author: Carleton Harris, Chief Justice. George Bose Smith, J., Sam Robinson, Associate Justice,

text:
    Nail v. State.
    4937
    328 S. W. 2d 836
    Opinion delivered November 2, 1959.
    [Rehearing denied December 7, 1959]

      John Harris Jones and Wilton E. Steed, for appellant.

      Bruce Bennett, Atty. General, by Thorp Thomas and Ancil Reed, Asst. Atty. General, for appellee.
   Carleton Harris, Chief Justice.

William Frank Nail, appellant herein, was convicted of the crime of Murder in the First Degree, and his punishment fixed at death by electrocution. From the judgment so entered, comes this appeal. Numerous assignments of error are contained in appellant’s motion for new trial, the first several dealing with the sufficiency of the evidence.

Proof reflected that Nail, James Moss, and James Leroy Montgomery, were convict trusties at the state penitentiary farm located at Tucker. Nail and Moss were riflemen on the plow squad, and Montgomery was the rider. According to the State’s evidence, Nail was fixing the bridle on his horse, and when the horse kept jumping about, he picked up a piece of leather and began hitting the horse with it. Montgomery was sitting on a box, preparing to eat. Rising, and starting toward Nail, he told the latter to quit whipping the horse. Appellant replied that it only concerned him (Nail) and Captain Bruton, and when Montgomery continued walking toward him, appellant drew his pistol. The rider then backed off and stated, “You won’t get a chance to pull that pistol on nobody else”. According to witness Moss, Montgomery “started to turn and walk off and about that time I heard Frank’s rifle go off and he fired the first shot then. * * * Montgomery backed up and I backed up out of the way, too. Montgomery backed up and I walked out of the way and Montgomery run around the other side and Frank fired again. I told Montgomery, I said, ‘Montgomery, Frank is mad, you had better leave while you can’, I said, ‘You had better run, you had better go to the building or do something’.” Montgomery ran toward the bayou, while Nail mounted his horse, and according to the witness, fired two more shots. Montgomery ran under the bridge at the bayou. Further, from the testimony of Moss: ‘ ‘ Montgomery told him, he said, ‘I am not going to the man, I will call it off’, something like that, something of that nature, and Frank told him, ‘All right, come on out’.” Montgomery then walked out from under the bridge, holding up his hands, and Nail again fired. Montgomery fell. Other witnesses, in substance, corroborated Moss’ testimony. According to witness Jimmy Mullins, Nail “went down and told him to come out from under the bridge, that he wasn’t aiming to hurt him. He finally come out. Q. Did Mr. Montgomery say anything? A. Yes, sir, he come out with his hands up begging. Q. What did he say when he was begging? A. Well, he said he wasn’t aiming to tell on him — it was all over with. Q. Then what happened? A. Frank Nail said something, yes, it was over with, and up and shot him. ’ ’

According to Dr. Harold Morris, who was acting as coroner of Jefferson County, three bullets struck Montgomery, and he died as a result of such wounds. The proof was undisputed that deceased was unarmed at all times during the altercation. The evidence was certainly sufficient to sustain a first degree murder conviction.

It is urged in assignments Nos. 6 and 7, and objections made during the trial, that the court erred in admitting into evidence certain photographs depicting the scene of the alleged murder. The objection was based on the fact that the scene was not the same as on the day of the killing, in that some equipment and two automobiles were shown in the photographs, which were not so located on the day of the alleged crime. Evidence in the case reflected that the house, road, and bridge, shown in the pictures, were the same as when the shooting took place, and it was stated during the testimony that no automobiles were parked there at the time. The same contention was made, but rejected by this Court, in Williams v. State, 229 Ark. 1022, 323 S. W. 2d 922.

By assignment No. 10, and objections made during tbe trial, appellant claims tbe court erred in admitting into evidence his confession. Counsel contend tbat tbe confession was incomplete, and tbat Nail lacked tbe mental capacity to understand tbe confession. Buck Oliger,, a deputy sheriff, who took, and wrote tbe confession, stated tbat be included everything tbat appellant told him at tbe time of tbe taking. Tbe confession was taken in question and answer form, signed by Nail, and witnessed by two other persons. If it was felt tbat Nail bad made other statements which did not appear in the confession, counsel were at liberty to question tbe witness in detail. In fact, tbe court advised counsel tbat Oliger could be interrogated about any additional statements made by appellant. This action of tbe court conformed to our ruling in Whitten v. State, 222 Ark, 426, 261 S. W. 2d 1. Relative to tbe contention that Nail lacked mental capacity to understand tbe confession, it was obviously appellant’s duty to offer proof to tbat effect, and this not having been done, be was in no position to complain.

Assignments Nos. 8 and 9, together with objections during the trial, maintain tbat error was committed by tbe court in permitting tbe State to re-examine certain witnesses, it being contended tbat tbe matters under reexamination should have been included on direct examination. Tbe witness Moss was asked if tbe photographs correctly represented tbe scene of tbe homicide at tbe time it occurred. Since tbe introduction of tbe photographs bad been objected to on tbe ground tbat tbe scene portrayed was not tbe same as on tbe day of tbe murder, tbe evidence was proper rebuttal. Oliger was also recalled to testify in regard to taking Nail’s confession. "We have held tbat tbe reopening of a case either for tbe re-examination of a witness, or tbe taking of further testimony after testimony on both sides has been concluded, is a matter within the discretion of the court. Simmons v. State, 184 Ark. 373, 42 S. W. 2d 549.

Numerous assignments of error deal with the instructions given by the court, and the refusal of the court to give various requested instructions. Appellant specifically objected to the court’s instruction No. 12, which reads as follows:

“You are instructed that the premeditation and deliberation to do murder may be formulated in the assailant’s mind upon the instant. It does not have to exist in the mind an appreciable length of time. All that is necessary is for it to exist when the assailant commits the act; so if you find from the evidence on the whole case, beyond a reasonable doubt, that William Frank Nail, wilfully, deliberately, maliciously, with premeditation, killed James Leroy Montgomery, then you will find him guilty of murder in the first degree, unless you find the defendant insane as defined in these instructions. ’ ’

This specific objection was based on the contention that the instruction was in conflict with another instruction dealing with premeditation; that it gives unnecessary emphasis upon a negligible period of time as involved in the element of premeditation, is incompetent in failing to take into consideration the low mentality or mental defectiveness of the accused, and is vague. We find no conflict, nor vagueness, and further find that the instruction correctly states the law in conformity with numerous holdings of this Court, going as far back as 1869. McAdams v. State, 25 Ark. 405. See also Jackson v. State, 133 Ark. 321, 202 S. W. 683; Jenkins v. State, 222 Ark. 511, 261 S. W. 2d 784. As to that part of the objection relating’ to the failure to include a reference to the alleged low mentality of the accused, suffice it to say that the court’s instructions Nos. 14 and 15, given on the court’s own motion, properly instructed the jury as to the defense of insanity. Of course, the fact that one is simply of “low mentality”, is no legal defense to the commission of crime, unless of such low mentality as to render him incompetent. We have also examined the other instructions submitted, and find no-error therein, nor in the court’s refusal to give requested instructions.

By assignment No. 18, appellant contends that the-court erred in allowing the jury to separate. Ark. Stats.. (1947), § 43-2121, permits this to be done in the discretion of the trial court, and we held in Borland v. State, 158 Ark. 37, 249 S. W. 591, that this was entirely proper, no abuse of discretion having been shown, and. it not appearing that any of the jurors were subject to improper influences during the dispersion of the-jury. Likewise, in the instant cause, there is no showing that appellant was prejudiced by the action of the court permitting the jurors to separate. Preceding the-separation, the court admonished the jury as follows:

"Now, gentlemen, I want you to remember this distinctly, in all cases when you are permitted to go, the court has confidence in you, we are going to permit you to separate and go to your respective homes — do not discuss this case and do not permit anyone to discuss it with you because that would be highly improper and entirely wrong, and I am sure you will not do that. I want you to bear in mind, keep in mind, what I told you this morning, don’t discuss it with anyone. That means what it says, anyone, and do not permit them to discuss it with you — should they mention it to you, tell them you are on the jury and under orders of the court not to discuss it and as I said again this morning, if they insist it, bring it to the court’s attention, and we will attend to that. With that, be back in the morning.”

There was no request that the jury be admonished not to read newspapers, or listen to radio or television programs, regarding the trial.

It is contended that the trial court erred in denying appellant a new trial on the ground that nine of the jurors had read a newspaper article about the trial. Following an afternoon recess, when the jury had been separated, an account of the day’s proceedings was pub-listed in the Pine Bluff Commercial, and in next morning’s Arkansas Gazette. Appellant first complains that the Commercial stated the accused ivas serving a term for burglary and grand larceny, and the Gazette article stated he was sentenced for grand larceny. Counsel argue that appellant was greatly prejudiced by the fact that members of the jury, in reading the articles, became acquainted with appellant’s prior offenses. We do not agree. It necessarily was obvious to all the jurors that Nail had committed some offense, else he would not have been serving time in the penitentiary. If the articles had erroneously stated that Nail was serving time for rape, or some other crime of that nature, which might well tend to arouse prejudice in the mind of a juror, appellant would have a stronger point, but such was not the case. There was perhaps some slight discrepancy in the testimony of Deputy Sheriff Oliger and the written account in one of the newspaper articles, but we fail to see where this could be prejudicial, since the jurors had, at first hand, heard Mr. Oliger testify, and therefore, certainly were acquainted with his actual testimony. Appellant also objects to the lead sentence in the article which states that the accused “went on trial for his life.” This was certainly a correct statement, since Nail was being tried for first degree murder. In addition, the court made the following statement to the jury:

“The Court Avants to say something to the jury. Is there any of you who read the articles who cannot disregard the articles totally and try this case solely on the law and the testimony you hear here in the court room? The Court saw no hands. The Court is going to further instruct you if you read the articles, those of you who did, the Court is asking you to totally disregard anything you might have read in there and try this case solely on the evidence you heard here yesterday and today and the law as given you by the Court.”

Appellant has suggested error on two points that we feel merit detailed discussion. The first of these relates to the dismissal of a juror after the juror had been accepted, and after appellant had exhausted his challenges. The complete record as to what transpired is as follows:

“Mr. Brockman: At this time, Your Honor, I would like to excuse a juror that has already been taken.
The Court: All right.
Mr. Jones: If the Court please, we want to object to him excusing a juror that has already been taken.
The Court: The objection is overruled.
Mr. Brockman: The state will excuse Mr. McIntyre.
The Court: Mr. McIntyre is excused.
Mr. Jones: Well, note our objection —■ our objection is under the statute that the defendant is to have the last challenge as to each juror and the state has accepted him.
The Court: Yes, sir, note the objection.
Mr. Jones: Save our exceptions.
Mr. Steed: If the Court please, the defendant would like for the record to show that all of his challenges had been exhausted.
The Court: The Court has a record of them.”

Appellant argues that the court committed reversible error in permitting the State to challenge this previously accepted juror after the defendant had exhausted his challenges. In Williams v. State, 63 Ark. 527, 39 S. W. 709, this Court did hold such action to be prejudicial error, though a strong dissent was written by Mr. Justice Riddick. Under the Williams case, appellant’s contention would be correct, and he would be entitled to a reversal herein. However, the latest case dealing with point is Green v. State, 223 Ark. 761, 270 S. W. 2d 895, which was handed down on June 7, 1954, and rehearing denied on October 4, 1954. There, a juror was accepted by each side, but was later excused by tbe Court through fear that ineligibility might be assigned as error. In an Opinion written by the late Chief Justice Grieein Smith, this Court said:

“Assuming, without deciding, that the disqualification could be waived, appellant has failed to show that he was prejudiced by the ruling. Insistence is that when the juror was removed, the defendant had exhausted his challenges. He does not, however, show that the person accepted in lieu of Baker was objectionable, or that the court on request would not have excused a questioned substitute under a rule of fairness if the person objected to could with reason be regarded as unfit, or favorable to the state’s view of the transaction. We have often said that a litigant is not entitled to a particular juror.”

Of course, in the Green case, supra, the juror was excused on the court’s own motion, while here, the juror was excused at the request of the state’s attorney. We see no material difference however, since this juror was actually excused by the court, and had the court refused its permission, the juror would have continued to serve. We recognize that these decisions are conflicting, but the Green case, of course, being the latest pronouncement upon this point, constitutes the law, and this construction has been in effect for more than five years. Actually, the Green case overruled the Williams case though the Opinion did not specifically so state. We therefore take this occasion to point out our adherence to the Green decision. As pointed out in that case, we have frequently held that a litigant is not entitled to a particular juror. This being true, there is no valid reason to refuse the request to excuse one who has already been taken, even though a defendant’s challenges have been exhausted, unless it first he shown that the defendant will he prejudiced hy the service of the venireman accepted in lieu of the juror excused. The record in this case, with reference to this matter, completely quoted above, shows nothing further. Counsel raised no objection to the substituted juror, nor endeavored to show any reason why the replacement could not, or would not, try the case with fairness or impartiality.

"While the Opinion in the Green case cited no authority for the Court’s position, such authority does exist. In People v. Rich, 237 Mich. 481, 212 N. W. 105, the Michigan Supreme Court said:

“After the defendant had exhausted his peremptory challenges, the prosecution was permitted to exercise peremptory challenges although it had previously expressed satisfaction with the jury. There was no error in allowing this to be done.”

We like the logic of the Michigan Court in the case of People v. Mullane, 256 Michigan Reports, 54 (a case similar in some respects to our own Green case, and also bearing some similarity to the case at Bar). There, the defendants were being tried on a charge of kidnapping, and it developed that two jurors, who had already been finally accepted by counsel for all parties, were probably disqualified by reason of prior jury service. These jurors were excused by the court. The defendants had theretofore exhausted all their challenges, and at a conference in Chambers, the trial judge announced that he would be “liberal in any reasonable objection to any juror which would be taken as a challenge for cause”, but would allow no more peremptory challenges. Two jurors were then called in lieu of the two excused, and after examination by counsel, the jury was completed and sworn. The defendants were convicted, and the action of the court in excusing the jurors after defendants had exhausted their challenges, was assigned, inter alia, as error, on appeal to the Supreme Court.

From the Opinion of the Supreme Court:

“The examination of these jurors does not appear in the record, nor do counsel claim that they were not in every way qualified to sit. * * * ”

Further:

“In what way can it then be said that the defendants were deprived of the right of further peremptory challenge by the course pursued? If defendants’ counsel chose to exercise all of their peremptory challenges before the jury were ordered to arise and be sworn, they took the chance that after they had done so it might be discovered that a person not qualified to sit was among the number in the jury box and that he or she might be removed therefrom by order of the court. # * # ? >

To this language, we might add that there is nothing to prevent a defendant saving a peremptory challenge for such a situation as occurred in the instant case.

If it be said that this holding may well permit a wholesale discharge of jurors after acceptance, we disagree. Of course, in the Michigan cases just cited, more than one juror was excused, but we conclude this is a matter that rightly directs itself to the discretion of the trial court, which conducts the trial, and is charged with the responsibility of maintaining a proper balance, seeing that no undue advantage is taken by either side. "We cannot conceive of any court permitting the challenge of several jurors already accepted, unless good and sufficient reason be shown, and such action by a trial court, without sufficient cause, might well constitute an abuse of discretion.

The purpose of the law is to give a defendant a fair and impartial trial, and in furtherance of affording full protection, a defendant is given more peremptory challenges than the State. To compel the showing of cause as to why a substituted juror should not serve, is certainly not an unreasonable requirement. Can it be doubted but that a trial court would quickly excuse a prospective venireman if the slightest hint of prejudice were shown? Nor can it be said that a defendant is discriminated against by permitting tbe State to exercise such a peremptory challenge, for if tbe circumstances are reversed, and tbe State bas previously exhausted all of its challenges, tbe defendant bas tbe privilege of peremptorily challenging a juror already accepted.

Appellant’s contention is held to be without merit. In order that there may be no misunderstanding, tbe case of Williams v. State, supra, is specifically overruled insofar as it bolds that tbe State cannot peremptorily challenge a juror, already accepted, after tbe defendant bas exhausted bis challenges; likewise, tbe cases of McGough v. State, 113 Ark. 301, 167 S. W. 857, and Temple v. State, 126 Ark. 290, 189 S. W. 855, are overruled to tbe same extent.

Tbe other point which, we feel, merits detailed discussion, relates to tbe testimony of Dr. E. I. Shaw of tbe State Hospital. Dr. Shaw stated that it was bis opinion that Nail knew right from wrong, and be further testified regarding tbe hospital staff report, which was introduced, relating to appellant. Dr. Shaw signed tbe report as tbe examining physician, and tbe report states that it is bis opinion and tbe joint opinion of tbe psychiatric staff that William Frank Nail was not mentally ill to tbe degree of legal irresponsibility at tbe time of tbe alleged commission of tbe crime, nor at tbe time of the examination. Tbe report was a composite report, compiled from tbe findings of fourteen state hospital physicians. Appellant accordingly contends that in admitting this report and permitting Dr. Shaw to testify relative to it, hearsay evidence was admitted; that be bad no opportunity to examine tbe unnamed persons whose findings were included in tbe report, and tbe admission of such evidence was highly prejudicial. In Gerlach v. State, 217 Ark. 102, 229 S. W. 2d 37, we held that it was necessary for tbe examining physician to sign tbe report and appear to testify. True, in tbe Gerlach case, tbe diagnosis is confined to tbe statement of tbe examining physician, i.e., tbe report states, “It is my opinion that Robert Earl G-erlach is mentally competent”, etc., but the report commences with the statement, “We have completed onr examinations in the case of Robert Earl Gerlaeh, who was admitted to the state hospital under Act No. 3, and I hereby certify that this is a true and correct finding of the facts in this case. * * *” While the exact point here raised was not urged in the Gerlach case, it has been subsequently raised and held to be without merit. In Leggett v. State, 228 Ark. 977, 311 S. W. 2d 521 (the second Leggett case), this Court said:

“The present petition states that Leggett, in connection with his plea of insanity, was sent by the court to the State Hospital for a medical examination. The petition charges that, although the Hospital’s report reflected the opinion of the examining medical staff, not all the members of the staff were called as witnesses at the trial. This omission, it is said, deprived Leggett of his constitutional right to be confronted with the witnesses- against him. U. S. Constitution, Amendment 6, Ark. Constitution, Article 2, Section 10.
This contention is foreclosed by our affirmance of the original judgment. This same argument was made upon the first appeal and was found to be without merit. The issue was not specifically mentioned in the opinion, for it was necessary to examine dozens of objections in the record, and, as is our practice, we limited our discussion to what were considered. to be the appellant’s strongest points. The Opinion explained, however, that we had examined the entire record and had considered all the issues raised.”

Since no discussion of the Court’s reasoning was included in either the first or second Leggett cases, we take this occasion to more fully detail the basis for this holding.

In the first place, only the defendant and his counsel know what defense will be relied on, and it may not be known until the day of the trial whether the defendant will plead insanity as a defense. Accordingly, it would seem most illogical, or unreasonable, to require all of the doctors, who participated in any phase of the examination, to leave their varied duties and travel to some point in the state, perhaps a long distance away, solely on the possibility that the defendant might want to call them as witnesses. In fact; Section 12 of Initiated Act No. 3, adopted in November, 1936, provides, “Witnesses employed by the State Hospital shall be so summoned to appear as to require as little loss of time as possible from their other duties.” Let it be remembered that the report is prepared and forwarded to the court and clerk sometime in advance of the trial, and there is nothing to prevent defense counsel from ascertaining the names of all the doctors who participated in any phase of the examination, and talking with those doctors relative to their findings. Should counsel then deem it advisable, particular doctors could be summoned to appear at the trial. Section 12 also provides, “The physician or physicians who prepared the report shall be summoned as witnesses at the trial at the order of the trial judge or at the request of either party, and if summoned, shall be examined by the court, and may be examined by either party, and a copy of the written report hereby required shall be given in evidence in every case in which the fact of sanity is an issue at the trial.” Accordingly, a defendant is not denied the opportunity to question those who examine him. Belative to the contention that the report constitutes hearsay evidence, we point out that hearsay evidence is, by legislative enactment, presently admissible in several types of cases. Such statutes, of course, authorize specific exceptions to the hearsay rule, and the people likewise by enactment, have the authority to authorize exceptions. The report is such an exception, and the act mandatorily requires that a copy of the written report be filed.

By assignment No. 4, appellant asserts that the verdict is excessive, but as we have many times stated, the matter of assessing punishment is strictly within the province of the jury, and we have no power to change the fixed punishment unless the proof fails to sustain the charge for which the defendant is convicted. See Allison v. State, 204 Ark. 609, 164 S. W. 2d 442, Rorie v. State, 215 Ark. 282, 220 S. W. 2d 421, McCall v. State, 230 Ark. 425, 323 S. W. 2d 421.

Other objections and assignments of error are noted, but a discussion of each would only prolong this Opinion, which is already lengthy, and serve no good purpose. Suffice it to say that we have considered each objection and alleged error, and find them to be without merit.

Counsel in this case were appointed by the trial court to defend appellant, and were paid a fee of $125 each, under the provisions of § 43-2415, Ark. Stats. (1947) Anno. Said statute provides inter alia that “any attorney at law appointed by the Circuit Court to defend a person charged in said Court with the commission of a crime, whether misdemeanor or felony, shall receive for his services in representing said accused a fee of not less than Twenty-five Dollars ($25.00) and not more than Two Hundred Fifty Dollars ($250.00), the amount of which shall be fixed by the Circuit Court.” Counsel list the work done in preparation of the case, suggest that the fee allowed was not intended to cover an appeal, and request an additional fee. It will be noted that the statute recites that the fee shall be fixed by the Circuit Court, which we consider a salutary provision, inasmuch as that court is familiar with the finances of the county, and has knowledge of the amount appropriated for this purpose. We therefore hold that the amount of fee awarded under this section is entirely within the discretion of the Circuit Court.

Finding no reversible error, the judgment of the Circuit Court is herewith affirmed, but there is a matter we think worthy of comment. The accused did not testify in his own behalf, and we note from the record that this decision was made by appellant himself. Counsel took appellant into Chambers, and requested the court to advise Nail of his rights. The court then explained that the defendant has the privilege at all times to either take the stand and testify in his own defense, or to not take the stand, and Nail was twice asked if he desired to take the stand. Each time, he replied that he did not. There is a heavy responsibility upon any attorney defending one charged with crime, and this is particularly true where one is being tried for a capital offense, and even more so when defendant’s counsel are court appointed. Under the circumstances of this case, we think these attorneys should be commended for leaving this decision to appellant, and making a record of the proceedings thereto, for when this is done, there is no possibility that an accused can blame his appointed lawyers for his failure to testify, possibly feeling that this omission contributed to his conviction, nor later embarrass them by stating that he was prevented from testifying by the advice of counsel. "We think the attorneys exhibited good judgment in handling the matter as they did, and we commend this procedure as worthy of consideration by any attorney acting under court appointment.

George Bose Smith, J., concurs.

Bobinson & Johnson, JJ., dissent.

George Bose Smith, J.,

concurring. When this case was discussed in conference I voted to overrule Green v. State and to return to the rule adopted in Williams v. State, which I consider to be the better rule. But a majority of the court took the other view and decided to adhere to the doctrine of the Green case. In this instance I think the desirability of certainty in the law outweighs the advantages that are to be found in the rule of Williams v. State. For that reason I yield by personal convictions to the majority and will in the future regard today’s decision as a binding precedent, not to be overruled.

Sam Robinson, Associate Justice,

dissenting. One of the most important parts of a jury trial is the selection of the jury. This is especially true where a ciminal case has received wide publicity and a great number of citizens are likely to have some feeling in the matter, one way or the other, although such opinion or belief by a particular venireman is not sufficient to challenge for cause. For instance, a venireman states on his voir dire examination that he has read accounts of the alleged offense in the newspapers; that he has heard the case discussed and has formed an opinion as to the guilt or innocence of the accused, but has not talked to anyone that purported to have personal knowledge of the facts; and that he can put aside any opinion he has formed and try the case according to the law and the evidence. According to many decisions of this Court such a venireman is qualified to serve as a jurón. Very likely in a case of this kind the defendant is compelled to exercise a peremptory challenge unless he feels to a moral certainty that the opinion the venireman has is in his favor.

When all things are taken into consideration, the 12 peremptory challenges allowed the defendant in a capital case are not excessive by any means; in fact, prior to the adoption of the Criminal Reform Act in 1936 the defense could exercise 20 peremptory challenges. Usually by the time 12 jurors are accepted the defendant has exhausted all 12 of his peremptory challenges, and then at that stage of the proceedings to allow the State to challenge jurors that have already been accepted, without giving any reason whatever, is contrary to the statutes and contrary to fair play.

If the prosecuting attorney can challenge one juror in such circumstances, why should he not be allowed to challenge all 12? Is it because challenging one would be a little error and challenging 12 would be a big error ? One is naive indeed who does not think that both the prosecution and the defense take full advantage of every angle of the law to get on the jury people they believe will be most likely to see their side of the case.

The statutes of this State pertaining to the selection of a jury are clear as to every detail. But for some reason the majority have completely ignored the statutes. In my opinion the very issue involved is regulated by statute. In the first place, Ark. Stat. § 43-1903 provides:

“Felonies, selection in. — In a prosecution for felony, the clerk, under the direction of the court, shall draw from the jury box the names of twelve petit jurors, who shall be sworn to make true and perfect answers to such questions as may be asked them touching their qualifications as jurors in the case on trial, and each juror may be examined by the State and cross-examined by the defendant, touching his qualifications. If the court decide he is competent, the State may challenge him .peremptorily or accept him, then the defendant may peremptorily challenge or accept him. . . .” [Emphasis supplied]

It will be noticed that after the court decides a venireman is competent the State must first challenge him peremptorily or accept him. It is clear from the statute that the defendant has to accept or challenge only after the State has first done so. This statute does not provide that both the prosecution and the defense can accept a venireman as a juror and then the prosecuting attorney change his mind and exercise a peremptory challenge, after the defendant has exhausted his challenges. If such action is permitted, the above statute is nullified, and that appears to be what the majority have approved.

Ark. Stat. § 43-1910 provides: ‘ ‘ Challenge defined.— A challenge is an objection to the trial jurors and is of two kinds:

“First. To the panel.
“Second, To the individual juror.”

§ 43-1913: “Individual juror, challenge to. — The challenge to the individual juror is:

“First. For cause.
“Second. Peremptory.”

§ 43-1914: “When challenge taken. — It must be taken before he is sworn in chief, but the court, for a good cause, may permit it to be made at any time before the jury is completed. ’ ’

Surely the majority must think this section means something; the statute in effect says that the court can permit a juror to be excused, after once being accepted, only for a good cause. I just don’t see how this statute can be construed as having any other effect, and yet it is completely ignored. The prosecution was permitted to challenge the juror without stating any cause, good or otherwise.

§ 43-1915: 1‘ Challenge for cause. — The challenge for cause may be taken either by the State or by the defendant.”

§ 43-1916: “General or particular. — It may be general, that the juror is disqualified in serving in any case, or particular, that he is disqualified from serving in the case on trial.”

§ 43-1917: ‘ ‘ Cause of general challenge. — Causes, of general challenge are:

“First. A want of the qualifications prescribed by law.
■ “Second. A conviction for a felony.
¡ (Unsoundness of mind, or such defect in the faculties of the mind, or organs of the body, as renders him incapable of properly performing the duties of a juror. ’ ’

§ 43-1918. “Particular causes. — Particular causes of challenge are actual and implied bias. ’ ’

§ 43-1924. “Order of challenges.- — The challenge to the juror shall first be made by the State and then by the defendant, and the State must exhaust her challenges to each particular juror before such juror is passed to the defendant for challenge or acceptance.” [Emphasis supplied]

No effect can be given to this statute and permit the State to challenge a juror previously accepted, after the defendant has exhausted his challenges. Of course, the court can excuse a juror for cause after he has been accepted by both sides. But it must be remembered that in the case at bar the juror was peremptorily challenged; no cause or reason was given.

In an uninterrupted line of cases extending over a period of nearly a hundred years, this Court has consistently held that it was error to allow the prosecution to peremptorily challenge a juror previously accepted, after the defendant had exhausted his challenges. Williams v. State, 63 Ark. 527, 39 S. W. 709; McGough v. State, 113 Ark. 301, 167 S. W. 857; Ruloff and Berger v. State, 142 Ark. 477, 219 S. W. 781; Dewein v. State, 114 Ark. 472, 170 S. W. 582; Hanna v. State, 183 Ark. 810, 38 S. W. 2d 1090; Bevis v. State, 90 Ark. 586, 119 S. W. 1131. The majority specifically overrule the Williams case, decided in 1897, but fail to mention Temple v. State, 126 Ark. 290, 189 S. W. 855, decided in 1916. There the Court said: “It was held in some of these cases that the court, in its discretion, might permit the State to use a peremptory challenge on a juror who had been accepted by both sides where the defendant had not exhausted all of his peremptory challenges ; but in all the cases in which it was held not to have been error to permit this action, the defendant had not exhausted his peremptory challenges. The test seems to be whether the defendant has remaining as many challenges as the State is permitted to exercise, and upon the authority of these cases, the judgment of the court must be reversed”.

To sustain its opinion the majority have cited Green v. State, 223 Ark. 761, 270 S. W. 2d 895. But that case is not in point with the case at bar. There a juror was excused by the court on its own motion, the court being of the opinion that the juror was disqualified because of having rendered jury service within the past two years and that the defendant could not waive such disqualification. The court’s action was not arbitrary. The juror was excused because the court thought it would be error not to excuse him. Such action on the part of the trial court is not analogous to the situation in the case at bar, where the prosecuting attorney, after the defendant had exhausted his challenges, was permitted to peremptorily excuse a juror who had been accepted by both sides. The statute provides that “for a good cause” a challenge may be exercised at any time before the jury is completed. Here the prosecuting attorney stated no cause and gave no reason for challenging the juror, and certainly this court does not know the reason for such action, but it could have been that at that stage of the proceedings the prosecuting attorney knew the identity of the next venire1 man to be called and decided he would be a better juror from the standpoint of the State than the juror previously accepted. The majority say that the defense should always reserve some challenges to meet such a contingency. The least that can be said is that the suggestion does not show a realistic concept of the problem of selecting a jury. In a capital case the defense has only 12 challenges. Of course, the personnel of the jury is of the utmost importance. Frequently whether a case is won or lost depends on the judgment exercised by counsel in using his peremptory challenges. In many instances the 12 challenges allowed are a great deal less than the number counsel feels he should have to get a fair and impartial jury, and to say that a defense lawyer should use only 7 or 8 peremptory challenges during the selection of the 12 jurors, out of perhaps dozens or even hundreds of veniremen that are examined, because after the 12 had been selected the prosecution may excuse 4 or 5 of those already accepted by both sides, deprives the defendant of the right to select a jury as provided by statute.

The majority say “a litigant is not entitled to a particular juror.” Of course, this assertion is good law, but in the case at bar that principle of law is not followed, because here the State was allowed to have a particular juror, the prosecution challenged one previously accepted, without giving anv reason, and selected another juror after the defendant had exhausted his challenges. Thus the State was allowed to select a particular juror.

To support tlieir views, after a most diligent, exhaustive and careful search the majority have been able to cite only two cases from any of the state or federal courts over the whole United States, and neither case is in point. First, the Green case [223 Ark. 761, 270 S. W. 2d 895], heretofore discussed, which is shown to be not in point; and, second, the Michigan case of People v. Rich, 237 Mich. 481. Upon careful investigation it will be seen that neither does this Michigan case support the majority. In Arkansas the statutes, as heretofore pointed out, clearly govern and control the order of challenge of the respective parties in the selection of a jury. In the Michigan case of Hamper’s Appeal, 51 Mich. 71, the court said: ‘ ‘ The question of order of challenge is one of practice and discretionary with the trial court. Peremptory challenge, so far as it extends, is a right secured by statute, of which neither party can be deprived until the jury are sworn.”

But our statute, § 43-1914, provides that only a challenge for cause may be made after a juror has been selected. Moreover, the Michigan statute, 3 Mich. C. L. 1948, § 769.26, requires that the judgment be affirmed regardless of error unless it affirmatively appears that the error.' resulted in prejudice. That is not the law in Arkansas. Here it is presumed that an error is prejudicial unless it isaffirmatively appears to the contrary. St. Louis & S. F. R. Co. v. Crabtree, 69 Ark. 134, 62 S. W. 64; Neal v. Brandon 70 Ark. 79, 66 S. W. 200; St. Louis, I.M. & S. R. Co. v. Steed, 105 Ark. 205, 151 S. W. 257. Certainly there is no Showing in this record that the prosecutions action in challenging a juror already accepted and substituting anotíier was not prejudicial to the defendant.

This Court said in Willamsv. State, 63 Ark. 527, 39 S. cannot certainly say just how 0>| -$kqsqnjpj:ymen was prejudicial to the f^efWWíPot be able to say positively th^J^.t0^^.S3,p^Tj^^4i}qi,a]0t.<xIjiusirat all; but at the same time ■^^^^np^-jh^yrth^^b^sboot detrimental to him, and in fac^jjfe rKffit was. But this uncertainty j.tH^li^a^tr«n^a<i?g^jnent against the propriety of such a procedure.” Moreover, in the Michigan case of People v. Rich, 237 Mich. 481, the court was equally divided. Apparently according to Michigan law under such circumstances judgments are affirmed. In the other Michigan case of People v. Mullane, 256 Mich. 54, cited by the majority, the court points out that the jurors were excused for cause. And, incidentally, the earlier case of People v. Rich is not even mentioned in the Mullane case.

In my opinion it boils down to the proposition that there is no authority to sustain the majority in holding that the prosecuting attorney can peremptorily challenge a juror previously accepted, after the defendant has exhausted his peremptory challenges. In fact, all the law of this State, both statutory and case law, is to the contrary. The Green case [223 Ark. 761, 270 S. W. 2d 895] cited by the majority, is not in point, because there the court excused the juror on its own motion, thinking the juror was disqualified; and the Michigan case of People v. Rich is not in point because the order of exercising challenges is not regulated by statute in Michigan, but is discretionary with the trial court, whereas in Arkansas such order of challenge is specifically regulated by statute. In criminal cases especially a statute prescribing the manner in which challenges shall be exercised is mandatory. State v. Jones, 191 Pac. 1075.

Por the reasons set out herein, I respectfully dissent.

I am authorized to say that Mr. Justice Johnson joins in this dissent.

       Riflemen, commonly called “high power”, have the duty of guarding the men forking under them, known as rank men. They ride a horse, and use a 30-30 high power rifle. The rider is the boss, and directs the rank men in their work. According to evidence by the assistant superintendent at Tucker, the rider carries a pistol when going to and coming from the job, but not when he is with the men.

       When the juror’s name was called, he stated that he had served during the last court term, but the trial judge did not hold him disqualified. ;fj

       That is, if one juror can be discharged at the instance of the State after the defendant has exhausted his challenges, additional jurors can be peremptorily challenged to an extent limited only by the number of peremptory challenges remaining to the State.

       Emphasis supplied.

       Under the provisions of this Act, a defendant may be committed for observation.

       For instance, see § 48-940, which permits evidence, in certain liquor violation cases, of defendant’s reputation for boot-legging or being engaged in the illicit manufacture of, or trade in, intoxicating liquors.

       This section provides that the quorum court of any county “whose population did not exceed 100,000 by the most recent federal census may make an appropriation to pay for the services of attorneys appointed by the Circuit Court to defend persons accused of committing a crime.” The appropriation must have been made before any fee can be allowed.


source: Caselaw Access Project

author: J. Seaborn Holt, Associate Justice.

license: Public Domain

text:
    Green v. Smith.
    5-1987
    328 S. W. 2d 357
    Opinion delivered November 2, 1959.

      Murphy $ Arnold, for appellant.

      Charles F. Cole, for appellee.
   J. Seaborn Holt, Associate Justice.

This case involves the correctness of an injunctive order.

Appellees, six property owners in the town of Cave City, Arkansas, with a population of about 350 people, alleged in their petition, in effect, that the appellant owned property in Cave City near plaintiffs’ property; that the appellant was engaged in raising broilers and was expanding his operation; that existing brooder houses could provide for 40,000 broilers; that the business was being operated in such a way that the broilers produced odor, attracted flies and made loud and distracting noises at all hours of the day and night; that dust and litter were deposited on appellees’ dwellings making it impossible to open their homes and that the odor was such that it was “almost impossible” for them to remain at their homes, thus reducing the market value of appellees’ property. An injunction was sought by appellees. Appellant answered with a general denial. A trial resulted in a decree granting certain injunctive relief prayed. The decree contained these recitals: “It being conceded that defendant’s broiler houses are not nuisances per se, the question for the court to determine in this case is whether petitioners have proved by fair preponderance of the evidence that the operation of defendant’s broiler business constitutes a nuisance and, if so, whether it constitutes such a nuisance as should be abated entirely or whether he should be required to change his method of operation so that all the equities may be equalized.

“I find that even his recent operations have infringed upon the rights of petitioner, Simpson, to the peaceable use and enjoyment of his home and to the several petitioners who live along the Strawberry-Cave City road although due to the greater distance, they probably have suffered to a lesser degree than has Simpson. It seems clear from the testimony of almost all the petitioners that his operation has been less obnoxious the past year or so than for some time prior.
“It seems clear that much of the difficulty is traceable to defendant’s handling of litter and his disposal of dead chicks and his custom of loading out batches of chicks during the late hours of the night (although that may be customary in his line of business) arouses and disturbs the occupants of the residences nearby.
“I find that a preponderance of the evidence fails to show that the petitioners are entitled to an order restraining defendant from operating his broiler business at all but I find that he should be restrained from leaving litter outside the buildings, anywhere on the premises, for a period of more than twenty-four hours; that he should be restrained from leaving dead chicks anywhere about the premises but that they should be promptly buried (not burned); and that he should be restrained from catching out chicks after nine o’clock P.M. * * * As to the new broiler house which is being built considerably north of the present broiler houses, counsel for defendant very forcefully argues that, since it is conceded that it is not a nuisance per se and since it is not yet in operation, it cannot be enjoined but I find that it is simply an enlargement of his present operation, and hence, this restraining order will apply to it the same as to the other houses. Defendant will pay the cost.”

The court then entered the following order restraining appellant from: “1. Leaving litter outside his building or anywhere on his premises for a period of more than twenty-four hours. 2. Leaving dead chicks anywhere about the premises and from burning them. They are to be promptly buried. 3. Catching out chickens after nine PM. and before seven A.M.”

Following that decree this appeal followed. For reversal appellant relies on the following point only: “The Chancery Court erred in granting a restraining order which totally prohibited the appellant from ‘catching out chickens after 9:00 P.M. and before 7:00 A.M.’ ”.

Our governing rule in cases such as here presented, where the act complained of is not a nuisance per se (as conceded here) is well stated in 92 Ark. 546, 123 S. W. 395, Town of Lonoke v. Chicago, Rock Island & Pacific Railway Company, in this language: “Where the thing complained of is not a nuisance per se, the burden is upon the complaining party to show that it is a nuisance in fact. In order to authorize an injunction in such case, the evidence must be determinate and satisfactory, and it must clearly show that the things complained of do constitute a nuisance. 29 Oyc. 1244, 1246. In 29 Cyc. 1225 it is said: ‘In order'to obtain an injunction against or the abatement of an alleged nuisance, the complaining party must show a clear and strong case supporting his right to such relief’ * * In the present case a great mass of conflicting testimony was introduced covering some 300 pages, and as indicated, appellant questions only the court’s action in granting an injunction against “catching out chickens after 9:00 P.M. and before 7:00 A.M.”.

The testimony on this issue, that is catching out chickens at night, seems to have been confined almost entirely to the question of the noises made by the chickens while being caught and taken from the houses in which they were confined. It appears that it requires about ten weeks to produce a broiler, and three times a year appellant catches and ships thousands of his broilers in the nighttime between the hours of 9:00 P.M. and 7:00 A.M. But appellant argues that there are reasons other than the noise issue to support his contention that he should be allowed to catch and load his chickens at night. He says in his brief: ‘ ‘ The grown broilers are caught and loaded into trucks at night. The catching of the chickens at night can be done with less labor, and in shorter time, and without the chickens being bruised in the catching process. As industry requirements become more strict with Government grading now in effect the price of the broiler is adversely affected if the bird has an unusual amount of bruises. Thus, it is the universal practice now to catch broilers at night and deliver them during the night to the processing plant and each group of birds requires only a part of one night to be caught. The industry is highly competitive and a difference of as much as a cent a pound because of the chickens being bruised can mean the difference between a profitable enterprise and a losing venture. ’ ’

We have been unable to find any substantial testimony in the record to support these contentions which it appears that appellant is assuming to be true. We have concluded, however, that the testimony bearing upon the above contentions should be fully developed and submitted to the trial court for further consideration.

Accordingly, the decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion, with costs of this appeal to be equally divided between the litigants.

Appellees have cross-appealed and contend that ‘ ‘ the court should have also taken into consideration the fact that appellant’s operations resulted in a depreciation of the values of appellees’ properties, and granted appellees relief from that injury. The only way to obtain for appellees the relief to which they are clearly entitled is that appellant be enjoined from raising broilers in this area which is predominantly a residential area.” We hold that appellees are not entitled to the equitable relief of injunction.


text:
    Ark. State Hwy. Comm. v. Thomas.
    5-1932
    328 S. W. 2d 367
    Opinion delivered November 2, 1959.

      W. R. Thrasher, O. Wendell Hall, Jr. and W. B. Brady, for appellant.

      Fred E. Briner, for appellee.
   J. Seaborn Holt, Associate Justice.

This is an eminent domain action instituted by the Arkansas State Highway Commission to condemn certain lands owned and leased by appellees, Louis Thomas and wife. Mr. Thomas operated a cattle farm and business composed of approximately 559.51 acres, of which approximately 204 acres were leased from W. R. Hughes, the owner, and 28 additional acres owned outright by appellees, making a total of 232 acres which were located on the east side of the Saline River, and the remainder, (of the 559.51 acre farm) approximately 327.51 acres, owned outright by appellees, was located on the west side of the Saline River. Appellees operated the entire farm as a unit with sufficient access across the river to permit cattle to pass from one side to the other without hinderance. Appellant condemned 7.56 acres of the land owned by the appellees on the west side of the river and 9.37 acres on the east side of the river, 204 acres of the land used by the appellees on the east side of the river having been leased from Hughes as indicated. At the trial before the court sitting as a jury, Thomas and wife, appellees, were permitted to put in issue and try the value of their leasehold interest in the leased Hughes farm on the east side of the river, and in addition, were permitted to put in issue and try the value of their own land that was condemned. Besides the value of their own land, appellees alleged damages because of a severance between their property and the leased farm on the east side of the river and because of an impairment of their leasehold interest. The lessor, Hughes, was not made a party and did not participate in the proceedings. There was a judgment for appellees in the total amount of $10,000.00. The judgment contains this recital: “Upon oral motion of plaintiff the court declared this verdict to be composed of: an award of $400.00 per acre for the 7.562 acres taken, or a total of $3,024.80; an award of $3,487.60 for damage to the leasehold interest of Louis Thomas in the lands of Walter R. Hughes and Doris Hughes; and an award of $3,-487.60 for damage resulting from a severance of the property of Louis Thomas and Elsie Thomas from the property leased from Walter E. Hughes and Doris Hughes by Louis Thomas, said severance resulting from the taking of land for the aforementioned highway purposes.” From the judgment comes this appeal.

For reversal appellant relies on three points.

I

In his first point he alleges that the trial court committed error in allowing separate trials for the interest of the freeholders (Thomas and wife) and also for their interest as lessees of the Hughes land. Ordinarily in (eminent domain) condemnation cases, such as the present case, our rule is that the interest of the freeholder, his interest as lessee in property leased and the interest of the lessor in his own property leased to another, should be determined in a single trial and not in separate trials as was done in the present case. We so held in 104 Ark. 187, 148 S. W. 1038, Hare v. Fort Smith & Western Railroad Company. We there said: “In a condemnation proceeding, all persons owning an interest in the property are proper parties; and this includes tenants in common, life tenants, remaindermen, lessees, in fact every person having an interest in the land.” Citing cases. In Corpus Juris Secundum, 1202, the text writer announced the rule in this language: “The owner of the property sought to be condemned, and all persons having any interest therein which will be affected by the proceedings, are, as a general rule, proper and necessary parties respondent or defendant, except to the extent that the rule is modified or limited by statute. The owners of several tracts may be joined in one proceeding.” We find no Arkansas Statute modifying or limiting the above rule. And 29 C. J. S. 1206, “Lessor and lessee. A lessee of the property sought to be condemned is not only a proper party to the proceedings but also is a necessary party, in most states, although not in all, nor under all circumstances.” In support of the text, Hare v. Fort Smith S Western Railroad Company is cited. We hold, therefore, that the rights of the freeholder, his rights as lessee, and also the rights of the lessor must be determined in one trial unless the right to a single trial be waived. In the present case, we think the right to a single trial by appellant was, in effect, waived. The record reflects that on the date set for the trial, appellant appeared, by its attorney, announced ready for trial and the trial proceeded. No objection was made, by appellant, to proceeding with the trial nor was any motion made for a consolidation of appellees’ interest with that of Hughes, the owner of the property leased by appellees. Not, it appears, until after the testimony of two witnesses appearing on behalf of appellees was completed did appellant (highway department) move to consolidate. In the circumstances we hold that appellant’s motion to consolidate came too late and its action, as indicated, amounted to a waiver.

Points: “2. The judgment of $3,487.60, representing damage to the Thomas Leasehold in land of Walter Hughes, is not supported by competent evidence. 3. The judgment for severance damage is not supported by competent evidence.”

As to these two points, the evidence is conflicting, and without attempting to detail it here, we hold that there was sufficient substantial evidence to support the findings and judgment of the court, sitting as a jury, as to the damages to the freehold, leasehold, and the severance damages. While the aggregate amount of the damages allowed appears to us to be most generous, however, as indicated, we are unable to say that such amount is not supported by some substantial evidence.

Affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Ark. State Hwy. Comm. v. Hughes.
    5-1933
    328 S. W. 2d 391
    Opinion delivered November 2, 1959.

      W. R. Thrasher, O. Wendall Hall, Jr. and W. B. Brady, for appellant.

      John L. Hughes, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal stems from a condemnation action instituted by the appellant, Arkansas State Highway Commission, to obtain certain lands belonging to the appellee, W. R. Hughes. The case was tried to a jury; and, from a verdict and judgment for $3,200.00, there is this appeal in which only two points are urged.

I. The appellant says: “The Trial Court Committed Error in Allowing Separate Trials for the Interest of the Freeholder and for the Interest of His Lessee.” Hughes owned a tract of 177 acres which he had leased to Thomas for a number of years; and Thomas used the Hughes land, and other lands owned by Thomas, for a cattle ranch. When the Highway Commission undertook to obtain the right-of-way for a new road, there was filed in the Saline Circuit Court a case styled:

“Arkansas State Highway Commission, Plaintiff, v. 29.77 acres of land, more or less, situated in Saline County, Arkansas, Louis Thomas and Elsie Thomas, his wife; Walter R. Hughes and Doris Hughes, his wife; Mike Richards and Delores Richards, his wife, and H. L. Abercrombie and Evelyn Abercrombie, his wife, defendants.”

The Hughes land proposed to be taken amounted to only 9.374 acres; so the lands of Thomas and the other named parties made the total of 29.77 acres. In some way not shown in the record before us, there must have been a severance allowed as to the tract of each landowner, but there is no mention in any of the proceedings or evidence in the transcript before us as to any request made by the Highway Commission, or any other party, to have determined in this case the value of the Thomas leasehold rights in the Hughes land. So far as the record before us shows, the matter was never mentioned in the trial court in this case, and, of course, cannot be raised here for the first time. In short, there is no foundation in this record on which the appellant can predicate the point now argued.

II. The appellant says: “There is No Substantial, Competent Evidence to Support the Jury Verdict.” As aforesaid, Hughes owned a tract, of 177 acres. The Highway Commission condemned, Through the northwest corner of the Hughes tract, a right-of-way amounting to 9.374 acres; and there resulted a tract of •two acres entirely cut off from the remaining Hughes land. Witnesses for the land-owner placed the value of the Hughes land anywhere from $300.00 to $500.00 an ncre. One witness testified that he purchased a tract of 29.9 acres similar to and near the Hughes land for $500.00 an acre. Values before and after the taking were given, and one witness summarized the testimony by saying that Hughes’ total damage was $4,500.00.

The two witnesses for the Highway Commission gave lesser values. One witness said that the total damage suffered by the Hughes land was $1,540.00 from which ■should be deducted $250.00 as the damage to the Thomas leasehold: thus leaving $1,290.00 as the amount ■due Hughes. The second witness said that the total «damage suffered by the Hughes land was $1,487.40 from which should be deducted $63.59 as the damage to the Thomas leasehold: thus leaving $1,423.81 as the amount due Hughes.

It is thus clear that if the juiv had taken the testimony of the plaintiff’s witnesses of $4,500.00 as the total of Hughes’ damage and had deducted therefrom the $250.00 testified by the Highway Commission’s witness as the value of the Thomas leasehold, then the difference due Hughes would have been $4,250.00. Instead, the jury verdict was only $3,200.00, which is amply sustained by the evidence.

Affirmed.

       Mrs. Hughes is a party because of dower rights; but we refer to “appellee” in the singular.


text:
    Commercial Credit Corporation v. Kitchens.
    5-1887
    328 S. W. 2d 355
    Opinion delivered November 2, 1959.

      Barber, Henry, Thurman & McCaskill and James M. Rowan, Jr., for appellant.

      Spencer & Spencer, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is another case involving usury in. a conditional sales contract. The Chancery Court held that usury was established; and for reversal appellant urges only this point: “The Chancellor erred in voiding the conditional sales contract in the instant case, since the reservation of usurious interest, if any, was the result of an honest mistake of fact”. This point is really a two-pronged statement because appellant argues: (a) there was no usury; and (b) even if usury be found the same was the result of an honest mistake.

On October 4, 1957 appellee, Walter Gr. Kitchens, purchased an automobile from Lindsey Brothers Motor Company for the sum of $1,695.00. Kitchens paid $500.00 cash and the balance was evidenced by a conditional sales contract. Here is the tabulation of the transaction as appears on the note:

Purchase price of car $1,695.00

Less cash payment 500.00

Unpaid Balance 1,195.00

Car Insurance Premiums 179.00

Life Insurance, Accident,

Hospitalization, etc. premiums 70.12

Time Price Differential 234.84

Amount of Conditional Sales

Contract Note $1,678.96

This note was to be paid in four installments of $419.74 each, and the four payments were due as follows: No. 1 due April 1, 1958; No. 2 due December 1, 1958; No. 3 due April 1, 1959; No. 4 due as hereinafter discussed. The appellant furnished the contract form to Lindsey Brothers, as well as the information as to insurance charges, the price differential, and schedule of payments; and the contract was immediately transferred by Lindsey Brothers to the appellant. Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973. After the first payment became due, Kitchens filed this suit seeking to void the entire transaction on the basis of usury. The appellant denied usury and cross-complained for judgment. As previously stated, the Chancery Court held the contract to be usurious; and this appeal ensued.

I. Contract Date For Payment No. 4. In approaching the usury question it is essential to know the contract payment date. Appellee says that the payment No. 4 was due October 1, 1959; and appellant says it was due December 1, 1959. We have examined the original contract, as also did the Trial Court; and clearly one date has been superimposed over the other: that is, ‘ ‘ Oct. ’ ’ was written in ink and over it there has been placed “Dec.”; or vice versa. There is testimony that the final payment was not to be more than two years after the purchase date (October 4, 1957) because the insurance coverage was only for two years, which would have expired in October 1959. Because of such evidence, and other in the record, it is clear that a question of fact was made as to when the fourth payment was due; and we cannot say that the Trial Court was in error in holding that the fourth payment was due October 1, 1959 and that the change of the contract was from October to December.

II. The Alleged Mistake. On March 22, 1958 appellant wrote appellee a letter admitting an overcharge of $40.11. The germane portion of the letter reads:

“We would like to call to your attention that the first note on the above account will be due April 1, 1958. The first installment was $419.74 however, there was an overcharge on the insurance of $40.11 which leaves a balance of $379.63 due April 1.” (Emphasis supplied.)

Another letter from the appellant to the appellee said the overcharge was in the finance charge. That letter read:

“We have rechecked the finance charges on your 1956 Chevrolet and have found that' you were overcharged $40.11 on the account. We are crediting your account with $40.11 and you may deduct this amount from your first instalment which will be due April 1, 1958.” (Emphasis supplied.)

If the overcharge of $40.11 was in insurance, then the time price differential (another way of saying interest) would still remain at $234.84; and if the overcharge of $40.11 was in the finance charge, then the interest would be $194.73. It must be borne in mind that the appellant calculated all insurance charges and all interest charges, and never furnished the appellee any itemization. The salesman who sold the ear to the appellee testified that he (salesman) did not know how to figure the charges and called appellant’s office and obtained the figures. Appellant’s witness substantiated such testimony but was unable to satisfactorily explain why one letter to appellee said “insurance” and the other letter said “finance charges”. In such confusion of testimony by appellant’s own witness, we cannot say that the Trial Court was in error in treating the overcharge as insurance, since no detailed itemization was furnished as to what was insurance and what was interest. Jones v. Jones, 227 Ark. 836, 301 S. W. 2d 737.

III. Calculation. When we come to the matter of calculation, it makes very little difference whether the $40.11 be treated as a credit on interest or a credit on insurance, because the testimony shows that, even with the $40.11 credited to interest, the contract still remains usurious. Plaintiff called an accountant, who submitted detailed figures to substantiate his testimony that, even if the $40.11 was credited to interest, the contract would still be usurious by the amount of $1.83; and that if the $40.11 was credited to insurance, the usury would amount to $48.25. So, even under the appellant’s own claim of an honest mistake, the contract was still usurious in fact. The appellant had a definite intention to charge a certain sum of money, which turns out to be usurious. General Contract Purchase Corp. v. Duke, 223 Ark. 938, 270 S. W. 2d 918.

Affirmed.

Harris, C. J., Holt & Ward, JJ., dissent.

       The bail bond was for two years from October 4, 1957; and the life insurance was to expire October 4, 1959.


author: George Rose Smith, J.

text:
    Countz v. Roe. Countz v. Boggs.
    5-1923 5-1956
    328 S. W. 2d 353
    Opinion delivered November 2, 1959.

      Phillip H. Loh and Frank H. Cox, for appellant.

      Parker & Mobley, for appellee.
   George Rose Smith, J.

These two cases are companion election contests involving two local option elections held in Yell county on November 4, 1958. In the principal case, No. 5-1923, the wets challenge the result in the county-wide election, in which the vote was certified as having been against the manufacture and sale of intoxicants. In the second case, No. 5-1956, the wets present a similar challenge to the result in a township election held in Ward township. The circuit court, hearing the eases upon the pleadings and certain stipulations, dismissed both complaints upon the ground that the contestants had failed to state a cause of action.

In the county-wide contest the appellants assign four asserted errors in the trial court’s conclusions of law. It is first insisted that the holding of a separate election in Ward township rendered the contemporaneous county-wide election void, because the Thorn Liquor Law provided that no election in any district or precinct of a county should be held on the same day as an election for the entire county. Ark. Stats. 1947, § 48-816. Assuming, without deciding, that this section of the Thorn act was not repealed by Initiated Act No. 1 of 1942, Ark. Stats., §§ 48-801 et seq., as might be contended on the basis of our holdings in Mondier v. Medlock,, 207 Ark. 790, 182 S. W. 2d 869, and Winfrey v. Smith, 209 Ark. 63, 189 S. W. 2d 615, we think the appellants’ position to be clearly without merit. What the Thorn act prohibits is the precinct election, not the county-wide election. It follows that a violation of the statute might avoid the precinct election, but it Could have no effect upon the validity of the county-wide election.

A second contention is that the county court was in error in ordering that the election be held on November 4, the date of the general election. It is insisted that the 1942 initiated measure requires that the election be held not less than twenty nor more than thirty days after the county court determines the petitions to be sufficient, Ark. Stats., § 48-801; and in this case that determination was made on August 29, 1958. The answer to this contention is that this particular provision of the 1942 initiated measure has been superseded by Act 15 of 1955, Ark. Stats., § 48-824, which directs that local option elections be held only on general election days. The county court was therefore correct in fixing the date of this election, since the court’s discretionary authority in the matter has been withdrawn.

The appellants’ third grievance is that the county election commissioners’ failed to recount the votes, even though the contestants requested a recount in accordance with Ark. Stats., § 48-802. On this point we agree with the circuit court’s view, that the contestants’ remedy was by an action for mandamus against the county election commissioners and that the absence of a recount is not a ground for contesting the election in the present proceeding.

The appellants’ final point in the principal case is that the court erred in holding that the complaint did not state a cause of action. The complaint alleges that several named advocates of prohibition unlawfully electioneered at certain polling places on election day, that only two judges and no clerks were on duty in one precinct during the morning hours, that the first twenty-five ballots in one box were not numbered, and that the judges and clerks did not properly deliver the ballot boxes or properly certify the results of the election. The complaint does not charge that any specified voter was wrongfully influenced, nor does it attempt to explain just how the asserted irregularities redounded to the benefit of the drys. General statements of this kind do not state a cause of action. Craig v. Barron, 225 Ark. 433, 283 S. W. 2d 127.

In the companion case, No. 5.-1956, the appellants complain of the fact that the county court did not declare the result of the election until the. twenty-first day after it was held, though the statute requires the court to act within twenty days. Ark. Stats., § 48-802. The winning side, in this case the drys, might be aggrieved by the county court’s failure to promptly declare the result of the election; but we fail to see how these appellants have been prejudiced, and in any event we are firmly of the view that the county court could not defeat the will of the voters by neglecting to declare the result.

The appellants also ask us to determine whether their petition to contest the election was filed prematurely, but such a holding would not result in a reversal of the judgment, and we therefore decline to pass upon the question, the issue being merely academic. Hogan v. Bright, 214 Ark. 691, 218 S. W. 2d 80.

Affirmed.