author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    LEENERTS FARMS, INC. v. CRANCO, A Joint Venture of Andco Farms, Inc., A California Corporation, and Crescent Farms Company, A Texas Corporation
    78-200
    578 S.W. 2d 229
    Opinion delivered March 26, 1979
    (In Banc)

      Wright, Lindsey & Jennings, by: William D. Haught and John R. Tisdale, for appellant.

      Gaughan, Barnes, Roberts, Harrell & Laney, by: Allen P. Roberts, for appellees.
   Conley Byrd, Justice.

Leenerts Farms, Inc., an Illinois Corporation, brought this action against Cranco, a joint venture of Andco Farms, Inc., a California Corporation, and Crescent Farms Company, a Texas Corporation, to specifically enforce an alleged contract for the purchase of 3548 acres of land owned by Cranco. The trial court found that appellant Leenerts Farms, Inc. was a foreign corporation not qualified to do business in Arkansas, that the contract sued upon was made in Arkansas and that it arose in the course of and was part and parcel of appellant’s doing business in the State contrary to the provisions of the “Wingo” Act, Ark. Stat. Ann. § 64-1201 and § 64-1202. Based upon those findings the trial court dismissed the complaint on the basis that the contract was void. For reversal appellant contends (1) that it was not doing business within the State of Arkansas for purposes of the “Wingo” Act and (2) that the contract of sale was not an Arkansas contract.

The record shows that appellant is a family owned corporation engaged exclusively in farming. Appellant was first contacted by one James Jacks of Monroe, Louisiana, about the possibility of acquiring the farm. On the first visit to Arkansas to view the farm, appellant agreed to pay Jacks a finder’s fee in the event the farm was purchased. Sometime around the first of December, 1977, appellees through their agent Jack DeWitt made arrangements with Julian Streett, an attorney in Camden, to handle the negotiations for the sale of the farm. Streett was not told the identity of the prospective purchasers. After appellant had viewed the farm, its principal officers contacted Tom Henderson, an attorney of McCombs, Illinois, to handle the negotiations for the purchase of the farm. Julian Streett’s first knowledge of appellant as a prospective purchaser of the farm came through a telephone call from Tom Henderson. Henderson submitted on December 27, 1977, to Julian Streett a proposal to purchase the farm. Appellant attached its check in the amount of $50,-000 to the proposal for which Streett was to act as escrow agent. After a conference with Jack DeWitt in Streett’s office, appellees through Streett submitted a counter proposal to appellant. Tom Henderson from his office in Illinois then contacted Streett by phone. After Streett informed Henderson that he had no authority to make any changes in appellees ’ counter proposal, all negotiations for the purchase of the farm were carried out between appellant’s agents in Illinois and appellee’s agent Jack DeWitt in Davis, California. As a result of those negotiations, Tom Henderson prepared appellants’ counter proposal and mailed the original to appellees’ agent Jack DeWitt in California with a copy to Julian Streett in Camden. On February 1, 1978, Jack DeWitt, while en route to Arkansas, called appellant from Denver, Colorado. There is a dispute between Jack DeWitt and Roger Leenerts as to what was said in that conversation, but the trial court, for purpose of making its ruling on appellees ’ defense under the Wingo Act, accepted Mr. Roger Leenerts’ version — i.e. that the contracts were signed and appellant had bought the farm.

Following the telephone call from Jack DeWitt, appellant’s managing officers flew by private plane to Arkansas with some Illinois bankers, through whom they intended to make a loan to finance the purchase of the farm. Appellant also made some arrangements with James Jacks to do some surface water drainage of the lands.

Tom Henderson contacted Julian Streett on February 3, 1978, but was unable to verify that the contract had been executed. Following a conversation between Roger Leenerts and Jack DeWitt on February 7, 1978, in which DeWitt told Leenerts that the farm had been sold to another purchaser Tom Henderson again contacted Streett who verified DeWitt’s conversation with Roger Leenerts. When appellant’s counter proposal was returned to appellant, the signatures of appellees’ officers Mr. Anderson, a Mr. Buretta and a third person that Jack DeWitt could not identify had been cut out.

Appellant’s counter proposal, which they allege was the executed contract, in so far as here pertinent provides:

“OFFER TO PURCHASE REAL ESTATE
THIS OFFER, made this 25 day of January, 1978, by and between LEENERTS FARMS, INCORPORATED, of Golden, Illinois, (hereinafter referred to as Buyers) and ANDCO FARMS, of Davis, California, and CRESCENT FARMS, of Houston Texas, (hereinafter referred to as Sellers).
WITNESSETH:
(1) The Buyers hereby offer and agree to pay the Sellers for approximately Three Thousand Five Hundred Forty-eight (3,548) acres the sum of One Million Six Hundred Twenty-nine Thousand Three Hundred Twenty Dollars ($1,629,320.00) in the following manner:
(b) At such time as this is accepted by all parties, the Fifty Thousand Dollars ($50,000.00) which has been placed in escrow shall be delivered to the Sellers and shall be applied toward the total amount at closing.
(6) If the title to said real property be merchantable in fact as called, the Sellers shall deliver for the Buyer at the office of said Seller’s agent a general Warranty Deed which shall provide that the conveyance is subject to all prior reservations or conveyances of any part of the mineral estate, and such general Warranty Deed shall be free and clear from all liens and encumbrances whatsoever, except as herein provided, and the Buyer shall then and there pay the balance of said cash payment at closing.
(9) In furtherance of this agreement, the Seller has deposited with Julian Streett, of Camden, Arkansas, Attorney for Seller, a copy of this Offer to be held in escrow and is authorized to accept for and on behalf of the Sellers the payment of Fifty Thousand Dollars ($50,000.00.). The Sellers and Buyers agree to pay one-half (V2) of the escrow fees.
(13) The possession of said real estate is to be delivered to Buyers immediately upon execution of this agreement so that Buyer may start farming operations and prepare for the crop year 1978. Buyers and Sellers agree that if farming operations are not started, the Sellers may upon ten (10) days written notice to the Buyers, commence farming operations in order to take all steps reasonably necessary to prepare the property covered by this Offer for the 1978 crop year. The Sellers agree to include in such notice the anticipated operations on a periodic basis with the charge to the Buyers to be Five Dollars ($5.00) per acre per tractor trip plus the actual cost of fuel, herbicide, lime, fertilizer or seed. The Sellers agree to estimate to the Buyers ex - penditures which they anticipate making on a weekly basis but both parties acknowledge that such figures will be only an estimate and the Buyers agree and acknowledge that they will be responsible for all such charges reasonably necessary to prepare said lands for the 1978 crop.
(14) This agreement shall extend to and be binding upon the parties hereby and their respective heirs, executors, or administrators. The Buyers agree that their interest in the property, which arises under this agreement shall not be assignable to any other party without prior written consent of the Sellers.
(15) Sellers and Buyers, and each of them, are expressly granted the right to specific performance herein. It is specifically understood and agreed between the Sellers and the Buyers that the Fifty Thousand Dollars ($50,000.00) put up by the Buyers in this matter is not in any sense of the word to be called ‘earnest money.’
IN WITNESS WHEREOF, the parties hereto have signed this Agreement this 31 day of January, 1978.”

In Alexander Film Company v. State, use of Phillips County, 201 Ark. 1052, 147 S.W. 2d 1011 (1941), we pointed out that the Wingo Act, Ark. Stat. Ann. §§ 64-1201 and 64-1202 (Repl. 1966) is a penal statute which must be strictly construed in favor of those against whom the penalty is to be imposed. Furthermore, in construing a contract to determine whether it is valid or invalid, we find in 17 Am. Jur. 2d Contracts § 254 the following:

“It is a general principle that where a contract is fairly open to two constructions, by one of which it would be lawful and the other unlawful, the former will be adopted. Thus, if a contract is capable of a construction which will make it valid, legal, effective, and enforceable, it will be given that construction if the contract is ambiguous or uncertain. A construction which renders the contract valid is preferred to one which renders it invalid, and it will not be construed so as to the invalid unless that construction is required by terms of the agreement in the light of the surrounding circumstances.”

When the record in this case is considered in the light of the penal nature of the Wingo Act and the principle that a contract should be construed where possible to make it valid, we must hold that the trial court erred in ruling that the contract sued upon was an Arkansas contract within the provision of Ark. Stat. Ann. §§ 64-1201 and 64-1202 (Repl. 1966). The fact that the contract for purchase of the real estate was to be closed in Arkansas would not make a contract entered into out of the State of Arkansas invalid under Ark. Stat. Ann. § 64-2102 (Repl. 1966).

Since this disposition makes it unnecessary to determine whether appellant was doing business in Arkansas in violation of Ark. Stat. Ann. § 64-1201, we have avoided any ruling thereon. However, we point out that upon litigation arising after the effective date of this opinion we will reconsider Republic Power & Service Co. v. Gus Blass Co., 165 Ark. 163, 263 S.W. 785 (1924), in so far as it supports appellees’contention that any acquisition of property in ths State by a nonresident corporation is a violation of Ark. Stat. Ann. § 64-1201 (Repl. 1966).

Reversed and remanded.

Fogleman, J., dissents in part.

John A. Fogleman, Justice,

concurring in part, dissenting in parí. I join in all of the majority opinion except the gratuitous offer to judicially amend the Wingo Act, 55 years after the decision in Republic Power & Service Co. v. Gus Blass Company, 165 Ark. 163, 263 S.W. 785.

       Jack DeWitt contended there was a counter proposal to the counter proposal.


source: Caselaw Access Project

author: Frank Holt, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    SHIPPERS TRANSPORT OF GEORGIA and TRAVELERS INSURANCE CO. v. Johnny A. STEPP
    78-233
    578 S.W. 2d 232
    Opinion delivered March 26, 1979
    (In Banc)

      Spears, Sloan & Johnson, by: J. H. Spears, for appellants.

      Hightower & McCaa, by: William E. Hightower, for appellee.
   Frank Holt, Justice.

This is a case of first impression. The full commission, in affirming the administrative law judge, found that appellee suffered a compensable injury as an employee of appellant Shippers Transport of Georgia. The circuit court affirmed. The facts are undisputed. When appellant Shippers hired appellee as a mechanic, appellee falsely represented in his written employment application that he had not previously been injured on a job. In fact, he had suffered three prior injuries, which occurred in 1959, 1963 and 1970, to his lower back, resulting in a collective 40% permanent partial disability rating to the body as a whole. Shippers employed appellee on October 21, 1976. He worked a short time, left and worked elsewhere, and was reemployed about 2 weeks before he injured his back on December 28, 1976, when he lifted a heavy object. This injury is in the same area of appellee’s three previous back injuries. Appellants contend, as a matter of law, that the appellee is precluded from compensation by our statutes because of the misrepresentation on his employment application. Appellee responds his claim is not so barred and is supported by substantial evidence.

We review our three statutes which specifically bar compensation. Ark. Stat. Ann. § 81-1305 (Repl. 1976) bars compensation for on-the-job injury where the injury was caused by the employee’s intoxication or the wilful intention of the injured employee to bring about the injury. § 81-1335 (a) subjects a person, who wilfully makes a false or misleading statement for the purpose of collecting a benefit or payment, to a misdemeanor prosecution. § 81-1314 (a) (2), which appellants specifically invoke, also bars compensation. It provides:

No compensation shall be payable for an occupational disease if the employee, at the time of entering into the employment of the employer by whom the compensation would otherwise be payable, falsely represented himself in writing as not having previously been disabled, laid off, or compensated in damages or otherwise, because of such disease.

§ 81-1314 (a) (5) (i) defines occupational disease:

‘Occupational disease’ as used in this Act means any disease that results in disability or death and arises out of and in the course of the occupation or employment of the employee, or naturally follows or unavoidably results from an injury as that term is defined in this Act. Provided, a causal connection between the occupation or employment and the occupational disease must be established by clear and convincing evidence.

§ 81-1302 (d) defines injury:

‘injury’ means only accidental injury arising out of and in the course of employment, including occupational diseases as set out in section 14 [§ 81-1314] and occupational infections arising out of and in the course of employment.

The court, in agreeing with the commission, held that appellee’s back injury is not a “disease,” hence not an occupational disease within the meaning of § 81-1314 (a) (5) (i); that intoxication and intentional injuries are the defenses to accidental injuries as defined in § 81-1302 (d); the legislative intent was for the additional defense of “misrepresentation” to apply only to occupational disease, which is not involved here and the court concluded, had the legislature intended that the appellee here be denied benefits because of his false employment statement as to previous injuries, it would and could have clearly so stated. Appellee argues that the court correctly interpreted the statutes and legislative intent. Also in giving the act a liberal construction, in view of its purposes, he is not precluded by the statute from collecting the asserted benefits.

As indicated, our statutes are silent on the effect of a false representation, except as to “occupational disease” and where the statement was made for the purpose of collecting benefits. By implication, we think public policy requires an obligation on the part of an employee, upon inquiry, to be truthful to an employer about preemployment health conditions. Therefore, even if we agree with the appellee that an “injury” and “occupational disease” are separate and distinct from each other and appellee’s back injury is not a “disease” within the meaning of § 81-1314 (a) (2), we are of the view that public policy, in the absence of a clear legislative intent to the contrary, requires the application here of the test as stated in IB Larscu’s Workmen’s Compensation Law § 47-53:

The following factors must be present before a false statement in an employment application will bar benefits: (1) The employee must have knowingly and wilfully made a false representation as to his physical condition. (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury.

Air Mod Corporation v. Newton, 215 A. 2d 434 (Del. 1965); Cooper v. McDewitt & Street Company, 196 S.W. 2d 833 (S.C. 1973); Martinez v. Mechenbier, Inc., 562 P. 2d 843 (N.M. 1977); see also City of Homestead, Dade County v. Watkins, 285 So. 2d 394 (Fla. 1973); Martin Company v. Carpenter, 132 So. 2d 400 (Fla. 1961); Long v. Big Horn Const. Co., 295 P. 750 (Wyo. 1964). The rationale of Larson’s rule is demonstrated by the fact that Workmen’s Compensation Law requires that the employer must take an employee as it finds him. Employment places on the employer the risks attendant upon hiring a known or unknown infirm employee. Consequently, it is only fair that the appellant employer here have a right to determine a health history before employment of the appellee as a mechanic to avoid the possible liability for an accidental injury, causally related to an infirmity.

Here we think the fair and just policy is to adopt the rule enunciated in Larson, supra, that a false representation as to a physical condition in procuring employment will preclude the benefits of the Workmen’s Compensation Act for an otherwise compensable injury if it is shown that the employee knowingly and wilfully made a false representation as to his physical condition, the employer relied upon the false representation, which reliance was a substantial factor in the employment, and there was a causal connection between the false representation and the injury.

Upon review of the record, it appears that the commission, which is the factfinder (not an appellate court), premised its holding solely upon the interpretation of §§ 81-1302 (d) and 81-1335 (a). It never reached the rule enunciated by Larson, which was specifically invoked by the appellants. Appellant employer adduced ample testimony before the commission to establish the first two factors enumerated by Larson. As to the third factor, i.e., a causal connection between the false representation and the present injury, the appellants argue it is common knowledge that appellee’s three previous back injuries left him with a weakened back which is prone to serious injury. However, according to appellee, he was advised by his doctor that he was in good physical condition to do manual labor (he had back surgery in each injury), he had no back limitation, and he had worked for the past 6 years as a mechanic without incident until this injury occurred.

In the circumstances, the judgment is reversed and the cause remanded for an evidentiary hearing before the commission and findings in accordance with Larson’s three-factor test. See Cooper v. McDevitt & Street Company, supra. If any factor is absent, then the appellee is entitled to compensation.

Reversed and remanded.

Harris, G.J., would reverse and dismiss.

Fogleman, J., concurs.

Byrd, J., would affirm.

John A. Fogleman, Justice,

concurring. I concur because I think that, given the “circular” definition of occupational disease, Ark. Stat. Ann. § 81-1314 (a) (2) (Repl. 1976) applies. I also agree that, in spite of the liberal construction, favorable to claimants, to be given worker’s compensation acts, public policy declared in the statutes themselves mandates that construction. I further agree that the Larson test is appropriate.


author: Frank Holt, Justice.

text:
    Jarrett RASCOE and SEARCY FEDERAL SAVINGS & LOAN ASSOCIATION v. Joe RASCOE
    78-306
    576 S.W. 2d 892
    Opinion delivered March 26, 1979
    (Division II)

      Robert Edwards, for appellants.

      Paul Petty, by: John Patterson, for appellee.
   Frank Holt, Justice.

This appeal involves a certificate of deposit issued by appellant Searcy Federal Savings and Loan Association. Sid Rascoe, the brother of appellant Jarrett Rascoe and appellee Joe Rascoe, had four certificates with the Association. Two certificates were listed as “Sid Rascoe or Jarrett Rascoe,” and one was listed “Sid Rascoe P.O.D. [pay on death] Jarrett Rascoe.” The one involved in this litigation was listed on the books and records of the Association as “Sid Rascoe P.O.D. [pay on death] Jerry Rascoe.” Upon Sid Rascoe’s death in 1977, the Association paid the funds in all four certificates to appellant Jarrett Rascoe. Appellee brought suit alleging that the certificate listing “P.O.D. [pay on death] Jerry Rascoe” should be paid to the estate of Sid Rascoe. It was stipulated that no Jerry Rascoe was known or had claimed the account. The court found that the requirements regarding the written execution of a “payable on death” card were not met so as to establish an account in favor of appellant Jarrett Rascoe. The funds were ordered paid to the estate and divided among the seven surviving brothers and sisters of Sid Rascoe. Appellants assert that the court erred in holding that Sid Rascoe did not establish an account payable upon his death to appellant Jarrett Rascoe.

The parties agree that Ark. Stat. Ann. § 67-1838 (5) (Repl. 1966), Act 227 of 1963, controls. That statute provides in pertinent part:

If a person opening or holding a savings account shall execute and file with the association a designation that on the death of the person named as holder, the account shall be paid to or held by another person or persons, the account, and any balance thereof which exists from time to time, shall be held as a payment on death account and unless otherwise agreed between the person or persons opening the account and the association:
(a) Upon the death of the holder of the account, the person or persons designated by him and who have survived him shall be the owners of the account (as joint tenants with right of survivorship if more than one) and any payment made by the association to any of such persons shall be a complete discharge of the association as to the amount paid;
(b) The person to whom such account is issued may change during his lifetime the designation of any of the persons who are to be holders at his death, by a written direction accepted by the association;
(c) The person to whom such account is issued may pledge, withdraw or receive payment and any such payment made by the association shall be a complete discharge as to the amount paid.

Appellants contend that Sid Rascoe had sufficiently complied with the statutory requirements to create an account payable to a Jerry Rascoe, had a Jerry Rascoe existed. They further assert that, when the testimony, facts and circumstances disclosed by the record are considered, the evidence is overwhelming that it was Sid Rascoe’s intent that the account be payable to appellant Jarrett Rascoe. Appellee responds that there was no evidence showing substantial compliance with the statute and argues that we have held when a case is controlled by statute, as here, the intent of the depositor will not control.

The certificate of deposit involved herein was issued on July 1, 1974. The only document bearing the signature of Sid Rascoe was a signature card signed in 1959. The card was for an account which had originally been created as a joint account for Sid and Winifred Rascoe. Upon Winifred’s death, Waynell Rascoe B «on was substituted as the beneficiary, and the signature card, as indicated, was signed and dated “9-30-59.” The beneficiary was changed to Jerry Rascoe in May, 1963, by someone inserting “Jerry Rascoe” above that. The change was initialed by “B.S.” (presumably an Association employee) and dated. It was not signed by Sid Rascoe. The certificate of deposit in question bears the account number 2D9-347. The signature card originally bore the number of 998, but that number was changed at some point to 347-1.6.

The card is reproduced below:

We hold there clearly was not substantial compliance with the recited statutory requirements. See Cupp v. Pocahontas Federal Savings and Loan Ass’n, 242 Ark. 566, 414 S.W. 2d 596 (1967); Harris v. Searcy Fed. Savings & Loan Ass’n, 241 Ark. 520, 408 S.W. 2d 602 (1966). Here at the time of issuance of the certificate of deposit in 1974, no signature card nor any type designation in writing was executed and filed by Sid Rascoe with the Association indicating that the account should be paid to another person.

Appellants further assert that it was clearly the intent of Sid Rascoe, as reflected by their evidence, that the account be payable at his death to appellant Jarrett Rascoe. Appellee contends that the owner’s intent is not controlling here, and we agree. It is true that under Act 343 of 1939, the creation of an account payable on death did depend on the intent of the depositor. See Cupp v. Pocahontas Federal Savings and Loan Ass’n, supra; and Park v. McClemons, 231 Ark. 983, 334 S.W. 2d 709 (1960). However Act 227 of 1963 (Ark. Stat. Ann. § 67-1838 [Repl. 1966]) superseded Act 343 and established certain minimum formal action required to be taken by the depositor in order to create an account payable on death. In the absence of a depositor meeting the minimum statutory requirements, his intent is no longer controlling in the creation of an account. Ratliff v. Ratliff, 237 Ark. 191, 372 S.W. 2d 216 (1963).

Affirmed.

We agree: Harris, C.J., and Fogleman and Purtle, JJ.


author: Darrell Hickman, Justice.

text:
    Arthur Lee COTTON v. STATE of Arkansas
    CR 78-111
    578 S.W. 2d 235
    Opinion delivered March 26, 1979
    (Division II)

      Andrew D. Gregory, for appellant.

      Bill Clinton, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Arthur Lee Cotton was convicted in the Desha County Circuit Court of raping two women, one of whom was Cotton’s sister-in-law. He was sentenced to ten years in the penitentiary on each count, the sentences to run consecutively.

On appeal Cotton alleges two errors: the court should have granted a continuance; and, substituted counsel should have been appointed. We find no error and affirm the judgment.

In September of 1977, Cotton was charged, determined to be an indigent, and counsel was appointed. The trial was set for April 18, 1978, by an order dated March 1, 1978. Before the jury was impaneled on the trial date, Cotton’s counsel made an oral motion for a continuance. He explained that Cotton had told him in September when he was appointed that Cotton desired other counsel. Cotton was advised to feel free to hire other counsel and apparently encouraged to do so. Cotton’s counsel explained that he had mailed several letters to Cotton but all of them had been unanswered. He stated that he had only talked to Cotton three times. Counsel explained that the day before the trial another lawyer called him inquiring about the possibility of serving as counsel for Cotton. The other lawyer declined to do so on such short notice. That same day Cotton consulted with his court-appointed attorney and provided counsel with the name of a witness who Cotton claimed would provide alibi testimony. A subpoena was promptly issued for this witness but she was not served and was not present for the trial. The trial court declined to grant a continuance.

The State’s case was essentially the testimony of the two women victims. Cotton’s defense consisted of his own testimony. His defense was that he wasn’t guilty because he was not even there; at the time of the alleged crimes he was with another woman. Cotton was cross-examined as to this other woman and he replied that the reason he did not provide counsel with her name earlier was that she was a married woman, pregnant, and he did not want to get her involved. He said the reason she couldn’t be served a subpoena was because she had gone fishing that day.

The first allegation of error is that the court should have granted a continuance. Motions for continuance are governed by Rules of Grim. Proc., Rule 27.3, which provides:

The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.

Granting or failing to grant a continuance is within the discretion of the court. Golden v. State, 265 Ark. 99, 576 S.W. 2d 955 (1979). The burden is on the appellant to show that there has been an abuse of that discretion. Freeman v. State, 258 Ark. 496, 527 S.W. 2d 623 (1975). We cannot say that the trial court abused its discretion and, therefore, we find no error in this regard.

The other allegation of error is that the court should have appointed other counsel. The appellant concedes that a defendant does not have the right to designate which attorney will represent him. However, he argues that because of Cotton’s expression of dissatisfaction, which Cotton’s counsel says was called to the court’s attention in March, the court should have appointed other counsel. We cannot say on this record that the court should have done so. The case was set for trial in March and a letter was mailed to Cotton notifying him of that fact. Cotton said he did not get that letter or other letters. He said they were apparently sent to the residence of his former wife. However, during the trial, he admitted that he resided at the same address he provided to his counsel — the address to which the letters were mailed.

Essentially, the argument on appeal is that the court-appointed counsel was ineffective because of a lack of communication or cooperation between lawyer and client.

There is a presumption of competency of counsel. Easley v. State of Arkansas, 255 Ark. 25, 498 S.W. 2d 664 (1973). There is insufficient evidence in this record to overcome that presumption. In fact, the record reflects that it was Cotton who was inattentive to his case, not counsel. Counsel repeatedly tried to contact Cotton and prepare a defense for him but received little or no cooperation. Cotton’s counsel filed appropriate pre-trial motions and extensively cross-examined the witnesses for the State. Counsel even argues that it was his own inadequacy and inefficiency rather than Cotton’s lack of cooperation which should be considered error. Cotton apparently took no action to assist his lawyer until the day before the trial. A lawyer can only do so much and if a client fails or refuses to assist his counsel, in the absence of evidence that counsel was at fault, that alone is not a basis to find a denial of the right to effective counsel.

Affirmed.

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

       There is no record of counsel’s conference with the trial judge in March. This statement is contained in the appellant’s brief.

       Counsel argues that he should have filed a motion for a continuance at least three days before trial. The time limit set for such motions is by the court’s order setting the matter for trial.


text:
    Kenny J. HALFACRE & Walter Andrew DUTY v. STATE of Arkansas
    CR 78-221
    578 S.W. 2d 237
    Opinion delivered March 26, 1979
    (Division II)

      James E. Davis, for appellants.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Kenny J. Halfacre and Walter Andrew Duty were jointly tried, at their request, on charges of aggravated robbery. They were found guilty. Halfacre was sentenced to 15 years in the penitentiary; Duty was sentenced to 12 years.

On appeal from the judgment of the Hempstead County Circuit Court they allege three errors: A .22 caliber pistol and $262.00 in currency were improperly admitted because a proper chain of custody was not established; the information was defectively drawn omitting critical language; and, the trial court erred in denying the appellants a post-trial evidentiary hearing on allegations of ineffective assistance of counsel.

We find no merit to any allegation of error regarding the trial. However, there is merit to the appellants’ contention regarding the post-trial hearing.

The facts are uncomplicated. James Green, the owner of Green’s Grocery and Service Station in Fulton, Arkansas, testified that two white males, driving a yellow Datsun 280Z, robbed him at about 4:00 p.m. on the 27th of January, 1978. He said they took all the bills and quarters in the cash register. He estimated the cash taken to be about $300.00. He immediately called the state police telling them that he had been robbed by two white males driving a yellow Datsun 280Z. He indicated they were headed toward the town of Saratoga. The police put out a radio alert to all local law enforcement officials and several police cars converged on the area.

A sheriff’s vehicle, driving toward Saratoga, passed a yellow Datsum 280Z occupied by two white males going in the opposite direction. The officers in the sheriff’s vehicle made an immediate turn and gave chase. The Datsun left the highway and was stopped shortly thereafter by the sheriff’s vehicle in a churchyard. A state police vehicle arrived on the scene at about the same time.

The suspects and their vehicle were searched. The officers found a blue-steel .22 caliber pistol and one officer took about $200.00 in currency from one of the appellants and another officer took about $62.00 in currency from the other appellant. The gun and the money were later turned over to the sheriff.

The gun and the currency, after being identified by the sheriff during the trial, were admitted into evidence. He said he gave receipts to the officers for the items. The currency consisted of the following denomination of bills: fifty-two $1.00 bills, five $20.00 bills, seven $10.00 bills and eight $5.00 bills.

Green, in his testimony, identified the appellants as the robbers and said that the gun used in the robbery appeared to be a blue-steel .22 caliber pistol.

The appellants stated that it was error to admit the gun and currency because there was no proper chain of custody. However, their argument is actually that the gun was not shown to have been used in the robbery nor was the money shown to have come from Green’s Grocery.

Green had testified that he was robbed at gunpoint and described the gun as a blue-steel .22 caliber pistol. Such a pistol was taken from the appellants ’ vehicle and introduced into evidence. In a similar case, it was shown that a gun similar to one used in the commission of a crime was properly admitted as relevant evidence. U.S. v. Cunningham, 423 F. 2d 1269 (4th Cir. 1970). In another situation, where a chrome-plated handgun was admitted into evidence, it was held that it was improper when prosecution witnesses testified that such a gun was not used in the robbery. Walker v. U.S., 490 F. 2d 683 (8th Cir. 1974). It, therefore, becomes a question of similarity and relevance. The handgun described by Green was similar to that taken from the appellants ’ vehicle; it was seized immediately after a report of the alleged robbery. The gun was properly admitted as evidence.

We find that the admissibility of the currency was also proper for the same reasons. Green said that they took all the bills from his cash register. He immediately reported the robbery to the police. Vehicles converged on the appellants within fifteen to twenty minutes after the report was received and they were found to have in their possession $260.00 or $262.00 in bills of various denominations. There was testimony that over a “handful of quarters” were found in the vehicle the next day during a more thorough search of the vehicle. The quarters were located between the two seats in a console. The immediate report of the robbery, the definitive description of the suspects as being two white males driving a yellow Datsun 280Z and the arrest shortly thereafter, lend weight to the admissibility of the currency. In a similar situation we found that such currency was admissible as relevant. Logan v. State, 264 Ark. 920, 576 S.W. 2d 203 (1979).

The information charged that the appellants “. . . on the 27th day of January, 1978, in Hempstead County, Arkansas, did willfully, unlawfully and feloniously and with physical force rob Green’s Grocery of an undetermined amount of cash, . . . . ”

The Arkansas Statutes define aggravated robbery as follows:

(1) A person commits aggravated robbery if he commits robbery as defined in section 2103 and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or
(b) inflicts or attempts to inflict death or serious physical injury upon another person.

Ark. Stat. Ann. § 41-2102 (Repl. 1977).

The appellants argue that they could not be convicted of aggravated robbery because there was no allegation that either of the appellants were armed with a deadly weapon, represented by word or conduct that they were so armed, inflicted or attempted to inflict death or serious injury upon another person.

We do not consider this argument on appeal because there was no objection before or during the trial as to the defective information. Ferguson v. State, 257 Ark. 1036, 521 S.W. 2d 546 (1975). We do not review errors raised for the first time on appeal. Haynie v. State, 257 Ark. 542, 518 S.W. 2d 492 (1975).

After the appellants were convicted and sentenced, they wrote directly to the trial judge asking for a hearing on the question of effectiveness of their court-appointed counsel. On the motion of the State that the petition did not allege grounds for a new trial, the court found the petition to be actually in the form of a petition for Rule 37 relief and dismissed it without a hearing.

We feel the petition did allege sufficient grounds for a hearing. Ark. Stat. Ann. § 43-2203 (Repl. 1977) sets forth reasons for which a new trial may be granted. The last reason reads:

Where, from the misconduct of the jury, or any other cause, the court is of the opinion that the defendant has not received a fair and impartial trial.

The petition, filed a few days after judgment, was not couched in conclusory language but specifically recited instances which could be considered as a basis for finding that their constitutional right to effective assistance of counsel had been denied. Deason v. State, 263 Ark. 56, 562 S.W. 2d 79 (1978). While such a matter can be raised by way of a petition for relief under Rules of Crim. Proc., Rule 37, a trial court is not precluded from hearing evidence on such a motion as grounds for a new trial. We suggested such a procedure in Hilliard v. State, 259 Ark. 81, 531 S.W. 2d 463 (1976).

The trial court, having just finished the trial and observing the conduct of counsel, was in a unique position to hear and determine the matter; such a hearing enables us to review the matter on appeal.

Therefore, we remand the matter for the court to conduct such a hearing and make findings and enter an appropriate order. Subject to the outcome of the hearing, we find no error in the record.

Affirmed in part and remanded.

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


author: John I. Purtle, Justice.

text:
    Jerry A. BALDWIN, Individually, and AIR DISTRIBUTION PRODUCTS, INC. v. John PRINCE
    78-246
    578 S.W. 2d 240
    Opinion delivered March 26, 1979
    (Division I)

      Tom Forest Lovett, P.A., for appellants.

      McHenry, Skipper <3? Skelton, for appellee.
   John I. Purtle, Justice.

Appellant, Jerry Baldwin, d/b/a Air Distribution Products, and John Prince, appellee, entered into a contract in August 1973 which was by its terms to continue for one year but renewal for an additional year upon mutual agreement. The contract was not renewed in 1974; however, the parties continued to work together and appellee was paid according to the terms of the contract. He was paid a commission on sales made by him. The parties agreed to form a corporation whereby appellant Baldwin would own 51% of the stock and appellee 49%. Appellant Baldwin then incorporated under the name of Air Distribution Products, Inc. but he never made this fact known to appellee nor did he distribute any shares of stock to appellee. The parties moved into a building appellant had built sometime in 1974. They agreed to continue to work on the same payment schedule as the contract contained. Appellant stated so far as he was concerned the contract between the parties ended at the expiration of one year or in August of 1974. In September 1975 appellant discharged appellee because he told a competitor the amount of Air Distribution Products’ bid on a job in Hot Springs.

Appellee brought suit in the Pulaski Chancery Court seeking an accounting for credit earned while he was employed by appellant and for the value of 49% of the stock in Air Distribution Products, Inc. Appellant denied he promised to sell appellee any stock and alleged that appellee came into equity with unclean hands and the complaint should be dismissed. Also, appellant filed a counterclaim for $25,000 in damages because appellee solicited appellant’s customers and sought to undermine appellant’s business.

June 20, 1978, the court entered findings of fact and conclusions of law as follows:

1. Prince made sales while working for Air Distribution Products, Inc., and is entitled to commissions in the amount of $9,056.74.
2. A contract existed between the parties at the time.
3. Prince breached his fiduciary duty to his employer by relaying information concerning a bid, but neither Air Distribution Products, Inc. nor Jerry A. Baldwin were injured by the breach and suffered no damage.
4. Baldwin terminated the contract and fired Prince on the 6th day of October, 1975; however, the commissions earned by Prince prior to that time were valid and were to be computed pursuant to the provisions of the contract.
5. Prince is owed interest on the amount from the date the complaint was filed, which was June 29, 1976.

As we view the facts, appellee was a manufacturer’s representative for appellant on a commission without any agreement as to the duration of the relationship. The facts are not disputed that appellant severed the working arrangement between the parties in September 1975 because appellee told a competitor the amount of appellant’s bid on a certain job. Appellee admits this was a mistake. However, the competitor who was furnished the information by appellee neither changed his bid nor received the contract on that particular job. Apparently, some third party obtained that job. There was no loss to appellant as a result of this action by appellee. It was the incident which caused appellant to terminate the working arrangements between the parties.

The agreement provided appellee would be paid a certain percent of each job sold after the net profits were determined. This necessarily caused payments to appellee be paid at a date much later than the actual sale. It was from past sales the court determined the amount due appellee. This contract or agreement is what we designate as an apportioned service contract inasmuch as the remuneration received by appellee was directly apportioned to completion of specified transactions. An unapportioned contract would be one in which the time periods or items completed could not be separated.

Appellant cites two cases in support of his appeal. Doss v. Board of Directors, 96 Ark. 451, 132 S.W. 443 (1910) and Neely v. Wilmore, 124 Ark. 460, 187 S.W. 637 (1916). Doss was a contract whereby an engineer agreed to oversee the construction of a levee and during the course of construction he padded the subcontracts and received kickbacks. He was receiving pay from both parties. The court there held:

“So, we hoi J the law to be that where the agent is guilty of fraud upon his principal in the transaction of his agency, and his principal is put to trouble and expense of litigation in order to secure his rights, the agent forfeits his right to compensation for his services as a penalty for his fraudulent conduct.”

In Neely, supra, the employee was employed to oversee a farming operation and in so doing wrote drafts to another employee far in excess of the correct amounts due the employee. It was held that the employee had committed a fraud upon his employer and was not entitled to collect his compensation because of the injury to his employer. Both these contracts were unapportioned and in both the employees were guilty of fraudulent conduct which damaged their employer.

We believe the rule to apply in this case is set out in Restatement, Second, Agency, § 456, which states:

If a principal properly discharges an agent for breach of contract, or the agent wrongfully renounces the employment, the principal is subject to liability to pay to the agent, with a deduction for the loss caused the principal by the breach of contract:
(a) the agreed compensation for services properly rendered for which the compensation is apportioned in the contract, whether or not the agent’s breach is wilful and deliberate; and
(b) the value, not exceeding the agreed ratable compensation, of services properly rendered for which the compensation is not apportioned if, but only if, the agent’s breach is not wilful and deliberate.

The Comments following the above Restatement are as follows:

b. Apportioned services. If an agent is paid a salary apportioned to periods of time, or compensation apportioned to the completion of specified items of work, he is entitled to receive the stipulated compensation for periods or items properly completed before his renunciation or discharge. This is true even if, because of unfaithfulness or insubordination, the agent forfeits his compensation for subsequent periods of time.
c. Unapportioned services. If the agent has rendered services, compensation for which is not apportioned in the contract of service, and his renunciation or other breach of contract is not wilful, he is entitled to an amount equal to the fair value of his services, not exceeding the agreed compensation, minus any damage caused to the principal by his breach of contract. A breach of contract is wilful and deliberate, as those words are herein used, only when the agent, in complete disregard of his contractual obligations, fails to perform or misperforms the promised services and has no substantial moral excuse for so doing, or is guilty of disloyal or grossly insubordinate conduct.

If the principal rightfully discharges an agent for cause, the agent is not entitled to compensation for services not yet rendered or sales subsequently made, in the absence of some understanding otherwise, although he may be entitled to the compensation which has accrued before the termination, or pro rata compensation for services already rendered, or to their reasonable value, if such services were part of the agreed consideration. 3 Am. Jur. 2d, Agency, § 257; Northwest Auto Co. v. Harmon, 250 F. 832 (9th Cir. 1918); Powers & Co. v. American Society of Tool Engineers, 345 Mich. 392, 75 N.W. 2d 824 (1956). Mere breach of agency contract, even though inconsistent with the good faith due the principal, is not ground for forfeiture of compensation already earned. Richer v. Khoury Bros., Inc., 341 F. 2d 34 (7th Cir. 1965); 3 C.J.S. Agency, § 335. Also, C.J.S. Agency, § 344, states a contract will not be treated as entire and indivisible unless the terms of the contract clearly so provide.

We believe this contract or agreement was divisible as clearly expressed by the terms of the written contract which, according to both parties, was the method used to determine the compensation to be received by appellee. The services for which the award was made had already been earned and were merely awaiting payment from the vendees before distribution to the parties to this action. Appellant suffered no damages as a result of appellee’s action. To hold otherwise would be unjust and give appellant a windfall bonus.

Affirmed.

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


author: Carleton Harris, Chief Justice.

text:
    Carol ANDREWS v. STATE of Arkansas
    CR 78-220
    578 S.W. 2d 585
    Opinion delivered April 2, 1979
    (In Banc)

      Robert C. Marquette and Douglas W. Parker, for appellant.

      Steve Clark, Atty. Gen., by: E. Alvin Schay, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, Carol Andrews, 38 years of age, was charged by Information with capital murder under Ark. Stat. Ann. § 41-1501 (1)(d), it being alleged that on January 30, 1978, he murdered J. R. Gillen and Maggie Gillen. Andrews was committed to the state hospital for examination, at which time he was examined by Dr. A. F. Rosendale, M.D., examining psychiatrist, whose report reflected that his findings were derived from:

1) Historical data from outside sources; 2) Medical history and physical and neurological examinations by the examining physicians; 3) Laboratory and other physical studies; 4) Psychological assessment by staff psychologist; and 5) Psychiatric history and direct physiciatric examination by the examining psychiatrist.

The doctor diagnosed Andrews as being without psychosis, his opinion stating:

It is the opinion of the examining psychiatrist that Carol Andrews is not mentally ill to the degree of legal irresponsibility at the time of this examination and probably was not at the time of the commission of the alleged offense.
It is further the opinion of the examining psychiatrist that Carol Andrews has the mental capacity to understand the proceedings against him and has the mental capacity to assist effectively in his own defense; and, that he was probably not suffering from mental disease or defect of such degree as to make him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

Prior to trial, which was held on July 10, 1978, appellant moved that a psychiatrist be appointed for the purpose of examining him, such expense to be paid by county funds, since he was an indigent, and he also moved that Ark. Stat. Ann. § 41-601 (Repl. 1977) be declared unconstitutional since the statute declares that the defense of insanity is an affirmative defense, and thus places the burden of proof on the defendant. The court denied both of these motions and after conducting a hearing on the voluntariness of the confession, the case proceeded to trial. On trial, appellant was found guilty of capital murder and was sentenced by the court to life in prison without parole, the state having announced it was offering no evidence or testimony in regard to aggravating circumstances. From the judgment so entered, Andrews brings this appeal, and for a reversal relies upon four points, which he sets out and which we proceed to discuss in the order listed.

I. THE COURT ERRED IN FINDING THE WRIT-EN STATEMENT OF DEFENDANT AND RELATED ORAL STATEMENTS TO HAVE BEEN MADE VOLUNTARILY AND WITHOUT UNDUE INFLUENCE OR COERCION, DENYING DEFENDANT’S MOTION TO SUPPRESS SAID STATEMENTS UNDER THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE 5TH AMENDMENT TO THE ARKANSAS CONSTITUTION.

The record reflects (from his written statement) that Andrews, an employee of Gillen at a garage in Mountainburg, became involved in an argument with Gillen during the afternoon of January 30, 1978. Both had been drinking and during the argument, when Gillen (according to Andrews) made some disparaging remarks about Andrews’ father, who had died a few days previously, Andrews grabbed a .22 rifle which was in the garage and fired at Gillen, hitting him behind the left ear. About this time, Andrews’ son, Terry, came into the garage. According to Andrews, Gillen then grabbed the axe and started swinging it at the appellant, but Andrews took the axe away and Gillen ran outside. Appellant chased him, pulled him back into the garage, and began to beat Gillen over the head with a sledgehammer. Maggie, Gillen’s wife, then ran in and while she was bending over her husband, Andrews picked up the axe and hit her numerous times in the head, both Gillens dying from the wounds inflicted. Terry assented to his father’s request to help cover the bodies with a piece of plastic. They then left and walked over to the Roadrunner Cafe where Andrews’ brother, Tommy, was employed, to get a cup of coffee. The next morning, the three men placed the bodies in a station wagon belonging to Gillen and drove to a wooded location in Logan County where the car and bodies were left. About three days later, the car and bodies were found anii the matter reported to the sheriff of Logan County. This sheriff then notified the sheriff of Crawford County that the car and bodies had been found; that the car was registered to Gillen, but that the bodies had not been identified. That afternoon (February 3, 1978), Trellon Ball, sheriff of Crawford County, went to Gillen’s garage to see if he was there. Andrews was found inside the garage. The sheriff inquired about Gillen and was told by Andrews that he had not seen him since the previous Monday and that he (Andrews) was there because he was the mechanic for the garage. It being cold, Andrews, the sheriff, and one of the sheriff’s deputies who had accompanied him, Bill Grill, went inside the garage and Grill observed blood spots on the door; blood spots were also noted on the ground outside the building. Ball also noticed blood spots on a car within the building and the floor sweep on the floor. About this time, Marshall Wright of Mountainburg drove up and Andrews stated that he wanted some coffee, and he and Wright went to a cafe for coffee. Upon their return, Sheriff Ball asked Andrews to get into his car. Andrews was first read the Miranda rights by Ball, and about that time people from the state police crime laboratory began arriving. Andrews, Sheriff Ball, Deputy Sheriff Grill, and Bobby Underwood (a member of the auxiliary sheriff’s mounted patrol) were in the car, and the officers proceeded to interrogate Andrews. This was about 3:30 p.m. and the questioning lasted until 8:30 or 9:00 p.m. State Investigator DuVall arrived about 8:00 p.m. and engaged in the interrogation from that time. According to Andrews, the officers would not let him leave the car, or relieve himself, and he stated that he was told if he opened the door he would be shot. Appellant also said that he was not given anything to eat while in the car and had only a “soda pop.” He said that he requested a lawyer, but this was denied; and still further, that DuVall shook his fist in his face. There was no contention that he was beaten or struck by the officers. About 9:00 p.m., Andrews was taken to the Crawford County Court House where he was asked if he wanted to make a statement, to which appellant replied in the affirmative. Deputy Grill then again read to him his “Miranda rights” and Andrews executed a waiver and after brief questioning, proceeded to make a statement. It took about two hours to take the statement and write it up, after which appellant signed same.

As earlier stated, the court conducted an in-chambers hearing relative to the voluntariness of the confession, and at the conclusion thereof, held that the oral statements made to the sheriff and Grill, as well as the written statement were made freely and voluntarily.

In arguing that all statements made by Andrews were involuntary and under undue influence, appellant urges the court to look at the totality of the circumstances, i.e., appellant’s length of confinement, lack of refreshment or relief, coercive nature of the questioning, understanding of his Miranda warnings, and his mental competency to give a knowing statement. Appellant concedes that “each of these factors, in itself, might not be sufficient to afford evidence that the statements were involuntary,” but states that when “viewed together they cast grave suspicions and doubt on the finding of the trial court judge’s decision to admit said statements into evidence.”

Of course, the fact that a confession is made after a prolonged period of questioning does not necessarily render the confession inadmissible. In Ashdown v. State, 357 U.S. 426, 78 S. Ct. 1354, the Supreme Court affirmed a Utah case wherein the petitioner’s oral confession was obtained after a 5 1/2 hour interrogation that took place immediately following the defendant’s husband’s funeral, and likewise, in U.S. v. Lind, 542 F. 2d 598 (2d Cir. 1976), the court found as unpersuasive the appellant Lind’s contention that his confession was involuntary because, inter alia, he was questioned for more than eight hours. It would thus appear that the period of interrogation is but one factor that may be considered in determining whether a confession was voluntarily made. Here, the testimony reflects that Andrews was first given his Miranda warning prior to any interrogation, and in fact, this was admitted by appellant. Contradictory to appellant’s statement, the record does reflect that Andrews got out of the car at least one time and deputy Grill said that he was given a hamburger and Coca Cola while in the car. As to the statement that trooper DuVall shook his fist in appellant’s face, DuVall denied that this happened, but did state that he pointed his finger and said “You did it, didn’t you?” and Andrews replied, “Yes, sir.” During the entire questioning in the automobile, this was the only occasion where Andrews admitted the killings, and this oral statement was not offered into evidence. Andrews not only admitted that his rights were read to him, but he testified that he understood them. While appellant stated that he requested an attorney while in the automobile, the officers testified that they heard no such request made. Of course, this is not a matter where appellant was worn out, excited, or exhausted from the events of the day (as might have been contended with more logic on the day of the killings), but rather the events being discussed took place three days later. In other words, he was certainly not under pressures that would have been applicable on the day of the murders. In Tucker v. State, 261 Ark. 505, 549 S.W. 2d 285 (1977), this court set out its general rule of review of in custody confessions as follows:

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

We are unable to say that the finding of voluntariness by the trial court was clearly against the preponderance of the evidence.

II. THE COURT ERRED BY OVERRULING DEFENDANT’S MOTION TO HAVE THE COURT APPROPRIATE FUNDS FOR THE EXAMINATION OF DEFENDANT BY A PSYCHIATRIST AND THE EMPLOYMENT OF SAME TO AID DEFENDANT IN HIS DEFENSE, SAID REFUSAL VIOLATING DEFENDANT’S CONSTITUTIONAL RIGHTS UNDER THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE 6TH AMENDMENT TO THE UNITED STATES CONSTITUTION.

Appellant cites the case of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, as supporting his contention that the court has a mandatory duty to appropriate funds for the appointment of a psychiatric expert “where the circumstances in a criminal prosecution include both the indigency of the defendant and the announced defense of mental defect or disease.” Of course, Gideon held that an accused in all criminal prosecutions has the right to have the assistance of counsel for his defense but does not deal in any respect with the appointment of a psychiatric expert to assist in the defense. Appellant urges, however, that this court extend the scope of that decision to include such an appointment. We decline to do so. Ark. Stat. Ann. § 43-1301 (Repl. 1977), requires that whenever a person charged with crime enters a defense of insanity, he must be examined, at county expense, at the State Hospital or at a regional mental health facility. This, of course, was done. Our court has passed on the particular question several times. In Hale v. State, 246 Ark. 989, 440 S.W. 2d 550 (1969), we said:

Furthermore, the record shows that the State did furnish to appellant the services of a psychiatrist. The psychiatrists furnished to appellant were selected by the State not for criminal work but for treatment of mental diseases. The State Hospital staff is only incidentally used to determine mental competency of criminal defendants. Selection of psychiatrists on the State Hospital staff is done by the Governor or through his appointees and is not in any way controlled by the persons charged in this state with prosecuting criminal defendants. Under this procedure we can find no denial of due process or equal protection of the laws to the prejudice of appellant.
Surely due process of law does not require the state to furnish expenses for appellant to shop from doctor to doctor until he finds one who considers him mentally incompetent.

See also Grissom v. State, 254 Ark. 81, 491 S.W. 2d 595 (1973) and Maxwell v. State, 259 Ark. 86, 531 S.W. 2d 468 (1976).

In accordance with what has been said, the ruling of the trial court did not constitute error.

III. THE COURT ERRED BY OVERRULING DEFENDANT’S MOTION PRIOR TO OPENING STATEMENTS: THAT ARKANSAS STATUTE SECTION 41-601 IS UNCONSTITUTIONAL IN REQUIRING THE DEFENSE OF MENTAL DISEASE OR DEFECT TO BE AN AFFIRMATIVE DEFENSE, SAID STATUTE IN VIOLATION OF THE 14TH AND 5TH AMENDMENTS TO THE UNITED STATES CONSTITUTION, IN THAT IT IS AN UNLAWFUL COMPULSION ON DEFENDANT TO TESTIFY AND ALSO VIOLATIVE OF THE DUE PROCESS REQUIREMENT THAT THE PROSECUTION MUST PROVE BEYOND A REASONABLE DOUBT EACH ELEMENT NECESSARY TO CONSTITUTE THE CRIME CHARGED.

Ark. Stat. Ann. § 41-601 (1) (Repl. 1977), provides:

It is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged, he lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct.

It is appellant’s argument that § 41-601 (1), by its very language, has forced him to attempt to disprove the premeditation and deliberation required to be established by the state.

A similar argument was presented to the United States Supreme Court in Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002 (1952). There, the court upheld an Oregon provision requiring the defendant to prove the defense of insanity beyond a reasonable doubt. In making its decision, the court noted that the burden of proving all elements of the crime beyond a reasonable doubt, including the elements of premeditation and deliberation, was placed on the state and remained there throughout the trial. Only after finding that each element of the crime had been established beyond a reasonable doubt was the jury to consider the independent issue of legal sanity. The court concluded that this practice did not offend the defendant’s due process rights even though the Oregon standard of proof for insanity required that this be shown beyond a reasonable doubt. This goes far beyond our statute, Ark. Stat. Ann. § 41-110 (Repl. 1977), which states:

(4) The defendant must prove an ‘affirmative defense’ by a preponderance of the evidence. An ‘affirmative defense’ is any matter:
(a) so designated by a section of this Code; or (b) so designated by a statute not a part of this Code.

Appellant argues that Leland is no longer the applicable law for this court to follow. In making this argument, he cites In Re Winship, 358 U.S. 364, 90 S. Ct. 1068 (1970). There, the court held “that the due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged,” i.e., before a court may constitutionally allocate the burden of proving any fact to the defendant, the state must first prove every element of the offense charged and must first determine whether that fact is an element of the crime charged. This was done in the present case. Winship established the foundation upon which the Supreme Court based a later decision, Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881 (1975), which appellant contends means that the “continued viability of Leland appears doomed.”

In Mullaney, the court held that a defendant was not required to disprove an element of murder in order to reduce the offense to manslaughter. The case did not involve the issue of insanity, in any way, and, at any rate, the United States Supreme Court in Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, held contrary to appellant’s assertions, in which it stated:

The Chief Justice and Mr. Justice Rehnquist, concurring, expressed their understanding that the Mullaney decision did not call into question the ruling in Leland v. Oregon, supra, with respect to the proof of insanity.
Subsequently, the Court confirmed that it remained constitutional to burden the defendant with proving his insanity defense when it dismissed, as not raising a substantial federal question, a case in which the appellant specifically challenged the continuing validity of Leland v. Oregon. This occurred in Rivera v. Delaware, 429 U.S. 877 (1976), an appeal from a Delaware conviction which, in reliance on Leland, had been affirmed by the Delaware Supreme Court over the claim that the Delaware statute was unconstitutional because it burdened the defendant with proving his affirmative defense of insanity by a preponderance of the evidence. The claim in this Court was that Leland had been overruled by Winship and Mullaney. We dismissed the appeal as not presenting a substantial federal question.

Likewise, in Duisen v. Wyrick, 566 F. 2d 616 (8th Cir. 1977), the court squarely addressed the issue of whether Leland was still good law in light of Winship and Mullaney. There, the court stated:

Any doubts as to the merits of petitioner’s argument are settled by the recent Supreme Court case of Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319. In Patterson, the Supreme Court expressly declined to overturn its holding in Leland. Consequently, the decision of the District Court to dismiss this action with prejudice is affirmed.

From what has been said, it clearly appears that the logic of the federal courts in discussing this issue is simply that sanity is not an element of the crime; rather, it involves the separate issue of capacity, and thus the burden of proof may be constitutionally placed on the defendant.

Counsel for appellant conducted a very thorough and lengthy cross-examination of Dr. Rosendale, actually covering 44 pages of the transcript. Dr. Rosendale stated that he had examined over 300 psychotic patients, who were retained for treatment, but “never once have I examined a patient, psychotic patient, who went to the extent that this man did to conceal their evidence. Most of them just walk off and leave it, and make no efforts to cover their tracks, and make no attempts at evasion of apprehension. ” Andrews, who testified at trial, stated that he had received two Congressional medals for fighting in Vietnam, had served with the CIA, and had been directed by President Kennedy to assassinate the president of the Dominican Republic; further, that he was involved in the assassination of Dr. Martin Luther King, which was ordered by President Johnson. He described experiences in Vietnam which included the year 1965, when appellant stated that he was a prisoner of war, gave his military serial number (which did not exist), said that Gillen was a fellow prisoner in a POW camp with him in Vietnam; that Gillen collaborated with the enemy, which was one reason he wanted to kill him. It was the opinion of Dr. Rosendale that Andrews was fantasizing. The record reflects the following:

Q. Ail right, would you please tell this jury in what manner you would be able to diagnose whether or not he was fantasizing or whether he was hallucinating that he was in the military service.
A. Well, in the first place he had no trouble whatsoever in maintaining an oral idea, and a psychotic person cannot do that. He would start talking about something, I could interrupt him and ask him a question, and he would go back to his original chain of thought, and he would complete it. He would complete his idea what he was talking about. He would not insert an inappropriate term during the time he was discussing this. His effect was quite appropriate, he showed no signs of anxiety, he was perfectly relaxed, and this you do not find with patients who are psychotic.
Q. You mean a psychotic person is not relaxed?
A. No, sir, they are not relaxed.
Q. You mean that they don’t sit around down at the Hospital in a very passive state in any event?
A. Well, after you put them on medication they will.

On direct examination, Dr. Rosendale had distinguished between a fantasy and a delusion, stating:

A. He could actually believe it. And in that case this would be a delusion. We would say that he is psychotic. But in the instant case, in my opinion, and the opinion of the doctors at the State Hospital, this was strictly a fantasy.
Q. That would in no way affect, or would it affect the opinion which you and the staff ultimately rendered?
A. No, sir.
So as far as you and the staff are concerned, he is or was, in your opinion, mentally competent on January 30, and during the period of time he was examined he was mentally competent. Is that a correct statement?
A. Yes, sir.

The son and brother verified that Andrews had made statements to them similar to those heretofore mentioned.

In the case before us, the trial court instructed the jury that the burden was “upon the state to prove the defendant’s guilt of each element of the offense with which the defendant is charged to your satisfaction beyond a reasonable doubt.” On the issue of insanity, the court instructed the jury that the defendant is required to prove it “now, however, beyond a reasonable doubt, but only to your reasonable satisfaction.” We have concluded that error was not committed.

IV. THE COURT ERRED IN NOT GRANTING THE REQUEST FOR A DIRECTED VERDICT OF DEFENDANT WHERE NO EVIDENCE HAD BEEN PRODUCED THAT EITHER OF THE DECEASED HELD PUBLIC OFFICE AT THE TIME OF THEIR DEATH. AS STATED IN THE INFORMATION, SAID ACT BEING IN VIOLATION OF ARKANSAS STATUTE 41-1501 (l)(d).

Ark. Stat. Ann. § 41-1501 provides as follows:

(1) A person commits capital murder if:
(a) acting alone or with one or more other persons, he commits or attempts to commit rape, kidnapping, arson, vehicular piracy, robbery, burglary, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; or
(b) . . .
(c) with the premeditated and deliberated purpose of causing the death of any person, he causes the death of two (2) or more persons in the course of the same criminal episode; or
(d) with the premeditated and deliberated purpose of causing the death of the holder of any public office filled by election or a candidate for public office, he causes the death of any person; or . . .

While the Information correctly charged Andrews “did unlawfully and willfully and with the premeditated and deliberated purpose of causing the death of J. R. Gillen, cause the death of J. R. Gillen and Maggie Gillen in the course of the same criminal episode; said act being in violation of Ark. Stat. Ann. § 41-1501 (1)(d), against the peace and dignity of the State of Arkansas, ...” it erroneously listed the sub-section as (d), instead of sub-section (c) and at the arraignment, which occurred more than four months prior to the trial, the court told appellant and his counsel that he was charged with violation of § 41-1501 (1)(d). As stated, this was the wrong sub-section, the actual charge as set out in the Information actually referring to (c). There was no evidence at all that either of the deceased persons had ever held any public office, and it was quite apparent that this was simply an error in typing up the Information. The important matter is that the court, in instructing the jury, correctly stated the substance of the charge. There has been no showing by appellant that he was in any way prejudiced by the mistake in the Information (such as preparing the wrong defense), and the entire record denotes that this was simply harmless error. In Baker v. State, 200 Ark. 688, 140 S.W. 2d 1008, Baker was convicted of embezzlement under § 3151 of Pope’s Digest, and it was contended that he was charged under the wrong section, appellant arguing that the particular section applied only to employees of private businesses, co-partnerships or private corporations; that Baker’s conviction was based on embezzling funds belonging to the school district, which of course was not a private concern. This court held that the fact that the pleader attempted to proceed against Baker for the embezzlement of funds belonging to the school districts named in the Information under § 3151 did not entitle appellant to a discharge if the Information were good under any other section of the statutes, and further held that the Information did charge him with a crime under § 3153 of Pope’s Digest, and the fact that the pleader attempted to proceed under § 3151 was immaterial. We said:

Appellant now argues, in regard to this last section, that it may not be invoked to sustain the conviction of the appellant for the reason that the information, as set forth above, was prepared and filed and was meant to charge an offense under the aforesaid § 3151 of Pope’s Digest and that this is apparent from the language used. It may be true that the pleader in drafting his information had before him and in mind the language of the aforesaid statute and followed the same to some extent in the preparation of the charge upon which appellant was tried, but it certainly does not necessarily follow, as a matter of law, that because thereof, even if true, the defendant must be discharged. Certainly, if by reasonable construction the language of the information charges an offense against the laws of the State under any other provision of the statutes, the ineptitude of the pleader’s diction would not operate to nullify the proceedings.

Of course, in the case now before us, the language of the Information did specifically charge an offense against the laws of the state under the very preceding sub-section of the statute, and, as stated, there was no showing of surprise or that the defense of Andrews was prejudiced in any manner by use of the wrong sub-section, particularly since the offense itself was clearly set out in the Information. There is no merit in appellant’s cont-Lition.

In accordance with Ark. Stat. Ann. § 43-2725, we have reviewed all objections made by appellant during the course of the trial and find no prejudicial error.

Affirmed.

       This particular sub-section was a mistake as will be pointed out subsequently in the opinion.

       After Andrews killed Mrs. Gillen, he took $51 or $52 from her purse.

       There was a statement made to Trooper DuVall (hereafter mentioned) which the court felt to be voluntary, but he did state that he would not issue a. definite ruling on that particular statement until later. For that matter, none of the statements made orally were ever offered at trial.

       The records reflected that he was in Oklahoma State Penitentiary in 1965.

       Entirely aside from the question of sanity, Andrews, on trial, testified that he shot Gillen because he was trying to get Gillen to turn his son, Terry, loose; that Gillen ran outside and appellant tossed Terry the gun and went out to bring Gillen back. According to Andrews, they placed him in a chair and Terry struck Gillen several times with a sledgehammer; about that time Mrs. Gillen came in and Terry hit her with the axe. The witness said she was making a “funny noise” and Terry “went back and he got a small poker and put on her neck, and I went over there and taken the poker off. He was standing on each side of it with his feet.” Placing the poker on Mrs. Gillen’s neck and putting the pressure on with feet apparently did happen, but Terry testified that both the killing and the latter incident were done by his father.

       “The Supreme Court need only review those matters briefed and argued by the appellant provided that where either a sentence for life imprisonment or death, the Supreme Court shall review all errors prejudicial to the rights of the appellant.”


author: George Rose Smith, Justice.

text:
    JERRY J. WESLEY v. STATE of Arkansas
    CR 78-226
    578 S.W. 2d 895
    Opinion delivered April 2, 1979
    (Division I)

      John W. Achor, Public Defender, by: Jim Phillips, Deputy Public Defender, for appellant.
    . Steve Clark, Atty. Gen., by ‘. Robert J. DeGostin,Jr., Deputy Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, Jerry J. Wesley, and a codefendant, Donald Ray Bailey, were jointly charged with theft of property (Cadillac hubcaps) and with aggravated robbery in that they pointed a gun at Officer A. Brown with the purpose of resisting apprehension immediately after committing the theft. The jury returned verdicts of guilty and sentenced defendant to two years’ imprisonment upon the charge of theft and to six years upon the charge of aggravated robbery.

Wesley, the only appellant, does not question the jury’s verdict of guilty upon the charge of theft. He contends, however, that the evidence is insufficient to support the verdict of aggravated robbery, because the jury, although returning a verdict of guilty on that charge, also found as a fact, in response to an interrogatory, that neither defendant was guilty of using a deadly weapon in the commission of the aggravated robbery. The court at first refused to accept the verdicts, as being inconsistent, and sent the jury back for further deliberation. The jury adhered to its verdicts, however, and judgment was entered accordingly.

Officer Brown, a Little Rock policeman, testified that while he was off duty he saw the defendants pulling hubcaps off a parked Cadillac. He identified himself and ordered them to halt. The defendants jumped into a car and fled. Officer Brown testified that during the ensuing high-speed chase the defendant Bailey pointed a pistol at him. The weapon appeared to be a small handgun. Officer Brown then dropped back and called for help. The defendants were apprehended, but no gun was found. Bailey testified that he did not have a gun and had never owned one. Wesley did not testify.

We must agree that the evidence is insufficient. ”A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.” Ark. Stat. Ann. § 41-2103 (Repl. 1977). A person commits aggravated robbery if he commits robbery as so defined and is armed with a deadly weapon or represents by word or conduct that he is so armed. § 41-2102.

Stealing hubcaps from a parked car is not robbery. The jury, to find the defendants guilty of aggravated robbery, had to find that in resisting apprehension they were armed with a deadly weapon or represented by their conduct that they were so armed. But the jury specifically found that the defendants were not so armed. Thus the verdicts were inconsistent, as the trial judge pointed out. Moreover,, the special finding of fact eliminates the only basis for a verdict of guilty upon the charge of aggravated robbery.

The State argues, however, that even though the defendants were not in fact armed with a deadly weapon, the jury could have found that they represented by their conduct that they were so armed. The trouble is, there is no basis except pure guesswork for such a conclusion. Officer Brown testified that Bailey had what looked like a small handgun — “no doubt in my mind that it was a gun.” Bailey denied that he had a gun. No gun was found. Thus the conflict between the two versions was direct and beyond reconciliation. The testimony presents no third possibility. It is therefore impossible for us to sustain the finding of guilty upon the charge of aggravated robbery in the face of the explicit finding of fact that no deadly weapon was involved.

The judgment is affirmed with respect to the charge of theft of property, but with respect to the charge of aggravated robbery the judgment is reversed and the cause dismissed.

We agree. Harris, C.J., and Byrd and Purtle, JJ.


author: John A. Fogleman, Justice.

text:
    Jay CORE v. STATE of Arkansas
    CR 78-218
    578 S.W. 2d 581
    Opinion delivered April 2, 1979
    (Division II)

      Robert S. Gunter, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Jay Core was engaged in a business he described as “architectural antiques” or “the glorified junk business.” He contends that the evidence was insufficient to support his conviction of the offense of theft by receiving, as defined by Ark. Stat. Ann. § 41-2206 (Repl. 1977), and that the court erred in denying his motion for a directed verdict. He was tried by the court, sitting without a jury. He argues that the state failed to produce evidence to show that he knowingly received the goods in question or that he knew, or had good reason to believe, that the goods were stolen. He also argues that the trial court erroneously disregarded evidence supporting a defense. We affirm.

The statute applies to one who receives or retains stolen property of another, knowing, or having good reason to believe, it was stolen. The statute includes this provision:

The unexplained possession or control by a person of recently stolen property or the acquisition by a person of property for a consideration known to be far below its reasonable value shall give rise to a presumption that he knows or believes that the property was stolen.

The property, belonging to one Louis Stafford, found in Core’s possession on September 12, 1977, consisted of two Century three-phase motors, one of a 1-1/2 h.p. capacity and the other 7-1/2 h.p. A Reznor overhead heater and a Batson search vacuum pump were also identified by Stafford as his property.

The owner of the property testified that he obtained the heater and the motors from Maxie’s Reliable Loan Office. He said that the larger motor was probably worth $225, the smaller one, $125, and the heater, $150. Core relinquished possession of the motors to Stafford, but not the heater. Stafford had positively identified this property, which he found at Core’s place of business on September 12, 1977. Maxie Itzkowitz, proprietor of Maxie’s Reliable Loan Office, testified that Stafford had purchased these three items from him “about in September 1977.” He placed the value of one motor at $125 to $150, and the other at “around $200.” He said the heater would be worth about $150. Stafford said that a table saw had been taken from his place of business, but he could not identify one he saw at Core’s.

Appellant’s explanations of his possession of this property were, in some respects, vague and conflicting. Stafford testified that Core said that he didn’t know if the person from whom he bought the “stuff” was white or black, male or female. The police officer who accompanied Stafford to Core’s place of business testified that Core had said that he had bought some of the property from someone, but couldn’t recall who it was. The officer produced a written statement signed by Core. In it, Core stated that he had purchased the two motors and a table saw from “one unknown person,” approximately May 1, 1977, for $75 and the pump from “one unknown person,” approximately June 1, 1977, for $150. In this statement Core said he could not remember whether the person was male or female, black or white, because of the lapse of time.

Core testified that the purchase of these items and some others was a little bit vague, but that he had purchased them from someone who came to his place peddling some junk. He stated that he did not know this person and had never seen him before, or since, the purchase. According to Core’s best recollection, he paid $150 to $250 for everything he bought from this person. Later he said that he paid $150 for everything in question. He had gone back to his books for verification of this amount because of the lapse of time. To the best of his recollection, he had not written a check for the purchase price, although he ordinarily tried to do so. He said the standard procedure in such transactions was “cash for cash,” because “these guys” are basically just peddling scrap metal and want their money immediately. He couldn’t remember examining these items for evidence of ownership, as he normally did.

Core expressed the opinion that the motors were scrap and said that he didn’t normally buy this sort of item, but that his specific purpose for buying these was to use the electric motors in the restoration of metals. Later he said that he bought the motors simply because they were there, but admitted that he had said he bought them for scrap and had also said that he was going to use them. Still later, he said that they were of no value to him whatsoever. He stated that the vacuum pump was simply something that was there which he would not ordinarily use, but it was something of particular interest to him. He said that he probably paid more than a fair price for it because fair price would have been scrap price.

Core denied buying the heater from this man or men. He testified that this Reznor heater was in his building when he first occupied it.

We find ample evidence to support a finding that Core received the motors, pump and heater having good reason to believe that they were stolen and to give rise to the presumption that he knew or believed they were stolen.

Appellant argues that the presumption is inapplicable because 3-1/2 to 4 months elapsed between his purchase and the time he had any knowledge that the goods might have been stolen. In his argument, appellant says that, if all inferences are drawn in his favor, it is apparent that his testimony is consistent with the possibility that these items had been removed from Stafford’s building long before Stafford discovered, on August 30, 1977, that they were missing. We cannot agree with appellant’s argument. In the first place, the drawing of reasonable inferences from the testimony was for the trial judge as fact-finder and not for this court. See Upton v. State, 257 Ark. 424, 516 S.W. 2d 904; Reynolds v. State, 211 Ark. 383, 200 S.W. 2d 806; Shoop v. State, 209 Ark. 498, 190 S.W. 2d 988; Morrison-Knudsen Co., Inc. v. Lea, 208 Ark. 260, 186 S.W. 2d 429; Cox v. State Farm Fire & Casualty Co., 240 Ark. 60, 398 S.W. 2d 60.

We cannot say that it was unreasonable for the trial judge to draw an inference unfavorable to appellant on the evidence before us. In the next place, it would have been impossible for Core to have bought these items when he said he did if the testimony of Maxie Itzkowitz as to the date he sold them to Stafford is accepted as true. Obviously, the trial judge resolved the question of the credibility against appellant and in favor of Itzkowitz. This was a matter which addressed itself to the trial judge, not this court. Horton v. State, 262 Ark. 211, 555 S.W. 2d 226.

Appellant also seems to think that one of the two alternate bases for the presumption of knowledge or belief of the possessor, i.e., unexplained possession or control, is eliminated simply whenever the possessor gives a plausible explanation for his possession. This is not so. In this respect, the new statute (§ 41-2206) only restated law existing when it was adopted. See Commentary to § 41-2206; Boyette v. State, 254 Ark. 320, 493 S.W. 2d 428; Bridges v. State, 177 Ark. 1193, 9 S.W. 2d 240. The trier of fact is not required to believe the testimony of any witness. Hamilton v. State, 262 Ark. 366, 556 S.W. 2d 884; Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225; Maples v. State, 225 Ark. 785, 286 S.W. 2d 15. See also, Smith v. State, 216 Ark. 1, 223 S.W. 2d 1011, cert. den. 339 U.S. 916, 70 S. Ct. 562, 94 L. Ed. 1341 (1950). This is especially true where the testimony of the accused, probably the person most interested in the outcome of the trial, is involved. See Duncan v. State, 196 Ark. 171, 117 S.W. 2d 36; Maples v. State, supra. Here there were did reasons for discounting the credibility of Core, as indicated by inconsistencies in his testimony, such as the price he paid for the items involved and the number of sellers from whom he purchased. The reasonableness and sufficiency of his explanation were matters to be determined by the fact-finder. Boyette v. State, supra; Shoop v. State, supra. In doing so, the trial judge had the right to accept such portions of the testimony as he believed to be true and to reject those he believed to be false. Richie v. State, 261 Ark. 7, 545 S.W. 2d 638.

Furthermore, there was sufficient evidence of the second of the alternate bases which give rise to the presumption of knowledge. It is difficult to decide just what Core paid for the articles positively identified because he admitted that at least one purchase included items which were not identified as the property of Stafford and there is no testimony showing what part of the purchase price was attributable to these additional items. Giving his testimony its strongest probative force, there is no evidence that Core paid more than $250 for all purchases which included the items identified by Stafford. If Stafford’s testimony is accepted, his property was worth $525. Itzkowitz valued it at $475. No witness testified about the value of the pump, but there was no reason for the trial court to believe it had no value. Even though value may be a matter of opinion, the question of fact as to whether Core paid a consideration he knew to be far below reasonable value was a matter the trial court resolved against appellant. On appellate review, we consider only that evidence most favorable to the appellee. Maples v. State, supra. In that light, we find it sufficient.

Appellant contends that we should follow the holding of State v. Thomas, 13 Or. App. 164, 509 P. 2d 446 (1973), because the critical statutory language as to belief of the receiver [§ 41-2206 (1)] was adopted from a section of the Oregon Criminal Code. In that case, it was held that before a jury could find one accused of this offense guilty, it must find that the defendant had either actual knowledge or the belief it was stolen, and the fact that some other person (or a reasonable man), under the same circumstances, would have known, or had good reason to believe, the property was stolen is insufficient. This decision was based upon decisions of Oregon courts construing a prior statute, so it does not necessarily control our construction of our statute. The commentary to § 41-2206 clearly indicates that the drafters of our code did not intend to adopt the Oregon judicial construction because it indicates that a jury verdict may be based upon evidence that the accused was “on notice of the facts that would lead a reasonable person to entertain such a belief.”

This is a question we need not decide in this case. In Thomas, the question involved was the propriety of a jury instruction covering the required culpable mental state. There is no indication in this record that the trial judge applied the test to a “reasonable man” and did not decide the question whether Jay Core had good reason to believe this property was stolen. As we have pointed out, there is substantial evidence that Core did have such reason.

Appellant also argues that the trial judge disregarded evidence which constituted a complete defense to the charge. He relies upon Ark. Stat. Ann. § 41-2206 (4) (Repl. 1977), which provides that it is a defense that the property is received, retained or disposed of with the purpose of restoring it to the owner. He also relies upon the evidence that he did release the motors to Stafford and other testimony of specific instances in which he had released other property to owners who established their ownership. Even if we accept appellant’s position that there was no identification of anything except the two motors, there is not a scintilla of evidence that Core’s purpose at the time of the purchase was restoration to the proper owner. His own testimony about his purpose was to the contrary. The defense is not applicable, as appellant seems to think, when property is returned when “the defendant was confronted.” The purpose must exist at the time of the purchase and it cannot be based upon a general policy of the buyer to relinquish property purchased by him to a claimant who can identify it as his to the satisfaction of the buyer.

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

       Appellant contends that this evidence should not be considered, because the motor was actually rated at 7-1/2 h.p. Through the trial it was referred to most often as being 10 h.p. or “about 10 h.p.” After Itzkowitz had testified that he had sold the two motors to Stafford, and had stated the value of the smaller one, he was asked to state his opinion of the value of “the ten horse power Century motor.” There was no chance that the fact-finder was misled by this alleged discrepancy.

       We do not overlook appellant’s argument that only the relationship of the price paid for the two motors to the value of those motors should be considered. This argument is based upon a statement of the trial judge in ruling on an objection to testimony relating to an unidentified person who accompanied Stafford to Core’s place of business. Appellant interprets this statement to mean that the judge considered that the state’s evidence had failed as to any of the property described in the information, except for the two motors. We cannot accept this version, because of the action of the judge in requiring appellant to make restitution to Stafford by paying him $500. This could not have been for the two motors returned to Stafford. It could onl) have been for the Reznor heater and the vacuum pump, and perhaps other items not found. These items were the subject of a colloquy among the judge, the deputy prosecuting attorney, appellant and appellant’s attorney, just prior to pronouncement of the sentence and the terms of suspension of part of it.