text:
    Russell v. Keene
    5-3594
    394 S. W. 2d 131
    Opinion delivered October 4, 1965.

      Trantham é Knauts, By: C. W. Knauts, for appellant.

      Gus Ii. Camp, for appellee.
   Carleton Harris, Chief Justice.

Appellee, R. E. Keene, a resident of Clarkton, Missouri, instituted suit against Lloyd Russell, appellant herein, a resident of Clay County, Arkansas, for the sum of $1,600.00 plus interest, alleging that appellant had threshed thirty-four acres of lespedeza, belonging to appellee, and had converted the seed to his own use. This suit ivas based upon the fact that Keene had allegedly entered into an oral agreement with the City Council of Gideon, Missouri, on November 10, 1960, to the effect that he (Keene) would keep clean the waste land adjacent to and adjoining the runways of the Gideon Municipal Airport. Keene agreed to mow and cut off briars and weeds, and, in return, was given the privilege of using the land for hay operations. According to appellee’s evidence, this contract was to be reduced to writing by the City Attorney, and the parties would then execute the written agreement. However, the testimony reflects that the City Attorney subsequently died, and no written contract was ever prepared. Following the oral agreement, appellee entered into possession, and thereafter, according to Ms testimony, maintained Ms part of the agreement for 1960, 1961, 1962, 1963, and on into 1964. Russell, according to evidence, obtained permission from a member of the City Council in 1963 to perform the same service (stating that the airport property was not being kept clean), and thereupon cut the lespedeza and stored the seed. Keene demanded the seed, or the value thereof, and upon refusal, instituted the instant suit.

Russell filed an answer denying allegations, and specially pleaded the Missouri statute of frauds, which requires all contracts entered into by a city (along with some other political subdivisions) to be in writing. On trial, the jury returned a verdict for Keene in the amount of $600.00, and from the judgment so entered, appellant brings this appeal.

The amount of the judgment is not here in issue, though the parties disagreed as to the value of the seed. Likewise, though appellant offered evidence that no oral agreement was entered into between Keene and the City Council of Gideon, the jury found otherwise, and that question is not really at issue on this appeal. The answer to this litigation depends upon the effect of the Missouri statute of frauds upon the oral agreement.

Section 432.070, Volume 3, of the Missouri Revised Statutes for 1959 provides:

“No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing. ’ ’

The Missouri Supreme Court has held in several cases that the'provisions of the section are mandatory, rather than directory, and that such a contract, not in writing,, is void. Russell therefore vigorously argues that, since any agreement between Keene and the City of Gideon was void, appellee has no standing in court. The cases, heavily relied upon by appellant, involve' situations where an individual was endeavoring to enforce an oral contract with the city. "We very quickly agree with appellant that Keene could not enforce his agreement against the City of Gideon, but it does not follow that Russell is entitled to the benefits of the Missouri statute here under discussion.

Under the general rule, the defense of the statute of frauds is not available to strangers to the agreement. In 49 Am. Jur., Section 589, Page 896, we find:

“The defense of the statute of frauds is a personal one available only to a party to the contract to which the statute is alleged to apply and his representatives and privies. * * *
“As has been said, it does not rest with a stranger to say that the parties to the oral agreement will not abide by the same regardless of the statute; it is for the party himself (or his privy) to decide whether he shall avail himself of the defense. If he feels that he should discharge the moral obligation' although he may have a perfect legal defense, no stranger or third party not privy to the contract can complain. This rule applies even under statutes which provide that such agreements are void unless reduced to writing and signed by the party charged.”

Further, in Section 590, Page 898:

‘ ‘ Tort-feasors and fraudulent intermeddlers will not be permitted to use the statute of frauds as a defense to a wrongful act or as a means of consummating a fraudulent design. Under this rule, one who inflicts injury upon land in the possession of another under an oral contract of purchase, or who wrongfully seizes or retains goods claimed by another under an oral contract unenforceable against the previous owner on account of the statute, or who commits other such tortious acts, cannot defend upon the ground that the plaintiff’s right or interest exists only by virtue of a contract unenforceable under the statute of frauds, where the other party to the contract has not rescinded or repudiated the contract upon the ground that it is not binding upon him. ’ ’

Missouri holdings are in accord with this general statement of the law. In Bauer v. White, 29 S. W. 2d 176, the Kansas City Court of Appeals said:

“The statute of frauds is inapplicable for it is well established that if both parties to a contract waive the requirements of the statute and carry the contract into execution, a third person cannot be heard to question its effect.

See also Doerflinger Realty Company v. Fields, 281 S. W. 2d 609. These cases do not relate to contracts with cities, but we see no reason why the same standard, herein discussed, which seems to be the rule throughout the various jurisdictions, would not apply.

We have reached the conclusion that this primary defense, urged by Bussell, is available only to the City of Gideon, and appellant, being a stranger to the agreement, is in no position to say that the parties to the agreement cannot abide by same, regardless of the statute of frauds. Other allegations of error have been examined, and found to be without merit.

Affirmed.

       W. H. Lunbeek, who was Mayor of Gideon in 1960, corroborated appellee’s testimony that the city had entered into the verbal agreement with Keene, and Lunbeek stated that the vote of the council had been unanimous. Tom Bradshaw, present Mayor of Gideon (having defeated Lunbeek at the last election), and member of the council in 1960, testified that no agreement was entered into with Keene. Bradshaw testified that he gave Russell (who owns the funeral home in Gideon) permission to mow the airport property, after telephoning and calling upon two of his fellow aldermen, and obtaining their approval.

       Emphasis supplied.


source: Caselaw Access Project

author: Ed. P. McFaddin, Associate Justice.

license: Public Domain

text:
    Harrison v. Harrison
    5-3474
    394 S. W. 2d 128
    Opinion delivered October 4, 1965.

      Guy II. Jones, for Petitioner.

      Gordon & Gordon, for Respondent.
   Ed. P. McFaddin, Associate Justice.

This is a certiorari proceeding, seeking review of an order of the Conway Chancery Court of June 26, 1964, holding the petitioner, Bobby Harrison, to be guilty of civil contempt.2

The petitioner, Bobby Harrison, and Lola Harrison were divorced by decree of the Conway Chancery Court dated September 12,1962, and the following are portions of so much of the divorce decree as are germane to this present proceeding:

“The Court further finds that during their marriage plaintiff and defendant were the owners as tenants by the entirety of the following lands: [Described] . . . “That defendant sold said lands for $6,000.00 and now has said money in his possession. That plaintiff is entitled to one-half of the proceeds derived from the sale of said property ....
“The Court further finds that defendant is the owner of ten (10) head of cattle and that plaintiff is entitled to one-third of the value of said cattle. That the defendant is given thirty (30) days in which to purchase plaintiff’s one-third interest in said cattle, and if defendant has not paid plaintiff for her one-third interest in said cattle, within 30 days then it is directed that said cattle, or so much thereof as is necessary to pay plaintiff for her one-third interest, to be sold and plaintiff paid for one-third of the value of said cattle.”

On June 15, 1964 Lola Harrison filed her motion alleging the provisions in the divorce proceedings; and we copy pertinent excerpts of the motion:

“The Court further found that defendant had sold said lands for $6,000.00 and that defendant had said money in his possession, and ordered the defendant to pay plaintiff $3,000.00 for her one-half interest in the proceeds of the sale.
“That defendant has failed and refused to obey the order of the court and has failed to pay said money to plaintiff. That said money is in cash and cannot be reached by execution or any other action to enforce said decree.
“That defendant should be required to show cause why said money has not been paid and that he should be directed by this Court to deliver the said $3,000.00, together with interest from the date of the decree, to the plaintiff, and upon his failure to do so he would be punished for contempt.
“Further plaintiff states that said decree of September 12, 1962, found that defendant was the owner of ten head of cattle and plaintiff was awarded a one-third interest in said cattle. That defendant has now disposed of cattle and has failed to deliver to plaintiff her one-third interest. That defendant should be required to show cause why said money has not been delivered to plaintiff, and upon his failure to do so he should be punished for contempt.”

The Chancery Court conducted a hearing on the said motion, at which hearing Bobby Harrison was present in person and represented by counsel. The evidence taken ore terms is shown on some sixty pages of the transcript before us; but none of such evidence has been completely abstracted by the petitioner or the respondent. At .the conclusion of the hearing the Chancery Court entered its order of June 26, 1964; and we copy the germane portions:

“That on September 12, 1962, decree was entered by the Chancery Court of Conway County, Arkansas, in which said Court found among other things that the defendant had sold certain lands owned by the plaintiff and defendant as tenants by the entirety for $6,000.00, and that the plaintiff, Lola Harrison, was entitled to one-half of the proceeds of said sale, to-wit: $3,000.00. And the Court further found in said Decree that the defendant, Bobby Harrison, was the owner of ten head of cattle and the said Lola Harrison was entitled to one-third of the value of said cattle.

“The Court Further Finds that the said defendant, Bobby Harrison, did not pay to the plaintiff, Lola Harrison, the sum of $3,000.00, and that he has failed to comply with the Order of September 12, 1962, and that the said defendant, Bobby Harrison, should be and is hereby held in contempt of this Court.
“The Court further finds that the defendant, Bobby Harrison, has disposed of the ten , head of cattle mentioned in the Decree of September 12, 1962, and that the plaintiff, Lola Harrison, is awarded the sum of $3,000.00, representing one-third of the value of said cattle.
“The Court further finds that the defendant, Bobby Harrison, shall be committed to the custody of the Sheriff of Conway County and by said Sheriff committed to the Conway jail until the above amounts, together with interest from September 12, 1962, are paid, . . . .”

It is from the aforementioned order of June 26, 1964 that this certiorari proceeding is prosecuted. Since the oral testimony is not abstracted, the burden of the petitioner’s argument is, that he is about to be imprisoned for debt in violation of his constitutional rights under Article 2, Section 16 of the Arkansas Constitution. We thus have before us the bare question of whether the order of the Conway Chancery Court of June 26, 1964 shows on its face, that petitioner, Bobby Harrison, is about to be imprisoned for debt, rather than to be punished for contempt of court in a civil case. The answer to the question is found in our holding in Meek v. State, 80 Ark. 579, 98 S. W. 378, wherein we said:

“It is first contended on behalf of the petitioner that imprisonment for debt in a civil action is the effect of of the order of commitment, and that this is forbidden by the Constitution (art. 2 § 16, Const. 1874).
“There are some courts which hold, in view of constitutional provisions forbidding imprisonment for debt, that disobedience of an order for payment of money under a judgment or decree can not be punished as a contempt; but, according to the decided weight of authority, an order directing the payment of specific funds adjudged to be in the possession or control of the person at the time of the trial may be enforced by contempt proceeding, and punishment may be inflicted for disobedience of the order. State v. Becht, 23 Minn. 411; In re Milburn, 59 Wis. 24; Leach v. Peabody, 58 Vt. 485; Eikenberry v. Edwards, 67 Iowa 619; Pritchard v. Pritchard, 18 Ont. 173, Ex parte Cohn, 55 Cal. 193.
“In one of the cases cited above the Supreme Court of Minnesota said: ‘In the case at bar the imprisonment is for the contempt in refusing to obey an order of the court. It is true that the order relates to the debt evidenced by the judgment against the relator, but this in no way alters the fact that the imprisonment is for the contempt, not the debt. And the contempt does not consist in the relator’s neglect or refusal to pay the debt, but in his disobedience of the order directing him to hand over certain property to the receiver. The fact that the property in question is to be handed over for the purpose of being applied to the payment of the judgment is in no way important. The commitment is, nevertheless, in no proper sense imprisonment for debt.’
“The Supreme Court of Wisconsin, in the Milburn case, supra, said: ‘ The attempt to conceal and keep from the receiver money and choses in action, thus ordered to be delivered up, and upon which tlie creditor, by such equitable levy, had procured such equitable lien, was not only a fraud upon the rights of the creditor, but a contempt for the authority of the judge. The mere fact that the contempt was in proceedings supplementary to a judgment founded upon a contract did not make it any the less a contempt, nor prevent its being punished as such.’ ”

Writ denied.

       The distinction between civil contempt and criminal contempt is discussed in Blackard v. State, 236 Ark. 20, 364 S. W. 2d 155. Certiorari as the remedy for review in contempt matters is discussed in Blackard v. State (supra) and in Ex parte Johnson, 221 Ark. 77, 251 S. W. 2d 1012. The extent of review by this Court is also discussed in Ex parte Johnson (supra) and in Blackard v. State (supra). A recent case on contempt is Ex parte Coffelt, 239 Ark. 324, 389 S. W. 2d 234. An interesting annotation may be found in 12 A. L. R. 2d 1059.


author: George Bose Smith, J.

text:
    Burton v. Kemp
    5-3631
    394 S. W. 2d 622
    Opinion delivered October 4, 1965.
    [Rehearing denied November 8, 1965.]

      Griffin Smith, for appellant.

      Gus Causbie, for appellee.
   George Bose Smith, J.

The appellants, Mr. Burton and his wife, and the appellees, Dr. Kemp and his wife, own adjoining parcels of land in Sharp county. In January of 1960 the Kemps conveyed to the Burtons a narrow strip of ground lying on the Kemp’s side of the common boundary. A disagreement arose about the true location (with reference to the Government survey) of a fence that was mentioned in the deed.

Early in 1962 the Burtons brought a suit in chancery to quiet their title to the narrow strip. By answer and counter-claim the Kemps asserted that the description in their deed to the Burtons had been erroneous and that the deed should be reformed. The Kemps also averred that the strip being claimed by the Burtons was actually still a part of the half acre originally owned by the Kemps. In their counter-claim the Kemps asked that their title to the half acre tract be quieted and confirmed.

On June 11, 1962, the chancellor entered the final decree that gives rise to the present litigation. By that decree, which now appears to have been much too brief, the court quieted the Burtons’ title to the narrow strip and dismissed the Kemps’ counterclaim for want of equity. There was no appeal. .

About a year later the Burtons filed the present suit, in which they invoke the doctrine of res judicata, as a basis for claiming title to the entire half acre that was formerly owned by the Kemps. On September 10, 1963, the chancellor rejected the Burtons’ claim to the whole half acre and held that they own only the narrow strip originally in controversy. Upon the first appeal we were unable to tell from the record whether the ownership of the entire half acre had been “considered and determine by the court” in the first suit. Burton v. Kemp, 238 Ark. 95, 378 S. W. 2d 667 (1964). We remanded the case for a determination of that issue.

Upon remand the chancellor directed for the first time that his court reporter transcribe the oral testimony that was taken in the first case and that she also make available the exhibits that were introduced. After having thus had the benefit of the complete record in the first suit the chancellor again concluded that the only .effect of the 1962 decree was to confirm the Burtons’ title to the narrow strip. In talcing this second appeal the Burtons again invoke the doctrine of res judicata as a basis for claiming all the Kemp land.

If the language of our first opinion permitted the trial court, on remand, to review the complete record in the earlier case, the decree now before us is unquestionably correct. The Burtons had no shadow of a claim to the entire half acre except for a tax title which was casually mentioned in their pleadings and which was shown by the undisputed proof to be void. Thus it is not conceivable that the chancellor, in dismissing the Kemp’s counterclaim for want of equity, meant to award to the Burtons a piece of property to which they had no legal or moral claim.

The Burtons, however, insist that our first- opinion limited the issue on remand to the single question of whether certain documents were in evidence in the first case. We do not so construe our words. The ultimate question, which we set. forth in italics, was “whether ownership of the balance of the half-acre was an issue considered and determined by the court in the first suit.” We went on to point out that extrinsic evidence may be taken into account in determining what questions were involved in a jugment that is pleaded as res judicata. Although on the meager record then presented it did seem that the pivotal question might be controlled by a determination of what documents had been introduced at the original hearing, it certainly was not our intention to bring about a demonstrable injustice by limiting the chancellor’s investigation to those documents alone.

Affirmed.


author: G-eorge Rose Smith, J.

text:
    Andrews v. Victor Metal Products Corp.
    5-3638
    394 S. W. 2d 123
    Opinion delivered October 4, 1965.

      Frank Lady and H. M. Ellis, for appellant.

      Wayne Boyce and Fred M. Pickens, for appellee.
   G-eorge Rose Smith, J.

This is an action by the appellant, Clara Andrews, to recover damages resulting from her wrongful discharge by the appellee, her former employer. Upon two earlier appeals we remanded the case for further proceedings, holding in each instance that a prior judgment rejecting the appellant’s claim for unemployment compensation was not res judicata in the present ease. 235 Ark. 568, 361 S. W. 2d 19 (1962); 237 Ark. 540, 374 S. W. 2d 816 (1964). After the second remand the trial court, without a hearing on the merits, entered a summary judgment dismissing the appellant’s complaint on the ground that she was not a party to the collective bargaining agreement tbat had assertedly been violated and that therefore she has no standing to sue upon that contract. This appeal is from that order of dismissal.

Upon the second appeal we quoted that paragraph in the employer’s contract with the union which provides that any employee may be discharged or suspended “for cause.” Here Mrs. Andrews contends that her discharge was in violation of that provision in the contract.

By the decided weight of authority, especially among the more modern cases, an individua] employee may maintain an action upon a collective bargaining agreement to enforce rights that are personal to him as distinguished from those that accrue to the union as a whole. A wealth of authority to that effect is collected in cases such as Narens v. Campbell Sixty-Six Express, Mo., 347 S. W. 2d 204 (1961); Jones v. International Union of Operating Engineers, 72 N. M. 322, 383 P. 2d 571 (1963); and Springer v. Powder Power Tool Corp., 220 Ore. 102, 348 P. 2d 1112 (1960). We reached a parallel conclusion in H. B. Deal & Co. v. Marlin, Judge, 209 Ark. 967, 193 S. W. 2d 315 (1946), holding that the plaintiff employees were third party beneficiaries of a contract between their employer and the Government and could maintain an action to enforce minimum wag’e provisions inserted for their benefit.

The appellee relies upon an 1897 decision, St. L., I. M. & S. Ry. v. Matthews, 64 Ark. 398, 42 S. W. 902, 39 L. R. A. 467. That was an action by Matthews for damages attributable to his discharge in violation of rules agreed to by the the railroad company and the Brotherhood of Locomotive Engineers. We hold in effect that the contract of employment lacked mutuality, in that Matthews had not agreed to work for a definite period of time. Hence we concluded that he had no cause of action.

In the years since 1897 the doctrine of mutuality has come to be much more clearly understood than it w^as then. As we observed in Lindner v. Mid-Continent Petroleum Corp., 221 Ark. 241, 252 S. W. 2d 631 (1952), what the doctrine really means is that each party’s binding duty of performance must be a sufficient consideration for the other’s promise. In'the case at hand the collective bargaining agreement contained an interchange of promises more than sufficient to create a valid contract. The union, for example, bound itself not to engage in a strike or slow-down during the five-year term of the contract. Such a clause can be enforced by the employer. Lion Oil Co. v. Marsh, 220 Ark. 678, 249 S. W. 2d 569 (1952). Thus Mrs. Andrews is in a position to assert her rights as a third party beneficiary of a valid agreement between the employer and the union. We need not determine the extent of her rights under any individual contract of employment that she may have had with the appellee.

Finally, it is insisted by the employer that Mrs. Andrews should have exhausted her remedies under the collective bargaining agreement by first appealing to the grievance committee created by the contract. It appears, however, that it was the employer who first breached the contract; so it cannot complain of a later breach by the employee. Cummings v. Lord’s Art Galleries, 227 Ark. 972, 302 S. W. 2d 792 (1957).

The contract (see our opinion upon the second appeal) requires the employer, upon discharging an employee, to give both the employee and the president of the union, within 24 hours, a written statement of the reason for the discharge. This clause in the agreement affords substantial protection to the employee, for it compels the employer to make a statement, in black and white, that the employee may then lay before the grievance committee. Upon the record as it stands at this point it is an undisputed fact that the employer did not give the necessary written notice of its reason for discharging Mrs. Andrews. Inasmuch as its breach of the contract prevented her from asserting her grievance with the certainty that she should have had, the appellee cannot complain of her election to seek redress in court.

Reversed and remanded for a trial on the merits.


author: Paul Ward, Associate Justice.

text:
    Kealy v. Lumbermen's Mutual Ins. Co.
    5-3640
    394 S. W. 2d 629
    Opinion delivered October 4, 1965.
    [Rehearing denied November 8,1965.]
    Dickson, Putman, Milhvee & Da,vis, for appellant.

      Wade & McAllister, for appellee.
   Paul Ward, Associate Justice.

On January 26, 1963 a fire destroyed or damaged a building belonging to the A & A Produce Company (hereafter referred to as "company”), causing the destruction of personal property belonging to Pete Kealy, Glen Scott and Harry Lane (appellants herein). Later appellants recovered a judgment against the company in the sum of $1,786.45 for loss of the personal property.

It is undisputed that The Lumbermen’s Mutual Insurance Company (appellee herein) had issued an insurance polic3r to the company covering the loss. When the company failed to pay the said judgment appellant filed a direct action against appellee. Upon trial in circuit court the judge granted summaiy judgment in favor of appellee on the ground that appellants had not given ". . . any notice to the defendant insurance company within the twenty (20) days statutory time to plead.” The trial court also found that a “substantial compliance” with the terms of the policy is not sufficient.

We have reached the conclusion that, under the facts of this case, it was for a jury to decide whether notice was given within time (20 days) for appellee to answer the suit against the company. The section of the policy relative to notice of suit against the insured reads:

“If claim is made or suit is brought against the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.”

There is in the record testimony showing: that the attorney for appellants notified appellee’s agent promptly that suit had been filed; that another agent of appellee promised to pick up the “papers” from the company; that appellee’s agent said he was referring the claim to the adjustment company. The suit in question was filed September 25, 1963. The attorney who filed the suit testified that on the same day he telephoned the adjuster, and that the adjuster inquired where he could pick up the “papers”. Said attorney also testified that on or about September 26, 1963 a Mr. Biddle (an adjuster) visited him in his office and was told about the suit. Although some of his testimony was disputed there can be no doubt that the matter presented a jury question as to a material fact. That being-true it was-error for the trial court to enter a summary judgment. Ark. Stat. Ann. § 29-211 (c) (Bepl. 1962) is to the effect that a moving party is entitled to a summary judgment only when “there is no genuine issue as to any material fact. ...” Epps v. Remmel, 237 Ark. 391, 373 S. W. 2d 141, and Jones v. Comer, 237 Ark. 500, 374 S. W. 2d 465.

It is our opinion that if appellee did in fact receive notice in ample time to properly defend the suit against the company, then it should not be allowed to escape liability merely because the provisions of section 11 of the policy were not strictly complied with. In the case of Lee v. Travelers Insurance Company, 184 A 2d 636, the court made an announcement with which we agree. It was:

“An insurer should not be held liable without reasonable opportunity to investigate and to properly defend, but when given such opportunity the insurer should not be allowed to escape liability because the notice which furnished the opportunity comes from someone other than the insured.”

Similarly, this Court, in the case of Southern Farm Bureau Casualty Insurance Company v. Robinson, 236 Ark. 268, 365 S. W. 2d 454, said:

“There is substantial evidence that appellant received notice of the suit and that it was not prejudiced by the delay in receiving notice. ...”

The issue in-the case here under consideration is very similar to the. one in Trinity Universal Insurance Co. v. Syble Stobaugh (opinion by this Court delivered September 27,1965). In that case we said “. . . the jury had a right to decide whether proper notice (under the provisions of the policy) was given to appellant. . . .” We have carefully compared the provisions relative to notice contained in the two insuranc policies involved and find them essentially the same.

The judgment of the trial court is accordingly reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


author: Sam Robinson, Associate Justice.

text:
    Martin v. Raulston, County Judge
    5-3633
    394 S. W. 2d 133
    Opinion delivered October 4, 1965.

      Edward II. Patterson, for appellant.

      Carl S. Whilloch, for appellee.
   Sam Robinson, Associate Justice.

Appellants filed a claim in the sum of $400 against Newton County for about one acre of land taken by the county to improve a public road adjacent to appellants’ property. The claim was denied by the County Court; appellants appealed to the Circuit Court. There, after appellants had rested their case, the trial court directed a verdict for the county. The landowners have appealed to this court.

Two witnesses testified in the case. First, the appellant, Virgil Martin, testified that about one acre had been taken to improve the road, and, in his opinion, the particular acre taken was worth $500. He testified, however, on cross-examination, that there was some enhancement in value to the property remaining to him which was caused by the improvement in the road. When asked whether, in his opinion, the remainder was worth less than the entire property was worth before the taking, he answered: “No, I didn’t say it was worth less.”

One other witness testified, and his testimony can be construed to the effect that the part of the property remaining after the taking was worth more than the entire property was worth before the taking-, and that the enhanced value was due to the improvement of the road. In this state of the record the trial court directed a verdict for the county.

Ark. Stat. Ann. § 76-521 (Repl. 1957) provides: "... any court or jury considering claims for right-of-way damages shall deduct from the value of any land taken for a right-of-way the benefits of said State highway to the remaining lands of the owner.”

We have held that under the foregoing statute, the landowner is not entitled to recover anything- for the taking of a paid of his property to improve a road where the remainder of land left to him is enhanced in value in an amount equal to or greater than the value of that part taken. Bridgmen v. Baxter County, 202 Ark. 15, 148 S. W. 2d 673; Herndon v. Pulaski County, 196 Ark. 284, 117 S. W. 2d 1051. Here, the trial court was of the opinion that the undisputed evidence showed there was such an enhancement in value.

But, there is another point to be considered. The landowner, is precluded from recovering only where the enhancement in value is special and peculiar to the particular property remaining to the landowner after the taking. Lazenby v. Ark. State Highway Comm. 231 Ark. 601, 331 S. W. 2d 705; McCahan v. Carroll County, 238 Ark. 812, (Dec. 14, 1964). This is a question of fact, Bradgemean v. Baxter County, supra, and the burden is on the one who takes the property to show the peculiar and special benefits to the remainder. Hence, even if it can be said that the evidence in the case at bar shows an enhancement in value to the property remaining- to the landowner equal in value to the part taken, there is no showing that such enhancement is special and peculiar to the remainder. The cause must, therefore, be reversed and remanded for a new trial.

It is so ordered.


author: Frank Holt, Associate Justice.

text:
    Harris v. State
    5143
    394 S. W. 2d 135
    Opinion delivered October 4, 1965.
    [Eehearing denied October 25,1965.]

      Bon McCourtney S Associates, By: II. M. Ellis for appellant.

      Bruce Bennett, Atty. General, By: Richard B. Aclkisson, Chief Asst. Atty. General, for appellee.
   Frank Holt, Associate Justice.

The bodies of Leonard Dever, his wife, and four of their children were found in the ruins of their home which was destroyed by fire on the night of December 20, 1963. Two other children escaped and made their way to the home of a neighbor. The appellant was subsequently convicted and sentenced to life imprisonment for the death of Leonard Dever. The appellant was then charged by information with the joint crimes of the murder of Mrs. Dever and her four children. A jury found him guilty of murder in the first degree and assessed his punishment at death-in each of the five cases. Upon appeal we reversed and remanded each of the cases for a new trial because we deemed inadmissible and prejudicial the testimony of one of the surviving children and, also, the other upon proper objection being made. Harris v. State, 238 Ark. 780, 384 S. W. 2d 477. Upon a retrial a jury found the appellant guilty of the alleged crimes and fixed his punishment at death in each of the five cases. From these judgments appellant appeals.

For reversal the appellant first contends that count no. 1 of the information alleges two separate and distinct charges of first degree murder in the - disjunctive and that the court erred in overruling a demurrer to that part of the information. Count no. 1 of the information alleged that the appellant “did unlawfully, wilfully and feloniously, with malice aforethought, kill and murder Mrs. Martha Dever while in the perpetration of or attempt to perpetrate the crime of robbery and/or arson.” We think the court was correct in overruling appellant’s demurrer. An indictment or information, except as provided in Ark. Stat. Ann. § 43-1010 (Repl. 1964) our joinder statute, must charge only one offense, however, if it could have been committed by different modes and means the indictment or information may allege the modes and means in the alternative. Ark. Stat. Ann. § 43-1009 (Repl. 1964). In the case of Franklin v. State, 153 Ark. 536, 240 S. W. 708, we said: “* * * Under our law murder is a single crime and must be so charged, but if committed in different modes or by different means it is permissible to allege the different modes or means in the alternative. * * * In other words, the same murder may be charged in the same indictment either by poisoning or by force in the alternative, the means or modes being inconsistent.” See also Ark. Stat. Ann. § 41-2202 (Repl. 1964).

In the case at bar count no. 1 in the information charged appellant with only one offense, namely murder, while in the perpetration of or the attempt to perpetrate either robbery or arson or both. By this permissible pleading a defendant knows with certainty that he is charged with a single offense. And, further, upon acquittal or conviction a defendant has available to him the plea of double jeopardy in any future prosecution.

The appellant argues that the court erred in overruling his motion for a supplemental bill of particulars as to count no. 1 of the information. In counts 2, 3, 4 and 5 the State alleged that the defendant murdered the four children in the perpetration of arson. In his motion for a supplemental bill of particulars as to count no. 1 appellant asked that the State be required to state further “the means, methods, act or acts of the defendant whereby Martha Dever came to her death.” Certainly count no. 1 of the information fully apprised the appellant of the information he sought by his supplemental bill of particulars. Furthermore, by his previous trial he was fully aware of the information he sought. Also, the record discloses the appellant was advised that the State elected to conduct the prosecution under the provisions of Ark. Stat. Ann. § 41-2205 (Repl. 1964).

The appellant contends that it was error for the court to refuse his motion to quash the regular and special jury panels on the ground that none of the members of said panels were qualified electors since they were not registered voters as required by our newly adopted Amendment 51, Arkansas Constitution. This contention has recently been decided adversely to appellant. Qualifications of jurors are prescribed by statute and not by the Constitution. Coger v. City of Fayetteville, 239 Ark. 688, 393 S. W. 2d 622. By the provisions of Act 126 of 1965, which was held by us to be valid legislation in the Coger case, these jurors were qualified and, therefore, the court correctly overruled appellant’s motion to quash the jury panels.

The appellant also contends there is no substantial evidence to support the verdicts of the jury and the court erred in overruling his motions for directed verdicts. In determining the sufficiency of the evidence we must review it in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Clayton v. State, 191 Ark. 1070, 89 S. W. 2d 732; Higgins v. State, 204 Ark. 233, 161 S. W. 2d 400; Stockton v. State, 239 Ark. 228, 388 S. W. 2d 382.

About 10 P. M. on December 20, 1963 the home of Leonard Dever was observed as being on fire. Following the fire the bodies of Leonard and Martha Dever, his wife, and four of their children, Nelle, age 8, Joanne, age 5, Sharon, age 4, Janette, age 1, were found in the ruins. Two of the children, Bonald, age 9, and Mary, age 6, escaped from the burning home and through zero weather walked approximately one and one-half miles to the house of a neighbor. An autopsy was performed on the charred bodies of Leonard and Martha Dever. An x-ray disclosed that there were leaden pellets in that portion of Leonard Dever’s body from the neck down to the middle part of the stomach. An x-ray disclosed the presence of leaden pellets in the elbow portion of Mrs. Dever’s right arm. The autopsy revealed that Mr. Dever died from gunshot wounds and that it was uncertain as to whether Mrs. Dever died from gunshot wounds or the fire. A partially burned single-barreled 20-gauge shotgun was found in the ruins of the fire on a couch near Dever’s body. An expended 20-gauge shell was found in the barrel of the gun. One unburned and expended 20-gauge shell was found outside the house, as was Dever’s cap and a trail of blood leading to the house. According to the evidence both shells had been fired from this gun.

Within a few hours after the fire and the discovery of the bodies, appellant was apprehended at his home. He appeared to be drunk and bad a patch on a bleeding cut under his right eye. He related conflicting stories as to his activities that night. He said that he had been to Poinsett County to buy some whiskey from a Negro. He denied that he was acquainted with the Dever family and that he had any knowledge of the alleged crimes. Sometime later, however, he admitted that he knew the Devers and went to the Dever home the night of the fire to get some moonshine whiskey. He took his shotgun and seven shells with him and left the shotgun with Mr. Dever as payment for two gallons of whiskey. He admitted that he and Mr. Dever gambled and drank together and that the cut on his eye was the result of Mr. Dever hitting him when he [appellant] intervened in a dispute between Mr. Dever and his wife. According to him Dever shot his wife with appellant’s gun. He left to escape from Mr. Dever’s attack and observed the house afire. He returned and through a window saw Mrs. Dever’s body and was unable to rescue the screaming children. He left the scene in his car and abandoned it in a gravel pit off the road when the lights stopped functioning. He walked to the house of an acquaintance who took him home by an out-of-the-way road as he directed. A five-gallon can containing approximately one gallon of kerosene was found in the locked trunk of his car. .There was blood on this can as well as the left front fender of his car and at the entrance of the left front door of his car. He stated that he told his wife that he had been gambling with Dever and that he gave the money to her. As he was being transported by the police from his home to the police station that night he threw his billfold out of the car window. It was found the next day containing approximately $30.00. The night appellant was taken into custody the officers returned to his home and found a partially burned Mackinaw coat in a stove in his garage. Appellant admitted he burned his coat. The coat had a strong odor of kerosene or fuel oil. Leonard Dever was known to carry large sums of money. He customarily carried two billfolds. One of his billfolds was found empty the day following the fire and was introduced into evidence. The defendant, by his own admission, knew that Dever had “a big roll” of money. Although appellant never admitted the alleged crimes, the evidence in this case is substantial and the court properly overruled appellant’s motion for directed verdicts.

Appellant contends also that the trial court was in error in admitting certain photographs into evidence. Some of these pictures portrayed the condition of the surviving children on the night their home was burned. There was evidence that these children suffered from burns about their bodies and clothing which was reflected by these pictures. Other pictures portrayed the condition of the appellant on the night of the crime when he was apprehended and revealed the existence of a wound on his right cheek. Other pictures were of appellant’s automobile found in the gravel pit. There was also a picture of the kerosene can found in the trunk of the car. Witnesses properly identified these pictures and testifiecl that they fairly represented the objects protrayed. The admissibility and relevancy of photographs is largely discretionary with the trial judge and, further, photographs are admissible when they enable the witness to better describe and aid the jury to better understand the evidence. Bailey v. State, 227 Ark. 889, 302 S. W. 2d 796 and Lee v. State, 229 Ark. 354, 315 S. W. 2d 916. We find no abuse of the trial court’s discretion in the admission of these photographs and we think they were an aid to the jury in understanding the evidence.

Appellant argues that certain exhibits were erroneously admitted into evidence. These questioned exhibits, properly identified, including Leonard Dover’s billfold and cap; the pellets taken from the body of Leonard Dever; the five-gallon kerosene can with blood on it taken from appellant’s car; and articles retrieved from the house, such as an alarm clock, a 25-caliber pistol, the burned 20-gauge shotgun containing the exploded 20-gauge shell and pellets taken from the stovepipe found in the ruins. The clock had stopped at 10 o’clock or about the time the fire ivas observed. Appellant also objected to the introduction into evidence of two 22 rifles and two 12-gauge shotguns found in a group in a corner of the front room. Other than the 20-gauge shotgun, none of these weapons contained any shells. We think all of these exhibits were relevant to the issues as alleged in the information.

Appellant urges that the trial court erred in giving an instruction relative to circumstantial evidence. We think the court correctly gave an instruction on this subject since much of the evidence ivas of that nature. Corey v. State, 232 Ark. 79, 334 S. W. 2d 648.

The appellant asserts that the testimony of two Avitnesses, Mr. Frierson and Mrs. Rowan, was improperly admitted. They testified that they Avere well acquainted with Leonard Dever and that he was in the habit of carrying large sums of money on his person. Their testimony Avas pertinent to the issues.

The appellant urges that the testimony of Mr. and Mrs. Grimes was irrelevant to the issues in the case. They testified that they observed the surviving Dever children when brought to a clinic immediately following the fire. According to them the clothes on the Dever children and parts of their bodies showed evidence of burns. Also there was an odor of kerosene or fuel oil about the children. Certainly this 'was relevant testimony.

The appellant further contends that it was error to permit the State to read into evidence the testimony of Mr. Wilcox given at the former trial of the appellant. The sheriff testified that this witnes was out of the jurisdiction of the court and was no longer employed by the Arkansas State Police. This evidence was admissible pursuant to Ark. Stat. Ann. § 28-713 (Repl. 1962). Also see Mode v. State, 234 Ark. 46, 350 S. W. 2d 675.

The appellant asserts that the court erred in admitting into evidence testimony of Dr. Matthews relating to a kerosene analysis and paraffin test made by him. The appellant objected generally on the grounds that it did not “tend to prove any of the charging part of the information” or “connect this defendant” with the alleged crimes. This evidence was relevant and pertinent to the issues. A can containing kerosene, as confirmed by chemical analysis, was found in appellant’s car near the scene of the alleged crime. According to the paraffin test there was some evidence of particles of nitrates or gun powder on his left hand.

The four remaining points urged by appellant for reversal concern evidence relating to the death of Leonard Dever. Appellant argues that this evidence was inadmissible because he was not charged with the death of Mr. Dever in this trial. We do not agree. The rule of inadmissibility of other crimes has no application when other crimes are an inseparable part of the alleged crime. If crimes are mingled to such an extent that they form an indivisible criminal transaction and the full proof of any one of them cannot be presented without showing the others, then evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme. Banks v. State, 187 Ark. 962, 63 S. W. 2d 518; Perry & Coggins v. State, 232 Ark. 959, 342 S. W. 2d 95; Lauderdale v. State, 233 Ark. 96, 343 S. W. 2d 422. In the case at bar the evidence cannot be restricted to the proof of the murder of Martha Dever and her four children. Without the jury knowing the details of the death of Leonard Dever and the condition of the surviving children it would be impossible for the jurors to have a comprehensive picture of the occurrences on that tragic evening.

After considering every objection made as we must do in capital eases, Ark. Stat. Arm. § 43-2723 (Repl. 1964) and Hays v. State, 230 Ark. 731, 324 S. W. 2d 520, and finding no errors, the judgments are affirmed.


author: Carleton Harris, Chief Justice.

text:
    Thompson v. State.
    5142
    394 S. W. 2d 491
    Opinion delivered October 11, 1965.

      H. M. Ellis and Bon McCourtney, for appellant.

      Bruce Bennett, Atty. General, By: William Bowell Thompson, Asst. Atty. General, for appellee.
   Carleton Harris, Chief Justice.

Carl Thompson, appellant herein, was charged with the crime of Forgery and Uttering. The Information alleged that he had forged the name of W. J. Wilson, as drawer, to a check in the amount of $25.00, made payable to Thompson, a notation appearing in the lefthand corner, “labor,” the check being drawn upon the Mercantile Bank of Jonesboro, Arkansas. Count Two in the information charged Thompson with uttering and publishing the check, knowing it to be forged, and cashing it at Guy’s Cash Store in Trumann. On trial, the jury found Thompson guilty of uttering, and fixed his punishment at imprisonment in the State Penitentiary for a period of two years. From the judgment so entered, Thompson brings this appeal. For reversal, appellant simply contends that there is not sufficient evidence to sustain the conviction.

The state offered two witnesses. Mrs. Guy Beard, who works in the store, testified that Thompson came into the store, bought a pair of blue-jeans, and a western shirt, and, after identifying himself, presented the aforementioned check to her:

“* * * I looked at it and not knowing this Mr. Wilson, I was hesitant about taking it. I conferred with my brother-in-law in the store and asked if he knew Mr. Wilson and he said yes, and he thought the cheek would be all right, so I took it. This is the address he gave me, Route 1, Harrisburg, Arkansas, c/o Pete Collins. I put that address on the check.”

Thereafter, the check was deposited, and, subsequently, was returned with a notation, “Unable to locate.” Mrs. Beard stated, “I don’t think we ever were able to locate the Mr. Wilson.”

Tony Futrell, Assistant Cashier of the Mercantile Bank at Jonesboro, testified that he could not find any record at his bank of an account in the name of W. J. Wilson “within the past twelve to fifteen years.” This was all of the testimony presented by the state. Appellant moved for a directed verdict, which motion was denied. The defense then rested, and the motion for directed verdict was renewed, but again denied.

We agree that this evidence was insufficient to sustain the conviction. Certainly there was no showing that Thompson had forged the name of W. J. Wilson, an actual person, and the state’s theory is that “Wilson” was a fictitious person. This apparently was the purpose in calling Futrell to testify that he could find no such account. While Futrell’s evidence was competent for that purpose, we think it falls short of establishing that W. J. Wilson was a fictitious person, particularly since Mrs. Beard testified that her brother-in-law stated that he knew Wilson. This last mentioned evidence is, of course, diametrically opposed to the state’s theory. However, even without this .statement from the witness, we think the evidence insufficient to establish the state’s contention. Merely showing that W. J. Wilson had no account at the Mercantile Bank in Jonesboro did not prove that there is no such person as W. J. Wilson. The drawer could well have made a mistake in using the Mercantile Bank check instead of some other bank in Jonesboro where he might have an account. Apparently no effort was made to contact the other banks. While Mrs. Beard stated that she did not “think” that “we” were able to locate Wilson, no testimony or evidence was offered to show what efforts were made by the state to locate this person. No subpoena was issued for Wilson; nor was any evidence offered to the effect that the check, and endorsement, by Thompson (appearing on the back), were evidently in the same handwriting.

The state relies upon th case of Tarwater v. State, 209 Ark. 687, 192 S. W. 2d 133. There, appellant was convicted of uttering, the proof reflecting that he had cashed a check in a grocery store, made payable to himself (Tarwater), and ostensibly signed by one M. E. Marderd. The state’s testimony reflected that appellant went to the Bobertson Grocery Store and received cash on the check. Bobertson presented the check to the bank on which it was drawn, and was told that the drawer was unknown, and had never had an account with the bank. The same answer was received when inquiry was made at other banks in the city, along with the information that appellant had no account. After Tarwater was arrested, he informed the officers that the check had been given to him in payment of money he had won in a crap game at Moffet, Oklahoma, though appellant had previously told Bobertson that he had received the check in payment of hogs and cattle that he had sold. The state caused a summons to be issued for the drawer of the check, who could not be found, and a summons was then sent to officers at Moffet, which was not served for the same reason. These facts were all established in testimony, and Tarwater did not take the stand to testify. Tarwater was convicted of uttering on the basis of a finding that the name signed to the check was that of a fictitious person, and we held that the aforementioned testimony was sufficient to sustain the conviction.

Here, the state’s witnesses did not testify to any conflicting stories by appellant; in fact, as far as this record is concerned, he gave his correct address, which Mrs. Beard noted on the back of the check. As previously pointed out, no inquiry was made at other banks in the city to ascertain if the drawer carried an account, and no subpoena was issued for "Wilson.” If the name "Wilson” was fictitious, it was essential that the state make a substantial showing that this was true. Obviously, there is quite a difference in the quantum of proof offered in the Tarwater case, and in the present case.

The judgment is reversed, and the cause remanded.


author: Ed. F. McFaddin, Associate Justice.

text:
    Bryant v. Thrower, Executor
    5-3636
    394 S. W. 2d 488
    Opinion delivered October 11, 1965.

      Phillip II. Loh, for appellant.

      Carroll IF. Johnston, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a contest involving the will of A. ft. Wilson. Appellee, Fred Thrower, claims as a sole beneficiary under the will; and appellant, Lois Wilson Bryant, claims as the pretermitted child of A. ft. Wilson. The Probate Court found that Lois Wilson Bryant was not a child of A. ft. Wilson; and the correctness of that finding is the sole issue on this appeal. It is conceded that Lois Wilson Bryant was. not named or referred to in any way in the will of A. R. Wilson, so if she is in fact the legal child of A. R. Wilson, then she is entitled to the rights of a pretermitted child under the statute. But Appellee Thrower insisted below and insists here, that Lois Wilson Bryant is neither the legal nor the adopted child of A. R. Wilson.

It is conceded that A. R. Wilson and Eva (Ewe) Helen Wilson were legally married; that Eva Helen Wilson died October 18, 1943; and that A. R. Wilson died February 18, 1964. Lois Wilson Bryant introduced a duly certified copy of her birth certificate, which shows that she was born on October 12, 1917, as the child of A. R. Wilson and Eva (Ewe) Helen Johnson Wilson. This was a delayed birth' certificate (Ark. Stat. Ann. § 82-506 [Repl. 1960]), signed by Eva Helen Wilson and filed June 8, 1942, almost 25 years after the date of the birth shown. Under our statute (Ark. Stat. Ann. § 82-505 [Repl. I960]) this birth certificate was “prima facie evidence in all courts and places of the facts therein stated.” So the birth certificate made a prima facie case that Lois Wilson Bryant was the child of A. R. Wilson. In addition to the birth certificate, Lois Wilson Bryant testified that she was the child of A. R. Wilson and Eva Helen Wilson; that she had always been their child; and that they and each of them had always held her out to the world as their child. Several neighbors corroborated such testimony.

However, for the appellee there were numerous witnesses who testified that Lois Wilson Bryant was neither the born child nor the adopted child of A. R. Wilson and Eva Helen Wilson. Joe Abrams testified that he was a cousin of A. R. Wilson; that A. R. Wilson and Eva Wilson never had any children; that Eva had a sister named Jessie who had two children by Harrison Robinson; that Lois Wilson Bryant was the youngest of these two children; that on the death of Jessie Robinson, A. R. Wilson and Eva Wilson took Lois when she was a “tiny baby” and raised her and treated her as their child.

Isaac Johnson, the brother of Eva Helen Johnson Wilson and Jessie Johnson Robinson (and therefore a maternal uncle of Lois Wilson Bryant), testified: that Jessie Johnson married Harrison Robinson and had two children named Hazel and Lois; that Harrison Robinson was in the military service of the United States in the First World War when his wife Jessie died on December 9, 1918; that the witness arranged for her funeral; that Eva Helen Wilson and A. R. Wilson took the two little girls (Hazel and Lois) home from the funeral, and raised Lois from infancy; and that Hazel is living somewhere in Kansas City. Ten or more witnesses testified to the same effect as Abrams and Isaac Johnson: that A. R. Wilson and Eva Wilson took the infant Lois Wilson Bryant on the death of her mother and raised her as their child. The Chancellor found this to be true; and we cannot say that his finding is against the preponderance of the evidence.

There is no claim that A. R. Wilson ever adopted Lois as his child; and our statute on pretermitted children (Ark. Stat. Ann. § 60-507 [1947] is not broad enough to cover a child to whom the testator only stood in loco parentis, because birth or adoption, each, creates a permanent relationship; and the relationship in loco parentis is temporary. Ford v. Donahue (Colo.), 35 P. 2d 850; Schneider v. Schneider (N. J.), 52 A. 2d 564; and see also 67 C. J. S. 804.

Affirmed.

       Ark, Stat. Ann. § 60-507 (1963 Cum. Pocket Supp.) is the 1949 restatement of Ark. Stat. Ann. § 60-120 (1947), so the cases involving § 60-120 are enlightening when we are considering, as here, § 60-507. See Graham v. Hill, 226 Ark. 258, 289 S. W. 2d 186; and see also Jacobs v. Jacobs, 146 Ark. 45, 225 S. W. 22; and Culp v. Culp, 206 Ark. 875, 178 S. W. 2d 52.


text:
    Sheppard v. State.
    5133
    394 S. W. 2d 624
    Opinion delivered October 11, 1965.
    [Rehearing denied November 8,1965.]

      George Howard, Jr., for appellant.

      Bruce Bennett, Atty. General, By: William Powell Thompson, Asst. Atty. General., for appellee.
   George Bose Smith, J.

The appellant, John Henry Sheppard, aged 19, was charged with having murdered Annie Yocum Willett, aged 69, in the perpetration of rape. This appeal is from a verdict and judgment finding the accused guilty of murder in the first degree and sentencing him to death.

There is not, and hardly could be, any contention that the verdict is not supported by sufficient evidence. We briefly summarize the proof. Mrs. Willett and her husband lived on a farm about ten miles west of El Dorado. On the morning of July 1,1964, Willett started for his place of work in the oil fields at about eight o’clock, leaving his wife at home alone. About an hour later the couple’s grown son, Buford Willett, came by to see his mother, but she was not there. Buford became concerned about her absence, especially as he found that the kitchen stove had been pulled away from the wall and as he also remembered having thought that he had glimpsed a prowler in the barn on the preceding evening.

Por several hours a search was conducted, at first by Buford alone, then by him and his father, and finally by police officers and volunteers. Prank Willett eventually discovered his wife’s nearly nude body in a creek about half a mile from the Willett home. The body was marked by many scratches, bruises, and other evidences of violence. An autopsy revealed that Mrs. Willett had been raped and that her death had been caused by drowning.

There were indications that the assault occurred in a wooded area between the house and the creek. There the searchers found torn clothing that had been worn by Mrs. Willett, her broken glasses, and a pair of yellow plastic gloves positively identified by Buford Willett as belonging to the appellant Sheppard, who had worked for Buford as a tractor driver and farm hand. The officers made a cast of a footprint found in the mud by Mrs. Willett’s body.

In the latter part of the morning Sheppard appeared at another farm some three miles from the Willett place. It was not his regular place of employment, but he spent the day there. There is testimony that he said that he had killed someone and that it made him. feel funny. Sheppard was arrested that afternoon as he was going to his parents’ home. About 30 minutes after his arrest, which was also about 15 minutes after he was taken to jail, he was interviewed by Officer Taylor. Sheppard freely admitted his guilt, giving an account that dovetailed with the physical evidence already discovered. Sheppard said that he had hidden in the Willett barn overnight and had entered the house after Frank Willett left for work. Sheppard surprised Mrs. Willett in the kitchen, dazed her with a blow, and dragged her to the wooded1 area. At first he denied the assault, but he admitted this part of the crime when he was informed that Mrs. Willett’s body showed that she had been raped. Sheppard said that he had drowned Mrs. Willett by holding her head under the water.

Ther'e were recent scratches on Sheppard’s arms and blood on his clothing. When one of his boots was compared with the cast made by the officers two identifying marks afforded positive proof that the footprint had been made by the boot that Sheppard was wearing when he was arrested. Without narrating the proof in further detail we think it sufficient to say that the evidence shows beyond any doubt that Sheppard committed the brutal crime for which he was tried.

I. The court was correct in overruling a motion for a change of venue. The two lawyers appointed to defend Sheppard testified that in discussing the case with people in the county they encountered a widespread belief in the accused’s guilt, owing to newspaper, radio, and television reports. This fact, however, does not prove that Sheppard could not obtain a fair trial in the county. To the contrary, one of the attorneys stated that he had not heard anyone say that a fair trial could not be had, and the other testified that he had heard only a few people make that statement. There was other affirmative proof that the accused could receive a fair trial in the county. Our study of the record convinces us that Sheppard was in fact tried fairly. We certainly cannot say that the circuit judge abused his discretion in refusing to grant a change of venue. Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59 (1957). The case is unlike Hildreth v. State, 214 Ark. 710, 217 S. W. 2d 622 (1949), cited by the appellant, for here it is not shown, as it was in that case, either that many residents of the county thought that the accused could not obtain a fair trial or that the fear of public enmity prevented those citizens from making affidavits to support the request for a change of venue.

II. Before the trial the accused, a Negro, moved to quash the jury panel on the ground that there had been a systematic exclusion of Negroes from juries in Union county. In the first instance defense counsel offered no proof to support the motion. After the trial, however, Sheppard’s present attorney adduced some evidence upon the point. Of course this testimony should have been offered in the first place, for otherwise the accused is in the position of having speculated upon the chance of a favorable verdict before making his attack upon the composition of the jury. In any event, however, we find no merit in this assignment of error.

There is almost no proof of discrimination- in the selection of jurors in recent years. The case was tried at the September, 1964, term. During the preceding five years “quite a few” Negroes regularly sat on the jury. At least twelve were among the veniremen called for the September term. This number represents a ratio not demonstrably disproportionate to the ratio of qualified Negro electors in the county, though there is no indication that such a result was deliberately sought by the jury commissioners. Quite the opposite, the testimony indicates that the jurors were chosen without regard to color.

Perhaps the strongest circumstance tending to confirm the trial court’s fairness and impartiality is the fact that one of the three jury commissioners appointed by the trial judge was a Negro — a man with fifteen years experience as a school teacher and principal. Snch an appointment goes far toward meeting the criticism frequently made, that the commissioners are not sufficiently acquainted with the Negro electors.

The single point in counsel’s argument that finds support in the proof is the fact that the electors were designated by race in the list of qualified voters. Our attention is directed to Avery v. Georgia, 345 U. S. 559, 97 L. Ed. 1244, 73 S. Ct. 891 (1953), but the court did not hold that such a practice is in itself sufficient to. establish discrimination in the selection of the jury. (It may be noted in passing that under our new system of voter registration the elector’s race is not shown. Faubus v. Fields, 239 Ark. 241, 388 S. W. 2d 558 [1965].) We conclude that the court was right in refusing to grant a new trial upon the ground now urged.

III. It is insisted that the admissions made by Sheppard when he was first taken to jail were inadmissible. In conformity with the rule announced in Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), the trial judge first heard the testimony in chambers and ruled that the confessions were voluntary. This ruling is supported by proof that is substantially undisputed. There is uncontradicted testimony that Officer Taylor warned Sheppard that he did not have to make a statement and that any statement he might make would be used against him. This officer also asked Sheppard if he wanted an attorney; the answer was “No.” There is not even a hint in the record that Sheppard was mistreated or abused in any way. Indeed, the proof is so one-sided that counsel did not ask that the issue of voluntariness be submitted to the jury. The court was not required to submit the issue on its own motion. Burton v. State, 204 Ark. 548, 163 S. W. 2d 160 (1942).

In this court it is argued that Sheppard is of such low mentality that he was incapable of making an admissible confession or of intelligently refusing to request the aid of counsel. At the trial the court was not asked either to rule upon these points or to submit them to the jury. Our study of the record convinces us that neither point must be sustained as a matter of law.

Sheppard was confined to the State Hospital from August, 1960, until October, 1962. He was found to have a mild, idiopathic, mental deficiency, but he was Avithout psychosis. His Intelligence Quotient was thén 45, putting him in the class of a moron. Sheppard lived with his parents from the time of his release from the State Hospital until he was arrested for the offense now under consideration.

After his arrest Sheppard was committed to the State Hospital for examination. Tests similar to the earlier ones established an I. Q. of 59; other tests showed that he had the potential capacity to do better than that. Dr. Kozberg testified that Sheppard’s mental age is between nine and ten years. This witness explained that the average person’s mental age is fourteen. He also explained that an adult with a mental age of ten has, owing to his years of experience, much greater capacity than a ten-year-old child. It Avas the opinion of Dr. Kozberg and of the psychiatric staff that Sheppard was Avithout psychosis and was not mentally ill to the degree of legal irresponsibility.

"When the evidence is in conflict it is not our province to determine issues of fact. Had the present question been submitted to the jurors they Avould have been justified in finding from all the evidence that Sheppard was mentally competent to refuse the offer of counsel and to narrate the details of his crime. Thus there is no reversible error as a matter of law. Upon this record that concludes our inquiry.

IY. "When Sheppard was taken to jail his boots were removed for comparison Avith the cast that had been made. It is iioav contended that this procedure was a violation of Sheppard’s privilege against self-incriminanation, so that the boots were inadmissible. The officers’ action was permissible as an incident to a lawful arrest, Harris v. U. S. 331 U. S. 145, 91 L. Ed. 1399, 67 S. Ct. 1098 (1947), and, furthermore, there was no objection to the introduction of this evidence.

V. Appellant’s remaining arguments center upon the court’s action in giving this instruction:

“You are further instructed that an adult defendant with the intelligence of a child from seven to nine years of age is mentally capable of committing a crime and that mere mental weakness or the fact that one had a mind below normal does not exempt him from the responsibility and punishment for his criminal acts, unless it is shown by the preponderance of the evidence that the defendant is insane under the above instructions.” This instruction is not inherently wrong. Its language is almost an exact quotation from our opinions in Chriswell v. State, 171 Ark. 255, 283 S. W. 981 (1926), and Jones v. State, 213 Ark. 863, 213 S. W. 2d 974 (1948). Perhaps some of the wording in this charge might have been improved upon, but there was no specific objection calling for a modification.

Counsel now insist that this instruction does not fully define the defense of insanity and that therefore it ought to have been accompanied by an explanation of those tests of insanity that were approved in Bell v. State, 120 Ark. 530, 180 S. W. 186 (1915). A complete answer to this contention is that the trial judge himself thought that such a companion charge would be proper; he offered to give it. Defense counsel were successful in objecting to this suggestion, their preference being to submit only the matter of Sheppard’s mental deficiency as distinguished from legal insanity. Needless to say, the appellant cannot complain of a ruling that was made at the insistence of his own attorneys.

It is also argued that since this instruction was not preceded by an explanation of the legal tests of insanity the jury may have been confused by the concluding reference to “the above instructions.” Apparently the challenged phrase was inserted upon the assumption that the tests would be explained. "When the defense succeeded in having that explanation stricken from the court’s charge the phrase in question should also have been stricken. There was, however, no request for such a deletion. Moreover, the defendant’s Instruction No. 1, as modified, set forth the defendant’s theory that he was of such low mentality as to be incapable of forming an intent to kill. The instruction then went on to say that if the defendant was mentally deficient to that extent then the jury should find him innocent of the charge of first degree murder, by reason of insanity. Our point is that the court’s instructions as a whole did contain an explanation of a defense of insanity. Hence the court’s earlier reference to that defense was not totally irrelevant, the only inaccuracy being that the reference was to “the above instructions” instead of to “the following instructions.” Had the matter been called to the court’s attention by a specific objection it cannot be doubted that this trivial ambiguity would have been corrected.

We have examined every objection in the record, as is our practice in capital cases. In our opinion the trial was conducted in a manner singularly free from prejudicial error.

Affirmed.


author: Paul Ward, Associate Justice. Carretón Harris, Chief Justice,

text:
    Loe v. McHargue
    5-3615
    394 S. W. 2d 475
    Opinion delivered October 11, 1965.

      Coleman, Gantt, Ramsay é Cox, for appellant.

      Mahony é Yocum, for appellee.
   Paul Ward, Associate Justice.

This litigation began when suit was filed to collect a note given as part payment for used drilling equipment. The signers of the note — the purchasers — defended on the ground that the equipment was defective, and was therefore not as warranted by the seller.

Facts. The facts here set out are not in dispute. Appellees (Jim McHargue and J. C. Wolfe, d/b/a Falcon Drilling Company) purchased from appellants (Grlen D. Loe and Bert Loe, d/b/a Loe Pipe Yard) certain drilling equipment for the price of $19,500. Of this amount appellees paid $15,000 in cash and gave their note in the amount of $4,500. When the note became past .due and unpaid appellants filed suit. Appellees’ defense was “that the plaintiffs warranted the drilling rig to be in sound mechanical condition and fit and suitable for the purpose for which it was designed and intended.” (The principal contention regards the condition of the “caterpillar diesel” engine).

The trial court found that appellants did warrant the. engine to be in A-l condition; that it was defective; that appellees paid out (as result of the defects) the sum of $2,770.86; that appellants have judgment for the difference — $1,729.14. From said judgment comes this appeal. Appellees claim they should have been allowed greater deductions and so have taken a cross-appeal.

Appellants here contend ('a) that the weight of the evidence does not show they warranted the equipment to be in A-l condition and further (b) that, even if the evidence does show a warranty it was error to permit testimony to show such warranty.

(a) Sufficiency of the evidence. We have no hesitancy in affirming this portion of the trial court’s finding. It is true that the testimony in this respect was not undisputed, but we think the preponderance lies with the finding of the Chancellor. There was definite testimony that Mr. Loe said the diesel was in A-l condition. For example one of the appellees testified:

‘ ‘ Q. What, if any, representation did Mr. Loe make to yon concerning the engine?
“A. He said that that engine was in A No. 1 shape. “Q. At that time?
“A. And guaranteed it was expressly to be so, yes.”
^ ^ ¡K* #
“Q. Mr. McHargue, yon stated that Mr. Loe on more than one occasion represented this equipment to be in A-l condition, is that correct?
“A. Yes, sir.
“Q. Did you rely upon that express warranty when you purchased the equipment?

(Objected to by Mr. Lile, attorney for Appellants).

“Q. Did you purchase it on the representations, regardless of what we want to call it, that Mr. Loe made of it being in A-l condition?
“A. Yes, sir, I wouldn’t-have otherwise given him $15,000.00.”

In the case of Gentry v. Little Rock Road Machinery Co., 232 Ark. 580 (p. 582), 339 S. W. 2d 101, we said:

“A representation that a used truck was in A-l condition has been held to be a statement of fact and hence a warranty rather than a mere expression of opinion.”

There was also other testimony that the diesel engine was in A-l condition, and there was no definite denial.

(b) Oral Testimony. The next contention made by appellants — that it was error to admit oral testimony to vary a written contract — presents an interesting question. It is well recognized, of course, that usually a written instrument cannot be changed or altered by oral testimony. Appellants further point out and rely on a statement contained in Lower v. Hickman, 80 Ark. 505, 97 S. W. 681, which reads:

“A warranty is so clearly a part of a sale that where the sale is evidenced by a written instrument it is incompetent to engraft upon it a warranty proved by parol.” To the same effect appellants rely on other decisions of this Court, including Old City Iron Works v. Belmont, 111 Ark. 223, 7 S. W. 2d 772. This argument of appellants is based on the premise that there was such a written contract of sale in this case.

It is true there appears in the record a written instrument in connection with the sale here, but we do not think it constitutes a ‘ ‘ sales contract ’ ’ and especially not such a contract as would preclude the introduction of testimony with reference to a warranty. The instrument in question is captioned a “Security Agreement” an it appears to be just that' — it refers almost exclusively to the matter of a lien on the equipment, the safeguarding of the property and the method of enforcing collections of the note. It is silent as regards a warranty of any kind. Also it is shown by the record that there was an oral sale of the equipment several days before the “Security Agreement” was signed. In the Hickman case, supra, the court said “The contract signed by Lower and Gann shows it is a complete contract between the parties embracing the subject-matter of their negotiations. ...” That is not the situation in this case, The Belmont case, supra, was decided on an issue and on facts different from those present here. In that case the chancellor held there was an “implied” warranty.

In the case under consideration we have these factors; the warranty was made before the written instrument was signed; the written instrument made no mention of a warranty having been made; and, neither did it contain the entire agreement between the parties. In Equitable Discount Corp. v. Trotter, 233 Ark. 270, 344 S. W. 2d 334, this Court said:

“We have held that where a contract of sale is in writ-in and recites that it constitutes the entire agreement between the parties, parol evidence is not admissible to vary the terms of the contract. ’ ’

'Italics ours.)

The Court further stated that:

“It is true that there are exceptions to this rule, and we have several times held that even though the contract provided that the written instrument constituted the entire agreement between the parties oral testimony was admissible to contravene this recitation.”

In Louisiana, where most of the sale transactions took place, the court in the case of Stewart v. Clay, 10 La. App. 727, 123 So. 158 made these relevant statements:

‘ ‘ We cannot agree that the testimony with reference to the warranties as to the capabilities of the heater would tend to vary or contradict the provisions of the written contract, because that contract was completely silent ■with regard thereto. Had it contained any reference to the ability of the heater to heat a certain number of rooms, or to its inability to heat more than a certain numbers of rooms, it might well be said the testimony as to other warranties would tend to contradict or to vary the terms of the written contract, but, since it was absolutely silent in this regard, it is evident that the’contract did not contain the entire agreement between the parties. ...”
# # * *
“It has often been held that testimony on a point on which the contract is silent does not tend to vary or contradict the contract. In Davies v. Bierce, 114 La. 663, 38 So. 488, our Supreme Court said:
“ ‘The test of admissibility in such case is whether the evidence offered tends to alter, vary, or contradict the written contract, or only to prove an independent, collateral fact about which the written contract was silent. In the former case the testimony is inadmissible; in the latter it is competent and proper.’ ”

The rule regarding express warranties may also apply to second hand articles. Crawford v. Abbott Automobile Co., 157 La. 59, 101 So. 871; Savoie v. Snell, 213 La. 823, 35 So. 2d 745.

We do not agree with the contention that appellees necessarily waived any parol warranty by inspecting the diesel engine. We held otherwise in City of Paragould v. International Power Machine Co., 233 Ark. 872, 349 S. W. 2d 332. After the diesel engine had been used for sometime by appellees it broke down and was repaired by appellants. Following this, appellees resumed use of the engine without any further complaint. It is argued this incident means that, as a matter of law, appellees waived any previous warranty. It was held otherwise in the case of Parrett Tractor Company v. Brownfiel, 149 Ark. 566, 233 S. W. 706; Ives v. Anderson Engine & Foundry Co., 173 Ark. 112, 292 S. W. 111; Hall v. Magruder, 175 Ark. 398, 299 S. W. 383.

In the light of the above decisions and under the testimony in the rocord we are led to conclude the trial court was correct in considering the oral testimony regarding a warranty of the condition of the diesel engine, and in finding such a warranty was in fact made.

Counterclaim. We find no merit in appellees’ contention they should have been awarded damages caused by other-defective items. In our opinion the preponderance of the evidence supports the trial court’s finding to the effect that only the diesel engine was expressly warranted to be in A-l condition. It was the one item about which the testimony was definite and specific.

It is our conclusion therefore that the decree of the trial court should be, and it is hereby, affrimed on direct and cross-appeal.

Harris, C. J. and Eobinson, J., dissent.

Carretón Harris, Chief Justice,

(dissenting). I do not think that the evidence established an express warranty as to the condition of the diesel engine, but even so, in my view, any warranty was waived by appellees. It is difficult to believe that Mr. Wolfe relied upon any representations made by Mr. Loe, since Wolfe commented that Loe did not know anything about diesel engines. A buyer hardly depends upon statements of a seller, unless he relies upon a superior knowledge by the seller— and this does not seem to be Hue in the present case. Not only that, but Mr. Wolfe, who has had more than forty years experience in oil drilling work, examined the engine three times before closing the sale. In addition, an adjustment was made at the time of the signing of the agreement, wherein appellants procured a longer Kelly joint and bushing at an expense of $850.00 (after complaints by appellees), and it accordingly appears to me that, in accepting the adjustment, appellees waived any alleged oral warranty. I therefore dissent as to the affirmance on direct appeal.

1 agree with the majority that there is no merit in the counter-claim, and the Chancellor’s findings should, on that phase of the litigation, be affirmed.

I am authorized to state that Mr. Justice Robinson joins in this dissent.


text:
    Central Ark. Milk Producers Association v. Arnold.
    5-3623
    394 S. W. 2d 126
    Opinion delivered October 11, 1965.

      Thompson c§ Thompson, Smith, Williams, Friday é Bowen, By: Franh Warden, Jr., for appellant.

      Robinson & Rogers, N. D. Fdioards, for appellee.
   Sam Robinson, Associate Justice.

This is an action of replevin which resulted in a judgment for defendants. On the 17th day of July, 1964, appellant, Central Arkansas Milk Producers Association, filed a complaint in the Crawford Circuit Court naming as defendants Dale Arnold, Homer Minnick, Gladys Minnick, and Federal Land Bank. Plaintiff sought to replevy a 500 gallon vacuum tank. There was a judgment for the defendants, and the milk company has appealed.

The complaint alleges that on January 15, 1961, the plaintiff sold to defendant Homer Minnick, a 500 gallon vacuum tank, retaining title thereto, and the defendant gave his promissory note in the sum of $2,934.56, bearing-interest at the rate oí 7%, and payable $60.12 per month. The complaint further alleges that Minnick entered into a security agreement and financing statement to secure the debt; that the financing statement was filed for record on July 19, 1962, and that the defendant, Dale Arnold, had notice of the balance due on the obligation of $1,771.08; that Dale Arnold is in possession of the property, and that the Federal Land Bank owns a real estate mortgage on the real estate upon which the property is located.

Exhibit “A” to the complaint is a promissory note dated January, 1961, signed only by Homer Minnick. Exhibit “B” to the complaint is a financing statement signed by Homer Minnick and filed for record July 19, 1962. In the financing statement it is stated that it covers a 500 gallon vacuum tank. Plaintiff also filed an affidavit and bond to replevy the tank. The Federal Land Bank disclaimed any interest in the subject matter and was dismissed from the case. Service was had on the Minnicks by warning order, but they failed to appear, and no pleading- was filed in their behalf.

Dale Arnold filed a general denial. Jimmy Miller and Cecil Miller filed an intervention in which they allege that prior to the filing- of this litigation they purchased the real estate on which the vacuum tank was located; that at the time of such purchase they had no notice, actual or constructive, that the plaintiff claimed any interest in the tank.

In this state of the record the cause came on for trial. Plaintiff attempted to introduce a promissory note dated August 31, 1960 and a conditional sales contract dated November 29,1960, showing that the milk company sold the 500 gallon vacuum tank to .one Wilford Arnold under a title retaining contract. The court would not permit the Wilford Arnold note and contract to be introduced in evidence. The court was correct in this holding. There is nothing to indicate that such documents were in any way relevant or material to the issues raised by the pleadings. No suit had been filed on the Wilford Arnold contract and note, Wilford Arnold is not a party to this litigation. There is no allegation that the Wilford Arnold contract and note had been assigned to any party to this litigation. No title is retained; the Minnick promissory note dated January, 1961, is not sufficient to support the action of replevin.

Even if it can be said that the Uniform Commercial Code, which went into effect January 1, 1962, is applicable, appellants’ position would not be improved, because the financing statement which was filed merely gave notice of the security agreement, and here the instrument relied on a security agreement is simply a promissory note, nothing more. It does not purport to retain title or to create a lien.

Affirmed.