author: John C. Deacon, Special Chief Justice. John A. Fogleman, Justice,

text:
    Joe Newton KAGEBEIN v. STATE of Arkansas
    5665
    496 S.W. 2d 435
    Opinion delivered July 9, 1973

      Wright, Lindsey & Jennings, by: H. William Allen, for appellant.

      Ray Thornton, Atty. Gen., by: James A. Neal, Asst. Atty. Gen., for appellee.
   John C. Deacon, Special Chief Justice.

The appelat years age, was charged by information, along with three other teen-agers, with first degree murder because of the death of Jimmy Wayne Wampler. Kagebein’s motion for a severance was granted, and after a jury trial, he was found guilty with no recommendation for leniency. Judgment was entered sentencing him to death in the electric chair. This Court appointed new counsel to represent appellant on appeal. Twelve points for reversal are presented, some of which have merit and require reversal.

A confession taken from Kagebein was introduced into evidence and Kagebein also testified personally. None of his companions testified, all of them refusing to answer questions on the ground that it might incriminate them.

The evidence showed that on Novermber 7, 1970, Joe Newton Kagebein, who had been living with his grandmother in DeWitt for a few months, was in the company of three older teen-age boys, Teddy Kittler, Benny West and Larry Mannis. Mannis borrowed a car, got some money and bought some beer. They consumed the beer, and around 9:00 p.m. Mannis went to a liquor store in Gillett through the back entrance, but was told by the proprietress that she was not going to sell him anything to drink because of his age. Kagebein says he was asleep at that point, but awoke sufficiently to hear the other boys talking about a man that would buy them some beer if they would let him “do that act on them.” He fell asleep again and says he was not awake when his companions came in contact with Jimmy Wayne Wampler, a 27-year-old Cross County farmer.

About 10:00 p.m. that night,.Wampler came into the same liquor store where Mannis had been declined service and Wampler botight three six packs of beer. Kagebein says that he was first aware of Wampler when he awoke and found Wampler and the other boys arguing in the car. Kagebein noticed that when Wampler got out of the car he was wearing a ladies’ night gown.

Neither Kagebein’s confession nor his testimony presented a very clear picture of the facts, The account was disjointed and difficult to follow. Kagebein did testify that he was sick from the’ beer that he had consumed, that he was with Benny West on tbe other side of the car, and that darkness prevented him from' seeing whát was going on a part of the time. He said that Wampler ran after the boys and that Wampler knocked one of the boys against the car and knocked Teddy Kittler' into a ditch. He said that all of the boys held.guns on Wampler at different times, but claimed that, this was done to keep Wampler off them. Kagebein did admit that he hit Wampler once on . the right side of the head with a .22 to protect the other boys and that after he struck this blow, Mannis took' the grin away .from him. His confession contained a statement that all four of the boys knocked Wampler down, and that Wampler yelled at them not to shoot him. Kágebein said that Teddy Kittler shot Wampler while Wampler was on the grpund, but that he did not know wbo ádministered the bruises arid marks on Wampler’s back and chest.

After Wámpler was shot, the boys started back to DeWitt and they let Teddy Kittler out at his home. The other three boys then drove on to the court square in DeWitt and located Chief of Police James Mason and Officer Wendell Best, who were on patrol. Mannis and West got out of the car and began telling them about a killing south of DeWitt. Mannis was in a very upset condition and fainted on the sidewalk. Mason and Best testified that there was no evidence of physical violence on any of the boys and that the boys did not appear to be drunk. Chief Mason radioed other law enforcement officers and they had Wes.t lead them to the scene described by the boys. When the' officers arrived there they found Wampler’s body in a bruised and mutilated condidon. The only clothes on the body were a pair of boots and a torn piece of ladies’ panties on one leg, with a ladies’ night gown lying under and partially draped over the head. Wampler’s clothing was found lying in a neat bundle on one side of his truck.

The first point urged for reversal is that the introduction of hearsay statements allegedly made in the presence of appellant was a denial of his right to remain silent. On two occasions during trial, the State elicited testimony, over objection, from the police officers to make a showing that statements were made by Kagebein’s companions in his presence while he and the others were in police custody, and that Kagebein remained silent in the face of the statements.

Patrolman James Oswald, one of the State’s witnesses, testified that he was at the hospital with Mannis and Kagebein, that Mannis was unconscious for about an hour, and that after the doctor revived him a little bit and Mannis kept saying he was seeing a dead man, a nurse or someone asked him, “How do you know it was a. dead man?” and that Mannis replied, “Because we killed him.” The State specifically asked patrolman Oswald whether Kagebein denied the statement, and received a negative reply from Oswald.

The second statement was detailed by Arkansas State Trooper Travis Nash who, over objection, with testimony to specifically indicate that Kagebein was in dose enough proximity to hear the remark, said that “one of the boys” was laughing about Joey jumping up and down on the man’s stomach after he was dead and that Kagebein did not deny the statement at the time.

The State’s questioning and the court’s ruling on the defense objections indicate that the testimony of Oswald and Nash was offered as an exception to the hearsay rule, commonly called the “tacit admission rule.” Kagebein was in police custody and in the presence of the police when both statements were made. He had not yet been advised of his rights and could not have intelligently waived them. Under these circumstances, Kagebein’s silence must be assumed to be an assertion of his right against self-incrimination. The introduction of the hearsay statements was a denial of Kagebein’s right to remain silent and constituted prejudicial error.

This rule affecting tacit admissions was stated in Miranda v. Arizona, 384 U.S. 436 (1966):

“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. ■ The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”

The effect of the Miranda decision upon the tacit admission rule has been recognized by this Court. Gross v. State, 246 Ark. 909, 440 S.W. 2d 543 (1969).

Ever prior to Miranda, our Court rejected this type of testimony under certain circumstances, as indicated by Anderson v. State, 197 Ark. 600, 124 S.W. 2d 216 (1939), where we said:

“ 'One cannot be compelled, when not offering himself as a witness in his own defense, to give evidence in court tending to incriminate himself. Much less should he be compelled to do so out of court. If silence in such case is evidence of guilt, then one charged with crime must, under penalty of himself creating most damaging evidence against himself in support of the charge, enter into a controversy of words with every idle straggler who may choose to accuse him to his face.’ Merriweather v. Commonwealth, 118 Ky. 870, 82 S.W. 592, 4 Ann. Cas. 1039.”

The Missouri Supreme Court in State v. Penn, 413 S.W. 2d 281 (1967), considered this point and said:

“Sheriff Bethel’s relation of what [the third party] said was “purely hearsay.’ State v. Higgins, 321 Mo. 570, 12 S.W. 2d 61. The State apparently offered the testimony on the theory that appellant’s silence when [the third party’s] statements were made in his presence, constituted an admission of his guilt and an exception to the hearsay rule. If this was the prosecuting attorney’s theory, the testimony was inadmissible. ‘The rule of the law in this state is well settled that, while the defendant is in custody or under arrest, statements of a third party, made in his presence, and not denied, are inadmissible at the trial.’ ”

Some of the appellant’s other points for reversal should be mentioned, for they may arise upon a retrial. The appellant urges that the exclusion of evidence of prior homosexual advances of the deceased was error. The appellant’s defense, even though he was being tried as an accessory before-the-fact to a charge of first degree murder, was that the death of Wampler came about not as a part of a pre-arranged plan to rob and kill him, as argued by the State, but out of resistance to his homosexual advances. Appellant does not argue that the evidence of homosexuality justifies homocide but does insist that he should have been permitted to introduce evidence tending to corroborate the claim that homosexual activities preceded the killing. He urges this was important at least to the jury’s consideration of the degree of homicide committed.

The State anticipated this defense and as part of its case in chief presented evidence designed to rebut any suggestion that Wampler might have bargained to trade beer for homosexual favors. Wampler’s cousin, J. A. Wampler, testified that the deceased usually bought beer before going deer hunting. The owner of a dress shop in Stuttgart testified that it would be uncomfortable for a person as large as Wampler to wear the size night gown and panties found with the deceased’s body.

Thus the issue of homosexuality was before the jury, but only through the evidence offered by the State. From voir dire through the defense testimony, all attempts by the defense to determine attitudes of the jury toward homosexuality and to introduce testimony of prior specific acts suggesting that Wampler had been involved in extending improper invitations in the past to boys were rejected by the court.

When character evidence is offered to characterize or explain the acts of the deceased, the general rule is that proof should be confined to the general reputation of the deceased and that inquiry should not be permitted concerning specific acts or conduct. Montague v. State, 213 Ark. 575, 211 S.W. 2d 879 (1948). Even when directed toward a defendant, rather than to the deceased as in this case, evidence of prior similar offenses has been admitted when the charge involved unnatural or unusual sexual acts. Ward v. State, 236 Ark. 878, 370 S.W. 2d 425 (1963); Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954); Roach v. State, 222 Ark. 738, 262 S.W. 2d 647 (1953); Hummel v. State, 210 Ark. 471, 196 S.W. 2d 594 (1946); Hearn v. State, 206 Ark. 206, 174 S.W. 2d 1943). One reason for allowing evidence of prior sexual misconduct when the case involves similar activity is that the extremely high degree of relevancy of such evidence outweighs. the prejudice that may be caused to the defendant. If permitted as an exception when a defendant’s life or liberty is at stake, it would seem that “specific act” evidence of similar prior sexual behavior of a victim, where only reputation is at stake, would be a more compelling exception.

In Evans v. United States, 277 F. 2d 354 (1960), the Court held that where the defense was that killing was necessary to repel a sexual assault and it was clear that the deceased was drunk at the time of killing, it was reversable error to refuse to admit testimony to the effect that the deceased was aggressive when drunk. The defendant and victim were strangers and the proffered testimony was that of the deceased’s wife. The Court said:

“We think that, in the circumstances of this case, almost any evidence showing what kind of man the decedent was would be highly relevant in helping the jury to determine whether appellant’s story of a sexual assault was truthful, and would therefore serve the interests of justice. * * Finally, but equally important, even if it convincingly appeared that the excluded testimony could not induce the jury to acquit, evidence suggesting that he was the aggressor might well have induced the jury to convict appellant for the lesser included offense of manslaughter, instead of second degree murder.”

Some of the specific sexual behavior testimony offered on behalf of Kagebein in chambers was excluded from the jury’s consideration because of remoteness, one incident having occurred three years before and another about four years prior to the trial. Based on this record we believe such testimony should not be excluded on the ground it was too remote. There is no fixed standard for determining remoteness. It is necessary for the court to consider all of the circumstances of the case, including the nature of the act. When the prior sexual misbehavior of an adult is relevant to the crime charged, it seems clear that there is a definite relaxation of the remoteness test. Kerbin v. State, 265 N.E. 2d 22 (Ind., 1970). In Ward v. State, supra, where appellant was charged with fondling a male child, we approved the jury hearing testimony concerning a prior specific incident of similar unnatural sexual activity and, on the issue of remoteness, said:

“Once it is established that a mature person has developed the proclivity to indulge in unnatural sex acts, we are not prepared or unwilling to say it would be erased by the lapse of 4 or 5 years.”

Appellant further contends that it was error for the trial judge to restrict, in the presence of the jury, appellant’s cross examination of the officer who obtained Kagebein’s confession. Pursuant to Act 489 of 1965 (Ark. Stats. 43-2105), the court held a Denno hearing to determine the voluntariness of Kagebein’s confession and found that it was voluntarily given. Then the State, as part of its evidence in chief before the jury, called Trooper Nash and introduced the confession. During cross examination, defense counsel asked Nash if he had a court reporter present to take down Kagebein’s statement. The trial judge interceded and told defense counsel that he would not be permitted to question the witness on the circumstances surrounding the taking of the confession, citing Ark. Stats. 43-2105. After objection by defense counsel and a recess, the court ruled that the witness could be recalled and questioned on the credibility of the confession, but not on its admissibility. Cross examination should not have been limited in this manner.

The purpose of our Denno hearing statute (Ark. Stats. 43-2105) is to prevent a jury from hearing a confession before the court determines that it has been voluntarily given. It is not intended to restrict evidence a jury may hear after a court determination of voluntariness has been made. The defendant still has the constitutional right to have his case heard on the merits by a jury, including the weight and credibility the jury might give to the voluntariness of the confession. Walker v. State, 253 Ark. 676, 488 S.W. 2d 40 (1972); Lego v. Twomey, 404 U.S. 477, 30 L. Ed. 2d 6 618, 99 S. Ct. 619 (1972).

When defense counsel attempted to interrogate Trooper Nash pn the circumstances surrounding his obtaining a confession from the appellant, the trial court commented, in the presence of the jury, that the court had determined in chambers that appellant’s confession was voluntary. The factual determination of voluntariness made by a court in a Denno hearing should not be disclosed to the jury by either the court or by counsel. Wigmore on Evidence, Sec. 861a, n. 35, (Chadbourn Revision, 1970); United States v. Fayette, 388 F. 2d 728 (1968); United States v. Inman, 352 F. 2d 954 (1965).

As a further blueprint for the admissibility of testimony in this trial upon remand, we note that Sheriff Gene Garrison was allowed to testify, over objection, that it was his opinion that Wampler’s body “had been tortured before anything else happened” because “the body will not bruise after death.” Sheriff Garrison was not qualified as a medical expert and the admission of such testimony was improper. Redd v. State, 63 Ark. 457, 40 S.W. 374 (1897).

One of the court’s instructions to the jury told them that voluntary drunkeness was not an excuse for any crime and that the fact that Kagebein may have been drunk at the time of the alleged crime would not excuse him. The implication of the instruction standing alone as it was is that intoxication can have no effect on the crime of first degree murder. If the testimony upon retrial is sufficient to justify such an instruction, and if requested, the appellant would be entitled to an instruction on diminished capacity as affecting specific intent. Stevens v. State, 246 Ark. 1200, 441 S.W. 2d 451 (1969); Pless v. State, 102 Ark. 506 145 S.W. 221 (1912).

The other assignments of error have been considered but need not be discussed because they are not likely to occur again upon retrial.

Reversed and remanded.

Fogleman, J., dissents in part.

Harris, C.J., not participating.

John A. Fogleman, Justice,

dissenting. I concur in the result and all of the majority opinion, except that part devoted to exclusion of evidence of prior homosexual advances. In spite of the revulsion I feel for these unnatural activities, I cannot agree with either the premise of the majority’s holding on this point or its result severely limiting the circuit judge’s discretion in the admission of evidence of this nature simply because the matter of the deceased’s unnatural sexual activities on the night he was killed had been asserted by appellant.

In order to put the matter in appropriate perspective, I want to emphasize the evidence on behalf of the state as to Wampler’s body, the condition in which it was found and the scene of the killing. It was shown that: Wampler’s hunting pants and jacket were found in a neat pile (as if they had been taken off and dropped) outside to the right of his pickup truck, his cap on the left side of the truck, and a pair of jockey shorts under the truck seat; Wampler’s body was unclothed, except for a pair of boots and a torn piece of ladies’ panties on one leg; and a lady’s nightgown was lying under, but partially draped over, his head. Wampler was 5' 11" tall, weighed 200 pounds and measured 38" around the waist. It was later shown that a woman with a waistline in excess of 26" could not comfortably wear the panties and the maximum weight of one who could wear the nightgown would be 150 pounds.

Even assuming that the evidence was sufficient to show an assault by Wampler with intent to commit sodomy or an attempt to do so, there was still no error in the court’s refusing to admit the proffered testimony. Appellant offered the testimony of Carroll Ray Bell about an incident that occurred in October or November 1967. He related that, one evening, a man driving a dark-colored Chevrolet truck with white trim and top asked Bell if he wanted a “blow job,” and persisted in trying to get Bell, then 17 years of age, to go with him. Bell said he reported the matter to his mother, who, in turn, reported it to the Town Marshal sometime later that night. The Marshal would have testified that, after receiving the report, he circled the neighborhood and saw a maroon and white Chevrolet or GMC pickup truck, the driver of which was trying to talk with a teen-age girl on the sidewalk while driving slowly along beside her. This witness said that he stopped the driver whom he identified as Jimmy Wayne Wampler and summoned him to court on a charge of “Attempting to pick up boys,” and required a $25 appearance bond, but suggested that Wampler return and bring cash the next morning when Wampler offered to give a check. The officer said that Wampler came in the next morning and brought the cash for his bond, which he later forfeited.

Appellant also offered the testimony of Bob Brown of Gillett, but the court ruled his testimony inadmissible when he began to tell of an incident that occurred some four years ‘earlier. The judge ruled all this offered testimony inadmissible because it was too remote in time. In a further effort to put the matter in proper perspective, I must emphasize the fact that the trial judge exercised his judicial discretion in ruling the testimony inadmissible because it was too remote.

Where evidence of prior conduct is admissible except for remoteness, the trial court has a discretion in determining whether it is too remote in time to justify admission. Caton and Headley v. State, 252 Ark. 420, 479 S.W. 2d 537; DuVal v. State, 171 Ark. 68, 283 S.W. 23; Wilson v. State, 184 Ark. 119, 41 S.W. 2d 764.

Further, assuming for the moment that the rules governing evidence of similar conduct to that for which a defendant is on trial are applicable, there was no reversible error on this point. We classified many of the facets of these rules in Alford v. State, 223 Ark. 330, 266 S.W. 2d 804, and have used that opinion for a guideline ever since. There we noted, in dictum, that where the charge on trial involved unnatural sex acts, proof of prior similar offenses has been received, not to show that the accused is a criminal, but that he has a “depraved sexual instinct.” The court did not say that such evidence must be, or should be, received. We did not say, and have not said, nor do I know of any other court that has said, that remoteness in tíme is not a factor to be considered in determining admissibility of such testimony.

An examination of our authorities on the subject of admissibility of previous unnatural sex incidents, in a trial where the defendant is charged with such an act, discloses that remoteness is, indeed, a factor to be considered. The cases relied upon for the classification made in Alford clearly state the significance of the element of remoteness. The decision in Hummel v. State, 210 Ark. 471, 196 S.W. 2d 594, was based entirely on the following quotation from Hearn v. State, 206 Ark. 206, 174 S.W. 2d 452:

This court has repeatedly recognized and declared that the evidence of other crimes, recent in point of time, and of a similar nature to the offense then being tried, is admissible as bearing on the question of intent. Some such cases are: Puckett v. State, 194 Ark. 449, 108 S.W. 2d 468; Lewis v. State, 202 Ark. 6, 148 S.W. 2d 668; Monk v. State, 130 Ark. 358, 197 S.W. 580; Cain v. State, 149 Ark. 616, 233 S.W. 779. These cases involved such offenses as robbery, larceny, homicide, or operating a gambling house. We perceive no good reason why the same rule should not apply to : :x crimes; in fact, courts of other states have held that, in sex crimes, evidence of other acts of a similar nature, recent in point of time, is admissible as bearing on the question of intent. (Emphasis mine.)

In Hummel the time lapse was six months. In Hearn, it was two months.

In Roach v. State, 222 Ark. 738, 262 S.W. 2d 647 in holding that particular evidence of similar conduct with other minors was admissible where the charge was contributing to the delinquency of a minor, we relied on other cases, saying:

Moreover, such testimony was not inadmissible in this case. We so held in Hummel v. State, 210 Ark. 471, 196 S.W. 2d 594, 596, where, under a very similar situation the court said: “This court has repeatedly recognized and declared that the evidence of other crimes, recent in point of time, and of a similar nature to the offense then being tried, is admissible as bearing on the question of intent.” Also in Gerlach v. State, supra, it was again said [217 Ark. 102, 229 S.W. 2d 37, 40]: “We have frequently held that evidence of other crimes of a similar nature to the one on trial and recent in point of time is admissible as bearing upon intent or purpose.” (Emphasis mine.)

Later, in Ward v. State, 236 Ark. 878, 370 S.W. 2d 425, we considered the question of remoteness. We there said that the question of remoteness had not been raised, but might be on a second appeal. We recognized the general rule that such testimony must not be too remote, but said that a case of that kind (fondling a male child under. 14 years of age) was not, in all respects governed by the general rule. We were unwilling to say that, once it is established that a mature person had developed the proclivity to indulge in unnatural sex acts, it would be erased by the lapse of four or five years. It must be remembered that, in Ward, the evidence had been admitted. We did not say that the trial court should not consider the question of remoteness or that a period of four to five years might not be too remote. Nor did we say that the incidents were, as a matter of law, not too remote. The effect of the decision is simply to hold that the incidents were not, as a matter of law, too remote.

Authorities from other jurisdictions do not lend full support to the majority’s statement, or eliminate the time factor. While Kerlin v. State, 265 N.E. 2d 22 (Ind. 1970), may appear to support the majority position, it is not at all clear that the question of remoteness was considered in that case. The court did not discuss it at all, and the decision actually turned upon the distinction between cases where a “depraved sexual instinct” was involved and the usual case where evidence of prior offenses by the accused is inadmissible to show that a defendant’s character is bad or that he has a tendency to commit certain types of crimes. The Indiana court followed the rule of Lovely v. United States, 169 F. 2d 386 (4th Cir. 1948), cert. denied, 338 U.S. 834, 70 S. Ct. 38, 94 L. Ed. 508 (1949), the case used in Alford to rationalize the Hummel-Roach category of the “unnatural sex act” exception from the general rule excluding evidence of prior offenses. Yet, as pointed out above, the importance of the relationship in time was recognized in both of these cases. I do not take Evans v. United States, 277 F. 2d 354, 1 A.L.R. 3d 566 (I960;, a 2-1 decision of the District of Columbia Court of Appeals, to be totally in harmony with our own decisions. The evidence actually rejected there had nothing to do with the deceased’s sexual proclivities. It merely related to his nature when drunk. The Evans language quoted in the majority opinion seems to justify the admission of any land of evidence to show “what kind of man the decedent was.” This is the antithesis of our own rules of evidence. Even so, the Evans court found that the rejected proffer, inartfully stated, should be broadly construed as an effort to explain the deceased’s general character and reputation. We rejected very similar evidence in Stout v. State, 244 Ark. 676, 426 S.W. 2d 800, saying;

Ed Baker was foreman at a plant where Jones was at one time employed. If permitted, he would have testified that Jones was discharged by Baker because he was intoxicated on the job, was “loud and belligerent, rude and very disrespectful.” There was evidence to the effect that decedent was intoxicated when he was shot and that he was belligerent. Appellant contends that Jones’ acts of belligerency at the time he was discharged would tend to show that drunkenness always brought on belligerency on the part of Jones. To establish such a pattern of conduct by a single prior act is too illogical to require comment.

Multiplying the incident by two would certainly not have affected the rule.

The majority seeks to equate this situation with that arising in self-defense cases when the question turns upon determinauon whether the accused or the deceased was the aggressor. This analogy would not require the admission of the testimony offered in this case. Of course, in such cases, evidence of previous difficulties between the two parties involved is admissible, unless too remote in point of time. Crews v. State, 179 Ark. 94, 14 S.W. 2d 261; Ross v. State, 181 Ark. 331, 25 S.W. 2d 769. So is evidence of previous threats made to the defendant by the deceased. Bell v. State, 69 Ark. 148, 61 S.W. 918, 86 Am. St. Rep. 188. Likewise, even uncommunicated threats are admissible, if there is any evidence of self-defense, but not if too remote in time to have any bearing on the question or to afford any reasonable presumption or inference of connection between the occasion when' the threats were made and the difficulty under investigation. Crews v. State, supra; Parsley v. State, 151 Ark. 246, 235 S.W. 797; Brown v. State, 55 Ark. 593, 18 S.W. 1051. See 5 Ark. L. Rev. 207. On the other hand, it is not competent in such cases to show the violent and dangerous character of the deceased by evidence of isolated facts or particular acts, at least if they were not known to the accused at the time of his alleged offense. Baxter v. State, 227 Ark. 215, 298 S.W. 2d 47; Taylor v. State, 222 Ark. 491, 261 S.W. 2d 401; Montague v. State, 213 Ark. 575, 211 S.W. 2d 879; Edwards v. State, 208 Ark. 231, 185 S.W. 2d 556; Day v. State, 185 Ark. 710, 49 S.W. 2d 380.

The “self-defense” analogy seems, to lend little support to a declaration of error here. Even if it could be said that through this analogy, the ■ proffered testimony might have been admitted, there still remains the question whether the incidents were too remote in time, on which the discretion of. the trial court is. subject to reversal only for manifest abuse.

I cannot agree with the majority that the issue of homosexuality was before the jury only through the evidence offered by the state, or that the state introduced evidence making this testimony admissible. The testimony of the dress shop owner certainly did not mention homosexuality. The officers had described Wampler’s body and its condition when they found it where Kagebein’s companions told them it would be. This description revealed that neither of the feminine garments was positioned on the ■ body. as it would have been worn. The panties were on orie.leg arid the gown was under the head and draped over it so that it was over the brillet wound that caused death. It is significant that there was no bullet hole in the gown. As indicated in the majority opinion, attempted inquiries addressed to jurors on voir dire by defense attorneys were the first mention of homosexuality. At that time, appéllant’s attorneys categorically stated that they anticipated that there would be evidence of homosexuality. The Opening statement on behalf of the defendarit certainly, raised the issue in very explicit terms, sáying that the evidence would show, that Wampler had oral copulation with three of the boys. During Trooper Stracener’s testimony, he was cross-examined as to whether the gown could have’ been pulled up from the body over the head. This question and other cross-examination were clearly directed toward casting an inference that both the gown and panties were on the Wampler body at the time the officers saw it as if he were wearing them. The testimony tending to show that he could not have worn them did not, in my opinion, open the question of homosexuality. It merely tended to sustain the state’s theory that the defendarit and his associates stripped Wampler, attempted to put the panties on him and left the nightgown he could not have worn over his face. It certainly did not invite the testimony about the prior incidents, or change the manner in which it should be treated, either in the trial of appellate court. It certainly did show that it was highly unlikely that Wampler was wearing the'gown when he was shot.

The majority has overlooked the fact that the state has the right to and did show every circumstance surrounding the encounter in order to show the motive for the killing, and that, while the state is not required to show motive, in order to establish guilt, the absence of motive is a circumstance to be considered with other facts in determining guilt or innocence. Hogue v. State, 93 Ark. 316, 124 S.W. 783, 130 S.W. 167. The inability of Wampler to wear the garment draped over him, considered along with the fact that items of his personal property were missing and found in the possession of those who fatally assaulted him, certainly tended to show a robbery motive. This evidence was admissible, where self-defense was pleaded, to show, along with other facts and circumstances, intent, malice, deliberation and premeditation by showing the manner of the assault, the nature and location of the wound, the way the weapon inflicting it was used and other circumstances tending to reveal the state of mind of the person or persons inflicting the mortal wound. Nunley v. State, 223 Ark. 838, 270 S.W. 2d 904; Ward v. State, 208 Ark. 602, 186 S.W. 2d 950; Grays v. State, 219 Ark. 367, 242 S.W. 2d 701; House v. State, 230 Ark. 622, 324 S.W. 2d 112; Jenkins v. State, 222 Ark. 511, 261 S.W. 2d 784; Bramlett v. State, 202 Ark. 1165, 156 S.W. 2d 226; Cheney v. State, 205 Ark. 1049, 172 S.W. 2d 427. The evidence tending to show that Wampler was not wearing the feminine garments when shot and that they were placed on or over him thereafter certainly was a circumstance tending to show malice by showing the abandoned and malignant disposition of the killer. Carson v. State, 217 Ark. 658, 232 S.W. 2d 835. In short, the state had a right to show anything that occurred between the parties and to show the mental attitude of the accused at the time. Brown v. State, 149 Ark. 588, 233 S.W. 762. The only way in which the mental attitude of the accused at the time of a killing can be judged is by the attendant circumstances, and broad latitude must be allowed in introduction of testimony bearing upon motive. Bly v. State, 213 Ark. 859, 214 S.W. 2d 77; Higdon v. State, 213 Ark. 881, 213 S.W. 2d 621. The evidence had a real bearing on the degree of the crime. Smith v. State, 230 Ark. 634, 324 S.W. 2d 341. It was admissible to show the inference deducible from the physical circumstances as to the manner in which Wampler came to his death. Rus sell v. State, 148 Ark. 654, 227 S.W. 775; Houston v. State, 165 Ark. 294, 264 S.W. 869.

Furthermore, the state necessarily relied upon circumstantial evidence alone for proof of material elements of the charge of first degree murder. In this situation, it was incumbent upon the state to introduce evidence tending to negate other reasonable hypotheses, and every fact tending to shed light on the issues was admissible and to be given proper consideration. Phillips v. State, 241 Ark. 601, 408 S.W. 2d 883; Taylor v. State, 211 Ark. 1014, 204 S.W. 2d 379; Bowie v. State, 185 Ark. 834, 49 S.W. 2d 1049, 83 A.L.R. 426.

Clearly, this testimony could not be taken to have been introduced for the purpose of, or to have resulted in, introduction of homosexuality as” an issue. Certainly it did not invite the introduction of evidence of prior conduct of the deceased independent of any relationships to or with Kagebein or his associates, and totally unknown to them, which would have otherwise been inadmissible.

Although I am unwilling to join in an overextension of a rather unusual exception to the rule against admitting evidence or prior bad conduct by eliminating the trial court’s discretion in determining whether the acts are too remote in time, I would reverse and remand for a new trial on the other grounds stated in the majority opinion.

      As recently as Sanders v. State, 245 Ark. 321, 432 S.W. 2d 467, a second degree murder case, we rejected an assignment of error based upon the trial court’s rejection of testimony concerning the homicide victim's prior specific acts of aggression and misconduct toward others to show his violent nature, saying that this could properly be shown only by proof of general reputation.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Timothy MILHOLLAND v. STATE of Arkansas
    CR 73-28
    497 S.W. 2d 6
    Opinion delivered July 16, 1973

      Bill R. Holloway and Robert D. Smith III, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

On December 28,1971, Timothy Milholland, represented by counsel of his own choice, entered a plea of guilty to the charge of burglary and grand larceny, being Case No. 5063, and the docket reflects the following entry by the Desha County Circuit Court:

“Arraignment and plea of guilty by each Defendant, concurred in by their attorney, and sentence deferred pending pre-sentence investigation report. (Note: To eventually be dismissed if defendants stay out of trouble)”

Thereafter, on March 9, 1972, appellant was again arrested and charged with burglary and grand larceny by Desha County officials, being Case No. 5068, and a different attorney was retained to defend appellant on the new charge. On August 28, 1972, appellant was brought before the Desha County Circuit Court for sentencing in Case No. 5063. The entire record of the proceedings on that date consists of the following:

“THE COURT: Which one is Milholland? On December 28th of 1971, you all were represented by Mr. Mutt Gibson, entered a plea of guilty, which was concurred in by your attorney, on a charge of burglary and grand larceny, and this is No. 5063. At that time we deferred entering a sentence to give us time to obtain a pre-sentencing report. We now have that report. Quite frankly at that time we had intended if you all had behaved yourself and stayed out of trouble leave this on the docket and let you go, and I understand that neither one of you have stayed out of trouble. Does the State have a recommendation on the sentence?
MR. HOLMES: I recommend six on Milholland and three on Langley.
THE COURT: Mr. Milholland, it is the sentence and judgment of the Court that you be remanded to the Sheriff of Jefferson County and by him transported to . . .
THE CLERK: That’s Desha.
THE COURT: Desha County and by him transported to the Department of Corrections where you will serve a period of six years. And it is the sentence and judgment of the Court Mr. Langley that you be remanded to the Sheriff of Desha County and by him transported to the Department of Corrections where you will serve for a period of three years. I doubt if a lecture by me would do any good and I am just going to tell you if you go up there and behave yourself you will be out pretty soon. It won’t take you long to get out, but I want to advise you when you do get out if you come back and get in any more trouble we are not going to be lenient with you any more. We have reached the end of the rope with you. That will be all.

Thereafter, a motion for new trial was filed on behalf of Milholland jointly by the attorneys in Case No. 5063 and Case No. 5068, in which it was asserted that Case No. 5068 had been passed at the request of Mr. Bill Holloway, the attorney last retained, and that the proceedings of August 28, i.e., the sentencing' of 'appellant in Case No. 5063, was conducted without appellant being “allowed the opportunity to notify either of the said attorneys that the judge was not going to dismiss Case No. 5063 as noted on the docket but was going to take someoné’s word without the opportunity of hearing thereon, that the defendant had been [in] trouble. In effect the Defendant was denied the opportunity to call witnesses on his behalf or to testify.” On September 29, 1972, this motion was denied, evidently without the taking of any testimony.

We agree that this judgment of the Desha Circuit Court must be reversed, as Milholland is entitled to a hearing. The State argues that the record does not reflect that appellant asked for a hearing, or for either of his attorneys to be notified. That is true, as reflected by the complete record heretofore set out; however, the burden was upon the State to show that Milholland had been apprised of the hearing, and the nature thereof, and had been given an opportunity to contact his counsel if he so desired. In Bodner v. State, 221 Ark. 545, 254 S.W. 2d 463, this court said:

“Next appellant contends that she did not have proper notice of the ‘petition'which sought a revocation of the suspended sentence.’ This contention is untenable for the reason that it appears that appellant was fully apprised of the hearing and its nature. She was present, acting as her own counsel, and made no objection. She was asked by the Court if she were ready for trial and she replied that she was. The record recites: ‘Defendent, Mary Bodner, appearing in person, without counsel, and all announced ready for trial after the court interrogated the defendant, Mary Bodner, as to whether or not she insisted on counsel representing her, to which she answered that she was ready for trial.’ ”

In Hawkins v. State, 251 Ark. 955, 475 S.W. 2d 887 (1972), we stated:

“We must sustain the appellant’s contention that she was not given proper notice of the reasons to be adduced by the State for a revocation of the suspension. The revocation of a suspended sentence is a serious matter, for which notice and a hearing are required. In Bodner v. State, 221 Ark. 545, 254 S.W. 2d 463 (1953), we recognized, at least by implication, the requirement that proper notice be given. The matter is treated more fully in the American Bar Association’s ‘Standards Relating to Probation,’ § 5.4 (1970), in this language:
‘The court should not revoke probation without an open court proceeding attended by the following incidents:
(i) a prior written notice of the alleged violation;
(ii) a representation by retained or appointed counsel; and
(iii) where the violation is contested, establishment of the violation by the government by a preponderance of the evidence.’
In § 5.3 of the same Standards it is stated that a revocation proceeding based solely upon the commission of another crime ordinarily should not be initiated prior to the disposition of that charge.”

See also Cagnon, Warden v. Scarpelli, decided on May 14 of this year by the United States Supreme Court. Since appellant was entitled to a hearing if he so desired, and no waiver of any right being shown, it follows that the trial court erred in the proceedings as to Milholland on August 28, 1972.

It is also here argued that the court was without authority to enter the sentence on August 28 since the order of December 28, 1971 did not comply with the provisions of Ark. Stat. Ann. § 43-2324 (Repl. 1964); that the failure to comply entitles appellant to a dismissal. The section referred to provides as follows:

“Whenever, in criminal trials in all courts of record, a plea of guilty shall have been accepted or a verdict of guilty shall have been rendered, the Judge trying the case shall have authority, if he shall deem it best for the defendant and not harmful to society, to postpone the pronouncement of final sentence and judgment upon such conditions as he shall deem proper and reasonable as to probation of the person convicted, the restitution of the property involved, and the payment of the costs of the case. Such postponement shall be in the form of a suspended sentence for a definite number of years, running from the date of the plea or verdict of guilty and shall expire in like manner as if sentence had been pronounced; provided however, the Court having jurisdiction may at any time during the period of suspension revoke the same and order execution of the full sentence.”

Appellant states:

“This Court should reverse the cause with directions to set aside the illegal sentence and to dismiss the defendent, Timothy Milholland, from custody because of the illegal sentence in the beginning and the improper sentence entered on August 28, 1972.”

No citation of authority is offered for this conclusion, i.e., that the case should now be dismissed, and we find same to be without merit for several reasons. Of course, the suspended sentence should have been for a definite number of years, but the failure to enter a proper order does not, within itself, entitle appellant to a dismissal of the charges. Inasmuch, however, as the judgment is being reversed for the reasons heretofore set out, and we are setting aside the sentence of August 28, there is no need to further discuss this contention.

Reversed and remanded for further proceedings consistent with this opinion.

       There was another defendant named Langley.

      After all, appellant only stood accused of violating probation.


text:
    Johnny FIGHT v. STATE of Arkansas
    CR 73-44
    497 S.W. 2d 262
    Opinion delivered July 16, 1973

      Don Langston and Hubert Graves, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James A. Banks, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, Johnny Fight, was charged by Information with delivery of a controlled substance, a violation' of Act No. 590 of 1971 (Ark. Stat. Ann. §§ 82-2601 — 38 (Supp. 1971). In Bennett v. State, 252 Ark. 128, 477 S.W. 2d 497, this court held that this offense constituted a misdemeanor, rather than a felony. On trial, the jury found Fight guilty and assessed his punishment at imprisonment in the county jail for a period of one year, together with a fine of $250.00. From the judgment so entered, appellant brings this appeal. Three points are asserted for reversal as follows:

I.
“The Court’s comment to prospective jurors that the Controlled Substance Act was a felony until the Supreme Court passed on it; that the Court felt the Supreme Court was wrong; that anyone who violated the act, during that time, no matter what the circumstances, could only be convicted of a misdemeanor; and that the legislature subsequently met properly and made such offenses felonies, was error.
II.
“The Court erred in allowing the State to introduce in evidence a sample of a controlled substance, purported to be that purchased from the defendant, when the State failed to offer evidence of the complete chain of possession of the sample from the time of its alleged purchase until the time it was offered in evidence.
III.
“The Court erred in refusing to give Defendant’s Requested Instruction on Entrapment and in instructing the jury on its own motion that entrapment was not an issue.”

We proceed to discuss these contentions in the order listed.

I.

At the outset, the circuit judge made certain remarks to the jury panel, portions pertinent to appellant’s argument, being as follows:

“We’re down to the last two cases on these what I’ll call drug cases that were scheduled for trial over this two week period. Two of them are scheduled for trial today. There’s one thing I might explain to you. I think that most of you are aware due to what you’ve read in the newspapers and also what I’ve told you about this situation. The first comprehensive controlled substances drug act, Act 590 of 1971, was passed by the 1971 Legislature when they were in session in the first part of that year and it was the law all through 71 and up until *** March of 72 when the Supreme Court passed on that 71 Act and said that due to the wording of it that no matter, even though it was the sale of real hard drugs and that sort of thing, that the wording of the Act was such that it can be construed only as a misdemeanor. I think I can explain this briefly to you how they reached this conclusion/’

The court then explained that since the act did not specifically provide that the offense was a felony, and did not provide that punishment was imprisonment in the penitentiary, the Supreme Court had held that violation of the provisions was only a misdemeanor. Further,

“Well, my feeling was this was splitting hairs and was not important, but that became the law and it was retroactive, so to speak, and anyone who had committed an offense during this period of 71 and up till March, no matter what they had done, for that matter, if it involved a narcotic then it would be only a misdemeanor punishable by, in my interpretation, up to a year in the county jail and a fine of $300.00 [$250.00]. The legislature met properly after that and passed this new act which has been the law since the first part of this year right after — at the time the Supreme Court acted. We now have a law which is clear and we know what it means. You’ve heard these cases that have been brought before you and the one case you all tried involved a felony and that’s one in which you recall you sentenced a man to ten years in the penitentiary and his fine. Both of the cases that are set for trial today are cases which occurred back before this act was amended and although they — I believe they’re charged with delivery of a controlled substance, will be the first charge we’ll hear. Since it happened back in 1971, it is a misdemeanor and you will be told that it is punishable only by a year’s — a year’s imprisonment and a $250.00 fine. I’m going into this so you’ll understand the distinction between the law as it once was then, as it was back in June, '71, and as it is now. Otherwise, it might be confusing to you and the person on trial.”

Subsequently, after a discussion about selection of the jury, Fight’s attorney approached the bench, out of the hearing of the jury, and stated:

“Your Honor, I think that this background information on this misdemeanor has prejudiced our client and I therefore move for a mistrial or a continuance.”

This motion was denied, and the denial is the basis for the first asserted error.

While some of the remarks of the court probably should not have been made, we cannot agree that prejudicial error was committed. One case, involving the violation of the controlled substances act, had already been tried by jurors of this jury panel, such case being prosecuted under the provisions of the legislative act passed by the General Assembly, and approved by the Governor on March 6, 1972. This act provided that such violations constituted a felony, punishable by imprisonment in the state penitentiary for a period of not more than ten years and a fine of not more than $15,000, or both. Fight’s offense occurred under the previous act (Act. No. 590 of 1971), which this court held in Bennett v. State, supra, to be only a misdemeanor. It was certainly in order for the court to explain to the jury panel why the punishment in the case already tried provided incarceration in the state penitentiary, being a felony, and the case against Fight, for a similar offense, was only a misdemeanor. We find no remarks by the court that would justify the declaring of a mistrial, and no request was made by counsel for an admonishment to the jury.

II.

Officer Frank Hartman, employed by the Fort Smith Police Department at the time of the alleged occurrence, as an under-cover officer, purchased the LSD from Fight, the purchase taking place at the Four Seasons Club. Subsequent to leaving the club, Hartman took the tablet, placed it in a white envelope, signed the envelope, showing the date, the time it was sealed, the contents of the envelope, where he bought the tablet, who he bought it from, and how much he paid for it. He testified that after the envelope was sealed, he turned it over to Detective Bill Reather of the Narcotics Division, Fort Smith Police Department. Reather testified that he made a notation on it at the time he received it, noting the date, and either writing his name or initialing the envelope, and the next day turned it over to Sergeant Arthur Langston to be mailed to Mrs. Marguerite Van Dusen, a chemist for the Arkansas State Department of Health. Sergeant Langston did not testify but Mrs. Van Dusen testified that she received a package (large brown envelope) from the Fort Smith Police Department on August 24, 1971, the package being sent by certified mail, and containing two smaller white envelopes. The smaller envelopes were marked “1” and “2”, noting each subject’s name. Number 2 bore the name of Johnny Fight. She stated that this envelope contained one small orange tablet which she determined contained LSD. Appellant objected to the introduction of the envelope and the tablet, contending that the State had failed to complete the chain of possession from the time of the purchase until the time that the envelope and tablet were introduced, this argument having reference principally to the fact that Langston did not testify. It is also mentioned that a Mr. Mosher, who had charge of the mail at the Department of Health, had delivered this package to Mrs. Van Dusen, and Mosher did not tesdfy. It is further mentioned that Hartman turned the envelope over to Reather on June 30, but that it was not received by Mrs. Van Dusen until August 24; that for these reasons the State should not have been allowed to introduce these exhibits.

We do not agree. Both Officer Hartman and Detective Reather again took the stand and testified that the Fight envelope bore the markings placed by them, and Mrs. Van Dusen stated that it was sealed when delivered to her; she opened the envelope on the end and it was still sealed at the flap at the time of the trial. The record does not reflect why Sergeant Langston did not testify but we think, under the circumstances herein, that the evidence was admissible. According to the testimony of the officers, the envelope, clearly identifiable since they had placed notations upon it, was the same in which the tablet containing LSD had been placed, and Mrs. Van Dusen likewise identified this envelope as being the one from which the tablet was taken. The purpose of the chain of identification is to prevent the introduction of evidence which is not authentic. The fact that the envelope was delivered to Mrs. Van Dusen by the Health Department official in charge of the mail is not really argued, only mentioned, and certainly there is no suggestion that either this official or Sergeant Langston had tampered with the envelope. Nor does the delay in getting the tablet to Mrs. Van Dusen render the evidence inadmissible. The court held the evidence admissible, but told the members of the jury that it was up to them to decide whether Officer Langston eventually placed in the mails the same substance that was given to him. The jury heard the testimony of all the witnesses, specifically noted the time lapse as shown by a question asked by a juror, and was told by the court that the delay was a circumstance to be considered. In Coca-Cola Bottling Company v. Davidson, 193 Ark. 825, 102 S.W. 2d 833, a Coca-Cola bottle containing the remains of the contents after the plaintiff had drunk therefrom, and allegedly containing foreign matter, was admitted into evidence over the objection of the company who asserted that it was not in the same condition when offered into evidence as at the time it was purchased. We said:

“There is no suggestion, hint or word of testimony that it was different at the time it was offered in testimony from what it was at the time it was sold, except such effects as may have been caused by time or age in the interval before the time of the trial. If that made any difference, the difference was brought about by natural processes, such as the court and jury, or other reasonable persons, would necessarily have deemed usual or natural under the conditions and circumstances and there is no word or hint of any evidence to the effect that the condition that then existed at the time of the trial tended in any manner to prejudice the rights of the appellant. ***
“We are not saying that any natural force will in all particulars be disregarded and objects about which the controversy may have arisen be in every case competent, but we do say that so long as delay, or even changed conditions by reason of delay do not destroy the evidentiary factor [our emphasis], it is not improper to make it an exhibit.”

In Freeman v. State, 238 Ark. 804, 385 S.W. 2d 156, Freeman was convicted of second degree murder. Appellant testified that he only fired one time in self-defense at the victim of the shooting, while the State contended that three shots were fired. J. F. Jackson witnessed the shooting, and ran over and picked the gun up off the floor. He put the gun into his pocket and forgot it at the time, but on the next day examined it, finding two live rounds of ammunition and three empty cartridges. Jackson then testified that he took the pistol to his attorney and the latter subsequently turned it over to the deputy prosecuting attorney. Jackson testified at the trial that he could not positively say that the bullets shown him were the ones taken from the gun. The attorney, to whom Jackson had delivered the gun, and who had in turn given it to the deputy prosecuting attorney, testified that to the best of his knowledge, there were three unexploded shells and two shells which had been exploded (a variance, of course, from the testimony of Jackson). The deputy prosecuting attorney testified that the gun was given to him but that he did not examine it and thereafter delivered it to a deputy sheriff, who removed the bullets in his presence. On trial, he said that three had been fired and two were “live”; and he testified that they resembled the bullets which had been taken from the pistol but stated that no identifying marks were placed on them in his presence. The three empty cartridges, along with a bullet taken from the body, were offered in evidence, and these cartridges had never been marked for identification until they reached Captain McDonald of the state police. On appeal, it was here contended that it was not established that the shell and empties introduced in evidence were the same ones in the gun at the time of the shooting. This court held that there was no reversible error in allowing the three empty shells to be introduced, stating, “They were found in appellant’s gun soon after the shooting, and there was no evidence to show the gun was tampered with in the meantime.” (Our emphasis).

We hold the contention to be without merit.

III.

This asserted error is based on the fact that . Officer Hartman made the approach to Fight, instead of Fight approaching him, with reference to the LSD sale. Officer Hartman testified that he had gone to the Four Seasons with an informer named Arby Ray Blevins. While they were playing pool, appellant came over and spoke to them (apparently knowing Blevins) and subsequently Hartman and Blevins sat down in a booth and Fight walked over. Hartman stated that, after some conversation, he asked if Fight had some LSD for sale, and was answered in the affirmative; that the price was $2.75 per “hit” and Hartman told appellant that he wanted two “hits”; that he walked over to the bar to obtain change for a twenty dollar bill, Fight having stated that he did not have change. Hartman said:

“I was watching them and I noticed Mr. Fight come across from his shirt pocket just as I turned around. I
noticed his hand and Mr. Arby Ray Blevins hand come together in a giving and taking motion. At this time Mr. Blevins then put his hands back down on the table in a normal manner. When I received the change I went back and sat down at the table and Mr. Blevins handed me an orange tablet. I then handed Mr. Fight the five dollar bill and two quarters in a concealing type manner across the table.”
The officer stated that Fight took the money and put it in his pocket.

Appellant argues that he was entitled to an instruction on entrapment. We do not agree. Appellant entered a plea of not guilty to the charge of delivering a controlled substance. Though on voir dire, the jury was interrogated relative to such a defense, no evidence was offered in support of this defense; in fact, appellant presented no evidence whatsoever.

Fight was not entitled to the instruction. In our most recent case on this subject, Leverich v. State, 249 Ark. 650, 460 S.W. 2d 317 (1970), in holding that the evidence was devoid of any of the essentials of entrapment, we quoted Peters v. State, 248 Ark. 134, 450 S.W. 2d 276, as follows:

. . . ‘ “As Judge Lemley said in the Hughey case, affording one the means and opportunity of doing that which he is otherwise ready, willing and able to do does not constitute entrapment. Entrapment does exist where the criminal designs originate not with the accused, but with the officers of the law, and the accused is lured into the commission of an unlawful act by persuasion, deceitful representation or inducement by the officers.’ ”

In Brown v. State, 248 Ark. 561, 453 S.W. 2d 50, we pointed out that the entrapment is an affirmative defense, and it was mentioned that there was no evidence offered to establish that the person who was contacted relative to obtaining marijuana “was deceitfully persuaded to do anything more than he was already willing to do.” .

See also 21 Am Jur. 2d § 144, p. 214, where it is pointed out that the invoking of the defense of entrapment necessarily assumes that the act charged was committed.

It follows, from what has been said, that we find no prejudicial error, and the judgment is accordingly affirmed.

It is so ordered.

       The General Assembly in the Extraordinary Session of 1972, enacted legislation which became Act 67 of 1972, classifying the offense as a felony, punishable by imprisonment in the state penitentiary.

      It will be noted that the court advised the jury that the punishment for the misdemeanor was imprisonment in the county jail up to one year and a fine up to $250.00. This is in accordance with the provisions of Ark. Stat. Ann. § 41-106 (Repl. 1964), a "catch-all” statute, which provides this punishment for all misdemeanors committed where the statute relative to particular offenses does not provide a specific penalty. The question is .not involved on this appeal, but there is no language in Bennett v. State, supra, or a companion case, State v. Cosentino, 252 Ark. 68, 477 S.W. 2d 460, handed down on the same date, which indicates that the penalty provided in Act No. 590 was invalid. The question is not before us on this appeal and, of course, Fight would not be in a position to complain since the penalty statute under which he was tried is much less than that provided in Act No. 590.

      The fact that defense counsel did not move for a mistrial until after other matters had been taken up is somewhat indicative of the fact that the court’s remarks were not so flagrant as to immediately denote prejudice, and it was only upon reflection, after intervening events, that counsel made his motion.

      This was referred to during the trial as "Orange Sunshine”, the tablet being orange in color.

      There appears to be some confusion about the date since it is referred to in the State’s brief as twenty-four days, and counsel for appellant, in making his objection to the introduction of the tablet containing LSD, mentioned that there was a time lapse of almost a month. However, we accept the dates of June 30 and August 24.

      6)The other tablet was retained by Blevins.


author: George Rose Smith, Justice.

text:
    Mark Byron CHRISTMAN v. Susan Cross JONES, Administratrix
    73-39
    497 S.W. 2d 14
    Opinion delivered July 16, 1973

      Robert D. Smith Jr. and Robert D. Smith III, for appellant.

      Charles Mott Jr., for appellee.

      Howell, Price, Howell ér Barron, for Amicus Curiae, Marie Cross, widow.
   George Rose Smith, Justice.

The appellant, Mark Byron Christman, now 23 years old, was born out of wedlock. His father, Ernest Byron Cross, died intestate in Saline county in January, 1972. Mark filed the present petition in the probate court, asking that he be declared to be the decedent’s legitimate son and heir. The present statute, and an earlier one to the same effect, provide that Mark is to be deemed and considered legitimate if he makes the threefold showing (a) that Ernest was in fact his father, (b) that after Mark’s birth Ernest married Mark’s mother, and (c) that Ernest recognized Mark as being his child. Ark. Stat. Ann. § 61-141 (b) (Repl. 1971); Pope’s Digest (1937), § 4341.

The probate judge found, upon proof that is practically undisputed, that conditions (a) and (b) had been proved. The court denied the petition, however, on the ground that the evidence did not show that Ernest had recognized Mark as his son. The only question on appeal is whether the court’s conclusion upon point (c) is clearly contrary to the preponderance of the evidence. We are unanimously of the opinion that it is.

Mark’s birth certificate shows that he was born in Pulaski County on February 24, 1950. According to the certificate, Mark’s father was Ernest Byron Cross (the decedent), and his mother was Verna Juanita Vondran (now Verna Juantia Christman). Ernest was married to another woman at the time, but he was living with Mark’s mother. Ernest obtained a divorce and thereafter married Mark’s mother on March 19, 1952. That marriage was terminated by a divorce which Ernest obtained in Pulaski county on April 6, 1953. After that divorce Mark did not see his father until about three years before Ernest’s death.

Mark’s mother testified that Ernest paid the medical and hospital bills incident to Mark’s birth. She states that Ernest saw the birth certificate many times and never objected to it or denied that Mark was his son. Another witness, Mamie Vondran, knew Ernest when Mark was born and testified that Ernest always told her that Mark was his son.

In addition to the proof that Ernest recognized Mark as his son during the interval between Mark’s birth in 1950 and Ernest’s divorce from Mark’s mother in 1953, there is convincing testimony that Ernest also recognized Mark as his son during the last few years of Ernest’s life. Ernest was then living in Little Rock. Mark moved to Little Rock in 1969 and, at his mother’s suggestion, telephoned his father. According to Mark, he lived with his father from time to time and was introduced by Ernest as his son. That testimony is corroborated by two disinterested witnesses who worked with Ernest at the Employment Security office and who testified that Ernest referred to Mark as “my boy” and as “my son.” On the other hand, Ernest’s widow (his third wife) testified that Ernest definitely stated that Mark was not his son, but she is pecuniarily interested in- the estate and has filed , a brief in this court in support of the probate court’s judgment.

The trial judge, in announcing his decision at the close of the case, placed his sole emphasis upon a sworn questionnaire filed by Ernest in the Pulaski chancery court when he divorced Mark’s mother in 1953. In that questionnaire — a printed form apparently required by rule of court — Ernest stated that no children were born “of this union.” That statement was actually true, since Mark was not born during the marriage. Moreover, in the same proceeding Mark’s mother wrote to the attorney ad litem and said in her letter: “Would you tell me if Ernest wants to support our child [or] has he not told you that we have a three year old son.” Upon the proof as a whole we are convinced that Ernest, upon a number of occasions, acknowledged Mark to be his son, as he certainly was.

Reversed,


text:
    Willie Lee PERRY v. STATE of Arkansas
    CR 73-56
    497 S.W. 2d 10
    Opinion delivered July 16, 1973

      Sam L. Anderson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Charles A. Banks, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Willie Lee Perry was charged with murder in the second degree, was found guilty of that offense, and was sentenced to ten years imprisonment. We find no merit in his two points for reversal.

First, Perry’s counsel, in seeking to prove self-defense by showing that the decedent was the aggressor, attempted to cross-examine police officers about the decedent’s police record. That evidence was properly excluded, because it would at best have shown specific acts rather than general reputation. Sanders v. State, 245 Ark. 321, 432 S.W. 2d 467 (1968). Moreover, there was no proffer of proof, even though one of the officers had the record with him; so we have no way of knowing whether the record contained relevant information helpful to the accused. Consequently, if the record should prove to be inadmissible, as apparently it was, a retrial would be found to have been wholly unnecessary.

Secondly, it is contended that the trial court erred in failing to instruct the jury with respect to the lesser included offense of manslaughter. The burden was upon counsel to request such an instruction. Johnson v. State, 214 Ark. 902, 218 S.W. 2d 687 (1949). No such request was made, doubtless for the reason that the defense, as a matter of strategy, elected to confine the jury to the choice between a finding of second degree murder and an acquittal. That gamble having failed, the defendant is not entitled to an opportunity to change his tactics at a second trial.

Affirmed.


author: Lyle Brown, Justice.

text:
    Marion Woodrow WILLIAMS v. STATE of Arkansas
    CR 73-60
    497 S.W. 2d 11
    Opinion delivered July 16, 1973

      Bon McCourtney <b Associates, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant, Marion Woodrow Williams, was convicted of second degree rape, it being alleged that he had sexual intercourse with his stepdaughter who was under fourteen years of age. See Ark. Stat. Ann. § 41-3401 (Supp. 1971). For reversal appellant contends that the court erred in permitting a rebuttal witness for the State to testify because the witness heard part of the State’s testimony; that the competent evidence was insufficient to sustain a conviction; and that the court abused its discretion in refusing to give a cautionary instruction requested by appellant.

It appears undisputed that Jean Geneva Pipkin, the prosecuting witness, was just under fourteen years of age at the time of the alleged incidents in July 1972. It is also undisputed that Jean is a deaf mute. For several years she has been a student at the Arkansas School for the Deaf at Little Rock, spending the summer vacations with her mother and stepfather near Jonesboro. She testified very briefly on direct examination and of course through an interpreter. As to incidents in July, she testified that appellant had intercourse with her on July 14 and again on July 16; that she entered those experiences in her diary (which was introduced in evidence); and that she related those facts to her mother. The prosecuting witness was subjected to extensive cross-examination. From reading that record it is apparent that she was at times utterly confused. The dates which she gave under cross-examination did not always refer to the dates of July 14 and July 16; in fact she would give different dates. She was asked why her testimony was inconsistent and she replied that she did not understand many of the questions. At the conclusion of her testimony she said she did not. understand all the questions on cross-examination. The witness also admitted on cross-examination that she became incensed at her stepfather because he spanked her but denied she was seeking revenge.

Sheriff Johnson testified that he arrested appellant on August 9, 1972; that appellant signed a waiver after having been given the Miranda warnings; and that appellant told the sheriff that the only act of molestation toward the girl was that “I have felt her breasts”.

Dr. Grover Poole testified that he examined the prosecutrix at the request of the sheriff; that the hymen had been ruptured; that the tear was healed “and the vagina was dilated to the extent you would suspect on one that has had intercourse several times”.

The appellant offered three witnesses. They were Delbert Williams, brother of appellant; Mrs. Delbert Williams; and Mrs. Roscoe Tinsley, a sister of appellant. Delbert Williams testified that appellant was fishing on Poinsett Lake on July 14, and that the four people in the party spent the night on the lake. The witness did not remember anything concerning July 16. Mrs. Delbert Williams, who was in the fishing party, corroborated her husband. She fixed the date by referring to a date on which she wrote a check for two raincoats while on the trip. (At the insistence of the State, the witness went to her home and upon return reported that the cancelled check and the check stub were missing.) Mrs. Roscoe Tinsley testified that the prosecutrix was at her house all day on July 12 and until late in the night.

This brings us to the points asserted for reversal. The first assertion is that the court erred in allowing Catherine Baker, who had not been placed under the witness rule as were the other witnesses, to testify for the State in rebuttal. The facts appear to be that during the course of the testimony of the first defense witness, the prosecuting attorney decided he would need Catherine Baker as a rebuttal witness. He conferred with her in the courtroom and then sent her to the sheriff’s office with instructions to remain there until she was called to testify. Her testimony concerned a collateral matter. She was permitted to testify over appellant’s objection. There was no impropriety in that ruling. Mobley v. State, 251 Ark. 448, 473, S.W. 2d 176 (1971). There we said: “It usually lies within sound judicial discretion whether a witness, who has been in the courtroom in spite of a rule excluding witnesses therefrom, should be permitted to testify”.

The second point for reversal is that the court erred in not directing a verdict of acquittal for insufficiency of evidence. We refer to, without repeating, our abstract of the principal testimony in the case. We think the evidence, when viewed in a light most favorable to the State, is more than sufficient to sustain the rulings of the court. We readily concede on the basis of the cold record that there were inconsistencies in the testimony of the prosecutrix on cross-examination. She related those inconsistencies to her lack of understanding of the questions and insisted that her testimony on direct examination was true. The jury evidently believed her explanation and accepted her direct testimony as the correct version.

The final point has to do with the refusal of the court to give this cautionary instruction for appellant:

You are instructed that the crime of second degree rape, of which Marion Williams is charged, is a serious one, and such a charge is easily made and hard to contradict or disprove; that it is a character of crime that tends to create a prejudice against the person charged; and, for these reasons, it is your duty to weigh the testimony carefully, and then determine the truth with deliberative judgment, uninfluenced by the nature of the charge.

A cautionary instruction in rape cases has many times been approved in substantially the form submitted. Bradshaw v. State, 211 Ark. 189, 199 S.W. 2d 747 (1947). However, the court said in Bradshaw that the refusal of the court to give a cautionary instruction will not call for reversal unless the discretion vested in the court has been grossly abused. Also, see Warbington v. State, 240 Ark. 1073, 405 S.W. 2d 281 (1966). Additionally, the jury panel was advised on voir dire examination of practically all the elements contained in the submitted instruction. At least one juror said he would be prejudiced in the case and he was excused for cause.

Affirmed.

Fogleman, J., not participating.


author: John A. Fogleman, Justice.

text:
    TRI STATE INSURANCE COMPANY v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY and Loyd O. BRIDGES
    6223
    497 S.W. 2d 39
    Opinion delivered July 16, 1973

      Daily, West, Core if Coffman, for appellant.

      Youngdahl, Brewer, Huckabay, Funk if Larrison and Harper, Young if Smith, for appellees.
   John A. Fogleman, Justice.

Loyd Bridges, an employee of Garrison Furniture Company from 1943 to 1969, made a claim for workmen’s compensation against his employer about October 7, 1969, asserting that he had suffered a gradual accidental injury due to sustained exposure to dust. At the hearing on his claim, he contended that he became totally and permanently disabled and had been forced to leave his employment about October 14, 1969. Compensation was awarded Bridges on a finding of permanent partial disability of 70% to the body as a whole. Garrison’s compensation carrier until July 1, 1968, was Employers Mutual Liability Insurance Company. Tri State Insurance Company became the carrier on that date. The Workmen’s Compensation Commission refused to apportion the award, but placed all liability on Tri State. On Tri State’s appeal, the circuit court affirmed the commission in all respects. On this appeal, Tri State argues that: there was no substantial evidence to support the commission’s findings; the commission’s findings do not support the award; the commission erred in denying appellant’s motion for a further medical examination of Bridges; and the commission erred in placing all the liability on appellant, the carrier when appellee Bridges left his employment.

The commission’s award was based on a virtual adoption of a referee’s findings made after a remand of the case to the referee for reconsideration, following his first hearing on appellee’s claim. In urging its first point appellant states: “The question to be resolved is whether the claimant sustained the burden of proving that he has suffered a 70% permanent partial disability as the result of an injury which he sustained after July 1, 1968, during appellant’s coverage.” But after thus stating the question, appellant seems to argue that there was no substantial evidence to show that the claimant’s condition arose out of and ’ in the course of his employment. We do find substantial evidence to support the commission’s findings. In reviewing the evidence, we will refer to that most favorable to the claimant, as we must, drawing all reasonable inference in his favor.

Bridges, aged 57, had worked primarily in his employer’s cabinet room during his employment by Garrison. He was a non-smoker. He did not go beyond the fourth grade in school and never had attended any kind of vocational or job-training school. He had followed no other employment, except farming, before he was employed by Garrison. His principal duties consisted of gluing wooden furniture components together. He was exposed to dust as he went about his duties. The dust was largely produced by action of wood-sanding machines. It settled on the furniture components which were assembled by Bridges and other employees. In addition, some sanding, both by hand and by machines, was conducted in the cabinet room itself. While there were fans in the cabinet room at the time Bridges left his job, the closest one to Bridges was six or seven feet from his duty station. Bridges testified that the fans were only operated in the summer and that there were no fans until the last year or two he worked there. While there were windows in the room, those near Bridges were kept closed except when the temperature was high. Bridges said that these fans were simply “blowers” rather than ventilating fans, and, rather than alleviating the dust condition, just served to stir it up. Thirty to thirty-five persons worked in the cabinet room, and Bridges said that their movements also stirred up dust.

Bridges had suffered a compensable injury in 1967, which was sometimes characterized as a broken rib, but which was found by the commission to be a muscle strain of the right chest wall. This injury was caused by Bridges’ having been struck by a table leg. There is also evidence that he had, on other occasions, pain and soreness in his chest. Bridges testified that, after the 1967 episode, he never ceased to suffer discomfort in his chest in varying degrees, but eventually the pain grew progressively worse.

There were no indications of lung trouble when Bridges was temporarily disabled due to the pulled muscle. Sometime in 1968, Bridges began to suspect that his chest difficulties were attributable to something other than the muscle injury because he felt the same pain in both sides of his chest, whereas his previous discomfort had been confined to the side on which the muscle had been pulled. Bridges said that the pain was intermittent and provoked by such things as movement of his arms. Bridges then consulted Dr. Hoyt Kirkpatrick, Jr., to whom he had been sent by his employer when he had the muscle or rib injury. About October 7, 1968, he thought he had again pulled a muscle, and consulted Dr. Kirkpatrick. He immediately returned to his job. About October 21, 1968, he became ill at the factory while unpacking wet materials after a fire at the plant, and went to the hospital, where he was taken to the emergency room. Bridges thought he had suffered a heart attack, because of chest pains and difficulty in breathing, which he characterized as a smothering feeling, but it turned out that this was not the case. Bridges was treated on this occasion by Dr. Wright Hawkins and a Dr. Bailey of Greenwood. He said that he had previously experienced less severe smothering spells, but they immediately became progressively worse and continued until the hearing before the referee, although after he retired, on the recommendation of Dr. Krock, they decreased in frequency and intensity.

According to Bridges, he returned to work in November 1968 and continued to work at least until August 1969, although he said that he was only able to work intermittently because of his condition. Dr. Kirkpatrick referred him to Dr. White in the spring of 1969. Dr. White discovered that Bridges had lung trouble. Sometime, in September 1969, Dr. White referred Bridges to Dr. Curtis J. Krock, who treated him for lung trouble. Bridges said he had never before had any lung trouble. Chest x-rays at the time of his 1967 injury were negative. He apparently worked very few days, if at all, between August and October 1969.

Only two phyf ians testified but there was a medical report from another, along with the reports of Dr. Kirkpatrick as to his original treatment of Bridges. Dr. Krock, a medical internist with a specialty interest in the lung, testified on behalf of the claimant. Dr. Krock likened Bridges’ history to that he had obtained, while doing his fellowship in respiratory diseases at Duke University, from cotton workers suffering from a condition attributable to cotton dust exposure called byssinosis. Dr. Krock said that Bridges’ reaction to dust resembled that of those with byssinosis, but that he had not been previously aware that such a disease had been found in the wood industry. After repeated tests Dr. Krock felt that, to a reasonable medical probability, Bridges had a broncho-spastic disease or respiratory disability related to chronic dust exposure, similar to asthma, which he found described in medical journals as occurring in wood workers, but for which he knew no specific medical term. Dr. Krock had previously reported findings of chronic bronchitis and pulmonary emphysema, exacerbation of which he attributed to exposure to dust. Dr. Krock said that this reaction to the dust would have developed slowly over many years and that it would be impossible to diagnose either this “asthma” or “byssinosis” by a chest x-ray, because, unlike silicosis or asbestosis, there was no deposit that could be detected by this means. He stated that he had sent Bridges back to work on several occasions, but that he repeatedly returned with complaints of a tightness in the chest, chest pain, wheezing and a cough. Dr. Krock had never seen Bridges when he was actually suffering an attack such as the patient described. He felt that Bridges reached a plateau in October of 1969, and that there had been no overall change in the patient’s condition from the time he first saw him up to the time of the hearing. This doctor finally stated his primary diagnosis as chronic bronchitis, bronchospasm, related to dust and fume exposure. In another report introduced, Dr. Krock recommended that Bridges discontinue working in the environment in which he had been employed, saying that he had a pulmonary illness, secondary to industrial exposure to dust, and that his job was a direct factor in causing his disability and difficulty. He added that he believed it unlikely that he would be able to work at this job in the future or to secure any other job.

The report of Dr. Lees C. Forsythe, who examined Bridges on October 15, 1970, at appellant’s request, was introduced. While Dr. Forsythe stated that he found no evidence of physical impairment due to pulmonary disease, and suggested that the episodes described by Bridges might be attributable to hyperventilation due to anxiety, he also stated that they could be due to an asthmatic type phenomenon on exposure to dust and fumes. Dr. Grimsley Graham, who testified on behalf of appellee Employers, agreed with Dr. Krock that environmental dust did aggravate Bridges’ condition, which Graham characterized as chronic bronchitis and pulmonary emphysema. Dr. Graham said that the chronic bronchitis would precede the emphysema, which, he said, was far advanced. According to him, byssinosis means the same thing as pneumoconiosis, except that the former resub ’ ' from exposure to wood, while the latter came fn a exposure to metal, and usually from coal dust. He testified that inhalation of foreign agents that set up a process damaging to the lungs might be called repeated trauma, and if Bridges’ condition was caused by this, it probably would take something in excess of seven years to produce it. Dr. Krock had said that Bridges’ condition was “a long time in coming.” Of course, we are not concerned with conflicts in the medical testimony or with determining where the preponderance of the evidence lay. We are only concerned with the substantiality of the evidence on behalf of the claimant.

We agree with appellant that the burden was upon the claimant to prove that his disability resulted from an injury received in the course of his employment. His condition, however it may be characterized, is not listed as a compensable disease, so it must necessarily have resulted from an accidental injury in order to be compensable. In this respect, we find a striking similarity to the dust inhalation we found to have constituted accidental injury in Batesville White Lime Company v. Bell, 212 Ark. 23, 205 S.W. 2d 31, and Murch-Jarvis Co. v. Townsend, 209 Ark. 956, 193 S.W. 2d 310.

In Bell, we found that aggravation of a pre-existing heart condition by inhalation of dust around a rock crusher over a 23-year period constituted an accidental injury under the liberal interpretation we give the terms of the Workmen’s Compensation Act, even though the evidence did not show the exact time when the injury could be said to have occurred. We treated the word “accidental” as if it were synonymous with “unexpected,” “fortuitous,” or “not to be reasonably anticipated.” Accidental injury, under the authority of that case may be taken to mean one which a workman, under the circumstances, might not reasonably have expected or anticipated. We there recognized that such an injury is not necessarily the result of a single impact, but that it may be caused by a continuation of irritation upon some part of the body by foreign substances. In Murch-Jarvis, where we held that inhalation of dust which caused a bronchial condition or aggravated a pre-existing disease resulting in disability was compensable, we relied upon a definition of “accident” as meaning an unlooked-for and untoward event which is not expected or designed and “accidental injury” to mean one which is unusual, unexpected and undesigned. We also rejected the idea that inability to fix the exact date or occasion when the aggravation happened prevented the injury from being compensable.

Under the authority of these cases, we find substantial evidence that Bridges suffered an accidental injury by inhalation of dust which, together with pre-existing conditions, caused a total and permanent disability, and" that 70% of his disability is attributable to the dust inhalation.

Tri State contends that the Workmen’s Compensation Commission erred in denying its motion for examination of Bridges by a physician of the commission’s choosing, drawing an analogy between this case and Ward Furniture Mfg. Co. v. Reather, 234 Ark. 151, 350 S.W. 2d 691, in which we affirmed the action óf the circuit Court in remanding the claim to the Workmen’s Compensation Commission with directions to employ its own qualified medical examiner in order to secure additional' evidence relating to the issue whether the claimant’s disability arose out of and in the course of his employment. Appellant argues that, in spite of two opinions and an amended opinion by the referee, the record is still not clear whether, all the medical evidence was considered and. there . are many , unanswered questions as to . the claimant’s, condition and its course. The case was remanded by the commission after thereferee’s first hearing, because it was not clear to the commission that the referee had considered all medical reports. The second opinion of the referee seems to. us to make it cléar that these reports were considered. The questions, which appellant deems to be unanswered seem to pertain to alleged questions in Dr. Rrock’s mind whether he was dealing with a disease, his difficulty in stating with medical certainty exacdy what the cláimant’s problem was, and the possibility that Bridges was suffering from an allergy or cardiac .problem. Unquestionably, the commission was clothed with authority to grant this motion. Ark. Stat. Ann. §§ 81-1319(i), 81-1323(b), 81-1327, 81-1343 (Repl. 1960); Plants v. Townsend Curtner Lumber Co., 247 Ark. 824, 448 S.W. 2d. 349. But its granting is not mandated by the statutes or our decision- in Ward Manufacturing Co. v. Reather, supra, as appellant seems to think. There we affirmed the action of the circuit court directing further medical examination and testimony. The circuit court found that medical testimony had not been fully developed in that case. There seems to have been full development of medical testimony here. Certainly, there is no indication that either insurance company has been handicap d in any way in obtaining medical testimony or that any request by them for an examination was ever denied. It is significant that Dr. Lees C. Forsythe reported to appellant’s attorneys that the episodes of shortness of breath described by Bridges could be attributed either to hyperventilation due to anxiety or to an asthmatic type phenomenon on exposure to dust and fumes. Although. this doctor agreed to answer other questions directed to him by appellant’s counsel, none seems to have been asked.

While it is true that Dr. Krock had some difficulty in determining the. cause of Bridges.’ trouble to his own satisfaction, he did finally arrive at a reasonably certain conclusion. Complete, or mathematical certainty is not required. Holstein v. Quality Excelsior Coal Co., 230 Ark. 758, 324 S.W. 2d 529; Kearby v. Yarbrough, 248 Ark. 1096, 455 S.W. 2d 912. Appellant suggests that appellee’s trouble could be a dust-related disease, an intrinsic asthma, cardiac disease, pulmonary fibrosis or psychological shortness of breath. If the claimant’s condition was a disease (whether byssinosis, asthma, emphysema, bronchitis or whatever it may be) its aggravation by dust inhalation could constitute a compensable injury. Drs. Krock and Graham seem to have agreed that it was at least highly possible that the environmental dust aggravated the condition, whatever it was. Dr. Krock considered that Bridges did not respond to standard medication administered to persons with bronchitis and asthma in arriving at his ultimate diagnosis. Dr. Forsythe found no objective evidence of cardiac disease. A cardiac problem was not reflected in any of Dr. Graham’s examinations. Dr. Krock eliminated cardiac disease on the basis of all the usual tests, short of cardio-arteriogram, and the absence of characteristic symptoms. Pulmonary fibrosis was suggested by Dr. Krock, but he indicated that if it existed, it was insufficient to be apparent on an x-ray picture. Psychological shortness of breath or hyperventilation was said by Dr. Krock to be usually an erroneous diagnosis in older males. Dr. Graham’s test results were more consistent with hypoventilation than hyperventilation.

The very wording of the statutes cited above is indicative of the commission’s discretion in requiring further medical examinations. We find no abuse of this discretion in this case.

The most difficult question presented is appellant’s contention that, even though any claim based on Bridges’ 1967 injury would be clearly barred by the statute of limitations, it should not be responsible for the entire award, inasmuch as the claim involved an accidental injury and not an occupational disease, and that, in order for inhalation of dust to constitute an accidental injury, each inhalation must be considered as a separate “miniature accident.” Appellant proposes that, since the referee quoted a physician’s statement that the condition would be seven years in developing, Employers should be held jointly liable, or, in the alternative, there should be an apportionment between the carriers, with Employers being responsible for the period from October 9, 1967, to July 1, 1968, and appellant for the period from July 1, 1968, to August 8, 1969. Employers relies upon the referee’s finding that Tri State was the responsible carrier because it was the compensadon carrier when Bridges was forced to quit work.

Apportionment among carriers has not been treated extensively in our decisions. Appellant relies upon Employers Casualty Co. v. United Fidelity and Guaranty Co., 214 Ark. 40, 214 S.W. 2d 774, to place this jurisdiction in the category of those requiring apportionment. In that case of first impression, each carrier contended that the full liability should fall on the other. The commission found that the liability should be borne by them equally. The claimant there had a pre-existing condition which predisposed him to herniation of an intravertebral disc. He received an injury on December 19, 1946. We found substantial evidence to support the commission’s finding that the claimant, by continuing to work until February 14, 1947, at his usual labors requiring heavy lifting, received successive injuries by traumatic strains which progressively aggravated his pre-existing condition into disability on the date he quit work. The appellee was the insurance carrier until February 1, 1947, when appellant took over the risk. We held that the evidence, when liberally construed, was sufficient to have fastened liability on either carrier for the full amount, but that division of the liability, on the evidence before the commission was within the power and authority of the commission. The dramatic event aggravating the pre-existing condition in that case occurred during appellee’s coverage, and the disability during appellant’s. Here, the first dramatic event, Bridges’ smothering spell in October 1968 and the disability both occurred during appellant’s coverage. Insofar as the law on the subject is concerned there has been no change since that case was decided. If the commission could have placed the full liability on either carrier in the cited case, the reasons for saying that it could place the liability on appellant in this case are even stronger. We do not take the quotation from 71 C.J. 1411, § 1353, in the cited case to the effect that compensation for a single disability resulting from separate accidents occurring under different employers should be equally apportioned between the insurers of the different employers in support of the commission’s authority to divide the liability to negate our preceding statement relating to the sufficiency of the evidence to have fastened the full liability on either. We said in the very beginning that the primary and decisive question was one of fact. Under the rule we followed there, the commission here might have found that either an equal division of liability or a division on the basis of a formula suggested for apportionment by appellant was appropriate. In its brief appellant had suggested that joint liability would have been proper, or, in the alternative, that we eliminate all daily recurring injuries or miniature accidents which would have been barred by the statute of limitations, i.e., prior to October 9, 1967, and apportion liability in proportion to the respective periods of coverage thereafter. This'would place liability on Employers for the daily injuries during the period from October 9, 1967, to July 1, 1968, and on appellant for the period from July 1, 1968, to October 14, 1969.

It is quite likely that appellant is correct in its assertion that the great weight of authority requires that there be an apportionment among carriers whenever disability results from the cumulative effect of successive and repeated “accidental injuries” suffered in the same employment, some of which occurred during the periods of coverage of each of two or more carriers. See Quinn v. Automatic Sprinkler Co., 50 N.J. Sup. 468, 142 A. 2d 655 (1958); Fireman’s Fund Indemnity Co. v. Industrial Accident Commission, 39 Cal. 2d 831, 835, 250 P. 2d 148 (1952); Royal Globe Insurance Co. v. Industrial Accident Commission, 63 Cal. 2d 60, 45 Cal. Rep. 1, 403 P. 2d 129 (1965). It may well be that, as appellant argues, it is unfair and harsh to fasten all liability on the last carrier. On the other hand, it seems to us that such a fixing of liability by the commission must, under our rule, have substantial evidentiary support. If it does not, then the exercise of the power would be arbitrary and the courts should reverse the commission’s award. The circumstances here do not indicate any such arbitrary action on the part of the commission.

Since our decision in Employers Casualty Co. v. U. S. F. & G. Co., supra, there have been IB regular sessions of the General Assembly, and our Workmen’s Compensation Law has been amended at least twice by initiated acts. Neither the General Assembly nor the people have seen fit to change our rule. In view of the many equitable considerations that may enter into the fixing of such liabilities and the complexities involved in arriving at an appropriate formula, we believe that the adoption of a more rigid rule of apportionment which would not leave the matter for a factual determination by the commission should be adopted by legislative, not judicial action.

Appellee Employers urges that we treat this claim as one arising from an occupational disease by judicial declaration that it is and that we apply Ark. Stat. Ann. § 81-1314(a)(6) declaring the rule fixing liability on the basis of the “last injurious exposure.” We have recently recognized that adding to the statutory list of occupational diseases is a commission responsibility and not a judicial one. Barentine v. Cleghorn Oil Co., 254 Ark. 182, 492 S.W. 2d 242. We decline to abandon that position so soon. The statute upon the subject is clear and unambiguous. Ark. Stat. Ann. §§ 81-1314, 81-1343 (Repl. 1960). Furthermore, we decline Employers’ invitation to adopt the “last injurious exposure” rule by analogy, for the same reasons we refused to adopt appellant’s suggested rule for apportionment. To do so would be to act legislatively.

The judgment is affirmed.

      In finding that Bridges was totally disabled, Dr. Krock took into consideration that Bridges had lost the sight of one eye, and had a bilateral hernia, as well as his lung condition.