author: John A. Fogleman, Justice.

text:
    Rezona KELLY v. Donnie KELLY
    78-187
    575 S.W. 2d 672
    Opinion delivered January 22, 1979
    (Division II)

      Jim D. Spears, for appellant.

      Jerry D. Pruitt, for appellee.
   John A. Fogleman, Justice.

This is a divorce action in which appellant Rezona Kelly was granted a divorce in a suit against appellee Donnie Kelly. She asserts error in that portion of the decree awarding Mr. Kelly an interest in real property, the record title to which was in her and her mother, Wilma Styron. She also contends that the award of alimony and child support was totally insufficient. We find no reversible error.

The property in question was a lot on North 50th Street in Fort Smith. After the sale of a dwelling house owned by appellant and appellee as tenants by the entirety, appellant and her mother caused a house to be moved from either Booneville or Greenwood and placed on the lot on North 50th Street. The chancery court held that Mr. Kelly was entitled to credit for $1,753.25, stating that it represented one-half the money expended by the parties on this residence, but vested all other interest in the house and lot and the right of possession in appellant. Mr. Kelly first contended in the trial court that the title was held in a resulting trust of which he was the beneficiary. Mrs. Kelly argues that the divorce statutes do not provide for an award of property of the wife to the husband. She contends that the trial court did not declare a resulting trust, but merely imposed a lien on the property for the stated amount. We are inclined to agree with appellant that the decree should have merely given appellee a lien on the property to the extent of the amount fixed. Appellee contends here that the chancellor imposed a lien on the property for the amount stated to be paid when and if the house is sold in the future. We are unable to find these provisions in the decree, but take the record of the chancellor’s findings and the decree to indicate such an intention.

Mrs. Kelly asserts that there cannot be a resulting trust because appellee did not furnish the entire purchase price for this property, relying on Gordon v. Claridy, 142 Ark. 184, 218 S.W. 195. She is correct in this contention, since we cannot say that it was shown by clear, cogent and convincing evidence that, before the title vested, Kelly paid or advanced moneys on the basis of an agreement between the parties that he was to have a definite interest or a determinate aliquot part of the property, or that he should own an interest in the land corresponding to the amount contributed by him. Harbour v. Harbour, 207 Ark. 551, 181 S.W. 2d 805.

There is evidence, however, that Kelly made substantial advancements for the house and for other improvements on the lot. The parties had jointly owned a house in which they resided, which was sold and at least part of the proceeds invested in the purchase of the house that was moved. This appears to have been accomplished by repayment to Mrs. Styron, who advanced at least $10,600 on the purchase of the house that was moved onto the lot and for necessary expenditures in improving it. The amount repaid to her is disputed. A part of this repayment came from a $2,000 deferred purchase money note of the buyers of the house the parties had jointly owned, at the rate of $50 per month. These payments have been and are being made directly to Mrs. Styron, beginning in February or March, 1975. Appellee testified that he had paid $100 per month from his salary on the debt to Mrs. Styron from February 1975 through October 1977. Mr. Kelly testified that a two-car garage had been built on the property at a cost of approximately $2,500, that he had paid $600 for carpet, $300 for repair of a porch and patio, and a minimum of $500 for paneling. He stated that $4,500 of the proceeds of sale of the jointly owned house also went to Mrs. Styron, but admitted that it might be true that she received as little as $1,763.50. In addition, it is admitted that he performed some labor in improving the house, even though appellant attempted to belittle the extent and value of that work.

Mrs. Styron testified that she received around $1,700 from the proceeds of sale of the house jointly owned by her daughter and son-in-law. She did not contradict appellee’s testimony about other payments. Mrs. Kelly testified that the $1,700 went for a stove and dishwasher. According to her, the total payments to her mother amounted to $3,506.31. Her testimony that a part of this money came from her unemployment compensation check of $94 per week is not very satisfactory or convincing. She denied that $2,500 was invested in the garage, $600 in carpet and did not know about the cost of the repair of the porch and patio, but, for some reason not made clear, claimed credit for one-half of that expense. To say the least, there is clear and convincing evidence that Mrs. Styron has been paid $3,506.31. The findings announced by the chancellor indicate that she arrived at the amount allowed appellee by taking one-half of this admitted total payment.

Appellant relies upon the presumption that any contributions by a husband to improve his wife’s property are a gift to the wife, citing Fine v. Fine, 209 Ark. 754, 192 S.W. 2d 212. She recognizes however, that this is a rebuttable presumption, citing Stephens v. Stephens, 226 Ark. 219, 288 S.W. 2d 957. In this case, we are unable to say that the chancellor erred in finding that the presumption had been rebutted.

The parties had owned and lived in two residences jointly. Mr. Kelly testified that the money paid on these houses was his. He said that he did not consent to buy and move the house to the lot on North 50th Street at first, but eventually did agree to move there after the house had been moved. He said that he insisted, but that Mrs. Kelly never agreed, that the title to the property be put in their joint names when the indebtedness on the house was paid. He said that she first agreed, but later refused, saying that he made her feel insecure. Mr. Kelly said that he had not demanded that title to the property be placed in their joint names at the very outset, because he did not think it would be right to do so when they owed appellant’s mother so much for the purchase of the house and the cost of moving it. Appellant had been employed when the parties were married, but had voluntarily left her employment before the house was moved. Appellee had insisted that she go back to work, but she refused, at least until their children were older. Mrs. Kelly denied that he had made any such request.

We find the evidence sufficient to rebut the presumption of a gift. It is quite clear that this case is somewhat different from those in which the husband pays the purchase price for property but causes the title to be taken in the wife’s name or in their joint names. This case is, as appellant recognizes, governed by cases in which the husband has advanced or expended money in improving the wife’s property, such as Spruill v. Spruill, 241 Ark. 808, 410 S.W. 2d 606. In such cases, this court has found the presumption to be rebutted when the evidence shows that not to do so would violate the principles of equity and good conscience. Stephens v. Stephens, supra; Spruill v. Spruill, supra. Here, as in Spruill, appellee took no action toward putting the title to the tract in his wife. Even if he had done so, the presumption might be rebutted on consideration of evidence of antecedent or contemporaneous declarations and matters fairly connected with the transaction or facts which existed so soon thereafter as to form part of the transaction. Della v. Della, 98 Ark. 540, 136 S.W. 927; Poole v. Oliver, 89 Ark. 578, 117 S.W. 747; Johnson v. Johnson, 115 Ark. 416, 171 S.W. 475; Parks v. Parks, 207 Ark. 720, 182 S.W. 2d 470.

We recognize that the presumption of gift can be overcome only by clear and convincing evidence. Fine v. Fine, supra; Smith v. Smith, 227 Ark. 26, 295 S.W. 2d 790. We also recognize that appellant testified that Mr. Kelly never requested that title be put in the joint names of the parties. But it is not necessary that evidence be undisputed in order to be clear and convincing, if found by the fact finder to carry a clear conviction to the mind. In re Estate of Fickert, 461 Pa. 653, 337 A. 2d 592 (1975); Brown v. Warner, 78 S.D. 647, 107 N.W. 2d 1 (1961). See also, Cromwell v. Hosbrook, 81 S.D. 324, 134 N.W. 2d 777. Evidence by a credible witness whose memory of the facts about which he testifies is distinct and whose narration of the details thereof is exact and in due order and whose testimony is so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the facts related is clear and convincing. In re Estate of Fickert, supra. This measure of proof lies somewhere between a preponderance of the evidence and proof beyond a reasonable doubt. Brown v. Warner, supra; Alexander v. Warren, Arkansas, School District No. 1 Board, 464 F. 2d 471 (1972). It is simply that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established. Brown v. Warner, supra.

We cannot say that the testimony of appellee was not clear and convincing, especially in view of the fact that the chancellor did not see fit to make any allowance to appellee for any expenditures, except one-half of the credits on the indebtedness to Mrs. Styron, but, concededly there were additional items paid by someone. It appears to us that it would be contrary to equity and good conscience to deny appellee any recovery of the sums advanced under the circumstances prevailing here. This seems particularly true when we consider Mrs. Kelly’s testimony that she had to fight appellee to get the jointly owned house sold, that he was hollering for a divorce at the time they were acquiring the house which was moved, and, in spite of appellee’s demands, she had told him she didn’t intend to ever go back to work again.

Although we feel that allowances for alimony and child support were conservative, we cannot say that the chancellor abused her discretion in making these allowances. Alimony was fixed at $150 per month until appellant remarries and the court allowed $100 per child per month as child support. The ages of the children were 5-1/2 and 2-1/2. The court also ordered that appellee pay $150 per month on the indebtedness on appellant’s Thunderbird automobile, until that debt is fully paid. Appellee is also to be responsible for all extraordinary medical and dental bills. Appellee is employed as a brakeman-conductor by Missouri Pacific Railroad Company. His gross income in 1977 was $26,-259.20. $5,524.90 was withheld for federal income tax, $1,-167.34 for state income tax and $965.28 for railroad retirement. He said that he would receive a $2,000 refund on the federal tax. Appellee testified that his weekly “take-home” pay was $317. Appellant calculates this at $365.38 after the income tax refund. Appellee testified that he had worked two to four hours overtime six days per week and had made himself available for work six or seven days per week. He said that quite a bit of this work was “on the road” and that entailed additional expense. He also stated that the overtime work had “dropped off.” He hoped to keep working on the same shift so he could have every other weekend off for visitation of his children. The court allowed him visitation on the first and third weekends each month from 6:00 p.m. Friday to 6:00 p.m. oh Sunday. He owed $200 on a 1960 model Volkswagen. He pays $35 per week for support of two children by a previous marriage. He pays $130 per month for an efficiency apartment and also pays the utility bills.

Appellant is employable. When she and appellee were married she was employed by a finance company at a salary of $500 per month. Later she was made manager at a salary of $725 per month. She was also paid a 25 percent commission which had ranged from $17 to $100 per month. She continued working until three weeks prior to the birth of her first child. She also has a current beautician’s license, but would probably need additional training on modern techniques before she could serve as a beauty operator.

Appellant says that she cannot take employment because it is necessary for her to remain at home to care for her youngest child. Dr. Jim M. Post has treated this child, Jason Allen Ray Kelly, since the child was born. He had seen the child twelve times for illnesses during 1977. Jason has had repeated ear infections since he was three months old. He has also had respiratory infections. His problems result from a deficit in immunogenicity, which predisposes him to infection, because he doesn’t have a great deal of natural defenses. His ear infection is treatable. He was well at the time of the trial, according to the doctor. He had been subjected to surgery, but had not been hospitalized over a twelve month period except for a 24-hour period in December, 1977, when ventilating tubes were put in his ears. It was the opinion of the doctor that Jason could be left in the care of a competent babysitter, i.e., a person able to give medicine to the child and who was not caring for a number of children. He did not know of such a person who was available, but did have child patients who were being cared for by such persons. He did not know the cost of employing such a person. He did not mean that this should be a practical nurse. During periods of approximately three months in duration, any babysitter could care for him. Medication was usually administered over a seven to ten-day period. The doctor expected Jason’s condition to improve, as the older child’s had. Dr. Post said that Jason’s speech development was delayed, probably because of his ear trouble, but admitted that the child could have “lay away speech.” He felt that the best person to take care of a child is his mother and that a mother’s love and presence are better for a child when it is ill.

Mrs. Styron had been staying with her daughter. She said that Jason’s condition required all his mother’s time. She said that he had chicken pox but that his general health was good. She stated that he could not talk at all. Mrs. Kelly testified that Jason was not well for more than two or three weeks at a time.

Appellee testified that the inability of Jason to talk and his other ills had been exaggerated, and that he could say a few words. According to him, the child has to be challenged to talk and will respond to a challenge. He said that Jason was as bright as any child except for his speech impediment. Mr. Kelly testified that he did not speak until he was six years old and that Jason’s handicap was hereditary, adding that one of the child’s physicians had mentioned this possibility. He said that both children seemed spry and perky when they visited him and he did not know of any problems that Jason had experienced during the preceding months. He said that Jason could do a pretty good job of skating.

The situation here is such that even a slight change in any of the circumstances considered in arriving at the amounts fixed for child support would call for an increase. We also recognize that it is sometimes difficult to find the line of demarcation between ordinary and extraordinary medical expenses. Because of Jason’s immunogenic deficiency, his hearing problem, his respiratory allergies, and his delayed speech impediment, we feel certain that the chancellor considered almost any medical expense related to these unusual physical conditions to be extraordinary. We have considered these medical expenses as extraordinary in holding that there was no abuse of discretion in fixing the amount of child support.

The decree is affirmed, but the cause is remanded for amendment of the decree to specifically fix a lien on the property according to our view of the chancellor’s intention.

We agree.

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


source: Caselaw Access Project

license: Public Domain

text:
    Delores SMITH v. STATE of Arkansas
    CR 78-169
    575 S.W. 2d 677
    Opinion delivered January 22, 1979
    (Division 2)

      James P. Massie, for appellant.

      Bill Clinton, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Even though the state has confessed error, there are important statutory interpretations essential to the result in this case. As a result, we must treat the factual and legal questions involved as fully as we would if the issues had been contested.

Appellant Delores Smith was charged with shoplifting in the Municipal Court of Pine Bluff. Upon being found guilty, she appealed to the Circuit Court of Jefferson County, where she was found guilty on trial de novo. She brings this appeal from the judgment in the circuit court, stating the following points for reversal:

I
THE KNOWING CONCEALMENT, UPON HER PERSON OR THE PERSON OF ANOTHER, OF UNPURCHASED GOODS OR MERCHANDISE OFFERED FOR SALE BY ANY STORE OR OTHER BUSINESS SHALL GIVE RISE TO A PRESUMPTION THAT THE ACTOR TOOK GOODS WITH THE PURPOSE OF DEPRIVING THE OWNER, AND NOTHING MORE.
II
THE EVIDENCE DOES NOT SUSTAIN A CONVICTION OF SHOPLIFTING (THEFT OF PROPERTY).

A statement of the facts in the light most favorable to the state is essential to an understanding of our treatment of the points for reversal, in both of which we find merit. Millie Smith, mother of appellant, sent this daughter to a Kroger store to get some cigarettes and gave her the money to pay for them. Appellant and her sister, Geraldine Wade, went to the store and each took shopping carts, or “buggies.” When Miss Smith reached the cigarette racks, immediately in front of the cash registers, she took two packages of cigarettes and put them in the pocket of a medium length leather coat she was wearing, in such a manner that they were completely concealed. The store manager observed her when she did so. When Miss Smith went immediately to a check-out line, the manager told someone in the office, which was adjacent to that check-out counter, to watch Miss Smith, and went to call the police by telephone. Geraldine Wade was immediately behind her sister in the check-out line. When the manager got a busy signal on her telephone call, she again warned the cashier in the office to watch Miss Smith. When Miss Smith’s purchases were checked out, the cigarettes were not included. She paid the cashier for the other items. When the cashier turned to put the money in the cash register and could not see appellant, she reached in her pocket, pulled the cigarettes out and handed them to her sister, who threw them in her own “buggy.” At this time, appellant was real “fidgety” and was watching the store manager, who then approached her. When the sister’s items were checked, she paid for these cigarettes.

Before proceeding to the points for reversal, we point out that there is no longer a separate shoplifting statute. The draftsmen of the Arkansas Criminal Code endeavored to eliminate most of the confusion which had developed by reason of the existence of many statutes defining different kinds of theft of property by combining all such crimes into a single one of “theft of property.” See Commentary, Ark. Stat. Ann. § 41-2202 (Repl. 1977). Insofar as it is applicable here, that section provides that a person commits theft of property if he knowingly takes, or exercises unauthorized control over, the property of another person, with the purpose of depriving the owner thereof. Ark. Stat. Ann. § 41-2203 (1) (a) (Repl. 1977).

The theft sections of the Criminal Code include a carryover of the essence of an earlier shoplifting statutory presumption. It is stated in § 41-2202 (2), thus:

Shoplifting Presumption. The knowing concealment, upon his person or the person or another, of unpurchased goods or merchandise offered for sale by any store or other business establishment shall give rise to a presumption that the actor took goods with the purpose of depriving the owner, or another person having an interest therein.

We agree with the reasoning of both appellant’s counsel and that of the state on this point, but for a reason not mentioned by either. It is conceded, and it well must be, that when the cigarettes were put into appellant’s pocket, the statutory presumption was activated. The Uniform Rules of Evidence deal with the effect of statutory presumptions. Ark. Stat. Ann. § 28-1001, Rule 303 (b) (Supp. 1977) reads:

Submission to Jury. The court is not authorized to direct the jury to find a presumed fact against the accused. If a presumed fact establishes guilt or is an element of the offense or negatives a defense, the court may submit the question of guilt or of the existence of the presumed fact to the jury, but only if a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt. If the presumed fact has a lesser effect, the question of its existence may be submitted to the jury provided the basic facts are supported by substantial evidence or are otherwise established, unless the court determines that a reasonable juror on the evidence as a whole could not find the existence of the presumed fact.

In this case, the intent to deprive the owner of the cigarettes was an element of the offense. The statutory presumption would justify the submission of the question of intent only if a reasonable juror on the evidence as a whole, including the evidence of basic facts, could find the requisite intent beyond a reasonable doubt. This requires us to review the evidence on appeal quite differently than we do in the usual search for substantial evidence. When we view all the evidence in this case, we agree with the Attorney General that when appellant removed the cigarettes from her pocket and passed them to her sister, wh«j put them in her own shopping cart and paid for them, we would be hard put to say that the test of reasonable doubt was sufficiently met on the question of intent, particularly in view of the fact that no accusation of theft, either express or implied, had been made before appellant had surrendered possession of the cigarettes. In this connection, we must point out that we feel that the store manager’s testimony tending to show that appellant’s actions at the check-out counter were motivated by appellant’s knowledge that her actions were being observed amount to little more than the statement of a conclusion.

Of course, the statutory presumption is not essential to a conviction on a charge such as the one of which appellant was found guilty, if the evidence is otherwise sufficient, i.e., if intent to deprive the owner of the property involved is shown by evidence from which that intent may be inferred. See, Collins v. State, 184 Ark. 20, 41 S.W. 2d 781. It virtually goes without saying that direct evidence of the requisite intent is indeed rare in a case of this nature. Intent is a state of mind which is not ordinarily capable of proof by direct evidence, so it must be inferred from the circumstances; and, generally, circumstantial evidence is the only means of proof available. McCrary v. State, 124 Ga. App. 649, 185 S.E. 2d 586 (1971); Webb v. Commonwealth, 122 Va. 899, 94 S.E. 773 (1918); Johnson v. State, 451 P. 2d 391 (Okla. Cr., 1969); Derrisaw v. State, 29 Okla. Cr. 377, 234 P. 230 (1925); Carpenter v. Commonwealth, 323 S.W. 2d 838 (Ky., 1959). Still, all of the elements of the crime of theft may be shown by circumstantial evidence. Watson v. State, 125 Ark. 597, 187 S.W. 434.

Regardless of any statutory presumption, the evidence would be sufficient to sustain the judgment in this case, if the circumstantial evidence affords a sufficient support for a finding that appellant intended to deprive the owner of the cigarettes. See Bond v. State, 230 Ark. 962, 328 S.W. 2d 369; Kemp v. State, 146 Fla. 101, 200 So. 368 (1941). Evidence of concealment of the property may constitute evidence of a felonious intent, depending upon the surrounding circumstances. See State v. Aten, 203 Kan. 920, 457 P. 2d 89 (1969); Byrd v. State, 178 Miss. 252, 173 So. 282 (1937); Commonwealth v. Dock, 146 Pa. Super. 16, 21 A. 2d 429 (1941). But in order for circumstantial evidence to be sufficient to support a finding of guilt in a criminal case, it must exclude every other reasonable hypothesis consistent with innocence. Henley v. State, 255 Ark. 863, 503 S.W. 24 478. The question whether the evidence does exclude every other reasonable hypothesis is usually for the fact finder. Abbott v. State, 256 Ark. 558, 508 S.W. 2d 773. But it must give rise to more than suspicion and the fact finder must not be left to speculation and conjecture in arriving at its conclusions on the question. Upton v. State, 257 Ark. 424, 516 S.W. 2d 904. It is the duty of this court to set aside a judgment based upon evidence that did not meet the required standards and left the fact finder only to speculation and conjecture in choosing between two equally reasonable conclusions, and merely gave rise to a suspicion of guilt. Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458.

We agree with the trial court that the evidence tending to show theft raised a strong suspicion of a guilty intent. Still, we think that the trial judge was only left to speculation and conjecture in reaching the conclusion that appellant had the intent to deprive the owner of its property. If there had been any evidence of an overt attempt to pass the check-out station without paying for the cigarettes, or, if appellant had been accused of trying to steal the cigarettes, even inferentially, before she passed them to her sister, we would have a different situation. Even though there may have been a trespass in this case, we feel that it is our duty to set this conviction aside. We also have no alternative to dismissing the charge to avoid appellant’s being put in double jeopardy. Pollard v. State, 264 Ark. 753, 574 S.W. 2d 656.

The judgment is reversed and the case dismissed.

We agree.

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


author: Conley Byrd, Justice. Darrell Hickman, Justice,

text:
    Thomas G. NIESEN and Ann M. NIESEN v. CARROLL ELECTRIC COOPERATIVE CORPORATION
    78-160
    575 S.W. 2d 686
    Opinion delivered January 22, 1979
    (In Banc)

      John B. Hawley, for appellants.

      Dickson & Ball, for appellee.
   Conley Byrd, Justice.

Carroll Electric Cooperative Corporation filed an eminent domain action for a right-of-way on lands owned by Thomas G. and Ann M. Niesen and at the same time secured an order for immediate possession. The Niesens filed a counterclaim challenging the validity of the order of possession entered by the Circuit Court on the basis that the statutes upon which Carroll Electric relied were unconstitutional. In the same pleading the Niesens alleged:

“The Niesens say further that Carroll Electric has taken land in excess of the easement sought by the Complaint, that such taking is trespass for which the Niesens are entitled to damages. The Niesens say that if the condemnation of the described easement is proper under the existing complaint then they are entitled not only to recover full value of the land lost to the easement but also diminished value to adjacent land, additional damage for trespasses inflicted and a clear, precise and restrictive declaration of the exclusive uses for which the easement can be employed.”

In addition the Niesens prayed for damages in the total amount of $246,700 including punitive damages of $200,000.

The Circuit Court ruled that the constitutional issues were non-damage questions which the Circuit Court was not entitled to hear and transferred the matter to Chancery. The Chancery Court, after the submission of briefs and arguments, ruled against the Niesens on the validity of the order of possession and the constitutionality of the statutes involved. The order entered by the Chancery Court, in so far as here pertinent, provides:

“IT IS, THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED that the allegations contained in defendants’ counterclaim wherein the constitutionality of Arkansas Statutes Annotated Section 35-301 et seq, and Section 73-240 and 242 are without merit and should be and are hereby dismissed for want of equity.
IT IS FURTHER ORDERED that since the remaining issues raised by the pleadings of the parties in this case are issues of law which are clearly cognizable in Circuit Court with the aid of a jury, this cause is transferred back to the Madison County Circuit Court for resolution of the said remaining issues in that forum.”

As can be seen from the foregoing the Chancellor only dismissed a part of the Niesen’s counterclaim — leaving for trial in the Circuit Court those portions that presented a triable issue. Such an interlocutory order is not a final order from which an appeal can be taken, Independent Insurance Consultants, Inc. v. First State Bank of Springdale, 253 Ark. 779, 489 S.W. 2d 757 (1973).

Appeal dismissed.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. I disagree with the majority in that I think the circuit court in this case was wrong in transferring the matter to chancery court for a ruling on constitutional issues. The circuit court could have ruled on these issues and should have done so. It is not a serious quarrel that I have with the majority except these appellants are, no doubt, frustrated in their legal efforts to prevent their land from being taken and in my opinion their case deserves more attention.

Appellants allege their land was taken illegally and arbitrarily. First, they claim, and it is not disputed, that the appellee was granted possession of the property without any notice whatsoever to the appellants. I know of no authority or procedural due process that permits such action. Any law that would permit such action, except in the direst circumstances, would, no doubt, violate the due process clause of the United States and Arkansas constitutions. Any court order granting such relief without notice would be equally questionable.

The appellee claims that it did not actually take possession under the order.

The appellants also raise the question of whether the appellee had the right to take the land because there was no prior approval of the project by the Arkansas Public Service Commission. The appellee argues that it determines what is for the public use and necessity by virtue of Ark. Stat. Ann. § 35-301 (Repl. 1977). After the proceeding was filed, the appellee did obtain á permit from the Public Service Commission to construct a transmission line. (See Ark. Stat. Ann. § 73-240 et seq [Repl. 1977]). This record does not reflect if the Public Service Commission used its rubber stamp or not. Surely the appellants will be permitted to pursue this question of who determines necessity during litigation. The majority implies that these issues may be litigated or preserved for what appears to be a third appearance before this court.

After two appearances before two trial judges, a circuit judge and a chancery judge, and two appearances before us, they can fairly conclude that they are getting the legal runaround. The appellants, like many landowners, are no doubt frustrated in their effort to preserve their land and so far have found no legal remedy to prevent it. Historically and legally, such efforts have failed. It has been taken for granted by the legal community that any condemning authority that wants to condemn any property may do so without any serious threat of being challenged successfully in the courts.

The power of eminent domain exists only for the public good. It should no longer be presumed that all eminent domain procedures may proceed unquestioned. We have reached that point in our history where all land — our land, posterity’s land — must be utilized carefully, conservatively and, if used for the public, then only as necessary for the public benefit. Too long has Arkansas been criss-crossed with highways, railroads, pipelines, utility lines and what not without any serious effort on the part of the government to coordinate such actions. There is even a fertilizer pipeline across part of the State of Arkansas. No doubt it is for the good of the public.

Property owners have had to stand by and see the best land in this state utilized for such purposes without any real hope of successfully resisting those efforts. While theoretically the necessity for such actions can be challenged, as a practical matter they cannot be.

No doubt such powers and procedures need to be reviewed by the legislature. It will not be an easy nor a pleasant task. In the interim, the courts should do their duty and scrutinize such procedures and powers for compliance with due process as well as existing laws that require a determination of necessity for such projects.

The appellants allege their land was bulldozed, and from their counterclaim it is evident that their displeasure is not simply a matter of money. Quite often money does not satisfy a landowner when property is taken. Utility is not the only function of land. Sometimes beauty is a desirable quality. So far the appellants have been unable to present their legal arguments to the trial courts or to us with any satisfaction. We in the legal community should begin to examine our cases and listen to the arguments that are presented by litigants rather than take them for granted.

The appellee seems to be proceeding as all condemning authorities have proceeded, and the same is true for the trial judges, and they should not be held out as distinctive. It is simply time to review our procedures and laws relating to eminent domain.


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

text:
    Sammy Lee HALL v. STATE of Arkansas
    CR 78-157
    576 S.W. 2d 178
    Opinion delivered January 22, 1979
    (In Banc)
    [Rehearing denied February 26, 1979.]

      Frank C. Elcan, II, Deputy Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: E. Alvin Schay, Deputy. Atty. Gen., for appellee.
   Conley Byrd, Justice.

From a 30 year sentence entered upon a jury verdict for a single sale of heroin in violation of the Controlled Substances Act, the appellant Sammy Lee Hall appeals.

The record shows that the Deputy Prosecuting Attorney, in his argument to the jury, stated that heroin is the worst of drugs and the most damaging to society. In the final argument to the jury, the Prosecuting Attorney made reference to the deterioration of the community due to its young people injecting heroin into their bodies. Appellant pointed out that there was no evidence in the record to support such argument and moved for a mistrial. The trial court overruled the objection and appellant raises the same issue here. We find no merit to the contention for there is no error in arguing to the jury matters about which courts will take judicial notice, Meeks v. State, 161 Ark. 489, 256 S.W. 863 (1923). See also 25 Am. Jur. 2d Drsgs, Narcotics and Poisons § 44.

Affirmed.

Fogleman, J., concurs and Purtle, J., dissents.

John A. Fogleman, Justice,

concurring. I concur in the majority view, but am uncertain about the propriety of the matter argued as coming within the purview of judicial notice. Still, jurors are not required to set aside their common knowledge and they have a right to consider the evidence in the light of their own observations and experience in the affairs of life, as the prosecuting attorney pointed out to them. See Rogers v. Stillman, 223 Ark. 779, 268 S.W. 2d 614; Kroger Grocery & Baking Co. v. Woods, 205 Ark. 131, 167 S.W. 2d 869; Graysonia-Nashville Lumber Co. v. Carroll, 102 Ark. 460, 144 S.W. 519. The appropriate and universal application of this principle is found at 23A CJS 992, Criminal Law, § 1373, viz:

In a criminal prosecution the jury are entitled to consider and construe the evidence adduced in the light of their own knowledge, intelligence, experience, and observations in the affairs of life, and in reaching their verdict jurors may properly consider matters which are common knowledge, such as the alcoholic and intoxicating qualities of whiskey, or the intoxicating nature of alcoholic liquors generally, and they may use their general knowledge of the nature of commonly used articles, such as a pocket knife.

See also, 75 Am. Jur. 2d 860, Trial, § 1019. It is appropriate that jurors be so instructed. 75 Am. Jur. 2d 769, Trial, § 901; 23A CJS 721, Criminal Law, § 1296.

In considering the asserted error, it must be remembered that the trial judge must be accorded a wide latitude of discretion in controlling jury arguments. Parrott v. State, 246 Ark. 672, 439 S.W. 2d 924. It is also necessary that counsel be allowed a wide range in jury arguments and much must be left to the good sense and sound judgment of the jury. Hall v. State, 161 Ark. 453, 257 S.W. 61; Cravens v. State, 95 Ark. 321, 128 S.W. 1037; Melton v. State, 212 Ark. 968, 209 S.W. 2d 99.

Certainly it is not prejudicial for an attorney to make comments which are a matter of common and general knowledge. See, Vaughan v. State, 58 Ark. 353, 24 S.W. 885. Labelling heroin as the worst of drugs or the worst type of drugs that can be had should fall in that category, even if the additional remarks did not. The most that can be said with reference to remarks that this particular drug was the most damaging to society and that it would seem like the whole moral fabric of the community is deteriorating, when young people find it necessary to inject it into their bodies, could not be taken as more than the expression of the prosecuting attorney’s opinion. The mere expression of the opinion of counsel is not ground for reversal unless it is so flagrant as to arouse passion and prejudice, is made for that purpose and necessarily has that effect. Adams v. State, 176 Ark. 916, 5 S.W. 2d 946.

It was held in Cravens v. State, supra, that there was no prejudicial error in the statement of a prosecuting attorney’s expression of opinion in the following language:

... “I have seen defendants convicted on weaker testimo' ny and never knew but one to be acquitted on as strong testimony, and that man walked out of this courtroom a free man, released by a jury, and that people said they did not see how they did it.”

It has also been held that the statement by the prosecuting attorney that “this was no ordinary case” was not reversible error. Powell v. State, 173 Ark. 450, 292 S.W. 699. In Spier v. State, 157 Ark. 283, 248 S.W. 281, in which the appellant was accused of murdering his brother as the culmination of a quarrel growing out of a charge that appellant had ravished his brother’s wife, we held the following statements proper as expressions of opinions only:

“2, The defendant shed more tears in the last 24 hours than he had shed for years prior to the trial; that he should have gone to the grave of his deceased brother at the time of his funeral and shed some tears; that the evidence showed that he didn’t shed any at that time.
“3. When Charlie Spier ravished the wife of deceased he forfeited the right to live, under the law.
“4. The man who would ravish his brother’s wife and later murder him would fabricate a defense just like Charlie Spier had done.”

The prosecuting attorney also had a right to attempt to impress the jury with the seriousness of the crime by a statement of his opinion. Byrd v. State, 76 Ark. 286, 88 S.W. 974. In Byrd, we held that a statement that “the case is so cruel and barbarous that it is without a parallel in the history of crime” was an expression of opinion as to the gravity of the crime which afforded no basis for reversible error.

We would not be justified in finding an abuse of the trial court’s broad latitude of discretion to permit a wide range of argument by the prosecuting attorney in this case on the basis of the facts and opinions stated.

I would affirm the judgment.

John I. Purtle, Justice,

dissenting. The prosecuting attorney and his deputies are public officers performing their duties in a quasi-judicial capacity. It is their sworn duty to uphold the laws and Constitution of the State of Arkansas. This function should be carried out with vigor, and any honorable, reasonable and lawful means should be employed. There should be no occasion to deliberately appeal to the prejudices which most of us possess. Juries are for the most part composed of people with ordinary intelligence, with variances of course, and are likely to look upon a public official in the performance of his/her duties with more confidence than a lawyer who is being paid to defend an accused. It is for these reasons a prosecutor should very carefully consider the manner in which a case is presented to a jury.

All remarks made in closing arguments to the jury should be based solely upon the evidence presented and the law governing the case. The jurors are sworn to try the case according to the law and the evidence presented at the trial. The participants should be and are likewise bound by the same rule of law. We have previously held remarks made by the prosecuting attorney having no basis in the evidence were so prejudicial as to call for a retrial. Debbie Long v. State, 260 Ark. 417, 542 S.W. 2d 742 (1976); Dillaha v. State, 257 Ark. 476, 517 S.W. 2d 513 (1975); and Holder v. State, 58 Ark. 473, 25 S.W. 2d 279 (1874).

Since at least 1874, prosecuting attorneys have been informed not to make overzealous remarks which are not a part of the record. In the instant case, the trial court overruled the defendant’s objection to the remark, thereby possibly giving the jury the impression the court also agreed with the “not in evidence” statement. I do not feel the standard instruction given to the jury prior to the argument is sufficient to remove the possible damage by “not in evidence” closing remarks.

In this case, we do not know exactly what the closing remark first objected to contained, but evidently it was words to the effect that “this particular drug was the worst of all drugs and the most damaging to society.” In the recorded portion of the closing argument, the prosecutor did state:

“You know we are talking about the worst type of drugs that can be had anywhere — It would seem like the whole moral fabric of our community is deteriorating when young people, young men, black and white, find it necessary to inject into their body, however they take it,

There was no need for these “not in evidence” remarks unless it was intended to arouse prejudice and passion. There was ample evidence in the record to sustain a conviction without such remarks. The fact that this young man received a sentence of thirty (30) years indicates to me these remarks had the effect of an “overkill.” The sentence was the maximum which could be “dished out” and ordinarly would be expected to be reserved for the most hardened offenders.

I do not imply that all prosecutors are unfair or overzealous because no doubt the overwhelming majority are fair-minded. Neither do I imply this prosecutor was wilfully and intentionally unfair. However, this remark may well have added years to the sentence of appellant.

For the reasons cited above and the long range effect of fair trials, I would reverse and remand for a new trial.


author: Conley Byrd, Justice.

text:
    Keith Edward TUCKER v. STATE of Arkansas
    CR 78-160
    575 S.W. 2d 684
    Opinion delivered January 22, 1979
    (Division I)

      McArthur & Lassiter, P.A., for appellant.

      Bill Clinton, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

On May 21, 1977, approximately three men entered the Kroger Store at 1100 East Roosevelt, Little Rock. One man went to the office and one or more occupied the security guard. The security guard and one of the robbers began scuffling over a pistol and the guard, after being knocked down, was shot in the abdomen. Another shot was fired and the robber in the office was wounded in the leg. The robbers fled the scene shortly thereafter. During the investigation, the body of one Roy Johnson was found in the same general area of the store. Johnson had bled to death from the wound in his leg. During the early morning hours of May 22, police went to the home of appellant. Later the same morning, appellant and his brother reported to the police station, were questioned and were released. Later, appellant was again summoned to the station where he stood in a lineup viewed by at least sixteen persons, four of whom identified appellant as one of the robbers or as a “look alike”. Appellant and one other person identified in the lineup were charged. The charges against the other man were later dismissed. Appellant was charged and tried for capital murder, aggravated robbery and first degree battery. He was convicted of first degree murder, robbery and battery, from which appellant appeals. He raises the following contentions:

“I. The trial court erred in limiting appellant’s cross examination concerning misidentifications and erroneous identifications by eye-witnesses to the robbery and the sustaining of the State’s objections to same.
II. The trial court erred in denying appellant’s motion for directed verdict in that the evidence failed to support a verdict of guilty herein.
III. The trial court erred in refusing appellant’s requested Instruction Number Two.”

POINT I. During cross-examination of Officer Ivan Jones, appellant attempted to examine Jones relative to a summary that Jones had not prepared concerning persons who observed the lineup and failed to identify appellant as one of the robbers but were not called by the State as witnesses. The trial court sustained the objection because there was no showing as to the opportunity those persons had to observe appellant at the time of the robbery. Appellant also sought to examine Officer Jones from the summary concerning a lineup viewer who claimed to know the person that shot the security guard but the trial court sustained an objection on the basis that it constituted hearsay. Subsequently, appellant was permitted to elicit the information sought from Officer Jones through the testimony of Officer Larry Dunnington who actually took the statement from the lineup witness that claimed to know the identity of the robber.

Appellant in contending that the trial court erred relies upon Uniform Rule of Evidence 803(1) which provides:

“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”

In making this argument appellant ignores Rule 402 of the Uniform Rules of Evidence which provides that “Evidence which is not relevant is not admissible.” Of course, without some showing of the opportunity that the lineup witnesses had to observe appellant at the time of the robbery and shooting, the fact that some of the lineup witnesses failed to identify him in the lineup would have no relevance to the issue of whether appellant was a participant.

Also that portion of the summary with reference to the lineup witness that claimed to know the identity of the robber that shot the security guard was properly excluded by the trial court. In the first place there was no showing that Officer Jones saw or heard the lineup witness make the statement about the identity of the robber — his only information being information coming from the summary prepared by someone else. Furthermore, the lineup occurred some three days after the robbery and could not have been a present sense impression of the robbery occurrence within the meaning of Rule 803(1), supra.

POINT II. There was evidence showing that appellant was one of the gun wielding robbers that did the shooting. There was evidence that one of the robbers was wounded in the leg and was bleeding, as he left the building. There was testimony that when the two robbers next to the front of the store started to leave one of them yelled “Come on Roy.” The officers found a trail of blood from the store to the scene where the body of Roy Johnson was found. The medical testimony showed that Roy Johnson died from a loss of blood caused by the wound. Furthermore, the proof shows that appellant shot the security guard. Consequently, we can find no merit in appellant’s assertion that the evidence was insufficient to sustain the verdicts.

POINT III. Appellant contends that the trial court erred in refusing to give its Instruction No. 2 which stated:

“You are instructed that if there is evidence or testimony not produced in the trial, you may infer that such evidence is unfavorable to the side not presenting it.”

In making this argument appellant relies upon Saliba v. Saliba, 178 Ark. 250, 11 S.W. 2d 774 (1928). That case does not support the appellant’s contentions because there the court was dealing with evidence in the control of a party. The instructions offered by appellant did not place any such restrictions on evidence not presented, consequently, the trial court did not err in refusing to give the instruction.

Affirmed.

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


author: Darrell Hickman, Justice. Carleton Harris, Chief Justice,

text:
    Wayne R. FOSTER, et ux, d/b/a BIG CHAIN LIQUOR STORE v. William JOHNSON
    78-159
    576 S.W. 2d 187
    Opinion delivered January 22, 1979
    In Banc)
    [Rehearing denied February 19, 1979.]

      Wayne R. Foster, for appellants.

      Phillip H. McMath, P.A., for appellee.
   Darrell Hickman, Justice.

This is an appeal of a Workers’ Compensation case. The administrative law judge found that William Johnson, the appellee, had suffered a compensable injury; the full Commission and the circuit court agreed.

We agree with the appellants’ first allegation of error, that the appellee failed to prove a compensable injury arising out of the appellee’s employment, and reverse the judgment.

The facts are essentially undisputed. William Johnson, the claimant and appellee, was employed as the night clerk, or manager, of the Big Chain Liquor Store located at 13th and Locust Streets in North Little Rock, Arkansas. The store is owned by Wayne Foster and Winifred Foster, the appellants. Johnson, who is fifty-five, locked the store at midnight on the night of September 17, 1976, and walked across the street to his car which was parked on a lot owned by the appellants. Two young men, hiding behind Johnson’s car, stood up as he started to open the car door and shot him twice.

Johnson testified that he was told by Mrs. Foster to park his car on the Foster property across the street. He explained that this was so the car could be watched. Johnson said that all of the employees parked on the lot owned by the Fosters.

The assault, was unexplained, and the assailants were never identified. There were no words spoken to Johnson by his assailants. There was no evidence of any attempt made to rob Johnson. Johnson had finished his duties as an employee, locked the store, and crossed a street at the time of the incident. He had no assets of his employer in his possession. Before he left the store he had hidden the cash receipts of the store in a back room as he had been instructed.

According to the evidence, this particular liquor store had been robbed twice in a fifty-year period. A North Little Rock policeman, with twenty years experience, testified that this store was slightly less hazardous than most because it was well-lighted and in a good neighborhood. He went on to testify that, generally, employees of a liquor store are subject to an inherent risk to some degree.

The Commission came to the conclusion that Johnson was entitled to compensation.

First, the Commission emphasized that the parking lot across the street was owned by the appellants and the employees of the liquor store were encouraged to park there. Second, the Commission recognized a theory of law regarding assaults which are of a “neutral origin. ” That is, assaults which are not connected directly with the employment nor inherently of a private nature, but somewhere in between, are of a “neutral origin.” The Commission in this regard quoted Larson on Workmen’s Compensation as follows:

In Larson: Workmen’s Compensation (Desk Edition) at Section 11.30, Professor Larson discusses assaults of a “neutral origin.” Neutral assaults are distinguished from those which have some inherent connection with the employment and those that are inherently private. Courts have more difficulty with finding neutral assaults compensable or not compensable as opposed to the other two categories. He recognizes a sort of “but for” rule; the general principle is that the injury would not have occurred except for the obligations of the employment.

Finally, the Commission pointed out that there was evidence to support the conclusion “that liquor stores and filling stations are susceptible to robberies, and employees who work in such places are subjected to an inherent risk to some degree.”

On review we look to see if there is substantial evidence to support the findings of the Commission. Reynolds Metal Co. v. Robbins, 231 Ark. 158, 328 S.W. 2d 489 (1959). We resolve all inferences against the employer and give the evidence the most liberal construction possible in favor of the claimant. Price v. Servisoft Water, et al, 256 Ark. 702, 510 S.W. 2d 293 (1974).

In this case we cannot find substantial evidence to support the Commission’s conclusion that, “. .. without evidence to the contrary, . . . this assault was related in some nature to the claimant’s employment.”

It was the duty of the claimant to prove that the injury not only arose during the course of his employment but also arose out of his employment. Ark. Stat. Ann. § 81-1305 (Repl. 1976). That is, his injury grew out of, or resulted from his employment. Duke v. Pekin Wood Products Co., 223 Ark. 182, 264 S.w. 2d 834 (1954). There is no substantial evidence in this record that proves the injury had any connection with the employment. If the assault was connected with Johnson’s employment, such a fact must be assumed. The incident occurred off the premises, and there is no evidence that it was connected with Johnson’s employment. If robbery of Johnson, either as an individual or as an employee, was intended, there is no evidence of it. The motive could have been revenge for all the record shows. Any such conclusions must be assumed because they are not supported by substantial evidence. The assault simply remains unexplained and unconnected with Johnson’s employment.

We find that the Commission’s conclusion was more speculative than based upon evidence. Consequently, we reverse the judgment of the circuit court and the findings of the Commission.

Reversed and dismissed.

Harris, C.J. and Holt, J., dissent.

Carleton Harris, Chief Justice,

dissenting. I recognize that this is a very close case, but since compensation cases are liberally construed in favor of a claimant, I feel that the award should be affirmed. One of the strongest facts in John» son’s favor is that the manager of the liquor store had directed that employees park at a particular lot directly across the street from the store (apparently owned by the appellant) and claimant and other employees had complied with this directive and parked their cars in this location as directed by Mr. Foster, the store manager. In Davis v. Chemical Construction Co., 232 Ark. 50, 334 S.W. 2d 697, a set of facts reflected that an employee had gotten into a vehicle in order to leave the employer’s premises, but did not reach the outer gate which joined a street, before being injured. Though the point at issue was not the same as presently before us, I think language used by the court in that case is pertinent to the instant litigation, as follows:

By this qualification of the coming and going rule it is recognized that an employee is entitled to a reasonable time to leave his employer’s premises and that an injury suffered within that interval may arise out of and in the course of the employment. The principle has often been applied in cases involving a parking lot maintained by the employer; [my emphasis] the cases are collected in Schneider on Workmen’s Compensation (Permanent Ed.), § 1719.

Likewise, in Beckerman v. Owosso Manufacturing Co., 233 Ark. 973, 350 S.W. 2d 321, this court stated:

The touchstone is * * * was he performing any duty in connection with his employment, or was he at the point of the accident at his employer’s direction, or using facilities supplied by the employer. [My emphasis.]

Let it be remembered that Johnson was employed as a night clerk in a liquor store operation in the City of North Little Rock, waiting on nighttime customers and caring for the cash receipts of the store, performing stocking duties, and closing the door at quitting time. The store was closed at midnight, and Johnson was walking to his car which was parked in the area as directed by the store manager. In fact, he was shot down on the parking lot near his car. 1 Larson, The Law of Workmen’s Compensation, § 11.11(a), states the general rule to be:

Since every jurisdiction now accepts, at the minimum, the principle that a harm is compensable if its risk is increased by the employment, the clearest ground of compensability in the assault category is a showing that the probability of assault was augmented either because of the particular character of claimant’s job or because of the special liability to assault associated with the environment in which he must work.

In this day and age, we need no great amount of evidence to know that employment at a liquor store (especially at night) is a particularly hazardous occupation subjecting one to the risk of serious injury or death.

In 1 Larson, The Law of Workmen’s Compensation, § 11.31, it is stated:

Wilful assaults upon the claimant, like injuries generally, can be divided into three categories: those that have some inherent connection with the employment, those that are inherently private, and those that are neither, and may therefore be called “neutral.”

Since this assault is essentially unexplained, it would appear to fall within the “neutral” category. Larson points out in § 11.31:

The third, or neutral, category comprises those assaults which are in essence equivalent to blind or irrational forces, such as attacks by lunatics, drunks, small children, and other irresponsibles; completely unexplained assaults; and assaults by mistake. A minority [my emphasis] of jurisdictions are inclined to regard the neutral category as non-compensable, for want of affirmative proof of distinctive employment risk as the cause of the harm; but a growing majority, sometimes expressly applying the positional or but-for test, make awards for such injuries when sustained in the course of employment.

In Westark Specialties, Inc. and Granite State Ins. Co. v. Lindsey, 259 Ark. 351, 532 S.W. 2d 757, an employee was an innocent victim of a gunshot, the result of a quarrel between two other employees on the employer’s parking lot. We held the claim compensable, quoting Larson, as follows:

Assaults arise out of the employment either if the risk of assault is increased by the nature of setting of the work [my emphasis] or if the reason for the assault was a quarrel having its origin in work.

It is my view that when we resolve every doubt or inference in favor of the claimant, substantial evidence has been presented which entitles him to the award.

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


author: Darrell Hickman, Justice.

text:
    Marlon Glenn HALLMAN and Tywanna Faye MARTIN v. STATE of Arkansas
    CR 78-165
    575 S.W. 2d 688
    Opinion delivered January 22, 1979
    (In Banc)

      Robert S. Gunter, of Southern, Gunter, Matthews & James, for appellants.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

This is an appeal by Tywanna Faye Martin and Marlon Glenn Hallman who were convicted in a joint trial of capital murder and kidnapping. Four individuals were charged with the crimes, and three were tried together. Henry Jewel Harris was also a defendant in this case but is not an appellant. Martin and Hallman were each sentenced to life imprisonment without parole for capital murder and twenty years for kidnapping.

On appeal they allege three errors, which we find without merit. We have examined the record for other reversible errors, as we are required to do in such cases, and find no such errors. Consequently, the judgment is affirmed.

The state’s case was that these appellants, with two others, kidnapped Calvin Earl Smith at Sambo’s Restaurant on Geyer Springs Road in Little Rock during the early morning hours of September 4, 1977, beat him and killed him by drowning in the Arkansas River near a pier located on the river in North Little Rock.

At first, all four defendants were charged with the kidnapping of Smith; Hallman and Martin were arrested on the 4th day of September, 1977. They were arraigned in municipal court on the morning of September 6, 1977. Later, on the 10th day of September, 1977, a body was found; according to the expert medical witness, who testified for the State, it was the body of Calvin Earl Smith who died by drowning.

An additional charge of capital murder in furtherance of the commission of kidnapping was filed against these defendants on the 3rd day of November, 1977.

Each of the three defendants testified at the trial below, and their statements do not vary a great deal. Martin and Hallman were living together in an apartment on East 9th Street in Little Rock. On the evening of September 3, 1977, they returned to their apartment and discovered that some of their furniture had been stolen. According to them, a neighbor, Annette Wilson, told them that several men had burglarized their apartment and one of them was Smith. They proceeded that evening with the two other defendants to locate Smith. They found him and followed him to Sambo’s Restaurant. Smith was then taken in a vehicle by these four parties to be questioned about the location of the furniture.

It is undisputed that they drove Smith back to their apartment and the neighbor, Annette Wilson, saw them outside. The appellants said Wilson identified Smith as one of the burglars. She disputed this on the witness stand. Wilson said she was called out of her house and saw Smith in the back seat of the automobile sitting beside Harris. She said Smith appeared to be beaten up. She testified she did not see either of the appellants strike Smith.

Wilson also denied in her testimony that she told either of the appellants at any time that Smith had participated in the burglary.

The defendants all left the vicinity of East 9th Street, drove to North Little Rock and parked near the Arkansas River. Smith was struck several times. Hallman denied that he ever struck Smith but said the other two male defendants did strike Smith several times. Smith was taken to the river by the three male defendants and Martin remained in the vehicle. According to Hallman there was some conversation at the river about the furniture, and when he saw it was a futile effort to regain it, he turned his back to leave; as he did he heard a splash. He said he looked around and saw Smith in the water swimming toward the bank. Hallman denied striking Smith or pushing him into the water. Harris admitted that he struck Smith several times, and admitted that he had a gun which he said slid out from under the seat of the vehicle. It was not disputed that the gun was made available by Martin who claimed it was her brother’s gun. Harris said that the fourth party, who was not tried in this case, pushed Smith in the river. He said that when he left, Smith was in the river swimming toward the bank.

All the witnesses testified that Martin stayed in the vehicle and did not observe what happened at the river.

The medical expert, while finding that Smith died from drowning, could not testify whether Smith had been beaten because he said the body was decomposed. He stated, however, there were no broken bones.

Statements were taken from Martin, Hallman and Harris and introduced into evidence. While they did not substantially vary as to the series of events, they, no doubt, contained incriminating evidence which was considered by the jury. Mostly, it was the testimony of the appellants themselves that damaged their cause. Martin admitted that the gun was her brother’s and she took it along. She said she knew Smith would be beaten. Hallman said he observed Smith being struck several times by the other two male participants. Hallman said they went to North Little Rock because Smith had told them he would take them to the furniture. But after he got there, he wouldn’t, or couldn’t, show them where the furniture was. He said Smith was beaten so he would tell where the furniture was. All of the parties denied that they kidnapped Smith and, in fact, testified that Smith accompanied the four individuals voluntarily. They also denied that they had killed Smith or knew that he was dead.

The allegations of error are threefold: The trial court erroneously denied the appellants separate trials; all statements made by the appellants to the authorities after their first arraignment should have been suppressed (each made three); and, Martin’s conviction cannot be supported by substantial evidence.

First, the appellants argue they were entitled to separate trials as a matter of right according to Ark. Stat. Ann. § 43-1802. That statute was superseded by Rules of Crim. Proc., Rule 22 (Repl. 1977). Rule 22.3 provides:

(b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (a), shall grant a severance of defendants:
(i) if before trial it is deemed necessary to protect a defendant’s right to a speedy trial, or it is deemed appropriate to promote a fair determination of the guilt or innocence of one (1) or more defendants; or
(ii) if during trial, upon consent of the defendant to be severed, it is deemed necessary to achieve a fair determination of the guilt or innocence of one (1) or more defendants. . . .

The appellants had been granted a separate trial. However, after the State waived the death penalty, the trial judge rescinded that order and ordered joint trials. A matter of severance, or separate trials for multiple defendants, is one within the sound discretion of the trial judge to grant or deny. We will not reverse such a decision unless that discretion is abused. Legg v. State, 262 Ark. 583, 559 S.W. 2d 22 (1977). We find no such abuse. All statements that were made by the defendants in this case were altered to delete any reference to co-defendants. Byrd v. State, 251 Ark. 149, 471 S.W. 2d 350 (1971); Rules of Crim. Proc., Rule 22.3 (Repl. 1977).

The defense of these appellants was not antagonistic. In fact, all the defendants testified and cross-examination permitted the appellants to refute any adverse testimony to their cause. Bell and Walker v. State, 258 Ark. 976, 530 S.W. 2d 662 (1975). Nobody testified that Hallman pushed Smith into the water or drowned him. According to his own admission, he was present as an actor throughout the episode. Nobody denied that Martin remained in the vehicle and did not go to the water’s edge where the critical events which preceded the drowning occurred.

Consequently, we find no error of abuse of discretion.

The appellants argue that any statements they made to police officers after their arraignment should be excluded because they were taken after counsel was retained and in the absence of counsel.

It is not disputed that the defendants had counsel when they were arraigned on the 6th of September, 1977. Two statements were taken from Martin after the arraignment, one on the afternoon of the 6th of September, 1977, and another on the 13th of September, 1977. Two statements were taken from Hallman on the 4th day of September, 1977, and one on the 13th day of September, 1977. While the statements did not directly admit, any guilt as to kidnapping or murder, there is no doubt that they were used by the State as circumstantial evidence of guilt and used to the appellants’ detriment in cross-examining the appellants when they took the witness stand.

The policemen who took statements from the appellants testified that they did not know when the statements were taken that either had counsel. They said that a waiver of rights form was signed in each instance before a statement was taken. Waiver of rights forms were produced which appeared to have the signatures of the appellants.

Martin did not ever testify that she asked for counsel at any time or told the police that she had counsel. Hallman said that when his statement was taken on the 13th day of September, 1977, he asked for the presence of his counsel and was denied that request as well as a request to make a phone call. He said that he was threatened in that the officers said they would place charges against him for murder if he didn’t make a statement.

The police officers testified that neither appellant ever asked for counsel, both appellants waived their rights to counsel, signed a form to that effect and made voluntary statements. A woman police officer was present when one of Martin’s statements was taken and corroborated the male officers’ testimony.

It was shown that both appellants were adults and there was no indication of lack of formal education. In the case of Harris, it developed that he asked for counsel and his counsel was present when one statement was taken from him by one male police officer who took statements from the appellants.

We held in Rutledge v. State, 263 Ark. 781, 567 S.W. 2d 283 (1978) that it was not per se improper for a policeman to question a suspect outside the presence of counsel on another charge. In other words, a person can waive the right to counsel in such a situation. While the circumstances of such a statement will be carefully scrutinized by us, and we emphasize carefully, such a statement is not automatically inadmissible and involuntary. In Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), both Escobedo and his lawyer made repeated requests, which the police confirmed, that the lawyer be allowed to consult with Escobedo during interrogation; those requests were denied. That is not the case here. Both police officers denied that they knew that either of the appellants had counsel and there is no evidence to dispute that testimony. Martin did not even refute the officers’ statement that she did not ask for the presence of her counsel. Hallman said he did, but his testimony was rebutted by both officers. There was no other evidence offered to refute these officers’ statements.

We examine the totality of the circumstances surrounding any statement to determine whether it was voluntarily taken, and having done so in this case, we cannot say the trial court’s ruling that the statements were voluntary is clearly erroneous. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1975).

Finally, Martin argues that she remained in the vehicle, did not strike Smith, was not present at the river’s edge, and in effect was not active in the brutality that may have occurred, and she should be acquitted.

She was charged with capital murder in the furtherance of kidnapping. She admitted that it was her furniture that was taken and she started out with these other defendants to find Smith and get it back. She knew there might be violence and she furnished a gun which was used by one of the defendants in a threatening manner. She said it was not loaded. On cross-examination when asked to explain why she provided an unloaded gun when she feared Smith or his friends might have a gun, she remained silent. She went along from the beginning.

The capital murder statute (Ark. Stat. Ann. § 41-1501 [Repl. 1977]) provides in part:

(1) A person commits capital murder if: (a) acting . . . with one or more other persons, he commits kidnapping . . . and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; ....

Criminal liability for conduct of another is explained in Ark. Stat. Ann. § 41-302 (Repl. 1977), which provides:

A person is criminally liable for the conduct of another person when: ... (2) he is an accomplice of another person in the commission of an offense; ....

Further, a person is an accomplice, according to Ark. Stat. Ann. § 41-303(2)(a) and (2)(b) (Repl. 1977), as follows:

(2) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense, he
(a) solicits, advises, encourages, or coerces another person to engage in the conduct causing the result; or
(b) aids, agrees to aid, or attempts to aid another person in planning or engaging in the conduct causing the result; .... [Emphasis added].

According to these laws the jury could have found, and there is ample evidence to support the finding, that Martin was guilty as charged.

We have reviewed the record for any other prejudicial errors as required by Ark. Stat. Ann. § 43-2725 (Repl. 1977) and find none.

Affirmed.


text:
    Larry Darnell HANDY v. STATE of Arkansas
    CR 78-167
    575 S.W. 2d 693
    Opinion delivered January 22, 1979
    (Division II)

      McArthur & Lassiter, P.A., for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

The only issue raised on appeal of this criminal case is the sufficiency of the evidence to support the conviction. We find it sufficient and affirm the judgment.

Larry Darnell Handy was charged with and convicted of two counts of theft by receiving and sentenced to one year on the first count, and six months on the other, the sentences to run concurrently.

The State offered proof that an Olympia typewriter was stolen in a burglary of the Opportunities Industrialization Center at Little Rock on October 30, 1977. A Pioneer tape player was stolen in the burglary of a residence in Little Rock on October 25, 1977. Both items were pawned to the National Pawn Shop in Little Rock by Handy. The tape deck was pawned on December 14, 1977, for $20.00; the typewriter was pawned on December 15, 1977, for $12.00.

The owner of the pawn shop testified that the value of the typewriter was $125.00 and up. An employee of Moses Melody Shop, where the owner had purchased it, valued the tape deck at $169.95 as new and $125.00 to $150.00 trade-in value at the time of the theft.

A police officer testified that he took a statement from Handy in which Handy stated that he bought the tape player for $20.00, a shotgun for $20.00 and an electric typewriter for $15.00 from a man named Jessie. According to the statement, Handy said, “He was almost given (sic) the stuff away.”

Handy testified and refuted the statement. His in-court testimony was that he bought the typewriter and tape deck because they were “real cheap.” He denied that he bought a gun. He said that he did not know the seller except by the name of Jessie, had not seen him before he purchased the items, nor afterwards. He said that he was approached by Jessie outside a laundromat. Jessie said that he needed help because he was low on money and had some “stuff” to sell. He said he bought the items because it was “a real good deal. ” He said he wanted the typewriter for his girlfriend and he intended to use the tape deck in his home. He said he pawned the items because he needed the money to pay his rent. He said he had no idea the items were stolen.

He was qusstioned about his knowledge by the State’s attorney.

Q. Well, it was such a good deal, because it was such a good deal, didn’t you wonder whether or not it might be stolen?
A. Well, not at the time, you know, not at the time.
Q. You didn’t?
A. It probably crossed my mind, after what he had told me.

The issue on appeal relates to knowledge. Theft by receiving is defined in Ark. Stat. Ann. § 41-2206 (Repl. 1977).

A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen, or having good reason to believe it was stolen.

Ark. Stat. Ann. § 41-2206(3) provides:

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

It is not disputed that Handy had possession of these items and there was testimony that the items had been stolen. Handy admitted possession but denied any knowledge. The matter was presented to the jury and essentially it came down to whether Handy’s explanation carried any weight with the jury. Obviously it did not.

On appeal we look to see if there is substantial evidence to support the conviction. Hutcherson v. State, 262 Ark. 535, 558 S.W. 2d 156 (1977). Matters of credibility are within the province of the jury and not this court. Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225 (1969).

The jury was justified in finding that Handy knew or had good reason to believe that the items were stolen. Consequently, we affirm the judgment.

Affirmed.

We agree.

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


author: John I. Purtle, Justice.

text:
    Maxine VILLANOVA, Administratrix v. Floyd Logan POLLOCK
    78-204
    576 S.W. 2d 501
    Opinion delivered January 22, 1979
    (In Banc)

      McMillan, Turner & McCorkle, by: H. W. McMillan, for appellant.

      Honey & Rodgers, by: Charles L. Honey, for appellee.
   John I. Purtle, Justice.

Floyd Logan Pollock and Carroll Elaine Pollock were divorced in the Chancery Court of Nevada County, Arkansas, on July 1, 1977. The only question before the court is the interpretation of that part of the decree, which stated:

“The only property which the parties acquired is a house . .. which was acquired as an estate by the entirety and which the parties have agreed should be sold and the money equally divided. For this reason, the Court does not make an order at this time pertaining to the disposition of said property but the Court should retain jurisdiction of this cause and if either party desires the house sold, they may so petition the Court.”

Before the sale was held, Carroll Elaine Pollock died. Floyd Logan Pollock filed a Petition for Declaratory Judgment in which he sought to be declared the sole owner of the property. The trial court interpreted the language in the decree to have had the effect of continuing the estate by the entirety and awarded the property to the appellee.

Appellant relies upon three points for reversal. The first is to determine if the divorce decree specifically dissolved the estate by the entirety. Ark. Stat. Ann. § 34-1215 (Supp. 1977) provides:

“Hereafter when any Chancery Court in this State renders a final decree of divorce, any estate by the entirety or suvivorship in real or personal property held by the parties to the divorce shall be automatically dissolved unless the Court order specifically provides otherwise, and in the division and partition of said property parties shall be treated as tenants in common.”

The crucial words in this statute relating to dissolution of the estate by the entirety are:

“. . . shall be automatically dissolved unless the Court order specifically provides otherwise . . . ,”

This statute, Ark. Stat. Ann. § 34-1215 (Supp. 1977), has been in effect since 1975. Prior to its amendment, Ark. Stat. Ann. § 34-1215 (Repl. 1962) stated that the chancery courts “. . . shall have the power to dissolve estates by the entirety ...”

Therefore, the “magic words” which were missing in the 1947 version of this Act were supplied by the 1975 Amendment. It is' now automatic that an estate by the entirety is changed to one in common unless the court decrees otherwise.

The case of Killgo v. James, 236 Ark. 537, 367 S.W. 2d 228 (1963), was decided prior to 1975. Therefore, the 1947 provision controlled. There we held the estate continued to be one of entirety and we would reach the same results in this case except for the 1975 Act. The burden has shifted to the extent that now the change is by law into tenancy in common unless the court decrees otherwise. Under the old Act it remained as tenants by the entirety unless the court decreed otherwise.

The decree in this case states:

“. . ., the Court does not make an order at this time pertaining to the disposition of said property. ...”

Giving the words used in the decree their ordinary meaning, we believe the court did not intend to change the status of the estate at that time although it retained jurisdiction for the purpose of further proceedings if petitioned to do so by the parties.

We, therefore, hold that by operation of law the estate was converted from one by the entirety to one in common by the decree of July 1, 1977. It is our opinion that the “magic words” are now required to hold the estate as one by the entirety. In the instant case, it also has the effect of carrying out the intent of the parties at the time of the divorce.

It is not necessary to discuss appellant’s other points, since we reverse and remand with directions to treat the estate as one held as tenants in common.

Reversed and remanded.


author: George Rose Smith, Justice.

text:
    Estate of Robert M. TRAYLOR, Sr. v. John T. HARMON
    78-136
    576 S.W. 2d 201
    Opinion delivered January 29, 1979
    (In Banc)
    [Rehearing denied February 26, 1979.]

      Pearce & Robinson, for appellant.

      Paul F. Henson and Jimmy Eaton, for appellee.
   George Rose Smith, Justice.

On April 1, 1974, Robert M. Traylor, Sr., executed a $20,000 installment note to the appellee, John T. Harmon. A payment of $5,000 was due in one month, $5,000 in two months, and the other $10,000 in three mnths. Traylor paid only $3,000 on the note. After Traylor’s death Harmon, on April 9, 1976, filed a claim against his estate for the balance due on the note, with interest. The estate resisted the claim on the ground that the indebtedness was part of a usurious transaction. This appeal is from a judgment of the probate court denying the plea of usury and allowing the claim.

As nearly as we can tell from the abstract of the record, the note now in question was part of the last of a series of maneuvers by which Traylor sought to protect his interest in a piece of real property in Little Rock. The property apparently was formerly owned by Traylor or by his company, Arkansas Warehouse Corporation, and was encumbered. The title was conveyed to High Motel Properties, Inc., with Traylor preserving his interest by means of an option to repurchase. Traylor solicited the assistance of three men, acting as T.G.W., Inc., to exercise the option to repurchase. That purpose was accomplished by means of a consent decree in a pending chancery case to which all concerned were parties. Apparently T.G.W. exercised the option and bought the property.

The consent decree, dated November 14, 1973, recited that a warranty deed executed earlier by High Motel Properties had vested fee simple title in T.G.W. The decree then provided that until April 1, 1974, Arkansas Warehouse Corporation (Traylor’s Company) would have an option to purchase the property for $57,000, plus interest from the preceding September 1. Thus the decree gave Traylor an additional four and a half months in which to repurchase the property.

Traylor and Harmon, a lawyer, were friends. On April 1, 1974, the last day for the exercise of the option, they consummated the agreement giving rise to the installment note now in question. Traylor was represented by his own attorney. Harmon had two associates in the matter, Patterson and Lafferty. About $60,000 was needed for the exercise of the option. It was agreed that Patterson, as trustee, would raise $40,000 by means of a mortgage on the property and Harmon would raise the remainder, making their total investment about $60,000. Traylor, for a consideration of $21,-000, was given an option to repurchase the property (from Patterson, trustee) at any time until August 31, 1974, for $47,500. As consideration for the option to purchase Traylor paid Patterson $1,000 and executed the $20,000 installment note to Harmon. Traylor was not able to exercise the option, which eventually expired by its terms. Patterson, who held the title as trustee in the ratio of one fourth for himself, one fourth for Lafferty, and one half for Harmon, sold the property to a third person for about $60,000. Harmon later filed his present claim against Traylor’s estate.

The charge of usury is asserted in this manner: Harmon, Patterson, and Lafferty were to invest about $60,000 in the property, largely by borrowing the money elsewhere. Traylor was to pay $21,000 for an option to buy the property for $47,-500. Thus Traylor, had he been able to exercise his option, would have paid $68,500 for property which Harmon and his associates had acquired for $60,000. It is now asserted that the whole transaction was actually a loan, by which the lenders were to obtain $8,500 in interest by lending Traylor $60,000 for five months (April 1 to August 31).

We do not find this argument persuasive. The case at bar is not, as counsel argue, “quite similar” to that of Sleeper v. Sweetser, 247 Ark. 477, 446 S.W. 2d 228 (1969). There Sweetser owed a diamond ring worth $500. He “sold” it to Cameo Jewelry for $50 and received as part of the same transaction an option to repurchase the same ring within 10 days for $55. We held that the transaction was in fact a loaning of money or a pawning of property, by which Cameo Jewelry charged $5 interest for a 10-day loan of $50, making the interest rate 1% a day.

The marked difference between that case and this one is that there Sweetser owned the ring before the transaction and was simply borrowing money at a usurious rate. Here Traylor did not own the property immediately before his transaction with Harmon, Patterson, and Lafferty. He had only an option to purchase from T.G.W., which he was unable to exercise. Evidently all the parties thought the property was worth much more than the $57,000 option price, with interest, else they would not have entered into the transaction at all. If the property was actually worth less than $60,000, Harmon and his associates could lose money in the deal. Traylor was willing to pay $21,000 for an option to buy the property for $47,500. He did not borrow any money from the other parties nor, as in Sweetser, incur any obligation to repay any money. We cannot say that the chancellor’s finding, that the transaction was not a loan disguised as an option, is against the preponderance of the evidence.

Affirmed.


text:
    L. C. EDGAR and Willie Mae EDGAR v. John STUBBS and Martha STUBBS
    78-215
    576 S.W. 2d 200
    Opinion delivered January 29, 1979
    (Division I)
    Appellants, pro se.

      N. D. Edwards, for appellees.
   George Rose Smith, Justice.

This is a dispute between adjoining landowners about an access road to the appellees’ property, which lies east of that owned by the appellants. In 1978 the appellees brought this suit to establish their right to use the road, which begins at a county road to the west and runs across the appellants’ land and across the appellees’ land. The issue in the trial court was whether the appellees and their predecessors in title have acquired a prescriptive right to use the road. The chancellor upheld the prescriptive right, fixing the width of the road at 20 feet. The appellants’ pro se brief argues two points, but essentially the question is whether the appellees proved their right to use the road. We agree with the chancellor’s decision.

The appellees, as plaintiffs, began their proof by showing the existence of the road for 40 years or more. Two aerial photographs, one taken in 1954 and the other in 1968, showed the road. The witness Taylor testified that he was 58 years old and had known the road all his life. He said it is about a mile long and was once maintained by the county. He and his father ran cattle in the area, using the road about once a week. Other people also used the road: “There was families living in there.” Deer hunters traveled the road. At the time of the trial the road existed, was visible, and was used from time to time, even though the area to the east of the appellants’ land is no longer occupied. The appellants’ proof was to the effect that in recent years the road has been used only occasionally, not regularly.

What is now the appellants’ land has not been uninclosed and unoccupied; so the appellees’ proof of long continued use of the road establishes a former prescriptive right. Cupp v. Light Gin Assn., 223 Ark. 565, 267 S.W. 2d 516 (1954); Martin v. Bond, 215 Ark. 146, 219 S.W. 2d 618 (1949); Boullioun v. Constantine, 186 Ark. 625, 54 S.W. 2d 986 (1932). That being true, affirmative conduct on the part of the owner of the dominant or servient estate is necessary to show an abandonment of the easement. Casenote, 18 Ark. L. Rev. 355 (1965). There is no such proof. To the contrary, the road is still in use. Finally, the testimony of the witnesses Warnock and Stubbs supports the chancellor’s finding that the road is 20 feet wide.

Affirmed.

We agree.

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