s qualifications and credibility, the reasons given for his opinion, and the facts and other matters upon which his opinion is based, but it is not bound to accept an expert opinion as conclusive. A jury should give the opinion whatever weight it thinks the opinion should have and may disregard any opinion testimony it finds unreasonable. AMCI 105.

Expert witnesses are allowed to give opinion testimony only as an aid to the jury in understanding questions inexperienced persons are not likely to decide correctly without such assistance, but expert testimony is entitled only to such consideration as it appears to the jury to deserve. American Bauxite Co. v. Dunn, 120 Ark. 1, 178 S.W. 934, Ann. Cas. 1917C 625.

Testimony of expert witnesses is to be considered by the jury in the same manner as other testimony and in the light of other testimony and circumstances in the case; the jury alone determines its value and weight, and may, under the same rules governing other evidence, reject or accept all or any part thereof as they may believe it to be true or false. Western Union Telegraph Co. v. Byrd, 197 Ark. 152, 122 S.W. 2d 569; United States Fidelity & Guaranty Co. v. Park, 254 Ark. 129, 491 S.W. 2d 791. Even when several competent experts concur in their opinions and no opposing expert evidence is offered, the jury is still bound to decide the issue upon its own fair judgment. Western Union Telegraph Co. v. Turner, 190 Ark. 97, 77 S.W. 2d 633. The jury must consider the opinions of the experts in connection with all the other evidence in the case. Kelley v. State, 146 Ark. 509, 226 S.W. 137. The jury is the sole judge of the credibility of expert witnesses and the weight to be given their testimony, just as is the case with the testimony of other witnesses. Kelley v. State, supra. Testimony need not be regarded as undisputed merely , because it is not directly contradicted if, from other facts and circumstances in the record, any reasonable inference can be drawn contrary thereto. Western Union Telegraph Co. v. Byrd, supra.

There was substantial evidence to support the jury verdict. A witness called by appellant, Dr. B. Travis Tunnell, Jr., a clinical psychologist, suspected after his first interview with Gruzen that Gruzen was malingering and might not have been totally honest, and this thought crossed his mind after a second interview. A report of Dr. Tunnell in the form of a letter to the prosecuting attorney included a finding that Gruzen was above average in intellect. Dr. Tunnell testified, in answer to a hypothetical question which included facts in evidence or which might have been inferred from the evidence, about Gruzen’s conduct between the time he left New Jersey and the time he took a train to return there and expressed the opinion that Gruzen was competent at that time. Gruzen’s mother testified that he did not graduate from high school, but was admitted to college by taking equivalency tests. His intelligence quotient was in the superior intellectual range. Dr. Albert F. Rosendale was the examining psychiatrist who observed Gruzen for 45 days before he was presented to the staff at the Arkansas State Hospital. Dr. Rosendale presented him as being competent.

Dr. Allen Graham Tuff, a psychologist employed at the Human Services Center as Director of Clinical Services, said that his first reaction to the results of one test heavily relied upon by expert witnesses who testified on behalf of appellant was that the test was invalid and above the range of interpretability. In his opinion, it indicated that Gruzen was faking. He said that another test of Gruzen showed a perfect score'on judgment and abstract reasoning. This witness was experienced in interpretation of the tests which had been administered to Gruzen. Dr. Tuff, in response to a hypothetical question similar to that propounded to Dr. Tunnell, expressed the opinion that, applying the legal tests applicable in Arkansas as to ability to appreciate the criminality of his conduct or conform his conduct to the requirements of law, Gruzen was legally sane.

Dr. Albert F. Rosendale, who was Chief of the Forensic Psychiatric Section of the Arkansas State Hospital, expressed the same opinion in response to the same hypothetical question. Dr. Rosendale was of the opinion that Gruzen’s persistent adherence to his attorney’s advice not to discuss the events pertaining to the charge against him indicated his ability to appreciate the criminality of his conduct.

There was testimony about Gruzen’s conduct from the time of his arrival in Arkansas until his return to New Jersey. Some of this conduct was consistent with that of a legally competent person. There was sufficient substantial evidence to support the jury’s finding that Gruzen was legally responsible for his acts when the crime was committed.

Although appellant argued no other points for reversal, we have reviewed the record for prejudicial error, as required in a case where the sentence is life imprisonment without parole. Some of the matters to which appellant made objection and requests rejected by the court will not likely arise on retrial. Appellant’s motion for a directed verdict at the close of the evidence on behalf of the state on the basis that the state had not shown that he was sane was not well taken. The defense of mental disease or defect is an affirmative defense which defendant must prove by a preponderance of the evidence. Ark. Stat. Ann. § 41-601, -110 (Repl. 1977). We do not deem it necessary to review the evidence which showed that Dana Mize had been kidnapped, raped and drowned, that Gruzen was in and around Little Rock, Conway and Vilonia at the time this happened, that he had rented a car which matched the description of that into which Dana was pulled as she was walking toward her home on the day she disappeared, or that a hair sample taken from the victim matched samples taken from the rented car, other than to say that it was sufficient to present a question for the jury, so motions for a directed verdict were properly denied.

The judgment is reversed and the cause remanded for a new trial.

Harris, C.J., not participating.

Purtle, J., concurs.

Hickman, J., dissents.

John I. Purtle, Justice,

concurring. Were I to allow my emotions to control my judgment I would dissent from the majority view in this capital felony case. However, after reviewing the record, I am convinced the majority properly state the law as we have treated it in the past. The law has not changed since we stated in Bly v. State, 263 Ark. 138, 562 S.W. 2d 605 (1978).

It is our duty in a capital felony case to examine the entire record for not only errors raised on appeal but also those that may be found in the record.

The record clearly reveals appellant raised the issue of competency to stand trial. Ark. Stat. Ann. § 41-606 (Repl. 1977) states:

If the defendant’s fitness to proceed becomes an issue, it shall be determined by the court. If neither party contests the finding of the report filed pursuant to section 605 (§ 41-605), the court may make the determination on the basis of the report. If the finding is contested, the court shall hold a hearing on the issue.

The above statute placed the duty upon the trial court to make the decision of whether the appellant was competent to stand trial. The trial court did not make that determination. It is our duty to return the case to the trial court for a new trial. We are not free to decide any case in a manner which we personally feel expedites justice unless the accused has been afforded due process of law and has received equal treatment. Such consideration is basic to our form of government and required by the Constitution of the State of Arkansas and the Constitution of the United States.

Darrell Hickman, Justice,

dissenting. I dissent because the judgment is being reversed for a reason not raised on appeal.

There was no objection preserved in the record regarding the trial court’s failure to rule on Gruzen’s competency to stand trial. There is no argument at all on appeal that the court erred in not deciding that issue itself.

Not even in capital cases do we search for errors not preserved at the trial level.

While the evidence was strong that Gruzen was in no condition to stand trial, there was substantial evidence to the contrary. If the court had ruled him competent to stand trial, which in effect is what was done, I would not reverse that decision.

In summary, this case is reversed for no reason alleged below or argued on appeal.