author: Frank Holt, Justice.

text:
    Lois CLARK v. STATE of Arkansas
    CR 74-17
    509 S.W.2d 812
    Opinion delivered May 28, 1974

      Sam Sexton Jr., by: Jim D. Spears, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was charged with first degree murder and a jury convicted her of voluntary manslaughter in the stabbing death of her husband as the result of a domestic fight. The jury imposed a seven year sentence. For reversal appellant contends that a mistrial should have been granted due to prejudicial statements of the prosecutor in his opening statement, the pertinent part of which reads:

you notice, I’m here by myself, and this vacant chair. He might be here to tell his side but he’s not here. The story then that you will have about what happened out there will come from her. ...”

At this time the appellant’s counsel moved for a mistrial, stating in part:

****I warned him not to tell the jury that she would testify. . . . [T]he prosecutor has no right to put the burden on the defendant to take the stand except by evidence and he certainly has no right and it’s highly improper and highly prejudicial for him to tell the jury that the story in this case is going to come from the defendant and he turned and pointed to the defendant when he said so and I object and I move for a mistrial.

The court denied appellant’s motion for a mistrial. Appellant contends that the above remark compelled her to testify when she would not otherwise have done so. Appellant’s counsel expressly stated before appellant testified that she was not waiving her objection to the opening statement and motion for a mistrial. We must consider the contention under the requirements of the Fifth Amendment of the United States Constitution which states “. . . . no person .... shall be compelled in any criminal case to be a witness against himself. . ...” as well as our state constitutional equivalent, Ark. Const., Art. 2, § 8 (1874), and our statutory provision, Ark. Stat. Ann. § 43-2016 (Repl. 1964), which reads:

On the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of crimes, offenses and misdemeanors in the State of Arkansas, the person so charged shall, at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him.

The privilege articulated in the Fifth Amendment finds its origin and can be traced back to the thirteenth century. Miranda v. Arizona, 384 U. S. 436, 458 n. 27 (1966). The enlightening history of the rule is concisely reviewed in McCormick on Evidence §§ 115-118 (2d. Ed. 1972). See also 8 Wigmore on Evidence, § 2250 (McNaughton Rev. 1961). According to these authorities, the popularity of the privilege against self-incrimination in England sprang from the impact of the ecclesiastical courts and the courts of the Star Chamber and High Commission. Torture attended the victim-defendant’s interrogation and his compulsory testimony became the vehicle for the rise of dictatorial Kings and the suppression of religious diversity. The common law courts responded with the theory that it was inherently improper to compel testimonial response by the accused to charges against him. The privilege was transplanted and continued by our American colonies as a part of our legal heritage and was inserted in the constitution or bill of rights of seven of the American States by 1789 and was adopted in the U. S. Constitution in 1791 as the Fifth Amendment and, as indicated in our own state constitution.

We are, of course, controlled by the federal requirements of the Fifth Amendment as well as our own similar constitutional and statutory provisions. Part of the requirements of the federal amendment demand that the prosecution not comment on the defendant’s failure to testify. See Griffin v. California, 380 U. S. 609 (1965), where it was error for the prosecutor to argue:

These things [details of the alleged murder] he has not seen fit to take the stand and deny or explain. . . . Essie Mae is dead, she can’t tell you her side of the story. The defendant won’t.

Accord, Perry v. State, 188 Ark. 133, 64 S.W.2d 328 (1933), where the prosecutor argued that “. . . .the defendant has not denied a single, solitary iota of evidence that has been given against him from the stand here today,” and Bridgman v. State, 170 Ark. 709, 280 S.W. 982 (1926), where the prosecutor remarked that the defendant had not denied drinking that day. Cf., Stout v. State, 246 Ark. 479, 438 S.W.2d 698 (1969).

A comment on defendant’s failure to testify may not require reversal, but before such a comment can be harmless error, the court must determine that it is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967). For example, we have held that a prosecutor’s comment concerning defendant’s failure to take the stand was harmless where the trial court determined that none of the jurors heard the remark. Powell v. State, 251 Ark. 46, 471 S.W.2d 333 (1971). At all times, however, the court must accord a liberal construction to effectuate the purpose the privilege was designed to secure. Quinn v. United States, 349 U. S. 155 (1955) and Counselman v. Hitchcock, 142 U. S. 547 (1892).

We have held that it is error, over defendant’s objection, to give an instruction that defendant’s failure to testify is not to be considered by the jury. Mosby & Williamson v. State, 246 Ark. 963, 440 S.W.2d 230 (1969) and Russell v. State, 240 Ark. 97, 398 S.W.2d 213 (1966). Even such a neutral comment on defendant’s silence should not be given over his objection. Similarly, we have held that it was error during voir dire for the court to promise an instruction at the close of the case concerning defendant’s testimony or silence, absent a specific request for that instruction by defendant. Mosby v. State, 249 Ark. 17, 457 S.W.2d 836 (1970).

Therefore, in applying the rationale of the Fifth Amendment and our own state constitution and statutory provision in the instant case, we certainly cannot say with confidence that the remark of the prosecutor did not to some extent compel the defendant to testify in her own behalf. It is fair to say that the remark resulted in pre-evidentiary coercion which is just as forbidden as is post evidentiary comment. Certainly we cannot say that the effect of the comment was harmless beyond a reasonable doubt. To the contrary, it is precisely the sort of coercive activity the Fifth Amendment is designed to prevent. The guarantee or privilege against self-incrimination “must be accorded liberal construction in favor of the right it was intended to secure.” Hoffman v. U. S., 341 U.S. 479 (1951). The right to testify or remain silent is an absolute and “unfettered” right for a defendant only to exercise. Unless justified, the state should not comment in any manner upon that basic right in the opening as well as closing statement.

Even if the remarks were not held to be constitutionally repugnant, the prosecutor’s comment was not within the proper scope of the opening statement. The scope of the opening statement is limited to a “brief statement of the evidence on which the state relies, ” Ark. Stat. Ann. § 43-2110 (Repl. 1964), and the issues to be tried. Karr v. State, 227 Ark. 777, 301 S.W.2d 442 (1957). No asserted fact should be stated by the prosecutor unless it is material evidence on the part of the state. Smith v. State, 205 Ark. 1075, 172 S.W.2d 249 (1943). For example, where inadmissible evidence of alleged criminal reputations of defendants was referred to in an opening statement, we have reversed even over the cautionary instruction of the trial court. Marshall v. State, 71 Ark. 415, 75 S.W. 584 (1903). Our standards are the same as those of the A.B.A. Project on Minimum Standards for Criminal Justice. See, Standards Relating to the Prosecution Function and the Defense Function, The Prosecution Function § 5.5 (Approved Draft 1971).

We have carefully considered and find no merit in appellant’s contentions that the court erred in allowing the prosecutor to cross-examine the defendant with respect to the shooting of appellant’s previous husband or that the court erred in sustaining the prosecutor’s objection to the relevancy of showing that the decedent was a bigamist for the purpose of determining who was the aggressor in the fatal affray.

For the error as indicated in the opening statement, the judgment is reversed and remanded.


source: Caselaw Access Project

author: CARLETON Harris, Chief Justice.

license: Public Domain

text:
    ARKANSAS LOUISIANA GAS Company v. Henry BENNETT and Mellonee BENNETT
    74-26
    509 S.W. 2d 811
    Opinion delivered June 3, 1974

      Williams & Gardner, for appellant.

      Jack Tates, for appellees.
   CARLETON Harris, Chief Justice.

Appellant, Arkansas Louisiana Gas Company, and appellees, Henry Bennett and Mellonee Bennett, entered into a right-of-way agreement in November, 1967, which granted appellant the right to cross certain lands (an 80 foot right-of-way) in laying a gas pipeline. The value of the right-of-way was agreed on at that time, and paid for, except that damage caused by the loss of growing pine trees which were destroyed was to be determined later. It is agreed that 720 trees were destroyed, these trees being approximately 12 feet in height and 6 inches in diameter at about breast height. The parties were unable to agree on compensation, and appellees instituted suit for the value of these trees. On trial, the jury returned a verdict in the amount of $3,600 for the amount of pine timber destroyed. After a motion to set aside the judgment and grant a new trial had been denied, the company appealed to this court. It is simply here asserted that the amount awarded was so excessive as to shock the conscience of any court and the verdict should have been set aside and a new trial granted.

Witnesses on behalf of appellees included Mr. Bennett and His wife who testified that in 1959, they planted some 65 acres in pine seedlings in 8 foot rows by 6 feet wide, and that when the gas company obtained its right-of-way, the trees were approximately 8 years old. Both of the Bennetts valued the trees at $10.00 each. Anton Benz, a resident of Logan County for 75 years, who had long been engaged as a farmer and timber worker, testified that he walked over the Bennett property and that, in his opinion, the fair market value of the trees at the time of destruction amounted to $7.00 per tree. This valuation was based upon each tree being capable of producing 15 props per tree, at $.50 per prop, or an aggregate of $5,400 for all trees. George W. Freeman of Ozark, who testified that he was a forester by profession, stated that he had worked for 45 years in the field of forestry; that he had considerable experience in cruising and estimating timber, and that he had at one time been employed by the State Forestry Commission. He said that he was employed on behalf of Arkansas Louisiana Gas Company to estimate the damages to the timber on Bennett’s lands. He agreed on the number of trees that had been lost (720), but his estimate was based on the amount of pulpwood that would have been produced from the trees. The witness said that, in his opinion, appellant cut and destroyed in the pipeline area approximately 9 cords, which would have a monetary value of $46.88.

It is rare that we have a case where such disparity as to value exists. According to the Bennetts, these trees were of the value of $10.00 each, and according to Benz, the value was $7.00 each. According to Freeman, the value of each tree was $.06 each. Appellant complains that Benz did not explain what props are and did not give any testimony as to the cost of cutting the trees, making them into props, and conveying them to market, and that his testimony was only speculative. The short answer to this is that all of these facts could have been developed on cross-examination, but no questions were asked relating to the matters mentioned; nor was there any motion to strike the value set by the witness, or any objection to any part of his testimony. Of course, thfese last two acts were not essential since appellant only questions the amount of the verdict, but there was no reason for the jury to consider that the testimony of Benz, insofar as the examination of this witness was concerned, was being questioned. Of course, the jury members may well have been familiar with props and their uses.

At any rate, the jury heard the evidence, were told that it was their duty to determine what opinions were correct or erroneous and that they were entitled to use their “own common sense, knowledge and experience of life, as reasonable and prudent persons.” The jury valued the trees at $5.00 each, and we cannot say that this finding evidenced passion or prejudice, or shocks the conscience of the court.

Affirmed.

       Actually, the rule governing the measure of damages for the destruction of trees on land is set out in the early case of St. Louis, Iron Mountain & Southern Railway Company v. Ayres, 67 Ark. 371, 55 S.W. 159, where we said:
      “As to the measure of damages for the destruction of the trees on the land by reason of the fire, we think the fifth instruction by the court announced the proper measure; that is, that the measure was the difference between the value of the land with the trees unburned and with the trees burned. This means the market value of the land. The trees were a part of the freehold, and could not be replaced in a short time, and only at considerable expense.”

       There was no objection to any instruction.


author: CARLETON HARRIS, Chief Justice.

text:
    George D. COLEMAN v. STATE of Arkansas
    CR 74-18
    509 S.W. 2d 824
    Opinion delivered June 3, 1974

      Harold L. Hall, Public Defender, and Garner L. Taylor, Jr., Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert S. Moore, Jr., Asst. Atty. Gen., for appellee.
   CARLETON HARRIS, Chief Justice.

Appellant, George D. Coleman, was charged and convicted of Robbery, appellant employing a firearm in the commission of the crime. The jury also found, at a subsequent hearing, that he had been previously convicted of three felonies and sentenced him to 30 years imprisonment. From the judgment so entered, appellant brings this appeal. Three points are asserted for reversal which we proceed to discuss in the order listed.

It is first alleged that error was committed by the trial court in allowing cross-examination of appellant regarding prior convictions, since Coleman was also charged as an habitual criminal. Our habitual criminal statute, Ark. Stat. Ann. § 43-2330.1 (Supp. 1973) sets forth the procedure to be used in the trial of an individual as an habitual criminal. Subsection (1) provides:

“The jury shall first hear all of the evidence pertaining to the current charge against the defendant and shall retire to reach its verdict, as to this charge, based only upon such evidence; provided, however, that nothing herein shall prohibit cross-examination of a defendant as to previous convictions when the defendant takes the stand in his own defense.”

In the case before us, Coleman took the witness stand in his own defense and denied participation in the robbery; however, on cross-examination, he admitted having been convicted of three felonies. Appellant asserts, inter alia, that this line of questioning violated his privilege against self-incrimination guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and violated his right to a fair and impartial trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, as well as violating Article II, Section 8 of the Arkansas Constitution. We do not agree. The United States Supreme Court, in Spencer v. Texas, 385 U.S. 554, held contrary to appellant’s contentions, stating that the due process clause of the Fourteenth Amendment was not violated and further finding that no “due process decision of this court even remotely supports the proposition that the states are not free to enact habitual offender statutes of the type Texas has chosen [and this would apply to Arkansas].” The court mentioned several situations where such evidence would be admissible and would not violate any constitutional right of a defendant, including instances of the state seeking to impeach the credibility of the witness. That was the purpose of the questions asked by the prosecuting attorney in the present case.

In the Arkansas case of Hughes and Bridges v. State, 249 Ark. 805, 461 S.W. 2d 940, this court stated:

“We have said numerous times that when a defendant takes the stand, he is subject to the same rules of evidence as other witnesses, and for the purpose of throwing light on his credibility, may in good faith, be asked about other crimes he may have committed, and other convictions, ***.”
We find no merit in this contention.

It is next urged that error was committed in allowing appellant, on cross-examination, to be questioned regarding his guilt of criminal offenses with which he was presently charged. The record reflects that Coleman, while adamantly denying guilt of the charge upon which he was being tried, very readily admitted that he was guilty of two crimes with which he had been formally accused, though the trials had not been held. The admission of this testimony did not constitute error. In Black v. State, 250 Ark. 604, 466 S.W. 2d 463, a similar contention was made and we held there was no error, stating:

“It is appellant’s contention that the last question was reversible error since that charge is only pending against Black, not yet having been tried. We do not agree, and have held contrary to this contention in several cases. It will be noted that the prosecutor did not ask Black if he had been indicted or charged with raping a woman in Memphis, but rather asked him if he were not guilty of that offense.”

Finally, it is asserted that error was committed by the trial court in permitting the prosecutor to ask Coleman if he was, in contemplation of the law, an habitual criminal, and, says appellant, it was error not to grant a mistrial after this remark was made. The record reflects that, after Coleman had admitted the three felony convictions, and had further admitted his guilt as to the two additional crimes with which he had been charged, the prosecutor said, “Mr. Coleman, you’re what is known in contemplation of the law as a habitual criminal, is that correct?” Appellant answered, “No, sir; I’m not a habitual criminal.” Counsel for appellant then moved for a mistrial which was denied. It is not clear just exactly what the question referred to, i.e., whether the prosecutor was using the expression as inquiring whether appellant was a person who frequently committed crimes, or whether he was referring to an habitual offender as defined by the statute. At any rate, we cannot possibly see how any prejudice could have resulted from this remark. The jury heard the evidence of prior convictions and acknowledged guilt of other offenses from the witness himself, and any damage to the credibility of the witness was unquestionably due to his own answers rather than what the prosecutor said. For that matter, he denied being an habitual criminal.

It might be mentioned that statutory procedures relating to habitual criminals as set out in Ark. Stat. Ann. § 43-2330.1 (Supp. 1973) were explicitly followed. Thejury first retired to deliberate on the evidence pertaining to appellant’s guilt of the current charge, and returned its verdict of guilty. Thereafter, in compliance with subsections (2) and (3) of the aforementioned section, the jury heard evidence of appellant’s prior convictions, such evidence being given by Margaret Smith, Keeper of the Records for the Fourth Division Circuit Court, together with a certified copy of a commitment for Burglary, an offense committed in Saline County. Following the introduction of such evidence, the jury then again retired and returned its verdict fixing the punishment as heretofore mentioned.

Finding no reversible error, the judgment is affirmed.

It is so ordered.


author: GEORGE Rose Smith, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. ALVIN SAMUEL GIN COMPANY, INC. et al
    74-30
    510 S.W. 2d 65
    Opinion delivered June 3, 1974

      Thomas B. Keys and Philip .V. (ionrn, for appellant.

      Cathey, Brown, Goodwin & Hamilton, for appellees.
   GEORGE Rose Smith, Justice.

In this condemnation proceeding the highway department, in order to widen Highway 25 in the city of Paragould, is taking about 2,000 square feet of the Alvin Samuel Gin Company’s property. The strip being taken had been used as a parking and service area for the company’s cotton gin. In appealing from a verdict and judgment for $10,000 the highway department contends that the testimony of Alvin Samuel, the company’s president and active manager, should have been stricken, and that there is no substantial evidence to support the award.

We find no merit in either contention. Samuel had been engaged in the ginning business in Paragould for 18 years. In addition to being the president of the corporate landowner, he was a bank director and in that capacity had become familiar with property and loan values. He had also bought and sold property himself.

Samuel estimated the company’s damages at $18,000. He explained that the taking deprived the company of ten parking spaces for 5-bale trailers. The company would also be compelled to change its parking pattern, effectively depriving it of another 2,000 square feet of usable space. Two additional men would be needed to handle the parking. Samuel also relied upon a sale of comparable property, about a block and a half from the gin site, at a price confirming his estimate of the company’s damages. Counsel for the appellant cite no authority for their suggestion that one comparable sale is not a sufficient basis for a witness’s opinion as to market value, nor can we discern any basis for such a rule. We find that Samuel’s testimony was competent substantial evidence supporting the $10,000 verdict.

Affirmed.


author: LYLE Brown, Justice.

text:
    Lewis Hunter GAMMILL, Adm’r. v. Mary Ross GAMMILL
    74-31
    510 S.W. 2d 66
    Opinion delivered June 3, 1974

      Bridges, Young, Matthews & Davis, for appellant.

      Cearley and Gitchel, for appellee.
   LYLE Brown, Justice.

This is a dispute over the ownership of four grocery stores. Lewis Hunter Gammill, administrator of the estate of Lewis Gammill, sought permission of the probate court to sell the stores, treating them as assets of the estate of the intestate. Appellee Mary Ross Gam-mill, widow of the deceased, filed a response contending the grocery stores were not the property of the estate but were owned by the decedent and Mary Ross Gammill as tenants by the entirety. Alternatively, Mrs. Gammill alleged the stores were operated as a partnership business by the husband and wife. The trial court found the status of a partnership had been established. A single point is advanced for reversal: “The evidence was insufficient for the court to find that Lewis H. Gammill and Mary Gammill operated the four grocery stores in question as a partnership prior to the death of Lewis H. Gammill.”

The evidence showed that Lewis H. Gammill bought a small grocery store in 1970. It was purchased with funds Gammill had received from a retirement plan with a former employer, together with a loan for the balance. From that time until his death in March 1973 Mr. and Mrs. Gammill worked seven days a week. They eventually acquired a total of six stores. The other five were bought at different times with profits and borrowed money. Two of the stores were sold prior to Mr. Gammill’s death.

Mrs. Gammill’s contribution to the success of the venture is not disputed. Aside from taking time off to give birth to the youngest child, she spent full time in the stores. She was a supervisor, bill-payer, purchasing agent, clerk, cashier, “everything but meat cutter”. Neither of the parties drew a salary. Mrs. Gammill would regularly draw funds from the venture and place them in a personal account with which to pay living expenses.

The present dilemma arises from the fact that the business of the stores was conducted at various times in the names of a sole proprietor, a partnership, and a corporation. The use of those various titles of ownership would sometimes overlap. However, in 1972 and 1973 there were a number of documentary transactions in which the designation of either a corporation or a partnership was made. However, there were a few transactions in the same category in 1970 and 1971.

The first time a partnership designation appears in the record was in 1970. It covered the property on which was located the Wakefield Store and the lease was in the name of Lewis Gammill and Mary E. Gammill. In 1971 the couple executed a note and security agreement to Union National Bank. Those instruments were signed by both persons under the title “d/b/a Wakefield Grocery, Hilaro Road Grocery, West Heights Grocery, and Bud’s Food Store”. In February 1972, another note was executed to the same bank and was signed by both parties “d/b/a Wakefield Grocery, Hilaro Road Grocery, West Heights Grocery, Bud’s Food Store, and Total Food Store No. 5”. On the same date there was a certificate of deposit issued by one of the Little Rock banks showing the depositor to be Total Food Store and was stamped “partnership”. A bank account in the name of Bud’s Food Store was carried in the names of Mr. and Mrs. Gam-mill “d/b/a Bud’s Food Store”. In February 1972 a note and security agreement in favor of a local bank was executed by Lewis Gammill and Mary Gammill “d/b/a Lewis Gammill Food Stores”. That was followed by another bank note executed in March 1972 in the same manner. On May 22, 1972, Mr. Gammill executed what purported to be an amendment to articles of incorporation on file in the Secretary of State’s office. That instrument listed the name of the entire operation as Total Food Stores, Inc. It showed twenty shares of stock, ten of which were purportedly owned by Lewis Gammill and the other ten by Mrs. Gammill. However, it was later determined that the articles of incorporation were not in proper legal form. However, it is significant that the purported amendment was signed by Lewis Gammill. On Jan. 6, 1973, a note was executed by Mr. Gammill to a local bank in the name of Total Food Stores, Inc.

The certified public accountant, who worked for the enterprises all during the period described, testified.. After May 1972 when Mr. Gammill attempted to amend the articles of incorporation, the CPA kept the records for all the enterprises in the name of Total Food Stores, Inc. It was his intention to file corporate tax returns for the fiscal year ending March 31, 1973; however, Mr. Gammill died March 8, 1973, and shortly thereafter the accountant was advised that the corporation papers were not in proper form.

In view of the many transactions we have described we are unable to say the conclusion of the chancellor that a partnership existed is clearly against the preponderance of the evidence. However, we conclude without hesitation that the fact question was very close, in fact fairly well evenly balanced. When the evidence is so balanced we sustain the chancellor. Welch v. Farber, 188 Ark. 693, 67 S.W. 2d 588 (1934).

The balancing evidence to which we refer and which has been given careful consideration consists principally of these factors: Many instruments, particularly in 1970 and 1971, were executed in the name of a sole proprietorship; income tax returns showed the venture to be a sole proprietorship; the truck title was in the name of Lewis Gammill, as were several bank accounts; many purchase orders were in the name of Lewis Gammill; the initial store was bought with the husband’s individual funds; the two grocery stores which were sold showed Lewis Gammill as grantor; and in March or April 1973, after the death of her husband, appellee submitted a written offer to purchase two of the stores, which act was inconsistent with ownership.

Appellant contends that an analysis of the evidence shows that appellee failed to sustain a finding that even one of the necessary, elements of partnership were established. We are cited to Ark. Sta’t. Ann. § 65-107 (Repl. 1966). That section is a part of the Uniform Partnership Act and sets forth certain rules to apply in determining whether a partnership exists. We find those rules to be of little help in the case before us. As is conceded by appellant the checklist afforded by that section is “possibly most helpful if used to determine what is not an element of a partnership rather than what elements are required to be present”. Basically our case law furnishes the guidelines for determining whether in law a partnership exists. In fact appellant frankly and correctly states that the primary test of a partnership between the parties is their actual intent to form and operate a partnership. Brandenburg v. Brandenburg, 234 Ark. 1117, 356 S.W. 2d 625 (1962), citing the early case of Culley v. Edwards, 44 Ark. 423 (1884). To avoid repetition we shall not repeat the various activities and transactions which the chancellor concluded showed it was the intent of the husband and wife to have a partnership. We think the strongest single indication by Lewis Gammill was the execution over his signature to the attempted amendment to an illegal corporation wherein he definitely expressed an intention the ownership of the four stores was to be shared equally between the two parties. When that factor is coupled with the many “d/b/a” documents executed by the parties, we conclude that the chancellor should be affirmed.

Affirmed.


text:
    Harry ROBINSON v. STATE of Arkansas
    CR 74-28
    509 S.W. 2d 808
    Opinion delivered June 3, 1974

      Robert A. Newcomb, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Michael S. Gorman, Asst. Atty. Gen., for appellee.
   LYLE Brown, Justice.

Appellant Harry Robinson was convicted on four counts of grand larceny. On appeal he contends (1) that he was not brought to trial within two terms of court as required by Ark. Stat. Ann. § 43-1708 (Repl. 1964), which fact entitles him to be discharged; and (2) he contends that evidence was illegally received, the officer not having a search warrant.

Appellant was formally charged on January 25, 1972, and was tried on August 23, 1972. St. Francis County has four terms of court per year. Ark. Stat. Ann. § 22-310 (Supp. 1973). The charge was lodged in the October 1971 term; the next term began February 14, 1972; the following term began April 24; and the next term started August 14. Appellant was tried in the August 1972 term. Two terms of court elapsed between the filing of the charge and the time of the trial. O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618 (1972). Notwithstanding, appellant’s argument for discharge is without merit for two reasons.

In the first place, appellant’s attorney filed a motion for discharge under § 43-1708 but at no time was a request made for a ruling on that motion. Before such an assignment oi error can be considered by this court, it is necessary in cases less than capital that- the accused call for a ruling from t-he trial court. Carter v. State, 230 Ark. 646, 326 S.W. 2d 791 (1959). In Fielder v. State, 206 Ark. 511, 176 S.W. 2d 233 (1943), we said a defendant cannot complain of the inaction of the trial court unless a request for action was made at the trial. In the recent case of Ford v. State, 253 Ark. 5, 484 S.W. 2d 90 (1972), appellant argued for the first time on appeal the propriety of an instruction. We rejected the argument, stating that in both civil and criminal cases it is required that “the party make known to the trial court the action which he desires the court to take”. Also, see 24 C J.S. Criminal Law § 1433.

We would also point out that the last continuance ordered by the court was certainly for the benefit of appellant. In the April 1972 term, and specifically on July 28, 1972, the case was called. Court-appointed attorney Ford reported a “personality conflict” between himself and appellant. The court thereupon appointed attorney Bierworth. (Trial on that date would have been within the statutory period). It is clear that the newly appointed attorney needed time to prepare for trial. He shortly filed a motion for a bill of particulars. The substitution of a new attorney and a request for a bill of particulars undoubtedly made it necessary for the trial to go over, all to the benefit of appellant.

The other point advanced is that the appellant’s abode was illegally searched because the arresting officer did not have a search warrant. The legality of the arrest is not questioned and the search was made contemporaneous with the arrest. When the officer arrived at appellant’s address, which was a house trailer, he was greeted by the woman who owned the trailer and who lived there. The officer informed the owner he was looking for some stolen merchandise and the officer related that the owner freely invited him in to look for the contraband. “There can be no doubt that an occupant who has a proprietary interest in a building can consent to entry by police officers and a search of the premises and seizure of whatever may be found there as evidentiary material. * * * One having joint possession or equal authority with another over the premises may authorize a warrantless search thereof.” Asher & Bradford v. City of Little Rock, 248 Ark. 96, 449 S.W. 2d 933 (1970).

Affirmed.


author: JOHN A. Fogleman, Justice.

text:
    Charles BURGY v. STATE of Arkansas
    CR 74-9
    509 S.W. 2d 820
    Opinion delivered June 3, 1974

      Harold L. Hall, Public Defender, by. John W. Achor, Chief Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   JOHN A. Fogleman, Justice.

Charles Burgy was a roomer in a rooming house of which John Nichols was the proprietor. On May 4, 1973, Nichols died as a result of a gunshot wound inflicted by Burgy on that date at a time when Nichols was at or near the doorway to Burgy’s room. There were no eyewitnesses, other than Burgy, who claimed that the shooting was done in self-defense. Burgy’s sole point for reversal is that the evidence was insufficient to sustain the verdict finding him guilty of second degree murder. We find that it was sufficient.

Of course, the killing being admitted, the burden of proving justification was upon appellant, unless it was manifest from the evidence on behalf of the state that the crime amounted only to manslaughter or that appellant was justified in taking Nichols’ life. Ark. Stat. Ann. § 41-2246 (Repl. 1964); see Leonard v. State, 251 Ark. 1090, 476 S.W. 2d 807; Bosnick v. State, 248 Ark. 1289, 455 S.W. 2d 688.

One of the elements of second degree murder which appellant argues cannot be found from the evidence is malice. Appellant recognizes that malice may be express or implied when no considerable provocation appears or when all of the circumstances of the killing manifest an abandoned and wicked disposition. See Ark. Stat. Ann. §§ 41-2203, 2204 (Repl. 1964). In support of his theory, appellant relies upon the recognized principle that one’s place of residence is his castle and the rule that one is justified in taking the life of another who manifestly attempts, in a violent or tumultous manner, to enter the former’s habitation for the purpose of assaulting or doing personal violence to him. Ark. Stat. Ann. §§ 41-2233, 2234 (Repl. 1964).

One of the witnesses who was in a bathroom in the house heard a knock on Burgy’s door, about 20 feet away, and heard Nichols say, “Open the door,” after which he heard Burgy ask “Who is that?” and Nichols responded “This is John Nichols, Mr. Charlie. Open that door.” He testified that Burgy then said, “I’m not gonna open that door. You get on away from my door.” and that Nichols received a negative answer to his question, “You ain’t gonna open that door, Mr. Charlie?” Then, said this witness, he heard Nichols say, “Well, if you feel like that and you don’t want me to open the door and don’t want me to be here, well, you can just get ready . " when he was interrupted by a gunshot. This witness then ran out of the bathroom and saw Nichols on the floor and Burgy in his room with the door open.

Another witness who was getting a drink of water in the kitchen nearby said when Nichols first knocked on the door, he asked Burgy for permission to look around the room, which was denied, and Burgy called Nichols a son-of-a-bitch in telling him to get away from the door. This witness said that just before he heard the gunshot he heard Nichols say “If that’s the way you feel about it, Mr. Burgy, why you can just pack up.” This witness then heard someone fall and walked out and saw Nichols on the floor. Neither of these witnesses heard anyone kick on the door to Burgy’s room.

An employee of the Pulaski County Sheriff’s office, who was downstairs in the building, went upstairs when he was told that someone had been shot. He said that he saw Nichols on the floor and Burgy sitting on the bed in his room. According to this witness, Burgy said “Yeah, I killed the son-of-a-bitch. He tried to kick my damn door down. You all get out of here. You ain’t got no business in here no way,” and reached for a shotgun on the floor. This witness said he then identified himself, told Burgy not to touch the gun and remained until the police came.

The arresting and investigating police officers also said Nichols’ body was in the hallway. The chief medical examiner for the state testified that the fatal wound in Nichols’ left chest was inflicted from a distance of two inches to three feet.

The only testimony that Nichols threatened Burgy or entered the room came from a statement made to police officers by Burgy himself. The jury might well have found from the evidence that no considerable provocation appeared, that the circumstances manifested an abandoned and wicked disposition on the part of appellant, that there was no attempt by Nichols to enter Burgy’s room, either in a violent or tumultous manner or otherwise, or that Nichols had no purpose of assaulting or offering violence to Burgy. Any of such findings would have been sufficient basis for a verdict rejecting appellant’s claim of self-defense and finding that the killing was with malice.

In Maples v. State, 225 Ark. 785, 286 S.W. 2d 15, quoting from other cases on this subject, we had this to say:

“But it must be a ‘manifest’ attempt, and we take this to mean one so plainly made that no reasonable doubt will exist as to the purpose of the aggressor. At what point the effort to enter the house has begun, and how far it may be permitted to proceed with safety to the life or person of the individual assailed, must be determined by the circumstances of each case; and these are questions more of fact than of law.”
* * * *
“. . . it is not necessary that there should be actual danger, provided the defendant acts upon a reasonable apprehension of danger. But the court further said that it is the duty of the householder to prevent the entry by means not fatal, if he can do so consistently with his own safety. So it may be said that if the defendant kills where there are no reasonable grounds of apprehension of danger, it is manslaughter; and if the killing is done with malice, express or implied, it is murder. Even though the deceased is attempting at the time unlawfully to enter the defendant’s dwelling house, if the killing is with malice and ill will, and not for self-protection or the protection of the house, it is murder.‘The law of self-defense, or the defense of one’s domicile, does not require the giving to evil-minded persons an opportunity to take the life of another oh such easy terms.’ ”

If the jury found that there were no circumstances of mitigation, justification or excuse at the time of the killing, the fact that it was done with a deadly weapon, such as the shotgun used by appellant is sufficient basis for a finding of implied malice. Erby v. State, 253 Ark. 603, 487 S.W. 2d 266; Lillard v. State, 236 Ark. 74, 365 S.W. 2d 144.

Since the evidence was clearly sufficient to support the verdict, we affirm the judgment.


author: J. Fred Jones, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Joe TAYLOR et al
    74-1
    509 S.W. 2d 817
    Opinion delivered June 3, 1974

      Thomas B. Keys, Billy Pease and Philip N. Gowan, for appellant.

      Lightle, Tedder and Hamah, for appellees.
   J. Fred Jones, Justice.

This is a condemnation case under eminent domain in which the Arkansas State Highway Commission appeals from a circuit court judgment in favor of Joe Taylor, Jr., et al., for $110,000 in connection with the relocation of Highway No. 67 in White County, Arkansas.

The appellees Mr. and Mrs. Taylor own 395 acres of land located just outside the city limits of Searcy, Arkansas. The tract lies roughly in the form or shape of an equilateral triangle with its southeast side bounded by the present Highway No. 67. The land has been used for agricultural purposes but its highest and best potential future use is for industrial or residential expansion of the City of Searcy.

For the purpose of relocating the highway and converting it into a four-lane controlled access thoroughfare, the Highway Commission took 32.26 acres in fee. The 32.26 acre strip ran parallel with old Highway 67 and would divide the 395 acre tract with a residual of 209.11 acres lying northwest of the new highway and 153.43 acres southeast of it. The Planning Commission for the City of Searcy had designated an area adjacent to the city as an industrial park and the Taylor land was within the area so designated.

Mr. A. P. Strother, an abstracter in the City of Searcy, and C. V. Barnes who qualified as an expert appraiser, testified as witnesses for the appellee-landowners and their testimony is under attack by the Highway Commission on this appeal. As already stated, the jury returned a verdict of $110,000 in favor of the Taylors, judgment was entered thereon and on appeal to this court the Commission relies on the following points for reversal:

“The court erred in permitting defendants’ witness, Strother, to testify that sales in the area of the property concerned in this litigation reflected a general increase in land values, without first showing comparability of such sales to the subject property.
The court erred in refusing to strike the damage testimony of witness Barnes upon a showing that said witness damaged the subject property in its after value “because of the establishment of the grade of the new highway, an impermissible element of damages, and was then unable to state in dollars and cents the amount of damages he attributed to the remainder for this reason.”

Mr. Strother was not the landowner and he did not qualify as an expert in land values or appraisals. He qualified as an abstracter of land titles familiar with deed records and the matters reflected therein. Mr. Strother’s testimony was offered in connection with “market trends” in the area, and there was considerable discussion between the court and the attorneys as to the nature and admissibility of Mr. Strother’s proposed testimony. When the Commission’s attorney objected to the proffered expert testimony of Mr. Strother and made in-chambers inquiry as to what would be the nature of Mr. Strother’s testimony, the attorney for the appellee-landowners stated:

“Mr. Strother will testify that he is the chairman, has been on the City Planning Commission since it was formed in 1956. I will introduce the land use maps which were adopted by the Planning Commission in 1956, and which map covers this area.
In addition to that he has prepared a set of docket books which include all the sales of property in the area where this property is located, and in the industrial district, showing sales since 1955, actually, up to date, and he will testify as to what has been the general trend of market data as far as sales of land in that area over the period. He will not testify as to any values specifically.”

Following all the discussion pertaining to Mr. Strother’s proposed testimony, it apparently still remained unclear as to whether Mr. Strother would attempt to qualify as an expert on land values and testify as to comparable sales in the area, but the trial court’s final understanding on the point was expressed by the court as follows:

“As I understand the law, and as I understand what counsel has said, this witness is not going to be asked to testify as to any land values, that he made no appraisal whatever of any of the properties, and he’s not going to testify to market values before or after, but he is simply going to testify as to what the market trend is, and the witness, if counsel can qualify him as an expert in that field, then the court will permit him to do so.”

Mr. Strother then testified that he had been an abstracter for 43 years and had been a member of the Planning Commission of the City of Searcy ever since its inception about 1954. He said the Planning Commission had made plans for land use zoning in Searcy and in the Searcy area. He said he was familiar with the Taylor tract involved in this litigation; that the Taylor tract had been designated by the Planning Commission as within the heavy industrial expansion area, and the trend toward location of the industrial area had definitely been established. Mr. Strother was then asked and answered questions as follows:

“Q. Let me qualify my question. What has been the trend up to April 28, 1972?
A. I would say it would be, at least up to that date, up to at least $3,000.00 an acre for industrial property.
Q. Did you have occasion to examine these records from the period of January, 1970, through January, 1972?
A. Yes, in compiling the work I had to check that.
Q. What was the tendency at that time of actual sale prices during that period of time?
A. Well, I’m of the opinion it would be up to about the $3,000.00 an acre mark.
Q. Well, do you know of any sales, from examination of these records did you find any sales after January 1, 1972, and we will limit that up to April 28, 1972, at less than $3,000.00 an acre?
A. I don’t remember any.”

On cross-examination Mr. Strother testified that over the past 17 years the City Planning Board had acquired about 600 acres from the original beginning of 20 acres for an industrial park. He said that approximately 550 of the original 600 acres had been developed and that only about 80 acres, and certainly not over 160 acres, still remained to be developed before reaching Mr. Táylor’s land. Mr. Strother testified that at the present rate the industrial area would be filled up in from three to five years. He then testified on cross-examination as follows:

“Q. Now, these sales, you have testified you made a study of all the sales that occurred in that industrial park?
A. I have accumulated the information for the study. Now, I have not added up all the valuations and averaged them out, or anything like that. I have not made a study to that extent.
Q. You have not made a study in the sense of comparability of the sales to the Taylor property, for example?
A. No, sir.”

Mr. Strother did not qualify as an expert in land values at all. He simply qualified as an abstracter of titles to real property and, of course, as such, the trial court originally held him competent to testify as to the market trends in the industrial area with which he said he was familiar. Mr. Strother not only testified as to the market trends in relation to the sales of approximately 550 acres in the industrial park area over the past 17 years, but he testified as to the minimum market value of industrial property. When asked concerning the trend as to the actual sale prices, he did not answer in percentage increase but stated that around ten years ago sale prices were around $1,200 per acre and that it has increased to about four times that amount on the average. He said that the trend up until April 28, 1972, would be at least $3,000 per acre for industrial property.

It must be remembered that 32.26 acres of the Taylor property was being taken in fee and at the minimum price being paia for industrial property, as testified by Mr. Strother, the 32.26 acres of the Taylor property would have had a minimum market value of $96,780. We agree with the appellant that such value testimony was not admissible in evidence unless the land which Mr. Strother testified sold for not less than $3,000 per acre, was shown to be comparable to the property here involved. City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W.2d 30; Ark. State Highway Comm. v. Johns, 236 Ark. 585, 367 S.W.2d 436.

Mr. C. V. Barnes testified as an expert for the landowner. The portion of his testimony under attack in this case has to do with the elevation of the proposed highway as damaging the entire tract here involved. The substance of Mr. Barnes’ testimony on this point was that the grade of the highway to be constructed would involve a fill or elevation of from three feet to five and one-hálf feet across the property and Mr. Barnes testified that in his opinion, a purchaser interested in buying the property for development would prefer the entire tract before severance where he could have the development of the entire 395 acre tract visible from one side of the tract to the other. On cross-examination Mr. Barnes testified that he did not assign lack of visibility from one side of the tract to the other as a separate element of damage having an independent monetary value, but that he simply took the visual obstruction into consideration as affecting market desirability for development purposes in arriving at his opinion as to difference in the market value before and after the taking. At the close of this portion of Mr. Barnes’ testimony, the record appears as follows:

“MR. PEASE: Judge, he has testified to a noncompen-sable element of damage, the change in grade. Now I have given him an opportunity to set out in dollars and cents the amount he damaged the property because of this improper element of damage. Had he done this I could have moved to strike that portion of his value testimony. Since he has testified to an noncompensable element and cannot set it out in dollars and cents, his whole testimony as to value must be stricken under the law.
THE COURT: No, sir. I don’t think so.”

We agree with the trial court on this point. The appellant has only abstracted so much of Mr. Barnes’ testimony as it contends is incompetent in this case, but he moved to strike all of Barnes’ testimony. We are of the opinion that Barnes’ testimony was admissible for the purpose and in the context given and was, therefore, not subject to being stricken on motion of the Highway Commission.

Reversed and remanded.


text:
    Don LUKER v. STATE of Arkansas
    CR 74-27
    509 S.W. 2d 806
    Opinion delivered June 3, 1974

      (lihson Law Office, by: Charles S. Gibson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

The appellant, Don Luker, was convicted at a jury trial in the Desha County Circuit Court of the crimes of burglary and grand larceny and was sentenced to six years on each count, the sentences to run consecutively. At the close of the evidence on behalf of the state Luker moved for a directed verdict and the motion was denied. On appeal to this court Luker contends that the trial court erred in refusing his motion for a directed verdict.

The facts appear as follows: On the night of February 24, 1973, the Hoppman Implement Company place of business in Dumas was burglarized and a 14 - horsepower mowing tractor valued at more than $1,000 was tkaen from the premises. The tractor was found the following morning beside the highway where there were some marks on the pavement and other evidence indicating that a motor vehicle had broken down at that point. Luker was subsequently arrested and charged with the burglary and grand larceny on information filed by the prosecuting attorney.

Mr. Clarence E. Hoppman, owner and general manager of Hoppman Implement Company, testified as to the burglary of the building; as to the nature and value of the tractor and to the fact that it was taken from the building and premises.

Mr. Mickey Atkinson, a deputy sheriff for Desha County, testified that he investigated the burglary on February 25. He said he observed a window broken in the door of the building and was advised that a Holland S-14 long tractor with Serial No. 248706 was missing from the building. He said he found what appeared to be tractor tire imprints in soft ground leading from the door of the building. He said he followed the tire tracks about 75 yards to where they ended at what appeared to be imprints of the ends of two boards approximately six inches wide near some tire tracks of a truck or vehicle on which the tractor mower was apparently loaded. He said that cowboy boot tracks surrounded the area where the tractor was apparently loaded. Deputy Atkinson testified that he made plaster casts of the right front and rear tires of the vehicle. He said that later in the day he and Chief Deputy May went to a highway intersection where he observed the described tractor in a ditch beside the highway and observed a long scrape mark and pieces of metal in the highway where a motor vehicle had obviously wrecked or broken down. He said that there were tracks from the tractor indicating that several attempts had been made to drive it up an embankment onto the highway. He said he then went to the City Hall in Dumas where he observed Mr. Luker’s truck parked in an alley by the City Hall where he compared the plaster casts he had made with the tread of the tires on the truck and they appeared to be identical. The trial court sustained an objection to the testimony as to the tires and plaster casts being from identical tires. Mr. Atkinson testified that he also observed a considerable amount of what appeared to be oil, grease and dirt in the rear of the pickup and also what appeared to be tractor tire prints in the back of the truck identical to the tread pattern of the tires on the tractor involved in the burglary and later found by the side of the highway. Deputy Atkinson testified that Luker’s truck was in the alley adjacent to the police department in Dumas when he compared its tire tread with the casts he had made, but that he has no idea how the truck got there. He said he did not arrest Mr. Luker and does not know who did. He said the truck was released to Mr. Luker’s family but he does not know how long it stayed in the possession of the officers.

Mr. Earl May, deputy sheriff of Desha County, testified that he also observed the tracks of the little tractor leading to where it was apparently loaded on a truck. Mr. May’s testimony, in all essential parts, was practically the same as that of Deputy Atkinson. Mr. May testified that he did not know whether Luker’s truck was the.one that had broken down on the highway where the tractor was found or not.

Mr. Mataz Bickham was the only other witness who testified for the state and he simply testified that on February 25 at approximately 10 or 11 o’clock in the morning he observed the little mower tractor sitting in a ditch beside the highway.

There is circumstantial evidence in this case that the tractor involved was taken in a burglary and was hauled away from the burglarized premises in a pickup truck belonging to the appellant, but there is no evidence, circumstantial or otherwise, that the appellant was driving the truck on the night in question. In Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458, we reversed a burglary and grand larceny conviction for insufficiency of evidence where the state’s case was based entirely on circumstantial evidence, and in that case we said:

“. . . Where circumstantial evidence alone is relied upon to establish guilt of one charged with a crime, such evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Logi v. State, 153 Ark. 317, 240 S.W. 400; Turner v. State, 192 Ark. 937, 96 S.W. 2d 455; O’Neal v. State, 179 Ark. 1153, 15 S.W. 2d 976. A conviction resting upon evidence which fails to come up to the standard prescribed is contrary to law, and it is the duty of the court to set it aside. Where all the circumstantial evidence leaves the jury to conjecture only in determining the guilt of one accused, it fails to meet this standard. Logi v. State, supra.
The conviction here is based upon evidence lacking important elements shown in cases where we have found circumstantial evidence sufficient. In this case there was no evidence indicating that appellant was ever actually in possession of any part of the stolen property as there was in Meadows v. State, 128 Ark. 639, 193 S.W. 264; or that he was ever present at or near the paint store as was shown in Nick v. State, 144 Ark. 641, 215 S.W. 899; or that he had actually been present at the place or in the vicinity where the stolen property was found prior to the time when seen by the officers; or that he was ever in the vehicle tracked to the area where the paint was found as was shown in Nick v. State, supra. * * * The evidence in this case is no stronger than was the circumstantial evidence of grand larceny in France v. State, 68 Ark. 529, 60 S.W. 236, where we said that the defendant might be guilty, that the circumstances were suspicious but the evidence was too slight to support the verdict and a new trial should have been granted.”

The important elements we found lacking in Jones v. State, supra, are also lacking in the case at bar, but since other admissible evidence may be admitted on retrial, this case is remanded for a new trial.

The judgment is reversed and the cause remanded.


author: J. Fred JONES, Justice.

text:
    Jerry CHARLES v. STATE of Arkansas
    CR 74-36
    510 S.W. 2d 68
    Opinion delivered June 3, 1974

      Harold L. Hall, Public Defender, by: Garner L. Taylor Jr., Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee.

      Lee A. Munson, Pros. Atty., by: John Wesley Hall, Jr., Dep. Pros. Atty., amicus curiae.
   J. Fred JONES, Justice.

Jerry Charles was charged in the Pulaski County Circuit Court with the commission of eight separate felonies consisting of five counts of burglary and grand larceny, one count of burglary, one count of robbery, and one count of assault with intent to kill. He was incarcerated in the Pulaski County jail from July 27, 1970, until December 7, 1970, when he entered pleas of guilty to all eight charges and was sentenced to ten years in the penitentiary on each charge, with the sentences to run concurrently. After serving approximately four months of the ten year sentence, Charles escaped from penal custody in Arkansas and went to California where he remained for seventeen and one-half months before being apprehended and returned to the penitentiary in Arkansas. He was subsequently sentenced to five years for escape, with that sentence to run concurrently with the concurrent sentences previously imposed. A Rule 1 petition filed by Charles in the Pulaski County Circuit Court was denied, following a hearing thereon, and the grounds for post-conviction relief therein sought are indicated in the points he relies upon for reversal as follows:

“The lower court erred in denying the petitioner credit for jail time served while awaiting trial.
The lower court erred in refusing to order the prison officials to credit petitioner with the time he served prior to his escape.”

As to the appellant’s first point, Ark. Stat. Ann. § 43-2813 (Supp. 1973) provides that “the sentencing judge may in his discretion direct, when he imposes sentence, that time already served by the defendant in jail or other place of detention, shall be credited against the sentence,” but there is no evidence in the record before us that the trial court abused its discretion in this case. The concurrent ten year sentences in this case when added to the time Charles spent in the Pulaski County jail while awaiting trial, did not exceed the maximum penalties for the crimes involved and certainly Charles was not entitled, as a matter of right, to credit for full time he served in jail while awaiting trial. Shelton v. State, 255 Ark. 932, 504 S.W. 2d 348 (1974). The cases cited by the appellant pertaining to indigency, as well as the obiter dictum announced in our recent decision of Smith v. State, 256 Ark. 425, 508 S.W. 2d 54 (1974), have no application to the case at bar because there is no evidence, in the record before us, that the appellant Charles was indigent or that he remained in the county jail and failed to make bond because of indigency. The burden was of course on the appellant to make such showing. Honaker v. State, 252 Ark. 975, 482 S.W. 2d 111.

As to Charles’ second assignment, the trial court was without jurisdiction to grant the relief prayed. While recognizing the rule that a trial court has general power over its judgments during the term in which they are rendered, in Fletcher v. State, 198 Ark. 376, 128 S.W. 2d 997, we pointed out two exceptions in language as follows:

“One is that when an appeal has been perfected in this court and the other is that the defendant has served a portion of his sentence. In either case the trial court is without jurisdiction to modify its judgment, ‘except to correct its judgment to make it speak the truth in aid of the jurisdiction of the appellate court.’ ”

Thus, when a valid sentence has been put into execution, the trial court is without jurisdiction to modify, amend, or revise it in any way either during or after the term or session of the court at which the sentence was pronounced. Williams, Standridge & Deaton v. State, 229 Ark. 42, 313 S.W. 2d 242.

Ark. Stat. Ann. § 46-103 (Supp. 1973) vests exclusive jurisdiction in the Arkansas Department of Correction for the care, custody, control, management, administration and supervision of all persons committed to, or in, the custody of the department. The appellant Charles is asking this court to order the trial court to do something which it has no authority to do — intervene in the process of prison administration.

Assuming that Charles’ allegation of no credit for time served prior to his escape is supported in fact and he is being required, as he now argues, to serve a total of 12 years instead of the ten years assessed by the court, he cannot raise the issue in a proceeding to which the Department of Correction is not a party.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Charles E. PITTS v. STATE of Arkansas
    CR 74-34
    509 S.W. 2d 809
    Opinion delivered June 3, 1974

      Gene Worsham, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Charles E. Pitts was charged on three counts of having possessed with intent to deliver morphine, cocaine, and secobarbital contrary to the Controlled Substance Act, (Act 590 of 1971 as amended by Acts 67 and 68 of 1972). He was also charged as a habitual offender. The jury found him guilty on each count and fixed his punishment at 45 years on the morphine count, 45 years on the cocaine count and 4 Vi years on the secobarbital count. The trial court determined that the sentences should run consecutive and thus committed appellant to the penitentiary for a total of 94 Vi years. For reversal appellant contends among other things that the trial court in instructing the jury erred by commenting on the weight of the evidence and that he was thrice placed in jeopardy for the same offense.

The record shows that appellant’s convictions arose out of a search of his apartment where the drugs were found by the officers.

Identical instructions (trial court’s instruction No. 8) on the presumption created by Ark. Stat. Ann. § 82-2617(d) were given on each count. The instruction on the morphine count told the jury:

“If you find the defendant possessed a quantity of Morphine, as charged in the Information, in excess of 300 milligrams, then, although you are not required to do so, you are permitted to infer that the defendant possessed with intent to deliver in violation of the Uniform Controlled Substances Act. However, you must be convinced of the defendant’s guilt beyond a reasonable doubt on the whole case.”

This instruction in effect told the jury that possession alone of a quantity of drugs in excess of a certain amount was sufficient to support an inference of guilt. We have consistently held such instructions improper and prejudicial as being a comment on the weight of the evidence. See Lott v. State, 223 Ark. 841, 268 S.W. 2d 891 (1954) and Thiel v. Dove, 229 Ark. 601, 317 S.W. 2d 121 (1958).

While the State contends that the other points raised in appellants’ brief are raised for the first time on appeal, with which we agree, and that we should observe the well known canon that such matters will not be considered on review, we find that in view of a new trial, orderly criminal procedure demands that we comment on the double jeopardy contention. As we construe the Controlled Substance Act, Ark. Stat. Ann. § 82-2617 (Supp. 1973), the simultaneous possession for delivery of drugs classified as a narcotic drug under subsection (a)(l)(i) constitutes but one offense. Likewise the simultaneous possession of drugs classified under subsection (a)(1)(h) would constitute only one offense. However, the simultaneous possession of drugs classified under subsection (a)(l)(i) and of drugs classified under subsection (a)(1)(h) would constitute separate offenses.

Reversed and remanded.


author: CONLEY Byrd, Justice.

text:
    George E. RAY v. STATE of Arkansas
    CR 74-37
    509 S.W. 2d 830
    Opinion delivered June 3, 1974

      Harold L. Hall, Public Defender, by: Lloyd R. Haynes, Dep. Public Defende-r, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen., for appellee.

      Lee A. Munson, Pros. Atty., by. John Wesley Hall, Jr., Dep. Pros. Atty., amicus curiae.
   CONLEY Byrd, Justice.

Appellant George E. Ray on July 13, 1970, as a result of some plea bargaining entered a plea of guilty and accepted sentences of three years on a charge of burglary and a charge of grand larceny with the sentences to run concurrently. The commitment directed that he serve one third of his sentence before being eligible for parole. He escaped from the Department of Corrections unit at Cummins on January 7, 1971 and was not returned to custody until March 15, 1973. Thereafter, he filed the post conviction petition here involved contending that he had ineffective assistance of counsel and that he was entitled to credit for time spent in the county jail prior to his sentence. The trial court found against him on both issues and he appeals. We agree with the trial court.

The record shows that appellant made a written confession shortly after his arrest. He now contends that it was involuntary but his employed counsel testified that during her discussions with him before the plea of guilty he made no such contention. On the record presented before us it appears that his trial counsel gave him not only adequate but rather effective representation in negotiating the three year plea.

Neither do we find any merit in the contention that appellant is entitled to credit for the eight months he spent in jail prior to the sentence. Appellant here entered a “negotiated plea” wherein he had some bargaining power and by agreeing to the entry of a guilty plea for a specified sentence he necessarily waived any right to assert a claim for a lesser sentence including a credit for jail time.

Affirmed.


text:
    Dorothy V. EDENS v. NATIONAL HOME LIFE ASSURANCE Company
    74-16
    510 S.W. 2d 288
    Opinion delivered June 3, 1974
    [Rehearing denied July 8, 1974.]

      Brown, Compton & Prewett, by: Robert C. Compton, for appellant.

      Schakleford & Shackleford, for appellee.
   Frank Holt, Justice.

Appellant brought this action to recover benefits under appellee’s hospitalization indemnity plan. In refusing appellant’s claim, appellee contended that the sickness or disease for which appellant sought indemnity resulted from a pre-existing condition, therefore, precluding coverage. Appellant, however, contended that her illness manifested itself subsequent to the issuance of appellee’s policy. Prior to the issuance of the policy, Mrs. Eaens had been diagnosed as suffering from hypertension, arteriosclerotic heart disease, myocardial ischemia, and angina pectoris. Appellee had paid for one previous and one subsequent hospitalization — i.e., for a heart attack and open heart surgery. Appellant was hospitalized for two other periods, each of about one and one-half months’ duration, for heart trouble. This litigation resulted when appellee refused to pay the policy benefits. Appellant adduced medical evidence that these occurrences were heart attacks which were separate and distinct from her condition predating the policy. Essentially, appellee’s medical testimony indicated no evidence of a heart attack on either occasion. A jury resolved the issue in favor of appellee.

For reversal of that judgment appellant first makes the argument that the lower court erred in refusing to allow proffered evidence of the payments for the two other periods of hospitalization as an admission. Therefore, appellee’s refusal to pay the controverted claim is inconsistent. Other jurisdictions have held that payments under a policy are admissible as being an admission that the company considered the insured’s injury or disability as compensable. Mutual Life Ins. Co. v. Frost, 164 F2 542 (1947) (disability benefits under a life insurance policy); Travelers Ins. Co. v. Drake, 89 F2 47 (1937) (accident policy); New York Life Ins. Co. v. Thompson, 45 Ga. App. 638, 165 S.E. 847 (1932) (disability payments under a life insurance policy); and Wiener v. Mutual Life Insurance Co. of New York, 170 S.W. 2d 174 (Mo. App. 1943) (disability benefits under a life insurance policy.) Of course, the admission is evidence of a compensable injury but is not conclusive on the insurer. Mutual Life Ins. Co. of New York v. Frost, supra. See also Feild v. Coonce, 178 Ark. 862, 12 S.W. 2d 772 (1959).

However, in the instant case we must affirm the trial court since appellant never demonstrated the relevancy of the other payments to the controverted coverage thereby indicating that the other payments were inconsistent with appellee’s present refusal. Appellant’s husband testified in camera as to the two hospitalizations of appellant for which appellee paid. Significantly, no testimony was offered to show that those hospitalization periods were a result of her condition prior to the issuance of the policy. Appellee objected that the testimony was not relevant. The trial court properly sustained the objection stating, inter alia, that the factual situations were not shown as being the same.

The other payments admit nothing as constituting an inconsistent position unless the hospitalization was a result of heart trouble springing from a pre-existing condition. Regardless of the testimony produced later at trial, the testimony at the in camera hearing gave no indication that the other payments were made for medical expenses incurred as a result of the pre-existing condition. Absent testimony to that effect, we cannot reverse the trial judge for there was no showing of relevance. See generally 29 Am. Tur. 21, 8 601, and 31A C.J.S., § 276.

Appellant’s second contention for reversal is that the lower court erred in refusing to admit certain letters from appellant’s medical witnesses to the appellee insurance company. Although one letter was introduced into evidence by appellee during cross-examination of appellant’s medical witness, to show a prior inconsistent statement in a letter by him, appellant was not prejudiced by the trial court’s exclusion of the other letters or parts thereof.

For example, the excluded portion of the January 24, 1972, letter was as follows:

It is my opinion that you honored her reports from Houston because of myocardial infarction and you failed to honor the reports we have sent you even though this was another acute myocardial infarction.
In my opinion, if she was covered for the first one she is covered for the second one and I feel it is only justifiable that they pursue this claim.

This portion of the letter was properly excluded since it constituted an opinion by the doctor as to the coverage of appellee’s policy that was without his expertise and an invasion of the fact finding province of the jury.

Neither was appellant prejudiced by the trial court’s exclusion of the April 4 letter and parts of others which were offered on re-direct. We have previously held that no prejudice resulted in excluding letters where the testimony concerning the facts in the letters, as here, had as much probative force as the letters. McCombs v. Moss, 131 Ark. 509, 199 S.W. 545 (1917). Certainly, in the case at bar, the appellant was not precluded from adducing relevant and material evidence from her medical witness on re-direct examination with reference to the excluded letter or portions of others. It appears that much of the excluded writing was argumentative.

Finding no merit in appellant’s contentions, we must affirm.

Affirmed.


text:
    John Earl ALEXANDER v. STATE of Arkansas
    CR 74-39
    509 S.W. 2d 816
    Opinion delivered June 3, 1974

      Harold L. Hall, Public Defender, by: Lloyd R. Haynes, Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Dep. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant pleaded guilty to a charge of armed robbery and received a sentence of 21 years with ten years suspended. Thereafter, he sought postconviction relief from that sentence pursuant to our Criminal Procedure Rule 1. The trial court held an evidentiary hearing and denied appellant’s petition. On appeal the only contention for reversal by present counsel is that the trial court erred in denying postconviction relief by finding that appellant had effective assistance of trial counsel. We agree with the trial court.

Appellant was charged as a habitual criminal. Ark. Stat. Ann. § 43-2328 (Supp. 1973). He admitted that he had served four previous prison sentences; his court appointed trial counsel advised him that it was possible for him to receive 31 Vz years if the jury found him guilty of robbery as well as the alleged previous convictions inasmuch as the previous convictions would enhance the maximum (Ark. Stat. Ann. § 41-3602 [Repl. 1964]) 21 year robbery sentence to that extent; his attorney conferred with him on several occasions; his attorney discussed the defense as well as the prosecution evidence; and his counsel advised him he had the right to a jury trial or the option to plead guilty and it was for him, the petitioner, to make the decision. In fact, appellant testified that primarily he was seeking a reduction or modification of his sentence.

Appellant’s court appointed trial counsel, who has practiced criminal law for several years, testified that the state’s evidence was made available and he had fully discussed that evidence as well as appellant’s in advising him; he made arrangements for the appellant to discuss his defense with his co-defendant and others; appellant admitted he was present at the scene of the alleged robbery although disclaiming any intent to participate in the offense; appellant was advised, as he admitted, that pursuant to the Habitual Criminal Act appellant could possibly receive 31 Vi years in prison; appellant asked him to negotiate a plea with the prosecution and seek a ten year sentence; appellant decided to take the 21 year sentence with ten years suspended as offered by the state; further, he told appellant that the ultimate decision as to his plea was strictly left to appellant and was made by him only.

We are firmly of the view, after a full review of the record before us, that appellant was ably represented by his court appointed counsel and, therefore, there was no violation of appellant’s constitutional rights. Franklin and Reid v. State, 251 Ark. 223, 471 S.W. 2d 760 (1971); Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1 (1973); and Credit v. State, 247 Ark. 424, 445 S.W. 2d 718 (1969).

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    James P. PRICE v. SERVISOFT WATER CONDITIONING Company, Employer, and HOUSTON FIRE AND CASUALTY COMPANY, Insurance Carrier
    74-29
    510 S.W. 2d 293
    Opinion delivered June 10, 1974

      Frierson, Walker, Snellgrove & Laser, by: Stanley R. Langley, for appellant.

      Barrett, Wheatley, Smith & Deacon, by: David Landis, for appellees.
   Carleton Harris, Chief Justice.

This is a workmen’s compensation case. James P. Price, claimant, contends that he sustained a compensable injury arising out of and in the course of his employment with Servisoft Water Conditioning Company on February 9 or 10, 1972. A hearing was held before the referee and it was stipulated that claimant’s wages would entitle him to the maximum compensation rate. It wás also stipulated that the employer-employee relationship existed on the aforementioned dates. The referee, though finding that this relationship did exist, held that Price had failed to prove by a preponderance of the evidence that his injury arose out of and in the course of his employment. On appeal to the full commission, the referee was reversed and the commission found that Price had been totally and temporarily disabled from February 22, 1972, and that he should receive temporary total disability at the rate of $49.00 per week from February 22 until the commission determined that claimant’s healing period had ended. From the award entered, the company appealed to the Greene County Circuit Court, and that court reversed the decision of the commission. From the judgment of reversal, Price brings this appeal. For reversal, it is simply urged that the award of the commission was supported by substantial evidence, and the Greene County Circuit Court erred in reversing the decision of that tribunal.

Price testified that he was employed by appellee in the latter part of December, 1971, or the first part of January, 1972, and was in the process of learning to take over a route “hooking up water softeners for people that were customers.” Trucks would be loaded with bottles which weighed anywhere from 50 to 100 pounds. He said that in bending over to pick up a “tank” to put on the truck, a real sharp pain hit him in the lower part of his back, but that he made no complaint and continued to work during the day; that he thought the pain would subsequently subside. The witness said that on going home, he went to bed. He continued to work until February 21, at which time he went to see Dr. L. D. Shedd, a general practitioner in Paragould. He did not return to work and had his wife call the company and advise that he was unable to return to work “on account of he was going to the doctor.” Price never did return, and was subsequently operated on in Memphis where a disc was removed. Price testified that he had never had any back trouble previous to the occasion heretofore mentioned. His wife testified that she remembered the occasion that her husband mentioned his back hurting because she had suggested their going to church that night for prayer meeting or visitation and he was not able. She said that though he continued to work until the 21st or 22nd, she had begged him for two weeks to go to the doctor and that he finally consented, and she called and reported that he would not be at work on the 22nd, and he had not been able to return since that time.

Dr. Shedd testified that he first saw Price on February 22, 1972, and found tightness in the paraspinous lumbar muscles which is in the neighborhood of where the L4 - L5 vertebrae are located. He said that he gave Price two prescriptions, one for Robaxin, 750 mg. tablets, a muscle relaxing medication, and á prescription for Triaprim DC, a mild analgesic. He advised claimant to go to bed and apply heat to the low back area. The witness testified that claimant returned ao his office on February 28, still complaining of low back pain and stating that his condition was no better. He was advised to continue the previously prescribed treatment. He again saw the patient on March 1, 1972, and since there had been no progress, Price was placed in the hospital on that date. Claimant remained there for one week and was discharged. At the hospital, claimant received physical therapy treatments, was given pain medication as needed, had a heat lamp applied to his back four times a day, and appeared to be better after a few days, and was allowed to walk on March 6. Dr. Shedd never saw the patient again, and it developed that, as previously stated, Price went to Memphis where he underwent surgery. The doctor testified that when he was consulted on February 22, he was given a history by Price of having pain strike him in the low back as he was lifting barrels at work. The doctor testified, “Based on what he told me as being the truth, then I would have to assume that he injured his back while working since there is no other history from Mr. Price to the contrary.” He added that, at the time he was looking after Price, there were no signs that there was actually a disc involvement and that his physical findings reflected muscular spasm, “which does not necessarily mean that a disc has been ruptured.” In reply to a question, the doctor answered that it was true, that even with treatment by conservative methods, subsequent examinations might reveal that a disc was involved. The doctor who performed the operation did not testify.

Lyman Azbill, Manager of Servisoft Water Conditioning Company, testified that Price had never mentioned to him that he had hurt his back; that he had seen claimant daily after the 9th or 10th of February when the employee would load the trucks in the morning and unload same at night, and nothing was ever said to him. Azbill stated that Mrs. Price contacted him on February 26, picked up her husband’s check, and asked if he (Azbill) carried workmen’s compensation, and he informed her that he did. Azbill said that she did not mention that her husband had hurt his back or had an accident, but only said that he was sick. The manager said that he himlelf had previously had a back operation and had a disc removed from the low back, but he did not think he ever told Mrs. Price about it.

Frank Farmer, an employee of Servisoft, testified that he filled in as a substitute on the route truck during February, 1972, and that Price never mentioned to him that he had hurt his back, and made no complaint about his back; that claimant carried out his duties of loading and unloading bottles. He said that he saw claimant in his home in bed but thought that Price was suffering from the flu and there was no mention of a back ailment. Steve Azbill, son of Lyman Azbill, testified that Price rode with him on the route during part of February and that claimant never gave any indication that he had hurt his back in any manner. He stated that he observed no difference in claimant’s actions after the 9th or 10th of February.

The argument of appellee that there is no substantial evidence to support the award is largely based upon the fact that Price did not mention to the persons heretofore mentioned that he had injured his back. The latter admitted that he did not mention the injury to appellee’s witnesses, but stated that he did not do so because he very much needed the work.

While one would think that normally a person who had been injured would immediately report such injury to his employer or fellow employees, this is certainly not a hard and fast rule. Rather, such action would seem to depend upon the individual nature of the person involved, some people being able to bear pain more than others, and, of course, a desire to continue employment for the purpose of earning wages could be a factor bearing upon this behavior. At any rate, it is not disputed that surgery was performed and a disc removed. Of course, as has been so frequently stated, this court is not concerned with the weight of the evidence or credibility of witnesses, but only with whether there was any substantial evidence to support the commission. Reynolds Metals Company v. Robbins, 231 Ark. 158, 328 S.W.2d 489. In Kivett v. Redmond Company, 234 Ark. 855, 355 S.W.2d 172, we said that the question presented was one of credibility, and, thus, a matter within the exclusive province of the commission, and in Brower Mfg. Co., et al v. Willis, et al, 252 Ark. 755, 480 S.W.2d 950 (1972), this court stated:

“The commission made a fact finding upon a close question of fact by resolving all inferences against appellants and by giving the evidence the most liberal construction possible in favor of the claimant. The question is not whether the testimony would have supported a finding contrary to the one made, but whether it is substantial in support of the one made. Since we cannot say that reasonable minds could not reach the commission’s conclusion from the evidence, that evidence was substantial.”

Here, too, we cannot say that reasonable minds could not reach the conclusion from the evidence that was reached by the commission, and it follows that the judgment of the Greene County Circuit Court should be, and hereby is, reversed, with directions to reinstate the award granted by the commission.

It is so ordered.

       Shedd was consulted on two other occasions over the telephone on matters apparently unrelated to the back trouble.

       Mrs. Price had testified that Azbill had told her when she went to pick up the check he had the same thing happen to him and had surgery on his back.

       He did testify that he told Wally Massey, another employee of Azbill, that he had hurt his back, but this was during the same period of time that he went to the doctor. He also said that he told Farmer that he had hurt his back when Farmer made the visit, previously mentioned, to his home.