author: Ernie E. Wright, Chief Judge.

text:
    Betty KIRKENDOLL, Individually and as Mother and Next Friend of Jerry S. KIRKENDOLL, a minor v. Troy HOGAN
    CA 79-184
    593 S.W. 2d 498
    Opinion delivered January 23, 1980
    Released for publication February 13, 1980

      Guy H. Jones, Phil Stratton, Guy Jones, Jr., and Casey Jones, by: Phil Stratton, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Ernie E. Wright, Chief Judge.

This appeal was filed in the Arkansas Supreme Court and transferred to the Court of Appeals pursuant to Rule 29(3).

Appellant brought suit on her own behalf for recovery of property damage and damages for personal injuries on behalf of her minor son sustained when a motorcycle operated by the son and owned by appellant, Betty Kirkendoll, collided with a truck owned and operated by appellee. The complaint was filed February 16, 1977, and answer was timely filed March 18, 1977. On May 26, 1977, appellee filed a .counterclaim seeking property damages arising out of the accident. On May 27, 1977, appellant filed a motion to strike the counterclaim on the ground it was not timely filed. The record indicates appellant sought no ruling on the motion until after the jury was sworn to try the case and the motion was overruled.

The’case was tried to a jury on March 13, 1979, and the jury returned a verdict apportioning the negligence 50/50 between the parties. For reversal of the judgment entered pursuant to the verdict appellant asserts two grounds: (1) that the court erred in refusing to strike the counterclaim and (2) that the court erred in reading part of the instructions to the jury before testimony was adduced, particularly appellee’s modified version of AMI 208.

It was within the court’s discretion to refuse to strike appellee’s counterclaim filed a little more than two months after the answer was filed. In Huffman v. City of Hot Springs, 237 Ark. 756, 375 S.W. 2d 795 (1964), the court reversed the trial court in striking a cross-complaint filed two months after the answer was filed, and stated:

The filing of an answer meets the requirement of the statute and there is no sound reason why a party should not be permitted to amend his pleading thereafter, provided, of course, his pleading is filed within a reasonable time.

In 1975, Ark. Stat. Ann. § 27-1160 was amended to include the following provision:

Any party required by existing law to assert a counterclaim in any pending cause of action shall be entitled to amend a pleading in such a manner as to assert such a counterclaim, subject to the same requirements and under the same conditions as apply to any other amendment which may be offered to pleadings, and the court shall have the same discretion to permit amendment to assert a counterclaim as exists to permit any other amendment.

In Bates v. Simmons, 259 Ark. 657, 536 S.W. 2d 292 (1976), the court said, “We will not reverse the trial court’s action oh requests for amendment of pleadings at the trial unless there has been a manifest abuse of discretion and material prejudice to the adverse party.” The counterclaim in the present case was filed approximately two years before trial, and we find no basis for saying the appellant was prejudiced.

We hold the trial court did not abuse its discretion in refusing to dismiss the counterclaim.

As to the asserted error in the giving of part of the instructions before the introduction of evidence, Ark. Stat. Ann. § 27-1727 specifies the order of the steps in the trial of a case, but allows the trial court to alter the order for special reasons. The trial court saw fit to give the following standard instructions from AMI, 101, 102, 103, 104, 202, 204, 206 and 208 after the jury was sworn and prior to the introduction of evidence. Counsel for appellant made iio objection to this procedure, but objected to instruction 208 as given on the. ground it was not a correct statement of the law. That instruction reads:

At the time of the occurrence Betty Kirkendoll and Jerry S. Kirkendoll were mother and son. Therefore, any negligence on the part of Jerry S. Kirkendoll is charged to Betty Kirkendoll with respect to the claims of Betty Kirkendoll.

After the above mentioned instructions were given, counsel for appellant moved for a mistrial on the ground the court read the above instructions to the jury before the opening statements and before any evidence had been heard.

Instruction 208 as given was a correct statement of the law. First, because after the close of the evidence the court gave among other instructions the following:

Betty Kirkendoll signed the application of Jerry S. Kirkendoll, a minor, for an operator’s license. If you find that Jerry S. Kirkendoll was negligent, then his negligence is charged to Betty Kirkendoll.

We must assume the evidence warranted the instruction as none of the evidence is contained in the record on appeal and appellee made no objection to the instruction. Ark. Stat. Ann. § 75-315(b) provides:

Any negligence or wilful misconduct of a minor under the age of eighteen (18) years when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor for a permit or license, which person shall be jointly and severally liable with such minor for any damages caused by such negligence or wilful misconduct.

Second, the case of Welter v. Curry, 260 Ark. 287, 539 S.W. 2d 264 (1976) makes it clear that in the case of a parent who sues for damages on his own behalf and on behalf of a minor child in a cause of action arising out of the same negligent act, the child’s contributory negligence may be asserted against the parent even though the negligence is not imputed to the parent. The parent’s cause of action is deemed to be derivative and subject to the comparative negligence of the child.

We hold the court did not err in giving instruction 208 and did not abuse its discretion in giving part of the instructions before the evidence was presented, although we believe it to be the better practice to instruct the jury after the evidence is closed, except possibly for very general type of instructions. We are not persuaded the jury would likely have been confused by the order in which the instructions were given.

Affirmed.


source: Caselaw Access Project

author: M. Steele Hays, Judge.

license: Public Domain

text:
    Lola SPEED v. CITY of Jonesboro, Arkansas
    CA CR 79-95
    594 S.W. 2d 44
    Opinion delivered January 23, 1980
    Released for publication February 13, 1980

      Warren E. Dupwe., for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   M. Steele Hays, Judge.

Appellant was tried on charges of public intoxication and possession of marijuana. The jury returned a verdict of acquittal on the'charge of public intoxication and of guilty on the charge of possession, recommending a sentence of one year with two months suspended and a fine of $500. The testimony by the State was: On September 19, 1977, Officer Danny Walker of the Jonesboro Police Department attempted to serve a warrant for the arrest of appellant for the theft of a bicycle. After reading the warrant to appellant and discussing it with her, Mr. Walker concluded that she was under the influence of alcohol and informed appellant that he was arresting her for public intoxication. With the assistance of another officer, Mr. Mashburn, appellant was placed in jail and the two officers proceeded to take an. inventory of the appellant’s purse. Mr. Walker testified that the purse contained a steak knife, electrical alligator clip and an opened package of cigarettes in which he found a partially smoked cigarette which he believed to be marijuana. The officer stated that he had no search warrant and that appellant had not consented to the search. He stated that her purse had been searched earlier for weapons and the partially smoked cigarette was discovered during a second search, the purpose of which was to protect her property by preserving a list of contents and also to search for drugs.

Captain H. W. Walker testified that he received from Sergeant Walker “a brown paper bag containing a knife, green vegetable material, cigarettes and a cigarette butt, et cetera’ ’ which he packaged and gave to his secretary to mail. He completed a form for Sergeant Walker to be forwarded to the Department of Health. He believed that he had the package mailed by certified mail and that normally he would initial the envelope though he could not recall specifically doing so. He did not personally mail the package, but did hand it to his secretary to mail, although he did not see her actually mail the package. Over objection of defense counsel, a copy of Captain Walker’s inventory of the contents of the package was received in evidence.

Mr. Don Wise of the State Drug Laboratory testified that, he received a certified manila envelope containing a brown sack enclosing a steak knife, an alligator clip, partially smoked cigarette, three cigarettes, along with a drug laboratory work sheet. He tested the materials and found that the cigarette butt contained 1.1 grams of marijuana. Mr. Wise identified the items received and stated that they had not been altered in any fashion except as required by the examination and tests. He explained that after the' tests were performed on October 21 the package was kept in locked storage vault where it remained until he picked it up to appear at the trial. The envelope was sealed and unbroken until presented as evidence. •

The introduction of the contents of the package was offered and received in evidence as Exhibit #6 over objection based on improper foundation and chain of custody.

Mr. Walker was recalled to testify that the items received in evidence as Exhibit #6 were the same items removed by him from the appellant and which he and Captain Walker had had sent to the Department of Health. Captain Walker was recalled for the same purpose.

At the close of the State’s case the appellant moved to strike all evidence relating to marijuana or any items taken from her purse in the absence of a search warrant or consent by the appellant. Again, at the close of the entire case, appellant moved to suppress the evidence based upon an illegal search and seizure and lack of chain of custody, which motions were overruled.

Appellant argues two points for reversal, that the court erred in not excluding the testimony and evidence obtained in the search of appellant’s purse and in finding a proper chain of custody of the evidence.

I

With respect to the chain of custody, we disagree with appellant that the court erred in finding that the chain of custody was sufficient. The thrust of the argument is that Captain Walker’s secretary was not called to testify regarding the actual mailing of the envelope containing the items and that there was an unexplained lapse of thirty days from the date the items were placed in the envelope for mailing and the date the envelope was actually mailed.

The purpose of the rule requiring proof of chain of custody is to guard against the introduction of evidence which is not authentic. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978). Such questions mustfall largely within the discretion of the trial court and the rule does not require that every possibility of tampering be eliminated by the testimony, but simply that the trial court is satisfied that in-reasonable probability, the integrity of the evidence has not been impaired. Gardner, supra. Minor uncertainties of the sort present in this case are to be argued by counsel and weighed by the jury but are not of such degree as to render evidence inadmissible as a matter of law. Rogers v. State, 258 Ark. 314, 524 S.W. 2d 227 (1975); Wickiffe and Scott v. State, 258 Ark. 544, 527 S.W. 2d 640 (1975). In the case before us, there was no intimation that the evidence had been tampered with or was altered. In fact, several witnesses positively identified the articles as those mailed and received and as being in the same, unaltered form. We find no abuse by the trial court in admitting the evidence over appellant’s objection.

Appellant relies upon Watts v. State, 222 Ark. 427, 261 S.W. 2d 402 (1953), for the proposition that the failure by the State to produce Captain Walker’s secretary creates a presumption that her testimony would be unfavorable to the State. But Watts v. State is readily distinguishable from the present case, for in Watts the trial court had refused to permit the defense to argue the point to the jury, which was held to be error. Here, there is no contention that appellant was not permitted to present such arguments to the jury as counsel thought were warranted by the chain of custody.

II

As to appellant’s motion to strike or to suppress the evidence upon which the State’s case was founded, it must be observed that Rule 16.2 is clear and’unequivocal in its requirement that motions to exclude evidence must be made ten days prior to trial, in the absence of good cause.

There is no suggestion that appellant was not aware of the circumstances which led to the discovery of the evidence used against her and nothing in the way of good cause was offered or even intimated. The constitutionality and the reasonableness of Rule 16.2 have been considered and upheld in Parham v. State, 262 Ark. 241, 555 S.W. 2d 943 (1977), where it was observed that a motion not filed until a day or two before trial was “correctly denied as having been filed too late.’’ The ten day requirement was held to be a reasonable one. It has been expressly observed by our Supreme Court that the Rules of Criminal Procedure were adopted as “important guidelines to protect the fundamental rights of the individual while preserving the public interest, and we take a critical view of any failure to comply with the rules.’’ Brothers v. State, 261 Ark. 64, 546 S.W. 2d 715 (1977). Conceding that there may be instances in which the time requirements of Rule 16.2 ought to be liberalized, it does not follow that defendants can expect to wait until the very close of the State’s case to move for the first time to exclude evidence, and, absent good cause, expect the trial court to consider the motion on its merit.

Nor can we agree with appellant that there was any sort of waiver by the prosecution. The prosecution was not put in the position of waiving or not waiving, as the appellant simply moved, at the close of the State’s case, to strike all evidence obtained by the search, which the court denied without comment. The same was true of the motion appellant made at the close of the entire case (which this time was termed “motion to suppress”). But in neither instance was the State obligated to voice opposition, as the trial court acted immediately to deny the motion.

It may also be noted that appellant’s motions relative to unlawful search were not offered until considerably after the evidence had already been received over objections from appellant on other grounds (i.e., chain of custody, lack of foundation, relevancy and materiality) and irrespective of Rule 16.2 when evidence is objected to which has already been received in evidence, its retention or exclusion is within the discretion of the trial court. Haight v. State, 259 Ark. 478, 533 S.W. 2d 510 (1976); Warren v. State, 103 Ark. 165 (1912).

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


author: James H. Pilkinton, Judge.

text:
    STAGECOACH MOTEL v. Maevaughn KRAUSE and Commissioner of Labor, State of Arkansas
    CA 79-105
    593 S.W. 2d 495
    Opinion delivered January 23, 1980
    Released for publication February 13, 1980

      M. Morrell Gat bright, for appellant.

      ■Thelma M. Lorenzo, for appellees.
   James H. Pilkinton, Judge.

This is an unemployment compensation case. Appellee worked for the Stagecoach Motel on a permanent, full-time basis from November 1977 until August 1978 when she was discharged. Following her discharge, appellee accepted temporary employment during the Christmas season at K-Mart and at the race track for the duration of the racing season. She filed a claim for unemployment benefits on May 2, 1979, stating that she had been discharged by appellant Stagecoach Motel for failing to collect room rent in advance from a guest who left without paying. While employed by Stagecoach, appellee was the afternoon shift desk clerk; All of the desk clerks were to obtain payment from guests for their room in advance when registering. In the case of guests staying over for another day, the afternoon desk clerk had the primary responsibility of contacting the guest and obtaining payment in advance of their staying over. If the afternoon desk clerk was unable to contact the guest or obtain payment, the manager was to be contacted.

The incident triggering appellee’s discharge involved a motel guest named Woodall who paid for one night’s rent when he checked in on Sunday. He stated then that he did not know how long he would be staying. Each day of that week thereafter, he paid for one night in advance until Friday. Appellee tried unsuccessfully to contact Woodall on Friday. Ms. Krause claims she told the manager, Richard Sampo, on either Friday or Saturday that she had not been able to contact Woodall to obtain payment. In any event, appellee as well as the morning shift clerk continued to try to contact Woodall, but without success. On Sunday, after again trying to contact Woodall, Ms. Krause attempted to telephone the manager at his home to report the continuing problem. She testified that she repeatedly telephoned him at one-half hour intervals, but got no response. Ms. Krause also says that she drove to the manager’s house when she got off from work at 10:30 p.m. on Sunday to apprise him of the situation, but did not stop because there were no lights in the house and she thought the manager had retired for the night. Appellee called the manager early Monday morning at the motel office, and advised him of the situation, but by that time Woodall had left the motel without paying for Friday, Saturday and Sunday. Ms. Krause was discharged the same day for failure to follow the policy of the employer.

The Employment Security Division denied compensation. The agency held that “failure to follow the policy of the employer is an act against the employer’s best interest.” Ms. Krause appealed the denial, and the Appeals Tribunal reversed, the Referee holding that there was not a sufficient showing of deliberate conduct against the employer’s best interest. The Board of Review adopted the decision of the Appeals Referee as the decision of the Board, and affirmed the allowance of compensation. The employer has appealed to this court from the decision of the Board of Review.

I.

Appellant first claims that the decision of the Board of Review is based upon a misstatement and misapplication of the law. It is argued that under Ark. Stat. Ann. § 81-1106(b)(1) disqualification attaches if an individual is discharged from his last work for misconduct in connection with the work, and that a showing of deliberate misconduct is not required.

The general rule is that misconduct (within the meaning of the Unemployment Compensation Act excluding from its benefits an employee discharged for misconduct) must be an act of wanton or wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of the standard of behavior which the employer has a right to expect of his employees. 76 Am. Jur. 2d, Unemployment Compensation, § 52. 26 ALR 3d 1356. See also Parker v. Ramada Inn, 264 Ark. 472, 572 S.W. 2d 409 (1978); Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978). Consequently, in the case before us we cannot say that appellee’s action did, as a matter of law, constitute misconduct within the meaning of the statute. A question of fact was presented to the Board of Review on which it could have found either way.

II.

Appellant next points out that the Appeals Referee refers to some matters as undisputed when they were in fact disputed, and appellant also complains about the manner in which the Appeals Referee conducted this hearing and made his findings. It is clear from the record that the Referee did ask a great number of very leading questions, and in some ■instances he came close to placing words in the mouth of the claimant while she was testifying. Appellant points out that the Board of Review carried such matters forward when it adopted the findings and decision of the Appeals Referee as its own.

With respect to procedure, the Employment Security Act, Ark. Stat. Ann. § 81-1107(d)(4) (Repl. 1976) provides:

The Board of Review, appeal tribunals and special examiners shall not be bound by the common law or statutory rules of evidence or by technical rules of procedure, but any hearing or appeal before such tribunals shall be conducted in such a manner as to ascertain the substantial rights of the parties . . .

Under the statute, unless the hearing is conducted in such a way as to make it impossible to ascertain the substantial rights of the parties, we cannot properly reverse on procedure. The actions complained of did not go that far in this case.

HI-

Appellant next argues that subsequent to her discharge, appellee worked for K-Mart during the Christmas, season and at the race track during the racing season and, therefore, her last employment was not with appellant. The evidence shows that the K-Mart and race track jobs were temporary, and cannot be considered appellee’s last employment for unemployment purposes. There is substantial evidence in the record to support the. finding of the Board of Review that appellee’s last employment for unemployment benefit purposes was with Stagecoach Motel.

IV.

All points considered, the main question on this appeal is whether there was substantial evidence to support the decision of the Board of Review that appellee was entitled to unemployment benefits under the Arkansas Employment Security Act. Even though there is evidence in this record upon which the Board of Review might have reached a different result, the scope of our judicial review is limited. Harris v. Daniels, supra. A reviewing court is not privileged to substitute its findings for those of the Board of Review even though the court might reach a different conclusion if it had made the original determination upon the same evidence considered by the board. Harris v. Daniels, supra., and Parker v. Ramada Inn et ux, supra.

Since we find substantial evidence to support the board’s action, the judgment is affirmed.

Affirmed.


text:
    John BYERS v. STATE of Arkansas
    CA CR 79-103
    594 S.W. 2d 252
    Opinion delivered January 23, 1980
    Rehearing denied February 27, 1980
    Released for publication February 27, 1980

      William H. Craig, for appellant.

      Steve Clark, Atty. Gen., .by: Robert J. DeGostin, Jr., Asst. Atty. Gen., for appellee.
   James H. Pilkinton, Judge.

In the early morning hours of January 4, 1977, Detectives Hardester and Moomey of the Little Rock Police Department vice squad arrested appellant and transported him to the Little Rock Police Department Detention Center. While conducting a “strip search” of appellant, the detectives found three foil packets which were seized and stored.

Officer Moomey ran a field test on one of the packets and the test result was positive for cocaine. Moomey, without opening all the packets, assumed the others also contained cocaine. He turned all three packets over to Officer Sylvester of the Narcotics Division, telling him that they were three packets of cocaine. Sylvester opened one of the packets, observed a white powdery substance, and assuming that all three packets contained cocaine, logged them in and stored them in the narcotic safe. Appellant had been jailed on a charge of possession of cocaine with intent to deliver.

The three packets were subsequently taken to the crime lab of the State Health Department for analysis! Michael S. Keller, a chemist there, tested the substances in the three foil packets, and found that two of them contained white powder which tested positive for cocaine. The third packet, which was smaller, contained abrown powder and tested positively for heroin.

When the lab report was received on or about February 2, 1977, appellant was arrested and charged with possession of heroin. The cocaine charges were not pursued.

On trial for the heroin charge, appellant admitted that he knowingly possessed the two packets of cocaine, but denied having the heroin in question.

The trial court denied appellant’s motion to suppress introduction of the brown powder, and it was admitted into evidence. A jury found the appellant guilty of possession of heroin, and fixed his punishment at two years imprisonment. Judgment was entered on the verdict, and appellant has appealed.

Appellant first argues that the trial court erred in denying his motion to suppress the brown powder, found to be. heroin, and in admitting into evidence the foil packet containing the brown substance.

The record shows that Officer Moomey seized three tin foil packets from appellant. Moomey field tested one of the packets and that showed a positive reaction for cocaine. At least one of the remaining packets was never opened by Moomey. Based on his field test of the one packet, the initial arrest report was filled out to the effect that “three (3) tinfoil packets of a white powdery substance believed to be cocaine” were seized from appellant. One of the packets subsequently turned out to contain brown powder which was heroin. Appellant claims he and his attorney were led to believe, from the information provided through discovery, that the officers had seized only white powder from appellant’s person; and that, according to the officers’ own reports, it had been tested and found to be cocaine. In response to appellant’s motion for discovery, the state provided copies of all documents it had including the chemist’s report. This report clearly indicated that only two packets contained white powder (cocaine), and the third contained brown powder found to be heroin. It seems inconceivable that appellant or his counsel could have been misled in any way because they were furnished with a copy of the lab report. Here the officers seized the heroin in question, but it was not identified as heroin until a chemical analysis was run on the substance at the lab by a chemist. Appellant has offered no authority for the proposition that officers must correctly identify drugs at the time they are seized. Certainly officers are not prevented from lodging a controlled substance offense if they are mistaken in. their initial identification of the substance. Officers on the street are not required to be expert chemists. Here the issue of whether the brown powder packet should have been admitted depends upon the credibility of the witnesses. In such circumstances, we defer to the superior position of the trial court. Whitmore v. State, 263 Ark. 419, 565 S.W. 2d 133 (1978). The appellant cites Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415 (1978), but that case is not in point and is clearly distinguishable from the one before us. Here all the materials and documents in the state’s possession, including the lab report, were provided to the appellant far in advance of trial. We hold that the trial court properly denied appellant’s motion to suppress.

II.

Appellant also argues in his brief that the trial court erred in denying his motion for a directed verdict of acquittal. This point, appellant concedes, is directly related to Point I in that the motion for a directed verdict was premised upon the suppression of the brown powder. Once the packet containing the brown powder is suppressed, appellant says, there is no substantial evidence upon which to sustain a conviction. Since we have held that the trial court properly admitted the evidence in question, no further discussion of Point II need be made.

III.

Appellant finally argues that the trial court erred in instructing the jury on presumption of innocence, reasonable doubt, and circumstantial evidence, and in refusing appellant’s offered instructions on these subjects.

Appellant’s abstract of the instruction proffered, and of the instructions given of which he complains, do not comply with the requirements of Rule 9(d) of the Rules of the Supreme Court and Court of Appeals. Here only excerpts from certain instructions or proposed instructions are included in the briefs filed. We are at a disadvantage in attempting to follow the argument made by appellant in Point III. However, based upon the information before us, it appears that the trial court properly instructed the jury on the law relative to the charge. Where the subject matter of a requested instruction has been sufficiently covered by the instruction given, there is no error in the court’s refusal to give the requested instruction. Cobb v. State, 265 Ark. 527, 579 S.W. 2d 612 (1979).

A trial court is not required to instruct the jury on the law in every possible manner even though a correct statement of it may be prepared by the defense counsel. Butler v. State, 261 Ark. 369, 549 S.W. 2d 65 (1977). The best we can tell from the abstract before us, the instructions in question given by the court differed somewhat from the wording of the instructions offered by appellant. But, be that as it may, the instructions used by the court were proper statements of the law. Instructions which are cumulative are not necessary.

Affirmed.


author: Marian F. Penix, Judge.

text:
    Betty WADE v. STATE of Arkansas
    CA CR 79-110
    594 S.W. 2d 43
    Opinion delivered January 23, 1980
    Rehearing denied February 20, 1980
    Released for publication February 20, 1980

      John W. Achor, by: William H. Patterson, Jr., Chief Appellate Attorney, for appellant.

      Steve Clark, Atty. Gen., by: Victor L. Fewell, Asst. Atty. Gen., for appellee.
   Marian F. Penix, Judge.

On April 19, 1979, Appellant Wade was tried by a jury and found guilty of possession of heroin. She was sentenced to five years. From this sentence Wade appeals.

On August 1, 1978, a warrant was obtained for the search of a residence omMabelvale Pike. During the search by Little Rock police officers Wade was seen to drop to the floor a syringe, a tinfoil packet, and a cotton ball. The syringe and cotton ball contained heroin.

Wade alleges there was insufficient evidence to support the verdict. Richard Fulks, of the Narcotics Division of the Little Rock Police Department, testified he had just told one of the occupants of the residence she was to be searched by a female detective. As he turned to talk to Wade he saw three articles fall to the floor — the syringe, tinfoil packet and cotton ball. He stated he did not see them in her hands but did see them fall to the floor beside her. He testified Wade was stánding alone not close to any furniture nor any other of the occupants. He also stated Wade was the only occupant who was standing. Another officer Lowery testified he saw the packet and syringe on the floor close to Wade. He further stated all other suspects were seven or eight feet from Wade and there was plenty of light in the house. An expert witness from the Arkansas State Crime Laboratory testified the dropped articles contained heroin.

Johnny Trimble testified for Wade and Wade took the stand herself. Trimble testified the packet was on the floor when he and Wade first arrived at the residence. Wade testified she had never seen nor had the syringe and the packet. She also testified it was getting dusky dark and the only light that was on was in the bathroom.

The Arkansas Supreme Court has held that, in cases involving possession of controlled substances, actual or. physical possession is not required.

. . . possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control . . . Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976).

Two officers testified the contraband was very near Wade. One testified he actually saw the contraband drop from Wade’s hands. Their testimony is sufficient to constitute substantial evidence to support the jury verdict. We need not consider the testimony of the defense witnesses which conflicts with the testimony of the officers. The officers’ testimony constitutes substantial evidence.

In pointing out the pertinent testimony on the question of sufficiency of the evidence, we will view the evidence in the light most favorable to the state, considering only that testimony that lends support to the jury verdict and disregarding any conflicting testimony which could have been rejected by the jury on the basis of credibility. Chaviers v. State, 267 Ark. 7, 588 S.W. 2d 434 [No. CR 79-148 (filed October 29, 1979)]

We hold the evidence sufficient to support the jury verdict.

Affirmed.


author: George Howard, Jr., Judge. Marian F. Penix, Judge,

text:
    Chester D. PHILLIPS v. BEN M. HOGAN COMPANY, INC. and THE TRAVELERS INDEMNITY COMPANY
    CA 79-114
    594 S.W. 2d 39
    Opinion delivered January 23, 1980
    Rehearing denied February 13, 1980
    Released for publication February 13, 1980

      Cearley, Gitchel, Bogará, Mitchell & Bryant, P.A., for appellant.

      Friday, Eldredge & Clark, by: John Dewey Watson, for appellees.
   George Howard, Jr., Judge.

This appeal is from a judgment of the trial court, sitting without a jury, finding:

1. The liquidated damages provision in a contract for the construction of a land subdivision project, providing that the contractor shall pay the sum of $100.00 for each working day of delay until the work is completed, was valid.
2. While the project was not completed on the scheduled date, November 6,1977, the job was substantially completed on December 7, 1977.
3. The retainage held by the appellant, in accordance with thé contract, of $4,320.00 shall be charged with $2,600.00 (as liquidated damages) and a judgment rendered in favor of the contractor for $ 1,720.00, including interest from the date of the contractor’s counterclaim at the rate of 6% per annum until the date of judgment and from the date of judgment until paid at the rate of 10% per annum.

While the facts are essentially undisputed, the following is a summary of the relevant facts for an understanding of the issues tendered for resolution:

On August 1, 1977, appellant, the owner, and appellee, as contractor, entered into a contract whereby appellant agreed to pay appellee $108,005.95 for work on a parcel of land that appellant was developing as Normanwood Subdivision. The work included, among other things, grading, asphalting, drainage, water and sewer improvements.

Under the terms of the contract, the project was to be completed ninety calendar days after construction began. Appellee commenced work on August 9, 1977, and, consequently, the scheduled completion date was November 6, 1977.

The contract contained a liquidated damages clause which provided that the contractor shall pay the owner $100.00 for each working day of delay until the work was completed or accepted.

Appellant contends that the project was not finally accepted until April 24,1978, aggregating a total of 144 working days of delay and, accordingly, instituted his action for damages of $14,400.00.

Appellee claimed in its response that while the project was completed and accepted in accordance with the terms of the contract, appellant has refused to make the final payment of $4,320.00, and accordingly, requested judgment against the appellent for the retainage.

For reversal, appellant asserts a novel argument. Quoting from appellant’s brief, appellant’s contention is:

It is appellant’s position that the Court erred in so limiting the award of damages to only the sum accumulated up to December 7, 1977, because where there is a valid provision in a contract specifying liquidated damages, along with a breach of contract which triggers the accumulation of those liquidated damages, the date of ‘substantial performance’, if there is ‘substantial performance’, is irrelevant to the accumulation of those liquidated damages. [According to Appellee’s own records 18.9% of the total man hours occurred after the agreed time for completion and 4.8%occured after December 7, 1977.]

Appellee, on the other hand, in pressing its cross-appeal from the judgment of the trial court, contends that the trial court erred in holding the liquidated damages provision valid; that the provision for payment of $100.00 for each working day of delay is void as a matter of law inasmuch as the stipulated figure is disproportionate to any actual damages sustained by the appellant.

It is settled in this State that where the damages for breach of a contract are by their nature uncertain and difficult to determine, the amount to be paid, in the event there is a breach, may be stipulated to by the parties. However, the stipulated sum will be regarded as a penalty if the sum agreed to exceeds the measure of just compensation and the actual damages sustained are capable of proof. Moreover, the question whether the damages are difficult of proof is one to be determined from a consideration of the status of the parties at the time the contract is executed and not at the time of the breach. Nilson v. Jonesboro, 57 Ark. 168, 20 S.W. 1093 (1893); Blackwood v. Liebke, 87 Ark. 545, 113 S.W. 210 (1908); Hall v. Weeks, 214 Ark. 703, 217 S.W. 2d 828 (1949); Smith v. Dixon, 238 Ark. 1018, 386 S.W. 2d 244 (1965).

In Hall v. Weeks, supra, our Supreme Court stated:

The general rule governing liquidated damages is that an agreement in advance of breach will be enforced, if the sum named is a .reasonable forecast of just compensation for the injury, if the harm is difficult or incapable of accurate estimation.

A valid provision for liquidated damages for á delay in performance of the contract will be enforced where the performance under the contract has not been completed on time. However, where a construction contract is substantially performed within the time limit, delay in the completion of minor details which does not cause material damage to the project will not subject the builder to liquidated damages. 25 C.J.S. § 115 Damages, page 1093; Roseburr v. McDaniel, 147 Ark. 203, 227 S.W. 397 (1921).

In Roseburr v. McDaniel, supra, the Court said:

The rule established by decisions of this court is that where a building contract is substantially performed, even though there are omissions and deviations therefrom, if such defects do not impair the structure as a whole and are remediable ‘without doing material damage to other parts of the building in tearing down and reconstructing, and may without injustice be compensated by deductions from the contract price,’ there may be a recovery for the amount found due after making such deductions.

In Osborne v. Sutter, 143 Ark. 297, 22 S.W. 481 (1920), the contract provided that the work should be completed within 150 working days; and liquidated damages was stipulated to the extent of $10.00 per day for that time in excess of the scheduled completion date. The contractor consumed 390 days in the construction of the project. The trial court found that the delay resulted from causes beyond the contractor’s control which were not within the contemplation of the parties. The court held that the contractor should not be charged with the damages claimed by the owner.

•The Arkansas Supreme Court in affirming the trial court’s conclusion that the liquidating damages clause was inoperative inasmuch as the project was substantially completed, held that the trial court’s holding was supported by a preponderance of the evidence.

Whether a construction project has been substantially completed presents a question of fact to be resolved by the fact finders. Osborne v. Sutter, supra.

We believe that the liquidated damages provision contained in the contract is not a penalty. The uncertainty of the risk taken by appellant in commencing construction of.his land development project in late summer, which obviously would extend into the fall months, justifies a conclusion that each party recognized the possibility that the owner would sustain a substantial loss in the event the project was not completed before winter. The variation and uncertainty of the impact of inflation as an element in the cost of construction affords a basis for finding that there is a reasonable relationship between the stipulated damages of $100.00 per day and the overall cost of the project. We do not consider the stipulated figure as extravagant or disproportionate to the construction cost.

Appellant, during oral argument, admitted that the project was substantially completed on December 7, 1977, and argues strenuously that his case was not predicated on omissions, but was one essentially for damages for delay. Appellant has not cited any Arkansas authority in support of the argument, nor have we found any.

The rule “substantial performance”, which the trial court invoked in resolving this controversy, permits an equitable solution to a controversy where the contractor has tried in good faith to follow the terms of the contract, but is prevented from doing so because of conditions occurring beyond his control or not contemplated by the parties. An owner who has realized special damages after the project has been substantially completed is not precluded from seeking relief even though he may be entitled to stipulated damages. Smith v. Dixon, 238 Ark. 1019, 386 S.W. 2d 244 (1965). Appellant in the instant case did not seek special damages.

Appellant testified that the force of his complaint, relating to the noncompletion of the project, was that a drainage ditch was not constructed according to the grade that is shown on the plans, but did not prevent him from selling lots in full view of the ditch; that as late as April, 1978, appellee was required to patch the asphalt streets and finish the headwalls — a concrete structure designed to prevent erosion of the foundation supporting drainage pipes.

However, the record discloses that 18.9% of the total man hours expended on the project occurred after the scheduled completion date and 4.8% occurred after December 7, 1977; that the Engineering Department of the City of Little Rock inspected and approved the project on December 7, 1977. Appellant also testified that on December 30, 1977, he signed an offer and acceptance for the sale of a lot containing the following provision:

Seller warrants that all utilities are installed to each lot line and are adequate. Seller warrants that subdivision has been approved by FHA and/or VA, and that the City of Little Rock has accepted all utilities.

We are convinced that the holding of the trial court is supported by substantial evidence.

Affirmed.

Hays, J., not participating.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. It is my belief the trial court altered the terms of the contract by limiting the award of liquidated damages to a date before full completion of the terms of the contract. This is error.

The court found the liquidated damages provision to be a valid one. This being the case the court’s arbitrary finding that the liquidated damages of $100 per day ceased to accumulate December 7,1977, was nothing less than an alteration of the contract. These parties bargained and knowingly entered into an agreement, the terms of which were clear and unambiguous. One of the bargained-for terms was that the work would be fully completed within 90 days. Testimony indicates the need for this 90 day term was to insure the work would be completed before the winter rains.

Liquidated damages are enforceable when they are provided for to compensate for damages which will be difficult to ascertain if the contract is breached, and thereby prevent a controversy between the parties as to the amount.

This liquidated damages clause was triggered not by lack of substantial performance, but rather by the failure to complete the work within the agreed upon time frame.

The doctrine of substantial completion is applicable in situations where the contractor fails too finish the job. It is used as a means to determine damages. In this case the contract was fully performed, but in an untimely manner. Performance was completed but not by the agreed upon date. It was not completed within 90 days. The parties had provided the measure to be used to determine compensation due the appellant in the event the appellee failed to. perform within 90 days.

I see no reason for the court to alter the terms of a contract which were agreed to by knowledgeable, experienced business persons.

Therefore, I respectfully dissent.

       Appellant is a professional engineer. He prepared the plans, specifications and contract. Appellee was the lowest bidder and was awarded the contract for the job.


author: George Howard, Jr., Judge.

text:
    Derrick HODGES v. STATE of Arkansas
    CA CR 79-112
    593 S.W. 2d 494
    Opinion delivered January 23, 1980
    Released for publication February 13, 1980
    ■ John W. Achor, Public Defender, by: Howard W. Koopman, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Judge.

Appellant was convicted of robbery by the trial court sitting as a jury and was sentenced to the Department of Correction for five years, with two years suspended. Appellant’s request for credit for the time spent in the county jail was denied.

Following appellant’s release from jail, after executing bond, on January 25, 1978, appellant failed to appear at a scheduled hearing on January 3, 1979. Pursuant to an alias warrant, appellant was arrested and confined to jail on a “no bond” status on January 5,1979, and remained incarcerated until the date of his conviction on March 30, 1979. Hence, appellant spent eighty-five (85) days in jail from the date of his arrest on the alias warrant to the date of his conviction.

The State argues that appellant is not entitled to credit since appellant’s confinement was due to his failure to appear and not because of indigency. In other words, appellant, in effect, was a fugitive from justice and that the facts in the instant case are functionally equivalent to those in Hughes v. State, 260 Ark. 399-A, 540 S.W. 2d.592 (1976), where our Supreme Court held that appellant was not entitled to credit for the period spent in Alaska as a fugitive from justice awaiting transportation back to Arkansas.

Ark. Stat. Ann. § 41-904 (Repl. 1977) provides:

If a defendant is held in custody for conduct that results in a sentence to imprisonment, the court shall credit the time spent in custody against the sentence.

It is clear that no charge was lodged against appellant for failure to appear.

While appellant’s confinement on January 5th was pursuant to an alias warrant, it is plain he was held under the robbery charge pending final disposition of that charge. We are persuaded that appellant is entitled to credit for the period dating from January 5th to March 30th, aggregating a total of eighty-five (85) days.

The judgment, as so modified, is affirmed.

      Ark. Stat. Ann. § 41-2820 (Repl. 1977) provides in pertinent part:
      (1) A person commits the offense of failure to appear if subsequent to having been:

        (b) lawfully set at liberty upon condition that he appear at a specified time, place, and court: he fails to appear without reasonable excuse.
      (2) Failure to appear is a class C felony if the required appearance was to answer a charge of felony or for disposition of any such charge either before or after a determination of guilt of the charge.


author: David Newbern, Judge.

text:
    Stottie PENDERGIST v. Jessie PENDERGIST
    CA 79-182
    593 S.W. 2d 502
    Opinion delivered January 23, 1980
    Released for publication February 13, 1980

      E. Winton Mclnnis, III, for appellant.

      Joe Peacock, for appellee.
   David Newbern, Judge.

The appellant sought a nonsuit to her divorce action. The chancellor refused to grant the nonsuit because he regarded the divorce decree as having been rendered from the bench at the divorce hearing, although he recognized that the appellant’s request in her divorce complaint that the court adjudicate property rights had been taken under submission as of the date of the divorce hearing. In his memorandum opinion denying the nonsuit, the chancellor held the divorce had been granted but that he could take no action with respect to the property rights of the parties because the husband-defendant had died after the property aspects of the case were submitted but before they were finally decided.

On the day of the divorce hearing, the chancellor wrote the following docket notation:

6-5-78 On oral of parties — Burl Simmons, et al. — Submitted.

On December 22, 1978, the chancellor entered a formal decree nunc pro tunc July 5, 1978, the date of the hearing. The decree, in addition to describing the previous rendition of the divorce, said the following with respect to the parties’ property:

4. That all items of personal property held in the entireties will be governed by the statutes pertaining thereto and that all property held in the name of the Defendant only will abate as the date of his death, and the Court will make no further actions regarding such property.

The appellant asks us to decide either that she is entitled to her nonsuit or that this action abated upon the death of a party. We hold the latter.

The parties appeared at the divorce hearing on July 5, 1978. The appellant put on her testimony and corroboration. The appellee and his counsel were present, not to contest the taking of the divorce, but to protect his interest in an equitable property distribution. The chancellor’s memorandum decision denying the appellant’s nonsuit motion recites he had been forewarned one of the parties had a serious heart condition which was affected by emotional stress, and in view of the “unusual bitterness’’ between the parties, he wanted to prevent emotional outbursts in the courtroom. The memorandum says that after the plaintiff had presented the evidence on the issue whether the marriage should be dissolved:

The court then heard all of the evidence concerning property rights. When both parties had rested and at the suggestion of counsel the Chancellor in open court declared that the plaintiff s prayer for divorce was granted and the marriage of the parties dissolved, reserving for further consideration all other issues.
Upon departure of the parties, the court having already reached a determination on each and every issue, outlined to counsel what was thought and intended to be a full determination of all issues, permitting counsel, as I usually do, to vary the terms if they could by agreement make a happier solution in the final and formal decree.

We agree that when a chancellor has rendered a decree in open court the decree is effective as of that time even if not entered of record. That is the express holding in Parker v. Parker, 227 Ark. 898, 302 S.W. 2d 533 (1957). But the Parser case did not involve a docket notation of any kind, whereas in this case we find a docket notation inconsistent with the later finding by the chancellor that a decree had been rendered.

In the case of McConnell v. Bourland, 175 Ark. 253, 299 S.W. 44 (1927), the court reviewed authorities from several jurisdictions and reached the following holding:

There are authorities to the contrary but we hold that when a decision has been reached, announced by the court, and sufficient memorandum [is placed] on the chancery docket to show a final settlement of the case, it is a final judgment, although it has not been spread in full on the record. [Emphasis added. 175 Ark. at 263]

Although in that case there had been .a docket entry of the judgment the supreme court found extant, and thus the lack of one or an inconsistent ¿ntry was not the question, we are persuaded by the language quoted because it was the court’s synthesis of the cases cited at the end of a long discussion of the nature of a final judgment.

Not only are we guided by the language and holding of the McConnell case, supra, but we are persuaded by dictum in Stickland v. Strickland, 80 Ark. 451, 97 S.W. 659 (1906). There, the supreme court was presented with a case in which the. trial court had rendered a divorce decree, and one party had appealed. The supreme court had taken the case under submission, but the appellee died before the appeal was decided. In the course of deciding it had the power to render its appellate decision despite the death of a party, the supreme court said:

Of course, death terminates a divorce suit; but where property rights depend on the correctness of a divorce decree, and an appeal has been taken from it, it is the duty of the appellate court to review the decree in order to settle the property rights. [Citations] The rule is otherwise where the cause has been submitted to the trial court, and one party dies before decree. No decree can be entered after death of a party to such a suit. [80 Ark. at 452]

Were we to uphold the chancellor’s nunc pro tunc order as the appellee asks us to here, we would be leaving the parties divorced but with no accompanying property adjudication despite the fact that the appellant had sought it in her complaint. Following the quoted statement from the Strickland case, we cannot now order the chancellor to enter a supplemental decree declaring the property rights of the parties. Thus, the appellant would have had part of her lawsuit decided and part left undecided. The problem is that without any. decision on the property part of the suit, the parties’ rights are affected in a manner not intended by them or by the court. There is nothing in the record to indicate the appellant consented to a piecemeal resolution of the case. For the court to say now the divorce was rendered and the property held by the entireties will be governed by a statute covering the property rights of divorced persons [Ark. Stat. Ann. § 34-1215 (Supp. 1979)]effectively denies the appellant an adjudication of her property rights to which she would have been entitled under Ark. Stat. Ann. § 34-1214 (Repl. 1962), which was in effect at the time her suit was brought. That would not be a fair resolution of the case, and as stated earlier, we believe it would not be correct, as the docket indicated no final action whatever.

As the appellant points out, this problem will not occur in cases brought after July 1, 1979, because of Ark. R. Civ. P. 58 and 79 which make it clear that a judgment in a case such as this will not be effective until it has been at least entered on the court’s docket.

We hold that although the appellant was not entitled to a nonsuit, this case had been taken under submission and not finally decided by the trial court when the death of a party caused the action to abate, thus the nunc pro tunc order is of no effect.

Reversed and dismissed.


text:
    SOUTHEAST ARKANSAS FARMERS ASSOCIATION v. Cliff WALTON
    CA 79-261
    597 S.W. 2d 603
    Opinion delivered January 23, 1980
    Released for publication February 13, 1980

      Samuel N. Bird, of Williamson, Ball & Bird, for appellant.

      Jerry E. Mazzanti, of Drew & Mazzanti, for appellee.
   David Newbern, Judge.

In this workers’ compensation case,'the appellant contends there was not substantial evidence for the commission’s finding of the time of termination of a healing period and lack of substantial evidence to support a finding of permanent, partial disability of fifteen per cent to the body as a whole. We affirm the Commission’s decision.

Mr. Walton sustained an indisputably compensable injury while working for the appellant in May, 1976. He fell to a concrete floor from an overturning tractor, and the seat of the tractor fell on top of him. Since the accident he has complained continuously of severe back pain.

The appellee was first examined by Dr. Burge shortly after the accident. In a report dated August 16, 1976, Dr. Burge stated he had diagnosed “possible soft tissue injuries (sprains and strains)” and that the accident was the only cause of the condition he diagnosed, He stated the injury would “result in no permanent defect.” The report stated Mr. Walton was able to resume regular work June 14, 1976, but that he would require additional treatment for an undetermined period. The report also said the claimant had been referred to a neurologist, Dr. Frothingham.

In a report dated September 20, 1976, Dr. Frothingham said, “there is great sparcity of clincial evidence to support an organic basis for his complaints.” This report was based on an examination conducted September 17, 1976. The commission used September 17, 1976, as the date for the termination of the healing period, presumably on the basis of this examination which found no organic cause of the appellee’s complaints. Dr. Frothingham’s report makes it fairly clear he considered the appellee to be a malingerer, although he did not rule out or address the possibility of traumatic neurosis.

A third physician, Dr. Flanigan, filed two separate reports after examining Mr. Walker. One report was dated November 3, 1976, and one was dated February 23-, 1978. In his initial report, Dr. Flanigan found some muscular asymmetry and movement restriction. In his second report, which was made a part of the record after the hearing, Dr. Flanigan concluded as follows:

I suspect he is facing a permanent partial limitation in his functional capabilities as a consequence of a musculo-skeletal disorder. I would consider that reasonably set at ten percent.

The appellee’s testimony was of very severe back pain and consequent employment and other personal problems. His testimony was supported by that of his estranged wife' and a fellow employee at one of the jobs he has held since the accident. We regard the evidence in this case as sufficiently substantial to support the commission’s finding of permanent, partial disability of fifteen per cent to the body as a whole. We also find there is substantial evidence the healing period ended September 16, 1976, rather than June 14, 1976, as Dr. Burge’s report specifically said further treatment would be required, and the later examination by Dr. Frothingham found the claimant needed no further treatment.

We are somewhat persuaded by the appellant’s argument that in view of the nature of Dr. Frothingham’s conclusions the use of the date of his examination as the point of termination of the healing period is a little questionable. But for the testimony of the claimant’s wife and fellow employee, we would also be hard pressed to agree there was substantial evidence of permanent disability in excess of the ten per cent assessed by Dr. Flanigan. However, doubtful workers’ compensation cases are resolved in favor of the claimant. Cummings v. United Motor Exchange, 236 Ark. 735, 368 S.W. 2d 82 (1963), is a case which applied that well known “liberal interpretation” concept to the determination of the duration of a healing period. In addition, we will view the evidence in the light most favorable to the commission’s findings. Purdy v. Livingston, 262. Ark. 54, 559 S.W. 2d 54 (1977); Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W. 2d 868 (1977).

Affirmed.

Hays, J., dissents.


author: David Newbern, Judge. Marian F. Penix, Judge,

text:
    Leroy PHILMON v. STATE of Arkansas
    CA CR 79-80
    593 S.W. 2d 504
    Opinion delivered January 23, 1980
    Released for publication February 13, 1980

      Napper, Wood, Hardin & Grace, P.A., byvHenry A. Allen, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   David Newbern, Judge.

The appellant was convicted of possession of heroin and sentenced to ten years confinement and a fine of $10,000. He has raised five points for reversal which we will consider seriatim. We will set out the basic facts at first and then add facts as may be necessary with respect to the discussion of each of the appellant’s points. Our ultimate conclusion is the conviction must be affirmed, but the sentence reduced to the minimum which could have been given because of errors which might have affected the jury’s decision on the sentence but which did not go to the question of guilt or innocence.

The appellant and a companion were driving into Garland County when their vehicle was stopped by officers who had a warrant, issued by the North Little Rock Municipal Court, for the appellant’s arrest. After the appellant got out of the car, he was asked to acknowledge he understood the rights which had been read to him. When he did not speak, it became apparent he had something in his mouth which he was chewing. He and the police officers scuffled briefly, and ultimately he was talked into spitting out several plastic bags which were then field tested and found to contain heroin.

On the .side of the car where the appellant’s companion was riding, a loaded .45 caliber pistol was found.

After the appellant had been arrested, he was taken to a hospital where a physician gave him a lavage whieh caused the appellant to disgorge the contents of his stomach which were placed in a container and later determined to contain heroin. There is no evidence that appellant consented to this procedure, but the record makes it clear no corporal force was used, and the doctor testified he considered the procedure necessary to protect the appellant from injury or possible death due to heroin overdose, given the circumstances.

1. The Arrest Warrant

The prosecutor asked his first witness, Detective Mack, how he “became involved” in the matter. Detective Mack said the day before the arrest he obtained a copy of an arrest warrant for the appellant from the police department at North Little Rock. At that point, Mr, Coffelt, the appellant’s trial defense counsel, madé this statement:

Now, I object to that, if the court please, and ask for a mistrial. They charged him with another case not involved here and I object to it, and it’s clearly grounds for a mistrial.

The appellant argues the mention of the warrant was inadmissible because of the general provisions of Ark. Stat. Ann. § 28-1001, Rule 404(b) (Repl. 1979), which says evidence of other crimes is not admissible except under certain circumstances. That argument assumes the jury would somehow have known the warrant was for a different offense because it was picked up in North Little Rock (Pulaski County) and the accused was being tried in Garland County. At that point, no mention had been made of the court or authority issuing the warrant.

Yet, the appellant has not shown how the fact that a warrant was obtained in one county means necessarily it was not issued in the county where the accused is being tried. In short, although we agree with the appellant’s counsel’s statement on oral argument before us that jurors are usually astute in these matters, we are not convinced even the most knowing juror would or could have concluded the warrant was for a different offense until the appellant’s trial counsel told them.

We hold that, to whatever extent the knowledge that the appellant had been accused of a different offense from the one for which he was being tried may have prejudiced the appellant, it was invited or created by him and should not be a basis for relief on appeal. Stovall v. State, 233 Ark. 597, 346 S.W. 2d 212 (1961).

2. Refusal of Proffer

After denying the mistrial motion the trial judge admonished the jury not to consider the warrant as evidence of guilt or innocence. Later, in his cross examination of Detective Mack, trial defense counsel returned to the subject of the warrant and asked if it was one the Gircuit Court of Pulaski County had held void. The prosecutor objected, and colloquy among the prosecutor, the defense counsel and the court ensued, terminating as follows:

THE COURT: What are you going to ask?
MR. COFFELT: I’m going to ask if he has personal knowledge of the fact that the warrant he’s talking about on direct examination was held to be void by the Pulaski Circuit Court. You see, here’s what happened, Judge—
THE COURT: Overruled.
MR. COFFELT: If he has personal knowledge, it wouldn’t be —
THE COURT: You’re overruled and that’s the end of it.

The appellant argues the defense counsel was attempting to proffer evidence that the appellant was acquitted of the charge which was the basis of the arrest warrant. We cannot know what the defense counsel wanted to tell the court, but that is not the point.

If the state had introduced the evidence of a different offense having been charged against the accused, the accused would have been entitled to show he was acquitted of that charge. There is authority to the contrary in older cases. Annot., 86 A.L.R. 2d 1133, § 4pp. 1144-1146(1962). However, most recent cases would clearly require he be permitted to produce the evidence of acquittal. State v. Smith, 271 Or. 294, 532 P. 2d 9 (1975); Womble v. State, 8 Md. App. 119, 258 A. 2d 786 (1969); People v. Griffin, 66 Cal. 2d 459, 58 Cal Rptr. 107, 426 P. 2d 507 (1967); State v. Calloway, 268 N.C. 359, 150 S.E. 2d 517 (1966).

The court should have permitted the proffer so that we could have had a complete record on appeal. We cannot say the appellant’s defense counsel did not honestly believe the state had demonstrated to the jury a charge on a different offense. We had to study the record well before coming to the conclusion that the error, if any, was invited or produced by the defense counsel. It certainly was questionable at the time of the trial, and the judge should have permitted the proffer. We would so hold even had it been clear at the trial that the defendant had been the first to signal the jury with respect to the different offense to which the warrant related. It was the prosecution’s witness who first mentioned the warrant and stimulated the discussion, thus it seems certain the appellant was not trying independently to get his previous acquittal before the jury.

3. The Pistol

The appellant contends the testimony about the weapon was inadmissible because it was not relevant to the offense of possession of heroin and was prejudicial. The appellee argues that the court should not consider this matter as it is being raised for the first time on appeal, citing Pace v. State, 265 Ark. 712, 580 S.W. 2d 689 (1979).

Trial defense counsel objected at the trial to the testimony of the officer who found the weapon in the car. The objection was first phrased in terms of lack of foundation to permit a search for a weapon. Later objection was phrased in general terms. Pace v. State, supra, holds that where the specific objection to the.evidence is raised for the first time on appeal, it will not be considered, citing Ark. Stat. Ann. § 28-1001, Rule 103 (a) (1) (Repl. 1979). That rule says specific, timely objection must be made “if the specific ground was not apparent from the context; . . .” .

It should have been apparent to the court that the pistol was not relevant and should not have been discussed before the jury. Although the objection was at first made on a different ground, we regard the later general objection as sufficient, “in the context” of this trial.

The appellee cites several cases holding a weapon may be introduced where “narcotics transactions’’are involved, because it may be relevant to show intent. E. G., Freeman et al v. State, 258 Ark. 496, 527 S.W. 2d 623 (1975). All of the cases cited, however, dealt with offenses where intent was a factor, unlike this case where possession is the only charge. •

The objection should have been sustained..

4. The Stomach Contents

The appellant argues the prosecution should not have been allowed to introduce the container with the fluid obtained from his stomach. An objection was made at the trial on the ground it was obtained by an illegal search. The trial judge held the objection was not timely as no motion to suppress had been made in accordance with Ark. R. Crim. P. 16.2,

The appellant appears to recognize the correctness of this ruling, but asks to consider the matter “in spite of Rule 16.2’ ’ because he feels he was denied the effective assistance of counsel at the trial.

Ark. R. Crim. P. 37 provides a means of raising the question of competency of counsel in the trial court. We will not entertain an initial consideration of it on appeal. Houston v. State, 266 Ark. 257, 582 S.W. 2d 958 (1979); Halfacre v. State, 265 Ark. 378, 578 S.W. 2d 237 (1979); Hilliard v. State, 259 Ark. 81, 531 S.W. 2d 463 (1976).

5. Discovery

The appellant argues the trial judge refused his proffer of evidence that the prosecution had not compiled with Ark. R. Crim. P. 17 in permitting him access to the prosecution file. The objection at the trial came in the form of a statement by the defense counsel that he did not recall the statement of a particular witness as having been in the file.

The objection was overruled, apparently with some brusqueness by thejudge. The defense counsel then said, “I understand but I still have to make my record, Judge,” to which thejudge replied, “and, your motion [to suppress] is overruled. Can’t you understand that?”

Although the appellant couches the point in terms of refusal of a proffer, a reading of the record leaves no doubt that no proffer was intended and in referring to “making a record,” the defense counsel was merely explaining his objection or giving a reason for having made it. We find no error.

Conclusion

We thus find two errors: first the refusal to allow the proffer of evidence of acquittal on the charge to which the warrant pertained; and second, admission of testimony with .respect to discovery of the weapon. Given the overwhelming evidence, which was undisputed, that the appellant was in possession of heroin when he was arrested, we find these errors harmless to the extent that they could not have influenced the jury on the question whether the appellant was in fact in possession of heroin. If error is harmless and the evidence of guilt is overwhelming, reversal is not warranted. Pace v. State, 265 Ark. 712, 580 S.W. 2d 689 (1979); Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726 (1969).

However, these errors (particularly the testimony on the pistol) could have improperly influenced the jury in its setting of the sentence. Because.of this possible prejudice in the imposition of sentence, we affirm the conviction but reduce the sentence to the minimum the jury could have given for the offense of which the appellant was convicted. Rogers v. State, 260 Ark. 232, 538 S.W. 2d 300 (1976); Osborne v. State, 237 Ark. 170, 371 S.W. 2d 518 (1963); Simmons v. State, 227 Ark. 1109, 305 S.W. 2d 119 (1957). The sentence is thus reduced to two years confinement. See, Ark. Stat. Ann. § 82-2617 (Supp. 1979), and Ark. Stat. Ann. §§ 41-901 and 1101 (Repl. 1977).

Affirmed as modified.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. I disagree with the majority. It is not within our authority to reduce the sentence.

In Osborne v. State, 237 Ark. 5, 371 S.W. 2d 518 (1963) the Supreme Court holds:

If testimony supports conviction for offense in question and if the sentence is within the limits set by the legislature, we are not at liberty to reduce even though we may think it to be unduly harsh.

In a supplemental opinion on Rehearing the Court holds:

When the erroneous ruling has nothing to do with the issue of guilt or innocence and relates only to punishment, it may be corrected by reducing the sentence to minimum provided by law.

In 1971 the legislature enacted Ark. Stat. Ann. § 43-2725.2 which empowered the Court to reduce a sentence if the court deemed it excessive. This act was held to be unconstitutional in 1974 in Hooper v. State, 257 Ark. 103, 514 S.W. 2d 394 (1974) where it was determined:

The right to exercise clemency is, however, vested not in the courts but in the chief executive ... If the testimony supports the conviction for the offense in question and if the sentence is within the limits set by the legislature, we are not at liberty to reduce it even though we may think it to be unduly harsh.

Then in Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977), cert. denied 434 U.S. 878, Justice Hickman dissents:

If this language were not enough, it was made perfectly clear in the Hooper case that this court would not reduce a sentence because it was excessive, or was based on passion and prejudice ... I believe the decisions of this court in the Osborne and Hooper cases were wrong and should be overruled. It is not a matter of clemency to correct an injustice; it is simply the law at work.

The Collins case prohibits our reducing Philmon’s sentence.

Again in Stout v. State, 263 Ark. 355, 565 S.W. 2d 23 (1978) Justice Hickman concurs with the majority in refusing to reduce the sentence, but states:

The majority uses our decision in Collins v. State, (supra) as authority that we retain the power to reduce an excessive sentence caused by passion or prejudice. It may, be( that we retain the power but I know of no instance where we have exercised it. We have reduced sentences only because of some legal error.

The legal errors referred to in these cases pertain to the sentence itself i.e. where the sentence imposed is greater than the provision under which the criminal charge is brought, or where a legal error has resulted in a misinterpretation óf a statutory punishment.

In the case of Rogers v. State, 260 Ark. 233, 538 S.W. 2d 300 (1976) the error was the admission of a prior conviction which made the defendant a habitual offender. One of his previous convictions was as a juvenile and therefore could not be considered. This legal error led to an excessive sentence which was subsequently reduced.

In the instant case we have no evidence the jury verdict and sentence resulted from prejudice and passion. Nor was there an erroneous instruction as to the potential sentence or an erroneous sentence imposed. The sentence was within statutory limits.

I agree with my colleagues there was error committed in the trial court. I do not find these to be harmless. We can only conjecture as to what affected the jury’s deliberation and consideration. There is no way appellate court judges, limited to the record, can determine those factors which influenced the jury’s determination of guilt and those which determined the punishment. To insure this defendant genuine due process, this court should reverse and remand for a new trial.

Therefore, I respectfully dissent.


author: PER CURIAM

text:
    John ALEXANDER v. WALNUT FORK DESIGN et al
    CA 79-69
    593 S.W. 2d 493
    January 23, 1980
    Released for publication February 13, 1980

      Forrest E. Dunaway, for appellant.

      Herrn No.rthcutt, for appellees.
   PER CURIAM

This is an appeal from a decision by the Board of Review of the Department of Employment Security. Claimant is the president of the corporate employer, Walnut Fork Design, Builders and Woodworking Company, Inc., but also serves in the company as an hourly wage earner. As president, claimant is one of four stockholders in the company, each holding a 25% interest.

On April 10, 1979, the corporation ran out of work, and the four owners, including the claimant, decided to lay claimant off until June 5, 1979, when two other jobs were to begin.

Claimant contends that his being laid off from his work as an hourly wage earner in the company entitles him to unemployment compensation benefits within the meaning of Section 4 (c) of the Arkansas Employment Security Act. The Agency had determined that claimant was ineligible for benefits under the provisions of Section 5(a) of the Arkansas Employment Security Law, but the Appeals Referee modified the Agency determination by finding that claimant was not unemployed within the meaning of Section 4(c). The Board of Review upheld the decision of the Appeals Referee, stating that the claimant’s interest and commitment to the Corporation “precludes his entering the local labor market in search of other employment ...” Claimant now brings this appeal alleging that there is no substantial evidence to support the Board of Review’s decision.

On the contrary, we find substantial evidence to support the decision of the Board of Review and, accordingly, must affirm its holding on appeal. Terry Dairy Products Company, Inc. v. Cash, Commissioner of Labor, 224 Ark. 576, 275 S.W. 2d 12 (1955). Under Section 4(c), in order to qualify for benefits, the claimant must be available for work and willing to accept it. He must be doing those things which a ‘‘reasonable prudent individual” would be expected to do to secure work. Claimant, at one point in the proceedings, stated:

We have two jobs lined up, but can’t start either of them now. I will not be seeking work on my own right now because of the jobs we have lined up. (T. p. 12)

It is clear from claimant’s statement that he was not available for other employment and not doing those things one would normally do in order to find employment; which are required under Section 4(c) in order tó be eligible for benefits. From the facts before us, we must affirm the decision of the Board of Review.


author: Ernie E. Wright, Chief Judge. Marian F. Penix, Judge,

text:
    VAC-PAC, INC. and MARYLAND CASUALTY COMPANY v. Vernon P. SIMPSON and SOUTHERN FARMER’S ASSOCIATION et al
    CA 79-42
    595 S.W. 2d 690
    Opinion delivered January 30, 1980
    Petition for Review denied March 3, 1980
    Released for publication March 17, 1980

      Mays & Murray, by: Walter A. Murray, for appellants.

      Barron, Coleman & Barket, by: Gary P. Barket and Laser, .Sharp, Haley, Young & Huckabay, P.A., for appellees.
   Ernie E. Wright, Chief Judge.

Vac-Pac, Inc., and its insurer bring this appeal from an order of the Workers’ Compensation Commission awarding appellee Vernon P. Simpson 30% permanent partial disability to the body as a whole and necessary and reasonable medical expenses. The award allocated responsibility for 20% of the permanent disability incident to claimant’s two back injuries occurring in 1975 and 1976, together with reasonable medical expenses, against Southern Farmer’s Association, and responsibility for 10% of the.permanent partial disability was awarded against the appellant Vac-Pac, claimant’s subsequent employer, along with reasonable and necessary medical expenses incurred as a result of what the Commission found was an aggravation of a prior injury suffered on June 20, 1977 in the course of claimant’s employment by Vac-Pac. The Administrative Law Judge found no additional permanent partial disability incident to the June 20, 1977 injury at Vac-Pac.

The decision from which the appeal stems also remanded the case to the Administrative Law Judge for further determination of appellee’s claim filed in February 1979, in which he alleges that subsequent to the award, of the Administrative Law Judge on September 29, 1978, he became further unable to work, has incurred further medical expenses and claims the following additional benefits:

Temporary total disability, permanent partial disability, medical expenses, replacement of back brace, and attorney fees.

Southern Farmers Association, one of the appellees, announced at the hearing before the Administrative Law Judge it accepted liability for 20% permanent disability to the body as a whole and medical expenses incident to the 1975 and 1976 back injuries sustained by claimant in the course of employment by Southern Farmer’s and for which he had surgery, and was fitted with a back brace; Claimant testified at the hearing on June 2, 1978, that on June 20, 1977 while working for Vac-Pac he felt a sharp pain in his back when he “reached to move” a steel mold a quarter of an inch. At the time of the alleged third injury, he was still under the care of Dr. Adametz for his 1975 and 1976 injuries and was being seen by the doctor every four to six weeks. Claimant continued working after the June 20, 1977 incident. The doctor was unable to find any clinical evidence of injury resulting from the June 20, 1977 incident. He was laid off soon after the incident and next went to work for Freshour, a contractor. He further testified that around Labor Day 1977 he sat down in a recliner at home and when he got up he went down to the floor with pain in his back and legs. He was hospitalized in December 1977 and was placed in a body cast for a few days. He testified he had experienced pain in his lower back and legs continually since November, 1975 after his first injury and the pain was greater after the second injury. He has taken muscle relaxers ever since the second injury, and stated his condition was essentially the same at the time of the hearing as it was prior to the incident at Vac-Pac.

Vac-Pac contends the incident on June 20, 1977, while claimant was in its employ, was a recurrence of the prior injuries claimant sustained and that there were other intervening causes associated with his present complaints.

Claimant had been working fifty to seventy hours per week for Freshour some ten weeks at the time of the hearing before the Law Judge on June 2, 1978.

Appellant Vac-Pac and its insurer assert the following points for reversal:

I.
The facts found by the Commission do not support the order or award.
II.
There is not sufficient, competent evidence in the record to warrant the making of the order or award.
III.
The Commission acted without or in excess of its powers.

We find the following facts in the record require a reversal of the Commission’s decision and that these issues are adequately raised by the points asserted for reversal.

There is no medical evidence in the record indicating claimant has more than 20% permanent partial disability to the body as a whole, the report by the clinical psychologist dated August 31, 1977 gives the history of claimant’s 1975 and 1976 injuries, but makes no mention of.any injury of claimant while in the employ of Vac-Pac, and the claimant admitted at the hearing his condition was essentially the same as it was prior to the incident he described as occurring at Vac-Pac on June 20, 1977. The appellee’s supplemental claim filed in February, 1979, after the decision of the Law Judge, alleges he became further unable to work and seeks an increased award. Without a further evidentiary hearing, the Commission on April 10, 1979, through its executive director, wrote respective counsel the “Commission preferred to consider the new petition before or simultaneous with its decision on appeal and the new petition would be treated as a petition to remand.” Thereafter on June 1,1979, the Commission issued its opinion making the award above indicated and also remanding the claim for a consideration of the merits of the new request for benefits.

In view of the pendency of the supplemental claim seeking broad increased benefits and the decision of the Commission to remand the case for consideration of the supplemental claim on the merits, and the lack of objective medical findings of additional disability of claimant arising out of the June 20,1977.incident or injury sustained while claimant was in the employ of Vac-Pac, we hold it was error in the state of the record for the Commission to make a final determination and award of permanent partial disability to the body as a whole in excess of the 20% accepted by Southern Farmer’s and to award attorney fees on the additional award. In view of the remand for further hearing, which we think was proper, the determination of whether the incident resulted in additional disability of the claimant, and if so, the extent thereof, which medical expenses incurred on or after June 20, 1977 were treatment for his new injury and which were a result of his two prior injuries, and all other relevant factors should be determined after further evidence is taken on remand.

We reverse the decision and award of the Commission with instructions the entire case be remanded to the Law Judge for a determination of all issues after the completion of further evidence.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. The majority opinion is contrary to the concept and spirit of the Arkansas Workers’ Compensation Act and its interpretation by the courts from its beginnings in 1940 to the present.

The legislature intended speedy relief for deserving workers with job-related injuries and has directed this court give appeals from Workers’ Compensation cases precedenceoverall other civil cases. Ark. Stat. Ann. § 81- 1325(b).

Here, the claimant Vernon P. Simpson, has been plagued with job-related back injuries dating back to 1975 when he was employed by appellee Southern Farmers’ Association. After treatment he returned to. work for Southern but was reinjured and did not again work for Southern. He was unable to work again until released by his neurosurgeon, Dr. John Adametz, who examined claimant on April 8,1977 and fixed his permanent residual disability at 20% to the body as a whole and instructed the claimant to continue to use his back brace indefinitely. The claimant did not return to his employment with Southern Farmers, but went to work for appellant Vac-Pac in June 1977. A short time later, while working for Vac-Pac, his back again disabled him June 20, 1977, and there is substantial evidence for the finding of the Workers’ Compensation Commission that this was a re-injury chargeable to Vac-Pac and not a recurrence chargeable to Southern Farmer’s.

Approximately four years after claimant’s first injury at Southern Farmer’s, an opinion of the Workers’ Compensation Commission on June 1,1979 ordered Southern Farmer’s to pay claimant medical expense for the early back injuries while claimant worked for Southern Farmer’s plus 20% permanent partial disability to the body as a whole. Vac-Pac was ordered to pay an additional 10% for the latest injuries incurred while claimant worked for Vac-Pac.

During the pendency of appeal the claimant’s attorney had filed a petition for a change of physicians (to which claimant could be entitled only if his healing period had not ended. Rule 21 of the Workers’ Compensation Commission), and for continuation of temporary total disability. There was no new evidence of continued temporary total disability. A letter from Dr. Wilbur Giles, an associate of Dr. Adametz, discharged claimant as of September 7,1977, although there were subsequent reports of continued back problems.

Although there was no new evidence, the Commission, in its opinion, remanded the claim for continued temporary total disability and a change of physicians to the administrative judge for consideration.

Vac-Pac and Maryland Casualty ingeniously have argued that the remand nullifies the Commission’s opinion of June 1, 1979 because Ark. Stat. Ann. § 81-1323(b) requires that the Commission had to receive and consider the administrative judge’s findings regarding the change of physicians and additional temporary total disability before any decision or award “in such case”.

‘ ‘ In such case’ ’ obviously réfers to the change of physicians and additional temporary total disability. It does not direct further delay of any award on the pending claim.

The majority opinion needlessly now will require the Commission to re-write its opinion of June 1,. 1979, inserting therein what it deems relevant from the administrative judge’s new findings.

Workers’ Compensation claims remain ongoing until barred by limitations. Ark. Stat. Ann. § 81-1326 permits modification of awards because of a change in the physical condition of a claimant.

The Supreme Court reversed us only two weeks ago for trying to impose strict rules of law upon the Workers’ Compensation Commission.

First, the compensation law provides that the Commission is not bound by technical rules of evidence or procedure, but may “conduct the hearing in a manner as will best ascertain the rights of the parties.” St. Paul Ins. Co. and American Burger Systems, Inc. v. Deborah Touzin, 267 Ark. 539, 592 S.W. 2d 447 (1980).

To me, the majority opinion is violative of the Touzin mandate. I would affirm the decision of the Workers’ Compensation Commission.


text:
    Carl Don SMITH v. STATE of Arkansas
    CA CR 79-105
    594 S.W. 2d 255
    Opinion delivered January 30, 1980
    Released for publication February 20, 1980

      Wayne Mooney, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   M. Steele Hays, Judge.

Carl Don Smith was tried and convicted of possession of merchandise stolen from the grocery store of Gerald Mason. The jury imposed a sentence of two years imprisonment.

For reversal, appellant urges that his motion to suppress certain evidence should have been upheld as having been seized by a private citizen acting as an agent of the police and conducting a search without a warrant.

Testimony at the hearing on the motion established that Gerald Mason discovered that his grocery store had been broken into when he arrived to open for business. White plastic trash bags were strewn around, and Mr. Mason found that shotgun shells, rifle cartridges, cigarette cartons, meats and other merchandise were missing. The sheriffs office investigated and the deputy gave the names of several possible suspects to Mason, including Carl Don Smith and Vernon Hightower. Mason was instructed to call the sheriffs office if he. discovered any leads or heard anything. Mason and a cousin undertook their own investigation later that dáy and watched Smith’s trailer from a distant point. As they watched, Smith and Hightower came out of the trailer carrying plastic trash bags and placed them in the back of an automobile parked in appellant’s driveway. Mason and his companion confronted appellant and through an open door of the automobile could see some of the contents of the bags, which Mason recognized as his own goods. Mason held Smith at gun point and took him to the grocery store in the automobile, at which point Smith and the goods were delivered over to the sheriff.

On this proof, Smith contends that the search was instigated at the suggestion of the deputy sheriff and, therefore, the seizure of the articles was in violation of Fourth Amendment guarantees.

It is recognized that the search-and-seizure clauses of the federal and state constitutions are restraints upon the government and its agents and not upon private individuals. Walker v. State, 224 Ark. 1150 (1968); United States v. Harvey, 540 F. 2d 1345 (1976). The rule, however, differs where such searches and seizures are instigated or encouraged by the police and in such instances the restraints do apply, “as the construction to be attached to the Fourth Amendment does not permit of evasion by circuitous means. The protection thus afforded may be violated just as effectively through the intervening agency of one not a policeman.” People v. Evans, 49 Cal. Rep. 501 (1966). The legal principals need not be considered except in passing, as appellee agrees with the asserted law, considered at some length in 36 A.L.R. 3d 350, but argues that the facts do not bring the principal into play in the case before us and we agree. The deputy did not accompany Mason in the surveillance of Smith’s trailer; he did not participate in the activities at the trailer and so far as the record reflects, he was not even aware that Mason was planning any action of this type. The sum and substance of the deputy’s role in the events was to instruct Mason to get back in touch with him if he had any leads or heard anything. We are unwilling to go to the extent of inferring from this slender evidence that the deputy instigated the search and seizure, or even suggested it. It is clear to us that the activity challenged by the motion to suppress was the product of an independent foray by Mr. Mason as a private citizen, rather than as an instrument of the sheriff’s office. We find no case, nor has appellant provided one, in which the rule of law stated above has been applied to facts similar to those of this case. Indeed, it would strain logic to the breaking point to hold that a police officer could instruct the victim of a theft to get back in touch with him if he had any leads or heard anything and by so doing invoke an agency by which the police were bound, in whatever fashion the private citizen subsequently chose to act.

Finally, while our decision on the first point obviates the need to consider the second, we do observe that had the facts and the law met in this case, that is, assuming that Mason was an agent for the sheriff. Nevertheless, his conduct in the matter does not constitute an unlawful search and seizure. Mason and his companion observed Smith and Hightower carrying the trash bags from the trailer to the automobile, and, upon going on to the yard or driveway, they saw the stolen goods through an open door of the vehicle. We could not justifiably hold on this evidence that the Fourth Amendment had been violated.

Affirmed.