author: Paul Ward, Justice.

text:
    Raymond B. Alexander v. Mary Lee Alexander
    5-4072
    410 S. W. 2d 136
    Opinion delivered January 9, 1967

      Edgar R. Thompson, for appellant.

      W. J. Walker, for appellee.
   Paul Ward, Justice.

Involved here is a property settlement incident to a divorce decree.

Raymond B. Alexander (appellant) and Mary Lee Alexander (appellee) were married in 1936 and lived together until Dcember 3, 1961 when appellant left. They quit living together as man and wife on August 18, 1962.

Pleadings.

On November 5, 1962 appellee filed a suit for separate maintenance and a property settlement. Appellant filed a general denial, containing allegations that appellee withdrew $1,234.60 from their account before filing her complaint and that appellee was gainfully employed. Later appellant filed a cross-complaint alleging that appellee treated him with indignities, that she abandoned him, that they had been separated more than three years, and that she was able to work but refused to do so. He also asked that temporary maintenance (previously granted) be reduced and that he be given a divorce. Then, in an amended complaint, appellee prayed for an absolute decree of divorce, possession of the home and a division of real and personal property.

After extensive hearings over a period of several months the court, on December 16, 1965, entered, in substance, the following decree: (a) appellee was granted an absolute divorce; (b) appellee was given possession of their home with the provision that she be responsible for payment of all taxes, insurance and maintenance expenses thereon; (c) all transfers of stock in Alexander, Inc. (a corporation organized by appellant) made by appellant to his son, Ray, after August 18, 1962 were set aside as being fraudulent transfers; (d) appellant was ordered to transfer to appellee 17,905 shares of stock in said corporation, being one-third of the 53,710 shares owned by him on August 18, 1962; (e) appellee was ordered to give appellant one-half of $375 worth of government bonds held by her (the parties having agreed on a division of two parcels of real property), and; (f) appellant was ordered to pay appellee $100 per month as alimony. The trial court retained jurisdiction of the cause to enforce and protect the rights' of the parties.

For a reversal appellant relies on only three points: One, the court erred in cancelling the stock (in Alexander, Inc.) which appellant had transferred to his son; Two, it was error to allow appellee alimony, and; Three, it was error not to require appellee to account for money she had used for certain joint accounts.

One. We agree with appellant that it was error to cancel the stock transfers because the son was not made ■a party to the litigation. See: City of Bentonville v. Browne, 108 Ark. 306 (p. 311), 158 S. W. 161, and Bryan v. Akers, 177 Ark. 681 (p. 682), 7 S. W. 2d 325. We also agree with appellant’s statement that it was not necessary to cancel the stock held by the son because appellant “was left with adequate stock to make the transfer [to appellee] without setting aside the transfer to the son of the parties hereto”. It appears likely that the trial court meant to cancel only such transfers as was ncessary to protect appellee, but the decree is modified as indicated.

Two. We do not agree with appellant’s contention that it was error to allow alimony to appellee.

In the case of Lewis v. Lewis, 202 Ark. 740, 151 S. W. 2d 998 there appears this statement.

“This court has many times announced the rule that in fixing the amount of alimony to be awarded a wide discretion rests with the trial court and unless there appears to be a clear abuse in the exercise of this discretion it will not be disturbed by this court. ’ ’

In that case we also pointed out that consideration should be given to the ability of the husband to pay and the station in life of the parties. To the same effect see: Foster v. Foster, 216 Ark. 76, 224 S. W. 2d 47 and Harbour v. Harbour, 230 Ark. 627, 324 S. W. 2d 115. We may also add that, in fixing the amount of alimony, the financial needs of the wife should not be overlooked. When the testimony in this case is weighed in the light of the above rules we are unable to say the trial court abused its sound discretion in allowing the amount of alimony above mentioned. The record reveals that appellant and his son had withdrawn in excess of $25,000 from the corporation in less than a year, not counting an expensive boat bought for them or the corporation; that he draws an annual salary in excess of $5,000 not counting an expense account, and; that he owns real estate of undisclosed value.

The record also discloses that appellee was earning $88.42 per month at the time of the divorce; that the house in which she lives is in need of extensive repairs and that she is not able to work regularly because of bad health, being afflicted with bronchitis and chronic kidney and bladder trouble. She testified that she needed approximately $250 per month for living expenses.

Three. Finally, appellant contends the court “erred in declining to require appellee to deduct, from her portion of the marriage estate, the sums which she had withdrawn from the estate personally”.

We find no merit, and no reversible error, in this contention. The record discloses there was a deposit in the name of appellant or appellee in the sum of $1,234 which appellee withdrew because (she testified) she needed the money for living expenses due to the fact that appellant failed to pay support money as had been previously ordered by the court. The above money, according to appellee, was deposited in the Union National Bank and used as mentioned above. It appears that appellee in 1962 earned $1,100 which she deposited in another building and loan association, which, of course, was her. own money.

It must be presumed that the trial court, took into consideration the above facts, together with appellee’s health and inability to work regularly, in making the proper settlement, and we are unwilling to say there was any abuse of discretion.

The decree, as modified, is therefore affirmed. Appellant is ordered to pay all costs incident to this appeal including a fee for appellee’s attorney in the sum of $200.

Modified and affirmed.

Byrd, J., dissents.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    James W. Moore v. State
    5239
    410 S. W. 2d 399
    Opinion delivered January 9, 1967
    [Rehearing denied February 6, 1967.]

      W. M. Herndon, for appellant.

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant James W. Moore was convicted of possessing stolen goods and sentenced to one year. His appeal is grounded principally upon tke contention that in-custody interrogation violated bis constitutional rights. He cites Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and Johnson et al. v. New Jersey, 384 U. S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772 (1966).

Shortly after midnight, December 18, 1963, appellant’s parked car was spotted in a wooded area by two North Little Rock patrolmen. The car was kept under surveillance; and when Moore pulled out the police followed. During a chase for a considerable distance at varying high rates of speed, a box was thrown from the passenger side of the Moore car and in clear view of the pursuing officers. Within a matter of minutes Moore was apprehended and charged with driving while intoxicated.

The police immediately returned to the point where they saw the box thrown and found it contained several hundred silver dollars. Moore was jailed at approximately 1:00 a.m. Although the immediate charge was DWI, the evidence reflects no intoxication of any substantial degree. At approximately 8:30 a.m. that same morning Sergeant W. A. Tudor of the State Police, Criminal Investigation Division, entered Moore’s cell on the ground floor for the purpose of questioning him. The chronology of their conversation is important and unfortunately not crystal clear. But a close study of the record leads to the conclusion it was in the following order:

Tudor first inquired of Moore whether he had talked to a lawyer and was told that Attorney Tom Ridgeway was on his way to the jail to talk to Moore. (Appellant contends that “at this very moment the interrogation or questioning should have ceased.”)

Tudor then testified: “I told him that I wanted to talk with him briefly where he got this money and before I had a chance to advise him of his rights, he said he didn’t steal the money.” At this point Tudor told Moore that “he had a right to remain silent” and that he would make a record of their conversation for use in court. He also said Moore’s lawyer “was on the way over.” Moore then told Tudor the money was delivered to him by a man he refused to identify; that he knew it was stolen and threw it ont of the ear because “he didn’t want to get caught with it.”

The foregoing is from the testimony of Sergeant Tudor in chambers. Moore there testified that he made only one statement. “. . .1 just told him flat — I said, ‘I havn’t stolen no money, or anything, and I am not going to make any kind of a statement to you.’ ”

It should also be noted that the circumstances surrounding this short interrogation are far different from those in Miranda and Johnson. Sergeant Tudor and appellant Moore were well acquainted and on friendly terms. No threats, promises, etc., are indicated. Moore was far from being unintelligent.

The prerequisites for in-custody interrogation set out in detail in Miranda are not controlling in this case. The decision in that case was rendered June 13, 1966. Appellant’s trial began May 20, 1966. The rules in Miranda are not applicable to cases which started before June 13. Johnson, cited by appellant, so holds, as well as our case of Stewart v. State, 241 Ark. 4, 406 S. W. 2d 313 (September 12,1966).

The controlling case is Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964). Escobedo was denied the opportunity to consult with his lawyer and was not effectively warned of his right to remain silent. Such is not the case here. Based on substantial evidence the trial court found Moore had been timely advised of his right to remain silent. Furthermore, while advising Moore of his rights, it was suggested to him that “his lawyer was on his way.” The inquisitor — not the accused as in Escobedo — is the one who broached the subject of an attorney, and we find it was clearly understandable to a man of appellant’s intelligence that Sergeant Tudor was saying that Moore might not desire to talk to him until his attorney arrived. Moore, instead of indicating he wanted to first talk with an attorney, proceeded to voluntarily give his explanation of his possession of the stolen money.

The contention that the evidence is not sufficient to sustain the jury verdict is without merit, as is revealed by the summary recitation of the evidence. Absent his admission to Sergeant Tudor, appellant was placed in possession of property recently taken in the burglary of a home in Oklahoma. Under all the circumstances in evidence, the jury could well have reasoned that appellant had criminal knowledge. No explanation of such possession was offered the jury by appellant. Fields v. State, 219 Ark. 373, 242 S. W. 2d 639 (1951), and numerous other cases, hold that possession of recently stolen prop erty, if unexplained to the satisfaction of the jury, is sufficient to sustain a conviction.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Arvin Smith et al v. State
    5227
    410 S. W. 2d 126
    Opinion delivered January 9, 1967

      Dcmuser & Ruchaba, for appellants.

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellants were convicted of the crime of grand larceny of three hogs belonging to Billy Gene Owens in the Circuit Court of Marion County on the 16th day of April, 1966, and sentenced to one year in the penitentiary, with a recommendation that the sentence be suspended upon restitution in the amount of $500.00 and payment of court costs.

Appellants .assert twelve points for reversal, some of which are interrelated. We find one of these points to justify a reversal. This is because of instructions given by the circuit judge relating to recommendations of clemency and suspension of sentence in response to inquiries by the jury. The case was closed and the jury instructed. After deliberation for a time, the jury returned to the courtroom and asked: “If we give these hoys a prison sentence, can we suspend the sentence — a suspended sentence?”. After advising the jury that it had the right to recommend a suspended sentence if they wished to do so, the trial judge said:

“I would have to tell you that under the law the Court is not bound exclusively or conclusively by the recommendations but I will tell you that I would certainly give grave consideration to any recommendation of the jury.”

The foreman of the jury then inquired whether compensation to the boy for his hogs entered into this. After advising the jury that there was no way the jury or the court could require this, the judge added:

“I might explain to you, however, that that could be made a condition of the recommendation for leniency. In other words, the recommendation could provide for restitution as a condition of your recommendation, if you wish to make it so.”

The foreman then asked: “What about the Court costs ? ”, to which the court replied that the law provided that defendants should be responsible for the court costs if they are financially able to pay, in case of conviction. He further advised that in order to avoid any misunderstanding, in case of a conviction and suspension of sentence, if there was a sentence, one of the conditions the court would have to make would be payment of court costs. •

The jury then retired, after which defendants’ at torney objected to the remarks of the trial judge that the court would give grave consideration to the recom mendations of the jury, contending that, in effect, the statements indicated that the court might suspend the sentence and that this might cause the jury to convict when they might otherwise not do so, but no objection was made to any other remarks.

Later the jury again returned to the courtroom and inquired about the acceptability of a form of verdict finding appellants guilty of grand larceny but fixing “0 years” punishment, with an appendage after the foreman’s signature adding “$500.00 for payment of hogs to Billy Gene Owens plus Court costs.” The trial judge properly advised that this would not be compliance with the law for the reason that the minimum penalty was one- year, but added:

“Of course, you can consider this answer in connection with the answer the Court gave you a while ago to the other inquiry, you can consider these two answers together.”

After the court properly refused to permit appellants’ attorney to make an offer to the court in the presence of the jury, objection was made to the remarks of the trial judge as an invitation to the jury to convict the appellants and make a recommendation of a suspended sentence.

After a motion for a mistrial on other grounds; the trial judge again advised the jury:

“The jury is the sole judge of the facts in this case and it is in your hands to determine the guilt or innocence of these defendants, and to make any recommendations which you see fit to make.”

Thereafter the trial judge told the jury that he was not bound by the recommendations, but when advised by the foreman that this was holding up the jury, replied:

“Yes, the only thing I know is the jury is not willing to trust the Court.”

The appellants, after first moving for a mistrial, then objected to the trial judge’s remarks and moved for a mistrial. Later the jury returned its verdict resulting in the judgment from which this appeal is taken.

This court has always zealously guarded against the possibility that any remark of the trial judge might influence a jury’s verdict. The statement of a trial judge relating to the transfer of a minor convicted of felonious homicide to the reform school was held improper, even though the trial judge advised the jury that this should not influence the jury one way or the other in determining guilt or innocence. Pittman v. State, 84 Ark. 292, 105 S. W. 874. A similar instruction about the committing of women to a state farm for women has been held prejudicial for the reason that it might have influenced the jury in returning a verdict of guilty. Mitchell v. State, 155 Ark. 413, 244 S. W. 443; Snyder v. State, 155 Ark. 479, 244 S. W. 746.

While convictions have been sustained by this court where trial judges have given similar instructions to the jury because no objection was made at the time the statements were made, [See Pendleton v. State, 211 Ark. 1054, 204 S. W. 2d 559; Filtingberger v. State, 216 Ark. 754, 227 S. W. 2d 443; Andrews v. State, 225 Ark. 353 282 S. W. 2d 592] this court has* held that no statement should be made by the court that might tend to lead the jury to believe a suspended sentence would be granted if requested. In the Andrews case this court held that statements to the jury that the trial judge believed he had thus far followed jury recommendations of clemency and that he would be glad, if they so desired, to receive such a recommendation were objectionable. Statements made by the trial judge in the present case would seem to tend even more to indicate that he would suspend a sentence based on restitution and payment of court costs if recommended.

A very similar statement by a trial judge, after instructing the jury at some length upon the right of the court to suspend the sentence in case of a verdict of guilty, that “you may safely trust to the court the right performance of whatever duty and responsibility is imposed by the legislature upon that officer, and you will make no mistake in such assumption,” was held in Bryant v. State, 205 Ind. 372, 186 N. E. 322, to seem to be designed to lure or wheedle the jury past the obstacle'of and to disarm the jurors of any doubts or hesitancy occasioned by the severity of the penalty involved. We are aware of and accept the statement of the trial judge that his remark about the lack of trust in the court by the jury was a facetious one and made as the jurors started to file out of the room. On the other hand, we must recognize that facetious remarks by the judge presiding over the trial are not always so taken by hearers and where the liberty of accused persons is at stake the making of such remarks is to be discouraged. Facetious or not, the words of the trial judge in the background of previous statements on the subject were prejudicial to the defendants, even if heard by only part of the jurors.

Objection was also made by appellants to the trial judge’s permitting the sheriff to select two jurors of his choice from the special panel of 25 provided by the jury commissioners, the regular panel having been exhausted. While this probably was not reversible error because the only objection made was that the sheriff Was prejudiced because he was a prosecuting witness, and because the record does not show that defendants had exhausted their peremptory challenges when the two additional jurors were summoned or whether these jurors actually served, we deem this objection to be of sufficient importance to be considered.

The mere fact that the sheriff is a witness in the case is not necessarily an indication that he is prejudiced against a defendant and does not disqualify him from serving in the absence of a showing of actual prejudice. Hudspeth v. State, 188 Ark. 323, 67 S. W. 2d 191; Huen v. State, 196 Ark. 22, 115 S. W. 2d 860; Ashcraft v. State, 208 Ark. 1089, 189 S. W. 2d 374. No such showing was made.

Where it is not shown that appellants had exhausted their peremptory challenges and were thereby compelled to accept any juror who was not qualified and impartial, they are not in a position to complain of the method that was used. Rogers v. State, 133 Ark. 85, 201 S. W. 845; Brock v. State, 237 Ark. 73, 371 S. W. 2d 539.

Nevertheless, in the Brock case this court expressed its disapproval of a procedure whereby persons to be served from such a special panel were selected by the trial judge without regard to numerical order and for reasons known only to the judge himself. We hold that the language of Ark. Stat. Ann. § 39-220 (Repl. 1962) providing that “said list to be drawn in lieu of summoning bystanders” can only be construed to require that the names of those to be served be drawn by lot, as in the case of a drawn jury.

In view of the above, many of the points relied on by appellants become moot; others we deem worthy of some mention, though not well taken.

Appellants sought to avoid the effect of decisions in Bailey v. State, 215 Ark. 53, 219 S. W. 2d 424 and Black v. State, 215 Ark. 618, 222 S. W. 2d 816 (Cert. denied 338 U. S. 956, 94 L. Ed. 590, 70 Sup. Ct. 490) that failure of jury commissioners to include women on the lists of those to be summoned for jury duty is consistent with the public policy of our state and not violative of the “due process” or “equal protection” clauses of the Fourteenth Amendment to the Constitution of the United States. It is the holding in these cases that one who contends that his rights under this amendment are violated must show something more. This appellants did not attempt to do and it is difficult for us to perceive how they could. They contend that the rule announced was inapplicable because in the trial of grand larceny cases women jurors would not likely be subjected to foul language, consideration of indecent conduct, the use of filthy or loathsome words, references to intimate sex relationships and the like. They overlook the fact that jury lists are selected well in advance of court sessions without regard to the types of cases which might be heard at the time of service. Other reasons for the policy of our state in this regard would include the fact that in some trials the jurors are kept together, and that facilities for jurors of both sexes under such circumstances would in most of our counties be unavailable.

Likewise we find no merit in the contention that error was committed by the court in admitting certain testimony regarding admissions made by three of the appellants to State Police Investigator Rife and Sheriff Hickey on the basis that appellants were not advised that if they lacked money to hire a lawyer, the court would appoint one for them. Apparently they seek to come within the rule announced in Miranda v. State of Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 Sup. Ct. 1902, overlooking the fact that the Supreme Court of the United States has held that this decision was not applicable to cases in which trial, began before the date of the decision, June 13, 1966. Johnson v. New Jersey, 384 U. S. 719, 16 L. Ed. 882, 86 Sup. Ct. 1772.

Nor were these appellants deprived of any constitutional rights under the standards set out in Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 977, 84 Sup. Ct. 1758. Unlike Escobedo, these appellants were not in custody when the statements were made and none of them requested, or was denied, the opportunity to consult with a lawyer. On the contrary, the officers testified that each was advised of this and other constitutional rights. Testimony was heard in the absence of the jury and the court found that the statements were admissible. The objection of appellants, based on the failure of the judge to examine Sheriff Hickey, one of the officers present, on this point before Sergeant Rife, the other officer testifying, was not well taken because they did not seek to interrogate Sheriff Hickey until after the trial judge had heard the testimony presented by both sides and announced his ruling. We do not deem it necessary that the trial judge hear the testimony of every person present at the time a statement is made in order to determine admissibility of that statement. Nor do we deem it necessary that every witness who may testify about the making of statements by accused persons be examined by the court in the absence of the jury before testifying, once the voluntariness of the statement has been determined. Nor were they in the position of the appellant in Smith v. State, 240 Ark. 726, 401 S. W. 2d 749, who, after being advised of' his rights, was held in jail over five months following preliminary hearing when he was told that he was in bad trouble, that he would have to come up with the pistol (apparently a murder weapon) and that he was a prime suspect. Yet no steps having been taken to provide him with counsel, he made admissions of guilt this court held inadmissible.

The testimony of Sergeant Rife about the circumstances surrounding the making of the statements was substantial evidence to support the trial court’s finding that the statements were voluntary (See Mullins v. State, 20 Ark. 608, 401 S. W. 2d 9.) and that there was an intelligent waiver of the right to counsel as was the case in Cox v. State, 240 Ark. 911, 405 S. W. 2d 937.

Appellants also objected to examination of Sergeant Rife and Sheriff Hickey by the trial judge in the presence of the jury as to possible threats or promises made to these three defendants. They fail to show how they were prejudiced by this action and, no objection having been made to the examination of Sheriff Hickey, review by this court is precluded. Adams v. State, 235 Ark. 1057, 160 S. W. 2d 42; Fields v. State, 203 Ark. 986, 363 S. W. 2d 905; Graves & Parham v. State, 236 Ark. 936, 370 S. W. 2d 806; Crabtree v. State, 238 Ark. 358, 381 S. W. 2d 729.

Nor do we see how the examination of Sergeant Rife by the court resulted in any prejudice. The questions as to lack of promises or threats objected to were no more leading than those approved by this court in New v. State, 99 Ark. 142, 137 S. W. 564, where the judge asked whether certain parties seemed to be angry or offended or insulted. In that case, as in Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816, the propriety of a trial judge’s asking questions during examination of a witness calculated to elicit the truth concerning the subject matter was recognized.

Appellants also contended that the court should have directed a verdict of not guilty because: (1) The incriminating statements of appellants were obtained upon the understanding that the officers were only interested in securing the return of the meat of the hogs and in bringing about a settlement of a dispute between appellants and the owner of the hogs, (2) as to Burris because of there being no incriminating statement by him in evidence and no evidence other than the taking of the hogs and the return of some meat by him, and (3) because of improper questions asked by the prosecuting attorney.

We do not find evidence in the record to sustain the first of these grounds. All the testimony admitted about a “settlement” related to approaches or effort by appellants, their families, or their attorneys. Only one of appellants testified that the officers said they did not want to embarrass him or his family, they just wanted to get the meat back. This falls far short of showing that the incriminating statements of the three appellants should be excluded or a verdict directed.

As to Burris, the determination of the sufficiency of the evidence at the conclusion of the state’s testimony is rendered unnecessary for he introducede vidence and testified himself, thus waiving that motion for a directed verdict. Reeves v. State, 222 Ark. 77, 257 S. W. 2d 278. His own testimony shows that he was present and participating in the shooting of the three hogs; that after leaving, the appellants decided to come back to get the hogs if they had not been claimed by anyone; that he helped cut up, load and divide the meat at a time late enough in the evening that lights were required; that he first denied to the officers having any knowledge of the meat; that he and some of the other boys tried to make a settlement with the owner of the hogs, and that he returned some of the meat to Sheriff Hickey.

Only one of the allegedly improper questions of the prosecuting attorney was objected to and that objection was sustained. We find his contention without merit.

It would unduly extend this already lengthy opinion to discuss other points raised by appellants. It is sufficient to say that all have been examined and found to be without merit or rendered immaterial by this decision.

Reversed and remanded for a new trial.


author: J. Fred Jones, Justice.

text:
    James E. Trevathan et al v. Ringgold-Noland Foundation et al
    5-4020
    410 S. W. 2d 132
    Opinion delivered January 9, 1967

      Erwin & B eng el, for appellants.

      Murphy & Arnold, for appellees.
   J. Fred Jones, Justice.

This suit involves the disposition of the assets of a charitable corporation under the cy pres doctrine. The directors of the corporation filed petition in Chancery seeking authority to sell the corporate property and to apply the proceeds to the erection of an addition to a public library not previously contemplated. Some of tbe original donors and incorporators filed a response opposing the sale and proposed use of tbe funds. Tbe trial court, in applying tbe cy pres doctrine, permitted tbe sale and authorized tbe use of the funds in tbe construction of an addition to tbe library, and respondents have appealed.

In 1944 one hundred thirty individuals and business firms in Batesville, Arkansas and vicinity, raised $3,-834.00 in individual cash donations ranging in amounts from fifty cents to $100.00, and on March 9, 1944, tbe Ringgold-Noland homestead in tbe city of Batesville was purchased for $3,000.00 and title was taken in tbe name of one of tbe donors, as trustee.

In,¡June 1945, tbe Ringgold-Noland Foundation (hereinafter referred to as Foundation) was organized as a charitable corporate entity, with three of tbe named appellants and four of tbe appellee directors among the original incorporators of the foundation.

' Since tbe intent and purposes of tbe original 130 donors are important to this litigation and since their intent and purpose in making their donations are reflected only in tbe constitution of tbe foundation subsequently incorporated by fourteen of tbe original donors, tbe entire constitution of tbe Foundation is set out here as follows:

“We, whose names are annexed, desiring to form an association, for tbe purpose of reconstructing and preserving one of tbe ancient landmarks of this city, and tbe state to provide a place for preserving any and all ancient and historical data and mementos that will show our appreciation for tbe sacrifices and devotion of our forefathers to their country, and to tbe coming generation tbe spirit and sentiment of their fathers and mothers, and their reverence for their forefathers, and to provide rest rooms, probably a library, and such other items and things as will serve tbe town, county and state, do pledge ourselves to be governed by tbe following constitution :

1. The name of said center shall be “Einggold-Noland Foundation.”
2. It shall be governed and controlled by a Board of Directors, consisting of five, to be selected at a mass meeting of the signers and contributors to said property.
3. The Board of Directors shall select one of their number as president, one as vice president and one as secretary and treasurer.
4. The support and maintenance of said Foundation shall be provided for by this Board of Directors.”

After the property was purchased and the Foundation was formed, apparently no further action was taken by the donors or the incorporators of the Foundation during the next twelve years except that a roof was put on the building between 1945 and 1957 and a fence was erected around the property by the Lions Club. Some interest was shown in the restoration project by the Lions Club and the Independence County Historical Society, but no positive effort to restore the building was made.

In April 1957, the Batesville Chamber of Commerce indicated an interest in purchasing some of the property for an industrial site, and some of the original incorporators of the Foundation called a meeting of the original donors for the purpose of electing a Board of Directors and for the purpose of discussing the sale of some of the property to the Chamber of Commerce for an industrial site.

The first meeting of the Board of Directors was held on April 30, 1957, and the Chairman and Secretary were authorized and ordered to offer a part of the property to the Chamber of Commerce for $6,000.00, but at a meeting held on May 22, 1957, the Board of Directors agreed to take no further action relative to the sale “with the view of possible interest in a restoration project. ’ ’

On May 23, 1957, the title to the property was transferred by Mrs. O. G. Hinkle, Trustee, to the Foundation and $494.41 was turned over to the Foundation.

Some interest in the restoration project was revived from time to time between 1945 and 1965 during which time the market value of the property continued to increase, but interest in the restoration project did not. In the meantime, the walls of the building has fallen down and most of the brick had been used in the erection of a Chamber of Commerce building. By 1965 nothing was left of the Ringgold-Noland home except the foundation of the original structure.

On December 3, 1965, the directors of the Foundation filed their petition in the Independence County Chancery Court praying authority to sell the trust property under terms and conditions set by the Court, and for authority to apply the proceeds to the building of an addition to the Independence County library at its present location on Broad Street in Batesville, the addition to be used for purposes consistent with, and in conformity to, the constitution of the Foundation.

The trial court set the petition for hearing on January 11, 1965, and directed that notice of the hearing be sent to all known donors and that notice be published in the Batesville Guard for four consecutive weeks. Notice was published and sent as directed by the Court, and response was timely filed by appellants on behalf of themselves and other donors, praying that the petition be denied and that the Board of Directors of the Foundation be instructed to carry out the original intent and purposes of the original donors and the Foundation itself, or that the directors be required to resign and permit another Board to be elected. Respondents prayed that in the event of sale, the proceeds be distributed among the original donors, their heirs, successors and assigns.

While this matter was pending in the trial court, the Batesville Chamber of 'Commerce proposed' to'build a youth center with the proceeds from the sale' of the-property, and the Independence County Library filed a “Statement of Position and Request of Independence Library Board” proposing to use the estimated $15,-000.00 proceeds from the sale of the property, to be matched by a like amount of Federal funds, in building a new addition to the Independence County library at its present location, said addition to be named “The Ringgold-Noland Memorial Room” and to be used primarily to emphasize the early local and state history, and to house valuable historical documents.

On January 14, 1966, the trial court entered its decree holding that restoration of the Ringgold-Noland building’ would be wholly impractical; that the contributions of the original donors'were gifts to the Foundation and a refund would be next to impossible. Holding that the cy pres doctrine applied to the facts in this case, the trial court entered its decree for the sale of the property and directed that the funds be turned over to the Independence County Library Board.

The intervenors on appeal to this Court have set out nine points on which they rely for reversal. Points (1), (2), (3), (4), (5), and (6) have to do with evidence pertaining to proposed uses of the property if it is not restored to its original state, and we find no merit in assignment of error on points (7) and (8).

We agree with the trial court that the cy pres doctrine is applicable in this case, and we hold that the evidence as to the possible use of the funds and property that would most nearly carry out the purpose and intentions of the donors was not only admissible but was necessary to an equitable and proper disposition of the problem in this case.

Appellants say that the controlling question under the cy pres doctrine is the intention of the donors and its possibility of performance and they argue that from pictures of the Ringgold-Noland home still in existence, it is still possible to reconstruct the building on its old foundation.

In the case of Slade v. Gammill, 226 Ark. 244, 289 S. W. 2d 176, in affirming a decree of the trial court under the cy pres doctrine, this court quoted with approval from volume 2, A, Section 431 Bogert, on The Law of Trusts and Trustees as follows: * * * “the cy pres doctrine is ‘. . . the principle that equity will, when

a charity originally or later becomes impossible or impracticable of fulfillment, substitute another charitable object which is believed to approach the original purpose as closely as possible. It is the theory that equity has the power to mould the charitable trust to meet emergencies.’ ” Appellees correctly interpret our holdings in the case of McCarroll v. Grand Lodge I.O.O.F., 154 Ark. 376, 243 S. W. and Burel v. Grand Lodge I.O.O.F., 163 Ark. 131, 259 S. W. 369.

We view the situation here as we did in the case of the State National Bank of Texarkana v. Bann, 202 Ark. 850, 153 S. W. 2d 158.

The case involved a charitable trust provided in a will for the establishment and operation of a Charity Hospital. The hospital was purchased and was operated for a time under lease. When the lease expired, the trustees were permitted by the trial court to sell the property and donate the proceeds to the Sisters of Charity. In affirming the trial court in that case, we said:

“We cannot cause this trust to he executed in the precise manner contemplated hy the testator, hut we can apply the trust fund to another charity as nearly as possible like that mentioned in the will. The Trustees arelen of high standing and business ability. They say they cannot longer operate the present hospital with the funds in hand.” * * * “Appellees own no property except that here involved, the outmoded hospital, and about $1,500.00 cash in bank. They have no income except the $1,800.00 per year rent from appellant. It is not difficult to see the impracticability, if not impossibility, of continuing to operate a charity hospital.”

Appellants in the case at bar estimate that the property could be restored for between $20,000.00 and $25,-000.00. It must be remembered, however, that the trustees of the Foundation are not only charged in their constitution with reconstructing and preserving one of the ancient landmarks of the City of Batesville and the State, but are likewise charged with the responsibility of providing a place for preserving ancient and historical data and mementos, and they are specifically charged with providing the support and maintenance of the Foundation.

We find that the decree of the trial court is not against the preponderance of the evidence in this case and the decree is therefore affirmed.

Affirmed.

Brown, J., dissents.


author: Conley Byrd, Justice.

text:
    Ark. State Hwy. Comm. v A. L. Young
    5-4049
    410 S. W. 2d 120
    Opinion delivered January 9, 1967

      George 0. Green and Don Langston, for appellant

      Floyd G. Rogers, for appellee.
   Conley Byrd, Justice.

This appeal is brought by the Arkansas State Highway Commission from a jury award in an eminent domain proceeding in favor of the property owner, A. L. Young. In addition to questioning the sufficiency of the evidence, the Highway Commission alleges that the trial court committed error in overruling its motion to strike from the jury panel for cause the wife of an expert witness used by the landowner. We hold that the evidence was sufficient to sustain the verdict, but that the trial court committed error in refusing to strike from the jury panel for cause a wife of one of the witnesses on value.

The record shows that twenty veniremen had been summoned for the jury panel, one of whom was Mrs. Catherine Ragge. The Highway Commission, before the jury was sworn, pointed out to the court that Ken Ragge, the husband of juror Catherine Ragge, was going to testify on behalf of the landowner with respect to values and moved that Mrs. Ragge be struck from the jury for cause. Mrs. Ragge stated that she had not discussed the matter before the court with her husband and that she would not believe him above any other witness in the case. Following the interrogation the trial court refused to excuse Mrs. Ragge for cause.

Since the Highway Commission exhausted all of its peremptory challenges under. Ark. Stat. Ann. % 39-229 (Repl. 1962), one of which was used to strike Mrs. Ragge, it is in a position to complain of any error of the trial court in refusing to strike a juror for cause. Collins v. State, 102 Ark. 180, 143 S. W. 2d 1075 (1912).

Our statutory law disqualifies jurors who are related to either party or his attorney within the fourth degree of consanguinity or affinity, but makes no reference to jurors related to witnesses. In the cases before this court the relation of a juror to a witness has usually arisen or been brought to the attention of the court after the jurors were selected and the trial started, Jones v. State, 230 Ark. 18, 320 S. W. 2d 645 (1959), or the matters to which the witness (relative) testified were uncontroverted matters such as occurred in Arnold v. State, 150 Ark. 27, 233 S. W. 818 (1921).

When one uses the polestar that “justice ought not only to be fair, but appear to be fair,” logic points to an abuse of discretion by the trial court. The facts in this case show that Mr. Ragge, a professional appraiser, testified that the damages to the property owner as a result of the eminent domain proceeding amounted to $70,700.00, while the witnesses for the Highway Commission testified that the damages did not exceed $23,-100.00. It does not stretch the imagination to say that the very presence of a witness’ close relative on the jury would tend to inhibit the frank discussion necessary in a jury room for arriving at an impartial verdict — for what prudent banker or merchant on the jury, who was inclined to believe the witnesses for the Highway Commission., would care to criticize Mrs. Ragge’s husband to her face?

Consequently we hold that where, as here, a close relative is a witness to a controverted issue in the case and the matter is brought to the attention of the trial court before-the jury is sworn, it is an abuse of discretion for a trial court to refuse to strike a relative from the jury for cause. See Ark. Stat. Ann. § 39-115 (Repl. 1962) and Ark. State Highway Comm. v. Bryant, 233 Ark. 841, 349 S. W. 2d 349 (1961), where the matter is not brought to the attention of the court before the jury is sworn.

In view of the fact that the sufficiency of the evidence to sustain the verdict will likely be an issue on retrial, we point out that we have reviewed the testimony of the witness called by the property owner and find that it is supported by sufficient related facts and opinions to have a fair and reasonable basis to sustain the verdict.

For the error above set out the matter is reversed and remanded for a new trial.


author: George Bose Smith, Justice.

text:
    Lucille Blythe v. Libby Jo Fields Blythe
    5-4057
    410 S. W. 2d 379
    Opinion delivered January 16,1967

      Johnston & Martin, for appellant.

      Gordon & Gordon, for appellee.
   George Bose Smith, Justice.

James A. Blythe was married three times. After his death in 1965 his first wife, the appellant Lucille Blythe, asserted that she and James were never divorced. On that basis she claimed dower and allowances as his lawful widow. Evatt v. Miller, 114 Ark. 84, 169 S. W. 817, L.R.A. 1916C, 759 (1914). The probate judge rejected that claim, finding that James’s third wife, the appellee Libby Jo Fields Blythe, was his lawful widow.

Under our law the presumption in favor of the validity of a marriage is so strong that one who attacks a subsequent marriage on the ground now asserted has the difficult burden of proving the negative; that is, that no divorce was in fact obtained by either party to the earlier marriage. Estes v. Merrill, 121 Ark. 361, 181 S. W. 136 (1915). The controlling issue here is the admissibility of certain documentary evidence offered by Lucille in her effort to prove that she and James were never divorced.

Lucille proved by James’s brother that after James abandoned her in 1930 he lived in three states: Oregon, California, and Arkansas. At the trial Lucille offered statements executed by the circuit clerks (or similar officers) for all the counties in those states, attesting the absence of any divorce proceedings between James and Lucille Blythe. In substance each officer states that he is the custodian of the divorce records for the county and that there is no record of such a divorce proceeding between February 16,1927 (the date of James’s marriage to Lucille), and September 25,1965 (the date of James’s death). In the probate court those statements were held to be inadmissible.

In the absence of statute a party cannot prove by a public officer’s certificate that a certain public record does not exist, because such a statement is testimony that should be subject to cross examination. Pekin Cooperage Co. v. State, 197 Ark. 341, 122 S. W. 2d 468 (1938). The appellant contends, however, that the rule has been changed by the Uniform Interstate and International Procedure Act. Ark. Stat. Ann., Title 27, Ch. 25 (Supp. 1965).

We agree that the statute changed the common law rule, but we are of the opinion that the statements offered in the court below did not meet the requirements of the Uniform Act. Specifically, we think that each statement should have been accompanied by a certificate executed by a second designated officer, certifying that the first officer was the custodian of the county divorce records. This, as we construe the Act, is the effect of Paragraphs A and D of § 27-2505, which we quote in part:

“A. Domestic record. An official record kept within .. . any state, ... or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof, or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certifcate that the officer has the custody. The certificate may be made by a judge of a court of record having jurisdiction in the governmental unit in which the record is kept, authenticated by the seal of the court, or by any public officer having a seal of office and having official duties in the governmental unit in which the record is kept, authenticated by the seal of his office.
“B. Foreign record. [Not pertinent].
“C. Alternative method for certain domestic and foreign records. [Not pertinent].
“D. Lack of record. A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in this section in the case of a domestic record, ... is admissible as evidence that the records contain no such record or entry.”

Here the clerks ’ statements were offered under Paragraph D, to prove the lack of a record. That paragraph requires that the statement be authenticated as provided by Paragraph A, governing proof of domestic records. Paragraph A directs that the custodian’s statement be accompanied by the certificate of a second officer, verifying the fact that the first officer is the custodian. There can be no sound reason for supposing that the legislature intended to require the accompanying certificate when the custodian is attesting the existence of an entry but not to require it when he is attesting its non-existence.

If there were any doubt about the point it would be set at rest by Rule 44 of the Federal Rules of ‘Civil Procedure, after which the Uniform Act was patterned. Subsection (a) of that Rule is similar to Paragraph A of our statute. It applies to domestic records and requires the accompanying certificate of a second officer. Subsection (b), governing the proof of the lack of a record, follows immediately after Subsection (a) and expressly requires that the custodian’s written statement that no record is found to exist be “accompanied by a certificate as above provided.” In place of the clause just quoted the Uniform Act substitutes a different clause, “authenticated as provided in this section in the case of a domestic record,” but the draftsmen’s intent is clearly the same in both instances. The change in the wording of the Uniform Act, as compared with Rule 44, evidently came about by reason of the insertion of Paragraphs B and C in the statute, compelling the draftsmen to rephrase the cross reference to avoid ambiguity.

We conclude that the trial court was right in its ruling that the clerks ’ statements were not admissible in evidence. Without those statements the appellant’s proof falls short of showing that James Blythe did not obtain a divorce before his marriage to the appellee.

Affirmed.


author: Paul Ward, Justice. John A. Fogleman, Justice,

text:
    City of Springdale, Ark. v. Sam Weathers et ux
    5-4047
    410 S. W. 2d 754
    Opinion delivered January 16, 1967
    [Rehearing- denied February 20, 1967.]

      Little & Enfield and Crouch, Blair & Cypert, for appellant.

      Putman, Davis & Bassett, for appellee.
   Paul Ward, Justice.

This litigation concerns damages to a dairy farm caused by the discharge of sewage from a disposal plant owned by the City of Springdale. Tbe sewage polluted Spring Creek which ran through appellees’ farm, allegedly causing permanent damage to its use as a dairy farm.

On December 30, 1963 appellees, Mr. and Mrs. Sam Weathers, filed suit against appellant, City of Spring-dale, asking for damages in the sum of $175,000. On December 15, 1965, after a lengthy trial to a jury, judgment was entered against appellant and in favor of appellees in the amount of $38,000, and this appeal by appellant follows. Pertinent testimony will be referred to hereafter in the assignments of error. Por a reversal appellant relies on the following points:

1.
The court erred in failing to direct a verdict in favor of the defendant on the grounds that the plaintiff’s cause of action is barred by the statute of limitations.
2.
There was no substantial evidence upon which to base a finding of damage, and the award of damages was grossly excessive.
3.
The court erred in failing to give an instruction on temporary damages as requested by the defendant.
4.
The court erred in allowing hearsay evidence into testimony, to the prejudice of defendant.

1. After an examination of the pertinent legal issues and testimony involved we have concluded no reversible error is shown under this point.

It is apparently agreed by both parties that the three years statute is applicable here. There is, however, a sharp conflict in opinion over when the statute begins to run. Generally speaking, it is the contention of appellant that the statute begins to run “upon the construction of the nuisance”, quoting from the case of St. Louis Iron Mountain & Southern Railway Company v. Anderson, 62 Ark. 360, 35 S. W. 791. Again, appellant says “the injury dates from the construction of a permanent sewage disposal structure”, citing Sewer Improvement District No. 1 of the City of Wynne v. Fiscus, 128 Ark. 250, 193 S. W. 521, and International Shoe Company v. Gibbs, 183 Ark. 512, 36 S. W. 2d 961. It is then pointed out by appellant that the record shows, among other things, that: The City had a disposal plant in 1937 by which Spring Creek was polluted in some degree; appellants bought part of their land in 1946 and the rest of it in 1959; appellees received from the State Health Department a permit to operate a Grade A Dairy in 1957; City built a new disposal plant in 1964 (after this suit was filed) to correct the trouble; appellees had to quit irrigating their land with water from Spring Creek because, of pollution of the water, and; during all periods above mentioned the creek was being noticeably polluted. It is, therefore, earnestly insisted by appellant that since appellees were aware of the above factual situation their cause of action arose more than three years before suit was filed by appellee in December 1963.

In our opinion the rule applicable to the facts in this case relative to when the statute began to run is the one set out in Sunray DX Oil Co. v. Thurman, 238 Ark. 789, 384 S. W. 2d 482 and Nance v. Cook, 240 Ark. 336, 399 S. W. 2d 262. In the Sunray case we approved the following statement:

“ ‘It seems well settled that in an action for damages for permanent injury to real estate caused by continuing salt water pollution the limitation begins to run at the time when it becomes obvious that a permanent injury has been suffered.’ ”

We infer appellant contends that the rule announced in the above cited cases is not applicable here because they deal with damage by salt water and not by sewage. Such distinction is not supported by sound reasoning or by our decisions. The nature of damage to land is so similar in both instances, that, we think, the same rule should be followed in attempting to determine the time when the permanent injury occurred. In the Nance case we approved the same statement copied above.

There are, therefore, two fact questions for the jury to decide; (a) whether the damage was permanent, and (b) if so, when did it become, or should have become, Obvious to appellees. Both of these fact questions were presented to the jury on separate interrogatories. The jury found from the evidence that the farm had been permanently damaged and that it became obvious to appellees in the year 1963.

It would serve no useful purpose, we think, to detail all the testimony relative to the above mentioned questions since we have carefully read the same and find substantial evidence to support the findings of the jury. It suffices to point out that there was testimony showing the contamination began (in a slight degree) in 1937; that it continued to increase until 1961 when the City agreed to stop it after appellees had spent thousands of dollars on improvements to make a Grade A dairy farm; that the contaminations continued until appellees were informed by the State Health Department to stop or materially curtail such operations on December 9, 1963.

2. We also are convinced there is substantial evidence in the record to sustain the jury’s finding that appellees’ farm was damaged to the extent of $38,000. It is properly conceded by both parties that the amount of damages is the difference between the value of the farm before and after the damage.

In substance, Mr. Weathers testified: I bought an irrigation system to use water from Spring Creek; in 1952 I built a Grade A. Dairy barn in order to be able to run a Grade A. Dairy farm; in 1957 I built a bottling plant to pasteurize and homogenize the milk, all in compliance with the rules and regulations of the State Health Department, and I have made other improvements; at times the odor from the creek was unbearable; I received a letter from Dr. Dick (director of the milk division of the Arkansas State Health Department) cutting me off from my land so I could no longer carry on a Grade A Dairy operation, and; in my opinion the value of my land as a Grade A Dairy was $170,000 and is now worth about $70,000. Mr. Emmory Grose, a real estate appraiser living in Fayetteville with eight years experience as an appraiser for the Federal Housing Administration, testified that the market value of appellees’ farm was worth $140,000 before the damage but that it is now worth only $66,000. Appellant objects to the testimony of Mr. Weathers on the ground that he gave no basis for the values he fixed, but we held in the case of Housing Authority of the City of Searcy v. Angel, 239 Ark. 224, 388 S. W. 2d 394, that a property owner who had lived on a piece of property for a long time “is qualified to give his opinion as to the value of the property both before and after a portion has been taken in a condemnation proceeding, and in this case we cannot say that such evidence is not substantial as to the damages sustained”. Also, we think Mr. Weathers did give some very good reasons to explain the extent of his damage.

3. We fail to see any error in the trial court’s refusal to give appellant’s instruction on temporary damages. In the first place, appellees’ suit was based solely on permanent damages, and appellant’s answer on this point was a general denial. In the second place, the jury’s verdict excludes any possibility of temporary damages. Also, appellant cites the Anderson case, supra (and other cases), to show that a damage of this nature is permanent and not temporary.

4. When Mr. Weathers was recalled as a witness lie was asked about certain instructions he had received from Mr. Dick (Director in the State Board of Health).

Q. “Did you ask him (Dick) whether or not you could raise feed and feed it to your cattle down there?”
A. “Yes____”
Q. “What did he tell you?”
A. “He said I could not do it.”
Q. “What about pasturing your cattle down there that were dry?”
A. “I couldn’t do that either.”

The above was objected to as hearsay evidence.

For several reasons, we are of the opinion that no reversible error was committed by the trial court in admitting this testimony.

In the first place the testimony was cumulative, it already having been established that appellees could not operate a Grade A. Dairy because of the permanent injury to his farm. It could only tend to prove appellees might use some of the land for general farm purposes —a fact which had been admitted by appellee. Also, Dr. Dick testified that he had visited the farm twice and had told Mr. Weathers that the existing condition was “a violation of the Grade A regulations”, and that his “permit” would be cancelled. In addition to the above we feel that, under the facts revealed by the testimony in the record, the testimony elicited from Weathers relative to his conversation with Dr. Dick was not for the purpose of proving any material issue in the case but merely to show Weathers had received certain instructions from Dr. Dick (a public official) which he was compelled to follow if he continued to run the dairy. In the case of Motors Insurance Corporation v. Lopez, 217 Ark. 203, 229 S. W. 2d 228, where a similar issue was raised, we find this statement:

“A statement made ont of court is not hearsay if it is given in evidence for the purpose merely of proving that the statement was made, provided that purpose be otherwise relevant in the case at trial.”

Undoubtedly it was relevant here for appellees to show what instructions he had received from the State Health Department.

If, therefore, this testimony was admissible for one purpose but not admissible for another it was incumbent upon appellant to request the court to so instruct the jury. A general objection to the testimony was not sufficient. See: Bodcaw Lumber Co. v. Ford, 82 Ark. 555, 102 S. W. 896; Sterling Stores, Inc. v. Martin, 238 Ark. 1041, 386 S. W. 2d 711, and; Finley v. Smith, 240 Ark. 323, 399 S. W. 2d 271. Appellant made no such request in this case.

Finding no reversible error the judgment of the trial court is affirmed.

Affirmed.

Brown, Fogleman & Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. While the cases cited by the majority to support their position as to the time of accrual of the cause of action in a case such as this are in tort, based on negligence, I concur in their position as to the beginning of the running of the statute of limitations, i. e., at the- time when it can be ascertained with reasonable certainty that pollution of the stream will result in-a nuisance of a permanent and continuous character, as this indicates an intention to take a permanent right to so pollute the stream. See McLaughlin v. City of Hope, 107 Ark. 442, 155 S. W. 910; El Dorado v. Scruggs, 113 Ark. 239, 168 S. W. 846; Sewer Improvement District No. 1 of Wynne v. Fiscus, 128 Ark. 250, 193 S. W. 521.

I see no reason why the same rules governing the accrual of the cause of action for permanent damage applied in tort actions should not also he applied when the permanent damage to the realty is the result of the exercise of the power of eminent domain. Cases decided by this court in which damages were sought by reason of eminent domain have been cited as authority in opinions on appeals where recovery was asked because of permanent damage for tortious action polluting a stream. See, for example, International Shoe Company v. Gibbs, 183 Ark. 512, 36 S. W. 2d 961.

It is true that the cause of action sometimes accrues when a sewer plant is constructed, as when the design and construction is of such type or nature as to make permanent damage to the land of a lower riparian owner inevitable, as in the McLaughlin and El Dorado cases. But in this case there is substantial evidence to indicate that, in 1937, when this stream was first used as an outlet, no one would have foreseen any pollution or permanent damage to lower riparian owners and an action by the then owners of the Weathers lands would seem to have been, even in retrospect, inevitably unsuccessful. There is substantial evidence in this record from which the jury might have found that appellees’ right to compensation accrued within three years prior to the date of taking, but there is no substantial evidence to support the finding that the “permanent damaging” was in 1963. This record clearly shows that the permanent damage from which the intention to take is inferred was sometime in the period from 1953 to 1962. In considering this facet of the case it must be remembered that the action of the Fluid Milk Control Division of the State Board of Health in December of 1963 does not in any way indicate that this was the date of “taking”. This is simply the time when the Director of that division discovered the situation. The resulting action closing the Grade A operation was not the exercise of the power of eminent domain by the city, nor was it evidence thereof, but it was the exercise of the police power of the State of Arkansas. It must also be remembered that Dr. Dick, the Director of the Division, would not have permitted this dairy operation at any time when the discharge from the Springdale sewer system ran into Spring Creek, regardless of the efficiency of the plant and its operation and regardless of the purity of the water in the stream.

A brief review of the testimony will illustrate the reason for my dissent from the holding of the majority. Appellee Sam Weathers testified in part, in substance:

There was no obnoxious odor and nothing to alert me of the receiving of sewerage when I acquired the first part of the property in 1946. In 1951 I began to use the water for irrigation and my dairy cattle used the creek for water. In 1953 the condition of Spring Creek began to change with the first thing we noticed being an odor and an off color. The pollution worsened constantly until I began to notice dead fish about two years later. When it first started we had about two months in the Fall at the lowest flow and the rest of the year was comparatively clean. The period during which the contamination was obvious began to increase until in about 1961 when we filed our injunction against the City of Springdale it was a twelve-month situation. The odor from my house was unbearable and the cows quit drinking from the stream and they wouldn’t even cross it without forcing them. I couldn’t irrigate from the stream beginning in 1959 because it was so badly polluted. I did make complaints to the City of Springdale in 1952 or 1953 and in the middle nineteen fifties. They did build a new plant in 1957 and after that I filed an injunction suit which ended in a consent decree. It was as bad after they built the new plant as it was before. Under the conditions that prevailed in my dairy in the years 1962 and 1963,1 was not getting maximum utility out of my cows and equipment. The situation got worse and reached its culmination in 1961 when I sought the aid of an attorney.

While there was other testimony, none of it supports the jury finding as to the year 1963, even though it is true that one Jack Benton, called by appellees, testified that Mayor Davis of Springdale told him the city had been ordered by the Health Department to buy four miles of land down the creek, and that they had made a deal in February of 1963. This was hearsay admitted over the objection of appellant. He also said that the stream was unusable for him from 1956 on, and the condition on the Sam Weathers property was the same as on his. Mayor Davis did state that the Benton land was acquired and that the Health Department had required the city to buy lands one and one-quarter miles downstream for the sole purpose of additional oxidation ponds.

The finding of the jury was based upon an instruction of the court to the effect that permanent damage occurred when the contamination and pollution existed to the extent of denying the landowners the use of the lands for which they were intended and adapted, over the objection of the appellant. The court then submitted an interrogatory to the jury asking them to find the year in which the city permanently damaged the land. I feel that this instruction was inherently erroneous in that the permanent damage occurred when it could have been ascertained with reasonable certainty that there would be contamination and pollution which would result in a nuisance of a permanent and continuous character such as would deny the landowner the use of the lands for which they were adapted so as to affect the market value thereof.

In all other respects I concur with the majority. While appellant did not specifically list the lack of substantial evidence to support the 1963 “date of taking” as a point to be relied upon in its original brief, it did list the failure of the trial court to direct a verdict, urging that there was no substantial evidence to support a finding of a date of taking at any time within three years next preceding the filing of the complaint. Appellant then specifically argues the objection to the instruction on the “date of taking”.

Although the pleadings were not before the jury, it is not insignificant that in response to a motion to make the complaint more definite and certain, appellant alleged a date of taking in October, 1961. A second amendment to the complaint might be construed to allege a date of taking in 1954.

While it could be urged, with some justification, that there is still substantial evidence that the permanent damage occurred at some other time within three years next preceding the filing of the complaint, still this question was not submitted to the jury. Its finding as to the year the permanent damage occurred, based on the erroneous instruction, makes the conclusion that the jury based its finding on the action taken by Dr. Dick, rather than on the acts of appellant, inescapable.

I, therefore, respectfully dissent from the holding of the majority and I would reverse and remand for a new trial.

I am authorizd to state that Justice Brown joins in this dissent.


text:
    Ark. State Hwy. Comm. v. James H. Sargent et ux
    5-4085
    410 S. W. 2d 381
    Opinion delivered January 16, 1967

      George 0. Green and Don Langston, for appellant.

      Robinson & Rogers and Hardin, Barton, Hardin & Jesson; By: Robert T. Dawson, for appellee.
   John A. Fogleman, Justice.

On May 25, 1965, the State Highway Commission took from appellees 5.92 acres of an L-shaped tract of land at Alma near both Highways 64 and 71 for construction of a part of Interstate Highway No. 40. On December 15, 1965, a jury awarded the landowners $31,500.00 as just compensation. Appellant has appealed from the judgment of the jury verdict on the ground that there is no substantial evidence to support the verdict which it contends is grossly excessive. The argument is based largely upon the contention that there was no basis, or an improper one, for the testimony of witnesses as to values of the land.

A review of some of the rules followed by this court in such cases will indicate our reasons for affirming the judgment of the lower court.

1. The question of the sufficiency of the evidence, in cases in which the challenge is that the verdict is excessive in that there is no substantial evidence to support it because there is no fair and reasonable basis for the opinions of witnesses who testify as to value, is one of law. Arkansas State Highway Commission v. Dupree, 228 Ark. 1032, 311 S. W. 2d 791; Arkansas State Highway Commission v. Carder, 228 Ark. 8, 305 S. W. 2d 330.

2. In making such a determination this court must review the testimony in the light most favorable to appellees and indulge all reasonable inferences in favor of the judgment. Arkansas State Highway Commission v. Carder, supra.

3. If there is any substantial evidence to support the verdict it cannot be disturbed. Arkansas State Highway Commission v. Addy, 231 Ark. 381, 329 S. W. 2d 535; Arkansas State Highway Commission v. Dupree, supra.

4. (a) The credibility of witnesses who testify concerning damages is a matter for determination by the jury.

(b) The jury has great latitude in considering- the testimony as to damages.

(c) It is no ground for reversal that the verdict might appear to us to be contrary to the preponderance of the evidence.

(d) A verdict will not be set aside as excessive unless it is so excessive as to indicate passion, prejudice, or an incorrect appreciation of the law applicable to the case, even though the award may appear liberal. Arkansas State Highway Commission v. Kennedy, 233 Ark. 844, 349 S. W. 2d 132; Arkansas State Highway Commission v. Carder, supra; Arkansas State Highway Commission v. Addy, supra.

5. The correct measure of market value in these cases is the market value at the time of the taking for all purposes, comprehending its availability for any use to which it is plainly adapted, as well as the most valuable purpose for which it can be used and will bring the most in the market. Fort Smith and Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W 440; Arkansas State Highway Commission v. Brewer, 240 Ark. 390, 400 S. W. 2d 276.

6. (a) On direct examination a witness testifying about values should not be allowed to repeat hearsay statements made by others or to testify about mere offers or other matters inadmissible under the rules of evidence.

(b) If cross-examination demonstrates that a witness has no reasonable basis whatever for his opinion, his testimony should be stricken.

(c) If cross-examination shows that the witness has a weak or questionable basis for his opinion, that fact has a bearing upon the weight to be given his testimony.

(d) The cross-examining attorney, however, is not entitled to embark upon a fishing expedition with immunity from any unfavorable information he may elicit. He acts at his peril in putting a question that may evoke an answer damaging to his case. Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S. W. 2d 201.

7. (a) A witness who does not express an opinion as to the value of the property may not testify about the sale of property in the same area without any evidence being offered to show a comparison or similarity between the properties.

(b) There is no error in admitting testimony of witnesses who state values on undeveloped, unsubdivided lands, on a raw acreage instead of a per lot basis. Arkansas State Highway Commission v. Witowski, 236 Ark. 66, 364 S. W. 2d 309.

8. A landowner who shows that he is intimately familiar with the property is competent to state his opinion as to the value of the land (even where he admits on cross-examination that he took into consideration an otherwise inadmissible offer to purchase part of it). Arkansas State Highway Commission v. Russell, supra.

Viewed in the light most favorable to appellees, as we must do, 5.92 acres of land were taken from a tract of land containing approximately 12 acres with a frontage of 132 feet on Ray Lane, a blacktop street, located approximately one-quarter of a mile from Highway No. 64 [from which it was accessible by way of Rudy (Maple Shade) Road and a street] and less than an eighth of a mile from Highway No. 71. The original tract was accessible from the north by Fine Springs Road and a street. On this land was located a frame dwelling house consisting of seven rooms and a bath which cost $10,-400.00 when built about 1948 or 1949, a barn (with gas and water), an outbuilding, tool shed, and a pond. The topography was rolling and there was some low land but it was not too low for a house. Room for a road leading to the rear of the tract had been left on the frontage and the power line easement across a part of the property could also be utilized for a road. The owners had gas, water and electricity and all utilities are available. The highest and best use of the property was for residential lots. It was the best property for that purpose in Alma because all expansion was going that way. It was right in the center of the city where there is a lot of development and where property is in demand. The tract was about three and one-half blocks from the school, a distance more desirable than just across the street from it. It was across the street from one tract from which residential lots had been sold and within four blocks of another.

The taking of this right-of-way left about one and one-half acres on the north side in a triangle coming to a point and about five acres on the south side, to neither of which was there any access and for which there was no potential market save the possibility of sale to an adjoining owner.

The value of the tract before the taking was in a range from $31,500.00 to $37,500.00 and the value after the taking ranged from $600.00 to $1,800.00. (Appellant’s witnesses fixed the value of the remainder at $2,000.00.)

Witnesses testifying as to values were:

James EL Sargent — the owner, a life-long resident of the county who had lived on the property since 1948 or 1949 in a dwelling house built by him.

Jay Neal — who lived three and one-half to four miles from the property with which he had been familiar for sixty years; who deals in real estate and had done appraisal work for appellant on lands between Yan Burén and Alma.

Mack Bolding — in the farming and real estate business, who had lived in Alma off and on all his life, only-one and one-quarter miles from the property in question for fourteen years, and who had been familiar with it for twenty-five or thirty years; who had been a licensed real estate broker since 1962; who had bought and sold lands near Alma and throughout Crawford County.

Bobby Geliy — who had "lived in Crawford County all his life; had been a licensed real estate broker for nine years which followed ten years in the building business; who had made appraisals for numerous individuals, banks and different agencies and had done appraisals on a government housing project; and who had taken a course in appraisal work at Southern Methodist University.

All of these witnesses expressed their familiarity with fair market values of real estate in the vicinity. Their qualifications were such as to permit them to express opinions as to the fair market value of the Sargent property before and after the taking. This court has many times held that the owner of real property was qualified to express an opinion as to its value when his familiarity with the property was shown. If the testimony of these witnesses had any reasonable basis, however weak and questionable it may have seemed, the jury might well have accepted their valuations and it cannot be said that the verdict is excessive, being well within the range of damages testified to by witnesses for appellees.

The only real question raised by appellant is the contention that appellees and their witnesses based their value opinions upon the sale price of lots from properties that had been subdivided.

In explaining on cross-examination that he did not base his opinion on the lot sales, witness Bolding said that appellees’ property could have been platted into about three lots per acre, but none of the witnesses based his value opinion upon any number of lots that could be sold by the Sargents. It is true that most of the witnesses stated on cross-examination that they had taken into consideration the prices at which residential lots in the vicinity of the Sargent property were selling. Some of these lots were from the Young tract just across the street and others were from the Littlefield tract three and one-half or four blocks away. The sale prices mentioned were from $1,750.00 to $2,000.00 per lot. While no one other than Bolding testified as to the number of lots that could be platted on appellees ’ tract, the per acre average values, exclusive of improvements, given by their witnesses ranged from $2,000.00 to $2,-500.00. As witness Bolding pointed out on cross-examination, if the value opinion had been based on the sale of these lots it would have been a lot higher. This witness never stated that he based his opinion on these lot sales, although he admitted, on cross-examination, that one of the properties was somewhat comparable to the Sargent property. His testimony alone would have constituted substantial testimony upon which the jury verdict might have been based. However, the testimony of witnesses Neal and Geliy was not rendered without any reasonable basis merely because on cross-examination appellant’s counsel elicited from them answers that they based value figures partially on what lots were selling’ for in the area.

On the question of sufficiency of the evidence, appellant relies principally upon the holding that the statement of a conclusion as to market values by a witness does not necessarily mean that the evidence given by him is substantial when he has not given a satisfactory explanation of how he arrived at the conclusion. Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738. The situlation here is quite different from the Byars case where the opinion indicates that no basis whatever was given by the value witnesses for their opinions of market values before and after taking, even to the extent that in valuing farm lands not shown to be suitable for any purpose except the production of livestock and hay, not a single witness gave any testimony whatever as to the number of livestock it would support or the amount of feed that could be grown thereon.

Here the witnesses gave a reasonable basis for their opinions and while appellant may have raised questions on cross-examination relating to the credibility of the witnesses and the weight to be given to their testimony) these matters were exclusively for determination by the jury which found against the contentions of appellee in that regard.

The situation is also different in this case from that in Arkansas State Highway Commission v. Witowski, 236 Ark. 66, 364 S. W 2d 309, where the judgment was reversed because a witness who did not express an opinion as to the value of the property involved, testified only as to the sale of property in the same area without any evidence being offered to show a comparison or similarity between the properties. In this case the court found no error in the testimony of witnesses that they considered the value of other lots in the area when the values were given on a raw acreage and not a per lot basis.

The situation in this case is very different from that which prevailed in Arkansas State Highway Commission v. Watkins, 229 Ark. 27, 313 S. W. 2d 86, cited by appellant. Here no plat was introduced showing how the property might be subdivided and there were numerous factors brought out to show the difference in this property and property that had been subdivided and sold (such as the existence of a power line easement across part of the property, accessibility to paved streets, the necessity for laying out streets, conditions as to utilities, topography, relative locations with reference to school, etc.,) from which a fair and equitable comparison and adjustment could be made.

In considering testimony based on comparable sales, it must be remembered tbat no two tracts of real estate are identical. Reasonable latitude must be allowed in evaluating sales and adjusting or compensating for differences in similar lands. It would not be reasonable to suppose tbat residential development in tbe immediate vicinity of a tract of land would bave no bearing on tbe market value thereof, or tbat one making a study of values of tbe tract would give no consideration whatever to tbe sale of such lots, tbe prices they would bring and tbe similarities and dissimilarities of tbe respective tracts.

Tbe judgment, under tbe rules above stated, must be affirmed.


text:
    Billy Scott v. State
    5222
    410 S. W. 2d 401
    Opinion delivered January 16, 1967

      Gerald T. Ridgeway, for appellant.

      Bruce Bem^ett, Attorney General; Richard B. Adhisson, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

This case involves a petition for habeas corpus filed in Pulaski County Circuit Court by an inmate of the Arkansas penitentiary without assistance of an attorney of record. The petition was denied by the Circuit Court and petitioner has appealed.

Petitioner, Billy Scott, was arrested in Pulaski County on or about March 26, 1964, and on April 3,1964, he was charged on information filed by the prosecuting attorney, with the crime of assault with intent to kill. On June 1, 1964, he entered a plea of not guilty in the Pulaski County Circuit Court and the case was passed to the September setting on motion of the defendant. On December 7, 1964, counsel for the defendant was appointed by the Court and the case was set for jury trial on January 18,1965. When the case came on for trial on January 18, 1965, the defendant advised the Court that his counsel was not properly representing him, and at defendant’s request, his counsel was discharged by the Court and the case was passed to the February setting to be re-set for trial. On January 19, 1965, the defendant was charged with assault with intent to rob instead of assault with intent to kill, and the charge of assault with intent to kill was nolle prosequi by the prosecuting attorney and dismissed by the trial court.

On February 1, 1965, the defendant entered a plea of not guilty to the charge of assault with intent to rob, a new attorney was appointed for him, and the case was set for jury trial on April 6, 1965. On April 6, 1965, the defendant was tried to a jury who returned a verdict of guilty with punishment to be fixed by the Court. The defendant was committed to jail in lieu of $5,000.00 bond, and on April 12,1965, he was sentenced to five years in the state penitentiary where he is now serving that sentence.

On November 17, 1965, the defendant filed his petition in the Pulaski County Circuit Court for a writ of habeas corpus alleging that he is being illegally held in the Arkansas penitentiary against his will in direct violation of his constitutional rights as guaranteed to him by the due process clause of Amendment 14 of the United States Constitution.

Petitioner enumerates many assignments of alleged violations of his constitutional rights in numbered paragraphs some of which, as abbreviated, allege the following:

1. That the warrant for arrest on the charge of assault with intent to kill was improper and illegal because there was no evidence to support the charge.

2. That he was denied a proper hearing on this charge and requested dismissal of his attorney for refusal to properly represent him.

3. That the “warrant was dismissed” by the Pulaski County Circuit Court.

4. That as a result of “the same warrant which was dismissed” another warrant was read to him charging him with assault with intent to rob.

5. That there was no evidence advanced at a hearing or at his trial to show cause for a warrant to be issued charging robbery or attempt to rob. That the warrant was improper, illegal, unconstitutional, and its issuance constituted an unlawful act against him by the Pulaski County Court officials.

6. That after the warrant was read to him on January 19, 1965, he was “denied the right to have an attorney and a proper hearing before a proper judge until on or about the first day of February 1965; “a period of more than ten days,” all in violation of his constitutional rights under the decisions of the United States Supreme Court in the cases of Mallory v. U. S., 354 U. S. 449, 77 S. Ct. 1356 (1957), and Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758 (1964).

7.That the warrant and bill of information is illegal and unconstitutional because there was no evidence to verify the alleged crime and under Amendment 4 of the United States Constitution “no warrants shall be issued except on probable cause.”

8.That it was the lawful duty of the presiding judge at the trial on April' 6, 1965, to dismiss the charge of attempting to rob.

In the petition for a writ of habeas corpus the petitioner then prayed for the appointment of attorney to represent him at the hearing on his petition for habeas corpus.

Hearing on the petition was set for January 13, 1966, and an attorney was again appointed to represent the petitioner. On January 13, 1966, the hearing on the petition was continued and on May 5, 1966, the petition was set for hearing on May 9, 1966.

On April 29, 1966, the defendant presented a petition for habeas corpus to the United States District Court, Eastern District of Arkansas, Pine Bluff Division, complaining that the Circuit Court had not granted him a speedy hearing on his petition then pending in that Court, and that the attorney appoined to represent him in that Court was not representing him properly. The petition was dismissed without prejudice in the Federal Court for failure to exhaust State remedies.

On May 9, 1966, a hearing on the petition was conducted by the Pulaski County Circuit Court at which time the petitioner appeared with his counsel and testified in his own behalf in support of his petition. The petition was denied and petitioner appealed to this Court.

We have examined the record in this case, including each assignment contained in appellant’s petition, and dispose of the first five assignments together.

The warrants in this case were issued on information filed by the prosecuting attorney in lieu of grand jury indictment under Amendment 21 of the Arkansas Constitution, and we reaffirm our decisions in the cases of Penton v. State, 194 Ark. 503, 109 S. W. 2d 131 (1937); Payne v. State, 226 Ark. 910, 295 S. W. 2d 312, and Deckard v. State, 241 Ark. 504, and we again hold that an examination and commitment by a magistrate is not required when a person is arrested on a warrant issued on a grand jury indictment or information filed by the prosecuting attorney, and certainly appellant’s constitutional rights were not violated in the nolle prosequi by the prosecuting attorney on the charge of assault with intent to kill and the dismissal of that charge by the trial court.

The petitioner in this case, as any other individual, is entitled to all the rights, privileges, immunities, and protection afforded under the constitutions of the United States and State of Arkansas, but our constitutions are not only designed to protect the rights of individuals charged with the commission of crime; they are also designed to protect the rights of individuals who have never been charged with the commission of crime.

In petitioner’s assignment six, he apparently misconstrued the decisions of the U. S. Supreme Court in Mallory v. United States, 354 U. S. 449, and Escobedo v. Illinois, 378 U. S. 478. In the Escobedo case, the petitioner was arrested without a warrant, taken to police headquarters with his arms handcuffed behind him and placed under interrogation by the police officers. The petitioner, as well as his regularly retained attorney, made several requests and attempts to confer with each other while both were in the same building where petitioner was being held prisoner, but the lawyer was denied access to his client, and the client was told that his lawyer did not want to talk to him. After persistent questioning without advising the petitioner of his legal rights, damaging statements were obtained from the petitioner which were used in evidence against him at Ms trial.

In the case before us, the petitioner was not only permitted to see an attorney, the Court appointed one for him. The trial court not only appointed an attorney for the petitioner, it discharged the attorney and passed the case at petitioner’s request and appointed another attorney who represented petitioner at his jury trial.

In the Mallory case supra, the petitioner was arrested before indictment and apparently without a warrant, and after considerable interrogration by arresting officers, and without advising him that he had a right to remain silent, and a right to the benefit of counsel, a confession was obtained from him and then he was arraigned before a magistrate and his confession was used against Mm at his trial which resulted in his conviction.

In the case before us, no confession or other evidence procured from, or furnished by, the petitioner is involved. He has had the benefit of three Court appointed attorneys in this case. He obtained the discharge of one of his attorneys because his case was not being handled to his satisfaction, and he threatened to have another one discharged for the same reason.

The decisions in the Mallory and Escobedo cases are not mere pass keys from the Arkansas, or any other, penitentiary. They are new indictments of the age old system known as “third degree” in the interrogation of suspects in criminal cases, and neither case guarantees the accused that his case will be tried within ten days or within any other specified time.

We see no need to prolong this opinion further. The petitioner in this case was awarded more than was guaranteed to him under the constitutions of the United States and the State of Arkansas.

Finding no error in the trial court’s denial of the petition for a writ of habeas corpus, the order of the trial court is hereby affirmed and the petition is denied and dismissed.

Affirmed.


text:
    George Thomas Burt v. State
    5225
    410 S. W. 2d 387
    Opinion delivered January 16, 1967
    No brief for appellant.

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

This appeal is brought by George Thomas Burt from an order revoking his suspended sentence on a conviction of burglary and grand larceny. Appellant has not filed a brief. Appellee has supplied the court with an abstract and a brief.

In his motion for new trial the appellant, in addition to objecting to the sufficiency of the evidence, alleges that the trial court should never have required him to leave the state of Arkansas; that the revocation was based on incompetent evidence, a letter from the Chicago Parole Office; and that the trial court erred in ordering a hearing when appellant had not violated the conditions of the suspended sentence save and except returning to the jurisdiction of the court.

The record shows that appellant received a five-year sentence on March 19, 1964, four years of which was suspended by the court upon the following conditions :

“Four (4) of the five years are suspended provided the defendant conducts himself properly. That is the condition upon which the 4 years are suspended; that is the defendant, George Thomas Burt, must maintain a reputation of good behaviour for the five years.”

On August 18, 1965, the appellant was brought before the court and a hearing was held to revoke his sentence. The docket notation at that time was as follows :

“Court finds that the first year of dfts sentence expired 3-19-65; that defendant’s conduct and regularity of work have not been satisfactory. Dft has opportunity of regular employment in Chicago. Need for change of environment recognized. If within 10 days dft. removes to Chicago and enters regular employment, dft will be placed under supervision 111. parole authorities; otherwise he will be returned to this court for further action.”

The hearing which resulted in the order from which this appeal was taken was held on March 25, 1966. It was there shown that appellant did go to Chicago following the August, 1965 hearing, that he did not secure regular employment, and that he shortly returned to his mother’s home in Magnolia. While in Chicago, appellant did not report to the parole authorities and depended on his mother to report his return to Arkansas. The testimony shows that appellant learned that a warrant was out for his arrest; that he observed the officers at his mother’s house looking for him, but did not come forward; that on another occasion he was seen at the hospital by a state trooper who was a patient, bnt that he eluded the officers who came looking for him; and that, when he was arrested, he had dyed his hair. After appellant’s arrest, he discussed with the state trooper the meeting in the hospital and informed him that he would have resisted arrest by the trooper. Appellant also asked the trooper to tell a Magnolia policeman that appellant was going to give +he policeman a whipping when he got out of jail.

There was other testimony that appellant frequented an all-night cafe in Magnolia as late as three or four o’clock in the morning.

The trial court, in revoking appellant’s suspended sentence, found that he had a sullen disposition with actions of assault toward an officer and that he evaded the execution of the warrant for his arrest.

Under the record here maae, we hold that the trial court did not abuse its discretion in revoking the suspended sentence. "We have many times held that sufficiency of the evidence to sustain an order of revocation of a suspended sentence is a matter addressing itself to the trial court. Calloway v. State, 201 Ark. 542, 145 S. W. 2d 353 (1940).

The allegation that appellant was required to leave the state of Arkansas in August of 1965 is not supported by the record. On the contrary, the record shows that the trial court was not satisfied with appellant’s conduct. The court was apparently trying to help appellant by placing him under the supervision of parole authorities of Illinois, in accordance with the Interstate Probation and Parole Compact, since it found that a change of environment was needed to rehabilitate appellant.

Appellant’s contention that the order of the trial court was based upon incompetent evidence is not sustained by the record. The record shows the trial court held that the letter from the Chicago Parole Office, to which appellant objected, could not be used toward proof of the charge against appellant.

The last contention, that the court erred in ordering a revocation hearing before there had been a violation by appellant of his suspended sentence, is evidently aimed at the portion of the court’s finding that appellant evaded the execution of the warrant for his arrest. Any right which appellant may have had to complain about this issue certainly passed out of the picture as a result of his conduct in evading the officers and his indicated attitude of assault upon the city officer. Therefore we hold it to be without merit.

For the reasons stated, the judgment is affirmed.

Brown, J., disqualified and not participating.