text:
    Economy Swimming Pool Co. v. Freeling.
    5-2982
    370 S. W. 2d 438
    Opinion delivered September 16, 1963.

      Willis V. Lewis, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   Jim Johnson, Associate Justice.

This action arises out of a contract for the construction of a fallout shelter entered into on October 10, 1961, between appellees Richard N. Freeling and Marie H. Freeling, his wife, and appellants Economy Swimming Pool Co., Inc., and George P. Bilheimer, Jr. Appellants agreed, inter alia, that the shelter would be constructed with materials of good quality and that all work would be done in a good workmanlike manner and “that the contractor [appellants] will be responsible for any water seepage into the vestibule or shelter and will repair same.”

Appellees made a down payment in the amount of $500.00 on the contract, and work was begun on October 17, 1961. On October 26, 1961, appellees complained that the excavation was not of sufficient depth and that proper footings for the shelter had not been provided according to the plans and specifications. As the work progressed, appellees made frequent and additional complaints and employed a structural engineer to inspect the construction and advise appellees as to the quality of the work and whether it was in accordance with the plans and specifications.

Water seepage was one of the major problems. One wall of the fiberglass shelter bulged, which had to be corrected by appellants. The concrete was honeycombed. The overhead concrete slab was not resting on the columns designed to support it. Finally, one wall of the shelter caved in.

After working for over three months on this relatively small job, appellants on January 20, 1962, padlocked the shelter and put a fence around the top of it. A few days later appellants removed the air filter and air motor from the premises.

On February 13, 1962, appellees filed suit in the Pulaski Chancery Court alleging breach of contract by appellants and seeking rescission of the contract, recovery of the $500.00 down payment and damages to the premises of appellees. They also sought to have the liens against their property discharged by appellants.

This case was tried on- September 12, 1962, and after hearing evidence on behalf of all parties, the Chancellor found in favor of appellees on the issue of the return of the $500.00 down payment and the discharge of the materialmen’s liens, but did not award appellees any sum for damages to their property. The Chancellor also denied appellants’ cross-complaint for the total sum mentioned in the contract. From the decree appellants prosecute this appeal. Appellees have not cross-appealed.

For reversal appellants contend that they were prevented from performing the contract by the fault of appellees and that appellants are entitled to recover the profits which would have been made had appellees carried out their contract.

From the record, it is true that some delays were occasioned by appellees’ concern and determination to receive that which they had contracted for. From the whole case, however, it can hardly be said that the delays were not justified.

On the question of appellants’ entitlement to profits, there is no showing whatever that appellants would have made a profit on this job.

The structure here in question was sold to appellees to be used by them and their family in the event of nuclear attack. Soon after construction started, appellees employed the services of Mr. Sanford Wilbourne, a highly qualified structural engineer, to periodically check on the progress of the construction of the fallout shelter. This was an understandable precaution, since the record reveals that Mr. Freeling has been totally blind for some years, a fact not mentioned in his brief. Mr. Wilbourne testified that at the time he first saw the shelter in the fall of 1961 there were two problems, one structural and the other waterproofing. He testified that at that time he believed the structural defects could be corrected, but the waterproofing could never be solved because the concrete was porous—“honeycombed.” Later, when he saw the bulge in the wall, he warned appellees not to let anyone enter the shelter because, in his opinion, “it was dangerous to be inside it just under ordinary circumstances, ’ ’ He further considered that the later cave-in of the wall was caused by outside water pressure as well as the weight of the concrete and steel dome resting on the fiberglass shelter instead of on the concrete columns. From his last examination of the shelter in the spring of 1962, about the time work was halted, his expert opinion was that the shelter could not possibly be made structurally sound.

Appellants’ own construction superintendent testified that after he had been on the job for a month and three days the whole northeast corner of the shelter fell in and that it would continue to give trouble from hydrostatic (water) pressure. He admitted that he had never been able to correct the water problem; that during that time they had gotten the shelter dry one time and it had stayed dry only overnight.

Appellant Bilheimer himself admitted that he was contemplating suit against the manufacturer of the fiberglass shelter because he had found from experience that the shelter would not withstand the hydrostatic pressure and that, if used according to the plans provided, would not do the job in this area.

It seems to be basic contract law-—apparently so basic that there is little case law on the point—that where there is a material breach of contract, substantial nonperformance and entire or substantial failure of consideration, the injured party is entitled to rescission of the contract and restitution and recovery back of money paid. United States v. Haynes School Dist. No. 8, 102 F. Supp. 843 (E.D. Ark. 1951); 17A C. J. S., Contracts, §420, p. 515; Farrell v. Third National Bank, 20 Tenn. App. 540, 101 S. W. 2d 158; 12 Am. Jur., Contracts, §440, p. 1020; 5 Williston on Contracts, 4046, §1455; Restatement, Contracts, §384(1), (1932); id., §347; Fish v. Valley National Bank, 64 Ariz. 164, 167 P. 2d 107; Barber v. Rochester, 52 Wash. 2d 691, 328 P. 2d 711; Texas Co. v. Northup, 154 Va. 428, 153 S. E. 659.

From the testimony above reviewed and other testimony of the same character and nature contained in the record, on trial de novo, we are impelled to the conclusion that the learned Chancellor’s finding that the contract was breached and that appellees were entitled to rescission, restitution and discharge of the materialmen’s liens was not against the preponderance of the evidence. Scott v. Vuurens, 236 Ark. 731, 368 S. W. 2d 80.

Affirmed.


source: Caselaw Access Project

author: Frank Holt, Associate Justice.

license: Public Domain

text:
    Jarrett v. Matheney.
    5-2983
    370 S. W. 2d 440
    Opinion delivered September 16, 1963.

      Kaneaster Hodges, for appellant.

      Pickens, Pickens & Boyce, for appellee.
   Frank Holt, Associate Justice.

This is an action resulting from an intersection collision between a car being operated by the appellant, Katie Jarrett, and owned by her husband, Bobby Jarrett, and a car belonging to and being driven by the appellee, LeRoy Matheney. The appellee instituted suit against appellants to recover damages; the appellants filed an answer denying the allegations and by counterclaim sought damages from the appellee. A trial resulted in a jury verdict for the plaintiff-appellee, assessing his negligence at twenty-five per cent (25%) and that of appellant, Katie Jarrett, at seventy-five per cent (75%). A judgment was accordingly entered, from which comes this appeal.

The collision occurred at a “T” intersection. Mrs. Jarrett was driving from west to east across the top of the “T” and Mr. Matheney was approaching the intersection from the south going north to make a left turn at the intersection. These were gravel, country roads. Mrs. Jarrett adduced evidence to the effect that Matheney “cut the corner” or “hugged the curve” as he turned left into the intersection and collided with her vehicle. The appellee, Matheney, and his witnesses denied this and maintained that he was in his proper lane of traffic and stopped at the intersection when Mrs. Jarrett’s vehicle collided with his. The left front of Matheney’s vehicle and the right front of the Jarrett vehicle were damaged. According to the physical evidence, the collision occurred while both cars were in the intersection.

For reversal appellants assign as error the Court’s giving Instruction No. 8-A which reads as follows:

“When two vehicles enter an intersection from different directions at the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right. However, a vehicle which has entered an intersection first, while in the exercise of reasonable care for his own safety and the safety of others, has the right-of-way over another vehicle approaching the intersection but not having entered it. ’ ’

It is the appellants’ contention that: “The Court should have omitted an instruction on intersection right-of-way because appellee cut the corner.” We think this contention is not well taken inasmuch as this was disputed by appellee. According to Matheney’s evidence, he had stopped his automobile at the intersection and was in his proper position on the road preparing to turn to his left into the intersection and that while in this position the appellant’s vehicle collided with his. As stated, Mrs. Jarrett’s evidence was in direct contradiction.

This conflicting evidence presented a question for the jury to resolve which it did in favor of the plaintiff. We must view the evidence in this case in the light most favorable to the appellee. Menser v. Danner, 219 Ark. 130, 240 S. W. 2d 652.

In objecting to the Court giving Instruction No. 8-A the appellants rely upon East v. Woodruff, 209 Ark. 1046, 193 S. W. 2d 664. We do not think that case is authority for the objection appellants made. It was there undisputed that a vehicle entered the intersection improperly and, further, the collision occurred outside the intersection.

The appellants next contend for reversal that “the Court should have modified the instruction on intersection right-of-way to apply it only when a vehicle lawfully entered the intersection from the right or lawfully first entered the intersection.” The Court refused to modify Instruction No. 8-A to read as follows:

“When two vehicles enter an intersection from different directions at the same time, the driver of the vehicle on the left shall yield the right-of-way to any vehicle lawfully entering on the right. However, a vehicle which has lawfully entered an intersection first while in the exercise of reasonable care for his own safety and the safety of others has the right-of-way over another vehicle approaching the intersection but not having entered it.”

Appellants argue that “if there is any factual issue whether the appellee cut the corner the appellants are entitled to have the Court tell the jury that the first in the intersection rule does not apply if they find he cut the corner.” Appellants argue further that “the instruction as given by the Court preempts the right-of-way to the first entrant even though the ‘corner cutting’ statute was violated, if the violation of the statute is consistent with due care, which the jury may very well find to be true.”

Appellants urge that the rule in East v. Woodruff, supra, requires giving the instruction as modified. We cannot agree. We think Instruction 8-A as given was a correct declaration of the law’ under the evidence in this case and that the Court was correct in refusing to modify the said instruction.

We consider the case of Brown v. Parker, 217 Ark. 700, 233 S. W. 2d 64, controlling in the case at bar. In this case there was a conflict in the evidence as to priority of entry into the intersection. There the Court gave this instruction:

“You are instructed that if you find and believe from the evidence in this case that Carl Parker entered the intersection of South 21st and Dodson before the car operated by Mrs. Charles Brown entered the intersection, then you are instructed that Parker was entitled to proceed through the intersection unmolested and this would be true, even though you might find that Parker failed to stop before entering Dodson Avenue. Notwithstanding the fact that Dodson Avenue is a through street, if Parker was in the intersection, then it was her duty to yield the right-of-way to Parker. If you find that she failed to yield the right-of-way to Parker when she was under duty to do so, and that such failure on her part was negligence and that such negligence was the sole and proximate cause of the accident or accidents, then in that event you cannot return a verdict against Parker in this case.” [Emphasis added.]

In Temple v. Walker, 127 Ark. 279, 192 S. W. 200, we held the Court was in error in instructing the jury that the defendant would be liable if he violated a City Ordinance and such act was the proximate cause of the accident, regardless of whether the defendant was guilty of negligence in the operation of his automobile. There we said:

“In the recent case of Bain v. Fort Smith Light & Traction Co., 116 Ark. 125, 172 S. W. 843, we had occasion to consider the question of negligence as predicated upon a violation of a city ordinance regulating traffic in its streets, and the leading cases upon the subject are cited there. It was there held that such ordinances are admissible in evidence to be considered in the determination of the question of negligence resulting in an injury which would have been averted had the ordinance been observed; but that the observance or non-observance of the ordinance is not determinative of the question of negligence.” [Emphasis added.]

In the case at bar there is substantial evidence that Mr. Matheney was stopped at the intersection in his proper lane of traffic when the collision occurred. Who was negligent, under the conflicting evidence in this case, was a question of fact for the jury and we must view this determination in the light most favorable to the appellee. Menser v. Danner, supra. In this case we find the following succinct statement:

“The sum and substance of the court’s instructions to the jury in regard to the right-of-way at the intersection was that, if Mrs. Danner was in the intersection first, and there was no negligence on her part in getting there first, then she had the right-of-way, which is the law of this State. Brown v. Parker, 217 Ark. 700, 233 S. W. 2d 64.” [Emphasis ours.]

We think such statement is applicable to the case at bar when we consider the Court’s Instruction No. 8, 8-A, and Defendant’s Instruction No. 3, all of which the Court gave to the jury. These instructions comprise a fair and correct statement of the law and sufficiently covered the points raised by appellants. The issue in this case, under the conflicting evidence, is not whether there was an illegal or unlawful entry into the intersection, but whether there was negligence which was the proximate cause of the accident.

Finding no error the judgment is, therefore, affirmed.

       The Court also gave Instruction No. 8 which reads: “The following traffic rules are provided by the Statutes of the State of Arkansas, and, if violated, such violation may be considered by the jury as evidence of negligence. In this connection, you are told that a violation of a traffic statute is not, of itself, negligence, but you may consider it as evidence of negligence.”

       Following this Instruction the Court gave defendant’s Instruction No. 3 which reads as follows: “(1) Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway. [Ark. Stat. Ann. §75-607 (Repl. 1957).] (2) The driver of a vehicle intending to turn at an intersection shall do so as follows: Approach for a left turn shall be made in that portion of the right half of the roadway nearest the center thereof and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center of the roadway being entered. [Ark. Stat. Ann. §75-615 (b) (Repl. 1957).] (3) No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety. [Ark. Stat. Ann. §75-618 (a) (Repl. 1957).]”


author: Per Curiam.

text:
    United States of America v. Pioneer American Ins. Co.
    5-2732
    370 S. W. 2d 445
    Opinion delivered September 16, 1963.

      Chas. M. Conway and Robert E. Johnson, for appellant.

      Bethell é Pearce, for appellee.
   Per Curiam.

This is the same case as U. S. v. Pioneer American Insurance Company (No. 5-2732), 235 Ark. (Adv.) 267, 357 S. W. 2d 653. On June 4, 1962 we held that the attorney’s fee was superior to the federal tax lien. The United States Supreme Court granted certiorari, and on June 10, 1963 held that the federal tax lien was superior to the attorney’s fee (see U. S. v. Pioneer American Ins. Co., 374 U. S. 84, 83 S. Ct. 1651, 10 L. Ed. 770). Our judgment of June 4, 1962 was reversed and the cause remanded to us. The mandate of the United States Supreme Court has been duly received; and in accordance with the said mandate we now set aside our judgment of June 4, 1962, and reverse the decree of the Chancery Court, and remand this cause to the Chancery Court for further proceedings not inconsistent with the said opinion of the United States Supreme Court in this cause.


author: Carretón Harris, Cbief Justice.

text:
    Ransom v. Weisharr.
    5-2973
    370 S. W. 2d 598
    Opinion delivered September 23, 1963

      Kaneaster Hodges, for appellant.

      Wayne Boyce and Fred M. Pickens, Jr., for appellee.
   Carretón Harris, Cbief Justice.

On September 26, 1961, appellant, Clarence Ransom, was struck and injured by an automobile operated by Fred F. Weisbarr, appellee herein, who, with bis wife, was enroute from Hot Springs, Arkansas, to bis borne in St. Louis, Missouri. Ransom was an employee of a highway contractor who was repairing a portion of Highway 67, between Tuckerman and Swifton. The incident occurred while appellant was in the act of crossing the highway, after delivering a check to a fellow employee. Ransom was injured, and instituted suit for damages; after the filing of an answer, the case proceeded to trial. The jury returned a verdict in favor of Weisharr, and from the judgment entered thereon, appellant brings this appeal. For reversal, appellant lists six alleged errors, which we herewith proceed to discuss.

The first alleged error relates to the court’s action in admitting, over objection, the testimony of Captain Melvin DeLong of the Arkansas State Police. The officer was permitted, as an expert, to give his opinion of the speed of the Weisharr vehicle at the time of the mishap, such opinion being based on an experiment that DeLong had conducted on the morning of the trial prior to its commencement. It was the opinion of DeLong that Weisharr was traveling at a speed of 27% miles an hour at the time of the occurrence. The speed of the Weisharr vehicle was, of course, pertinent to the question of negligence, and had been mentioned by several witnesses for appellant. Kenneth Brown testified that Weisharr was traveling at “high speed”; Jimmy Rorex testified that the speed was between 40 and 50 miles per hour. Hugh Burris stated that the Weisharr automobile was traveling 55 or 60 miles per hour when it passed him, approximately “a half quarter” from where the injury occurred. Posted signs fixed the speed in the area where the highway was being re-surfaced at 35 miles per hour.

The captain first described the method used, and the factors involved, to determine, from the skid marks, the speed of an automobile.

“There are a number of factors involved in determining speed from skid marks. The 3 major ones that are involved in all calculations: the original speed of a vehicle, the surface over which it traveled and whether that surface is on an incline or a decline. A factor that is known as a drag factor or co-efficient friction, means the amount of drag that the surface puts on a tire that is sliding over it. It has to be calculated on each individual surface and it has to be calculated either on an incline or decline or whether it is wet or dry.

“Q. Briefly, what are the factors which you take into consideration in making such a test in order to be able to state your opinion as to the speed of a vehicle?

A. There are a number of factors on the car itself. The brakes, for instance, the tires whether they are smooth tread or a good tread, how large the volume of the car or the frontage volume as it presents to any wind resistance, the inflation of the tires, whether they are low inflated or high inflated; that is some of the major ones.”

From the record, on voir dire:

“Q. Captain DeLong, are you familiar with the degree of inflation of the tires on the Mercury that was involved in this accident?
A. No, Sir.
Q. You are not?
A. No, Sir.
Q. Do you know what kind of tires they were?
A. No, Sir.
Q. Do you know what the state of the tread was on those tires?
A. No, Sir.
Q. Have you ever examined the brakes on that automobile ?
A. No, Sir.
Q. Do you know the condition of the brakes on the automobile at that time ?
A. Yes, Sir.
Q. Not having examined those brakes ?
A. Yes, Sir.
Q. How do you know ?
A. The brakes on an automobile are designed to do one thing, to lock the wheels.
Q. You have not examined the brakes ?
A. No, Sir.
Q. Have you ever seen the automobile 1
A. No, Sir.
Q. You didn’t perform the experiment with the Mercury automobile involved in this, did you ?
A. No, Sir.”

The officer then testified (on direct continued):

The tests that were made this morning were made on a surface that was described as identical to the surface at the location of the accident at the time of the accident. These tests were made to determine the drag factor or the amount of drag that the surface would exert on an automobile tire sliding over it. The drag factor on that particular surface was .62; that means that it was 62 per cent perfect for stopping an automobile. Now, the car involved slid 40 feet and 7 inches to a stop. Now taking the two known factors, the drag factor and the distance the ear slid to a stop and then the calculations that comes out the minimum speed that this car would have to be traveling to slide 41 feet and stop over this surface would be twenty-seven and a half miles an hour. ’ ’

Captain DeLong subsequently testified that he had conducted one experiment at the place where the accident occurred, but this experiment was of no value because the surface of the road was no longer the same as at the time of the mishap, i.e., it was formerly old concrete, but was now (the day of the trial) new asphalt. The experiment, upon which the captain based his opinion, was made about three-fourths of a mile south of Swifton, and on a surface that DeLong had been told was identical to the condition of the surface at the scene of the accident in September.

We are of the view that the court erred in permitting the officer’s testimony to go to the jury for the reason that there are too many unknown facts, which according to the testimony of DeLong himself, influence a result, and which should be considered by an expert in reaching his opinion. For instance, it will be observed from the officer’s testimony (heretofore quoted), that DeLong mentioned the brakes as a factor—but admittedly, he knew nothing about the brakes on the Mercury automobile operated by "Weisharr. He mentioned the condition of the tires, i.e., whether possessing a good tread or smooth—-but he did not know the condition of the tires on appellee’s car. The officer also included inflation of the tires (whether low inflated or high inflated) as being another major factor—but he knew nothing about the amount of air in the tires on the Mercury. Captain DeLong also testified that the load carried by the vehicle influences the distance it will take for the car to stop. When asked if he knew the load in the Mercury automobile, he replied, “One passenger, Sir,” and stated that his experiment was based on that assumption. The officer stated that he had been told that the car contained one passenger, but this information ivas in error. Actually, the car contained two passengers. In addition, he never did see the Weisharr automobile at all, nor did he observe the surface of the road on September 26,1961, but first viewed it on the day of the trial, eight months later.

Of course, an opinion based on an experiment is admissible, provided that such experiment is conducted under circumstances similar to those existing at the time of the occurrence which is the subject of the litigation. It is not necessary that conditions be identical to those existing at that time, but the experiments are admissible if there is a substantial similarity. Dritt v. Morris, 235 Ark. 40, 357 S. W. 2d 13. It is apparent from the preceding discussion that the factors, which DeLong himself mentioned as pertinent to a proper experiment, were undetermined at the time of the experiment, and the admission of the evidence, therefore, constituted reversible error.

This conclusion is in accord with our recent holding in Henshaw v. Henderson, 235 Ark. 130, 359 S. W. 2d 436. In that case, we reversed a judgment obtained by appellee by reason of the court’s error in permitting a State Policeman to give his opinion as to the speed of appellant at the time of a collision. This opinion was based, in part, upon an experiment that the State Policeman, Glen Minton, had conducted. Prom the opinion:

“Mr. Minton was permitted to testify, over the objection of the appellant, that he was called to the scene of the accident shortly after it occurred. He described in detail the position of the Plymouth automobile and the Chevrolet convertible; the point where the two girls were found; and the position of the appellant who was unconscious on the front seat of his car and was further permitted to testify that on the morning of the trial he had taken his car, a 1960 Chevrolet, from a dead stop and accelerated as fast as possible for two-tenths of a mile (this being the distance between the motel and the location of the Plymouth that was struck) and that he attained a speed of 75 miles per hour; that it was one of the requirements of his position to estimate the speed of vehicles involved in a collision and that viewing the distance the Chevrolet convertible was out of control and the severity of the impact, he thought the'Chevrolet convertible was traveling 80 miles per hour.
‘ ‘ The witness ’ test was made with a car other than the one involved in the accident and there is no showing that his test was made under the same conditions that prevailed at the time and at the place of the accident. The testimony of a policeman as an expert carries great weight but when it is predicated on conditions different than those under scrutiny it is inadmissible.
‘ ‘ The objection of the appellant was timely and should have been sustained. For error in overruling the objection this cause is reversed and remanded for further proceedings not inconsistent herewith. ’ ’

Actually, the circumstances in that case were much more favorable to the admission of the evidence since Min-ton did view the scene, together with the wrecked automobile; still, because his opinion was based in part upon the improper experiment, the testimony was held inadmissible. Here, DeLong knew nothing personally about the accident, the appearance of the skid marks, or any of the circumstances existing at that time.

We will make brief mention of some other alleged errors, since the same questions might again arise at a re-trial of the cause. Appellant requested an instruction relative to the respective rights of pedestrians and motorists upon public highways. It is true that both have a right to the use of the highway, but the instruction offered by appellant was erroneous, in that it told the jury that “the rights and duties of drivers of automobiles and pedestrians on the public highways are equal and reciprocal. ’ ’ This instruction is not correct since their duties are not entirely the same.

Appellant requested an instruction in the wording of the statute [Ark. Stat. Ann. § 75-661 and § 75-725 (Repl. 1957) ] which relates to the duty of the operator of a motor vehicle to give a reasonable warning of his approach, and to equip his car with a horn which can be heard, under normal conditions, for a distance of not less than 200 feet. While it is not error to instruct in the language of the statute, same is not absolutely necessary. The first part of the instruction was covered in the court’s other instructions, and there was no evidence at all relative to the type of horn on the vehicle.

Appellant asserts two errors in connection with the court’s instruction, 8(b); however, the record does not reflect that any objection was made to the instruction, and we are accordingly unable to consider these alleged errors.

Finally, appellant asserts that the court erred in refusing to admit certain photographs that appellant offered in evidence. These photographs were taken about two weeks after the accident, and do not depict the scene as it existed at the time of the mishap. We have held in several instances that the admission of photographs is a matter which rests largely within the discretion of the trial court, and we will not reverse the holding of that court unless it appears that there has been an abuse of discretion. Powers v. Long, 221 Ark. 400, 253 S. W. 2d 359, and cases cited therein. We are unable to say, in this instance, that there was such an abuse.

Because of the court’s error in admitting the testimony of Captain Melvin DeLong, the judgment is reversed and the cause remanded.

It is so ordered.

       The evidence does not definitely reflect the identity of the party who gave this information to Captain DeLong.

       While it is not mentioned in the briefs, it would seem logical that even the weight of the passengers would have some bearing. For instance, there should be a difference if an automobile is carrying a man weighing 275 pounds rather than a boy weighing 60 pounds.

       It will also be noted in DeLong’s testimony, heretofore quoted, that the officer, in giving his opinion of the speed of the Weisharr car as 27% miles per hour, used the term “minimum speed,” which is somewhat confusing; subsequently, DeLong stated that, even considering all of the variable elements as against the driver, his speed estimate would not increase by more than two to five miles per hour. He was then asked, “What happens to those different variables that are unknown when calculating speed?” He replied, “About as many of them are pro for the driver as they are against it, they cancel each other out; but in the final calculation of the thing they all show up in the skid mark, the degree of air in the tires, the tread of tires all shows up in the skid mark; it determines how far the car will slide to a stop. You see a highly inflated tire will slide farther than a low inflated one, and the brake on an automobile is just designed to do one thing and that is lock that wheel.” The witness, in stating, “as many of them are pro for the driver as against,” was evidently referring to averages. This is, of course, somewhat speculative, and also seems inconsistent with his earlier testimony in which he described tire inflation, tread, etc., as “major” factors. While the captain stated that such elements as the degree of air in the tires and tread of the tires show up in the skid mark, the fact remains that he was unable to testify about either since he did not see the marks left by the Weisharr car.

       Emphasis supplied.


author: Ed. F. McFaddin, Associate Justice.

text:
    City of El Dorado v. Kidwell.
    5-3025
    370 S. W. 2d 602
    Opinion delivered September 23, 1963.

      James Spencer, Jr., for appellant.

      Brown, Compton <& Prewett, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an eminent domain proceeding. The City of El Dorado filed action in the Circuit Court, seeking to take a strip of ground 10 feet wide for an out fall sewer line. The strip went through the appellees ’ lands for a considerable distance. In their answer to the condemnation proceeding, the appellees (Mr. and Mrs. Kidwell) stated:

“Further answering, the defendants state that the sewer line described in the Complaint is not for public purposes and will not be constructed by the City of El Dorado, but rather for the sole benefit of the owners and developers of what is known as the Tanglewood Addition, a new subdivision, and therefore there is no right of eminent domain in defendant’s property.”

The Circuit Court proceeded to try the case on the issue joined; that is, whether the taking was for a public purpose. We have held that when the answer presents a defense cognizable in equity—-as here—and yet both sides proceed to trial in the law court, then the transfer to equity is waived and, on appeal from the circuit court, we test the judgment on equitable principles. Wilson v. White, 82 Ark. 407, 102 S. W. 201, 12 Ann. Cas. 378; Shane v. Dickson, 111 Ark. 353, 163 S. W. 1140; Hill v. Kavanaugh, 118 Ark. 134, 176 S. W. 336. We apply the rules of these cases to the case at bar. After an extended hearing, the Circuit Court found that the complaint should be dismissed as without merit. From that judgment there is this appeal; and the City urges only one point: “The -undisputed testimony establishes the City’s right to take the property involved.”

The City proceeded under Ark. Stat. Ann. § 19-4101 et seq. (Bepl. 1956) in filing this suit, and duly introduced the ordinance of the City Council, authorizing the City Attorney to file the eminent domain proceedings. By answer, the defendants (appellees) denied the necessity of the taking, and, in effect, claimed that such taking was not for a public purpose. In Wollard v. State Highway Comm., 220 Ark. 731, 249 S. W. 2d 564, we said that the landowners “shouldered a heavy burden of proof in attempting to persuade the courts” that the taking was not for a public purpose. The burden was not on the City to prove the public purpose—the statute under Avhich the City proceeded and the resolution of the City Council accomplished that purpose. Bather, the burden was on the landowner to prove that the taking was not for a public purpose; and with such burden understood, we examine the evidence.

The principal evidence of the landowner was directed to two points: (1) the proposed right of way would run diagonally through the landowners’ property and interfere materially with the present and future use of the lands; and (2) a new addition was being developed and this sewer line would be for the private benefit of those developers and not for the benefit of the general public.

As to the first point, the City offered to vary the proposed right of way to lessen the appellees’ damages; and the amount of the damages, with the change in location, is yet to be determined. So this first point is not a ground for denial of eminent domain. The second point is the real issue. It is true that a private developer is opening an addition; but already one or more residences have been constructed, and this proposed put fall line is shown to be the most feasible way for the City to handle the sewer problem. The Legislature has given the City the right of eminent domain for the purpose of acquiring rights of way for sewer lines; and the fact, that some individual developer of an addition will incidentally benefit by the sewer line, does not destroy the power of the City to exercise eminent domain for a right of way for a suitable sewer line. Cloth v. C. R. I. & P. R. Co., 97 Ark. 86, 132 S. W. 1005, Ann. Cas. 1912C 1115.

On a full review of the entire record, we conclude that the landowners did not discharge the “heavy burden” resting on them to prove that the taking was arbitrary or unlawful; so the judgment is reversed and the cause remanded for the entry of an order of condemnation and the assessing of the damages suffered by the appellees; and the costs of this appeal will he adjudged against the City, as the condemning party, since we test this case on equitable principles.

       With this allegation in the answer, the proceedings in the cause • should have been transferred to equity. We have repeatedly held that the only issue to be tried in the law court is the damages the landowner will sustain by the taking, and that when the question of the validity of the taking is presented, the cause should be transferred to equity. Ozark Coal Co. v. Pa. Anthracite Rd. Co., 97 Ark. 495, 134 S. W. 634; St. L. I. M. and S. R. Co. v. Faisst, 99 Ark. 61, 137 S. W. 815; Burton v. Ward, 218 Ark. 253, 236 S. W. 2d 65.


author: G-eobge Rose Smith, J.

text:
    Talley v. State.
    5050
    370 S. W. 2d 604
    Opinion delivered September 23, 1963.
    [Rehearing denied October 21, 1963.]

      N. L. Schoenfeld, for appellant.

      Bruce Bennett, Attorney General, by John P. Gill, Asst. Atty. Gen., for appellee.
   G-eobge Rose Smith, J.

In September of 1960 the appellant shot and killed her seventeen-year-old granddaughter, Carolyn Talley. Tried for murder in the first degree the appellant was found guilty of murder in the second degree and was sentenced to imprisonment for five years. We discuss the more serious points raised in the motion for a new trial.

The evidence is amply sufficient to support the conviction. On the evening in question the appellant was acting as a baby sitter in the home of Mrs. Blaine Terry, in Hot Springs. In going to the Terry home the appellant was accompanied by another granddaughter, Julie Ann Talley, the younger sister of the deceased. Upon this occasion the accused carried a loaded pistol in her purse—for the purpose, she testified, of protecting herself if anyone should try to break into the Terry home.

There is a sharp conflict in the testimony about the homicide itself. At about 7:30 p.m. the appellant’s daughter-in-law, who was separated from the appellant’s son, drove up to the Terry home, accompanied by her daughter Carolyn. The appellant says that when the car appeared Julie Ann and one of the two Terry children ran into the house, in a state of alarm. The appellant took the pistol from her purse, turned out the lights, and latched the front screen door. According to the appellant, Carolyn came up on the porch, jerked at the screen door, and cursed the appellant, who was sitting just inside the door. Mrs. Talley insisted at the trial that she had no intention of harming her granddaughter, to whom she was devoted. She gave two versions of the shooting, one that the gun went off accidentally, the other that she tried to scare Carolyn by firing up into the air. The bullet entered the child’s left eye and apparently caused her instant death.

A decidedly different account is given by Carolyn’s mother. She states that she and her daughter happened to be driving in the neighborhood when they saw Julie Ann in the Terry yard. Carolyn had not seen her sister for some time and went to the front door for the purpose of having a visit with her. The younger Mrs. Talley testified that just before the shot was fired she heard her mother-in-law say: “I’ll teach you not to come up here. ’’ The jury were at liberty to accept the State’s proof as being the truth. That proof fully supports the verdict, for it puts the accused in the position of having deliberately shot a defenseless child with hardly even a semblance of provocation.

The older Terry child was thirteen and the younger one eleven when the homicide occurred. At the trial, more than a year later, they were both called as defense witnesses. On cross-examination the prosecuting" attorney was permitted to test their credibility by questioning them about statements made by them to the investigating officers soon after the crime took place. This cross-examination was objected to, on the ground that the State had not shown that the children were competent witnesses at the time they were interrogated by the officers or that their parents were present.

The objection was without merit.- By offering the children as witnesses the defense in effect represented to the court that they were competent to testify about what they had observed on the night of the homicide. The trial court properly refused to allow the accused to take advantage of the children’s favorable testimony upon the theory that they were competent witnesses and at the same time disavow their unfavorable testimony upon the theory that they were not. The circumstances under which the children were questioned by the officers were pertinent, as tending to weaken the State’s attack upon their credibility, but those circumstances did not render inadmissible the fact that they had made inconsistent statements out of court. ':

Complaint is made of the trial court’s refusal to give two instructions requested by defense counsel. Even if we assume that proper exceptions were saved to the court’s action we find no prejudicial error. The first requested instruction would have explained one’s right to take life in the defense of a habitation. This charge was properly refused, because the evidence did not justify- it. McFarland v. State, 165 Ark. 431, 264 S. W. 938. According to the appellant’s testimony she was not attempting to defend the habitation, for she insists that she did not mean to shoot at Carolyn. And if the jury accepted the State’s testimony, which indicated that the killing was deliberate, the cold-blooded attack upon an unarmed and helpless child could not possibly have been justified by any supposed necessity for defending the Terry home.

The other requested instruction would have given the jury the option of finding the accused guilty of involuntary manslaughter. The court elected to submit only the offenses of first degree murder, second degree murder, and voluntary manslaughter. In view of the verdict the error, if any, was harmless. As we said in Newsome v. State, 214 Ark. 48, 214 S. W. 2d 778, “Any supposed error for failure to charge as to involuntary manslaughter was rendered harmless by the fact that the jury convicted [the accused] of second degree murder.”

Affirmed.


author: George Eose Smith, J.

text:
    Hooten, Clerk v. Conklin.
    5-3037
    370 S. W. 2d 607
    Opinion delivered September 23, 1963.

      Robert C. Compton, for appellant.

      Bernard Whetstone, for appellee.
   George Eose Smith, J.

The question here is whether a fund in the registry of the chancery court, deposited in the form of a cash bond, may be reached by a writ of garnishment after the chancellor has filed an opinion awarding a portion of the fund to the garnishment debtor.

Crabtree, the garnishment debtor, brought suit in the Union Chancery Court to impress a lien upon oil and gas interests owned by the appellant Hays, a nonresident of the state. To keep the suit from interfering with the payment of oil runs Hays deposited $6,500 in court, as a cash bond for the payment of any judgment Crabtree might obtain. The case was tried and taken under advisement by the chancellor. On October 31, 1962, the chancellor filed an opinion finding that Crabtree was entitled to recover $2,223.22, directing that this amount be paid to Crabtree from the fund in court, directing that the remainder of the fund be returned to Hays, and instructing counsel to prepare a judgment conforming to the opinion.

On November 7 the appellee Conklin, who had previously obtained a judgment against Crabtree in the Union Circuit Court, had a writ of garnishment served upon the appellant Hooten, who was the clerk of the chancery court and the custodian of the fund. On December 31 Crabtree and Hays filed in the chancery case a stipulation agreeing that Crabtree’s complaint and Hays’ counterclaim might be dismissed with prejudice. On the same day the chancellor entered the agreed order of dismissal. When Hooten, the garnishee, interposed that order as a defense to the garnishment proceeding, Conklin made Hays a party to that proceeding. Upon final hearing the circuit judge, sitting without a jury, held that despite the dismissal of the chancery case the garnishment creditor was entitled to have the sum of $2,223.22 paid to him from the fund in the chancery court. Hooten and Hays have appealed.

We think the court was right. There is no doubt that a fund in court is subject to garnishment, this procedure being authorized by statute. Ark. Stat. Ann. § 31-118 (Eepl. 1962); Green v. Robertson, 80 Ark. 1, 96 S. W. 138; McGill v. Robbins, 231 Ark. 411, 329 S. W. 2d 540. As a general rule a fund in court becomes subject to garnishment upon the entry of a judgment ordering its payment to the garnishment debtor. Dunsmoor v. Furstenfeldt, 88 Cal. 522, 26 Pac. 518; Orchard & Wilhelm Co. v. North, 135 Neb. 39, 280 N. W. 272; Gaither v. Ballew, 49 N. C. 488, 69 Am. Dec. 763. In the case at bar there is no contention by the appellants that the filing of the chancellor’s opinion was not equivalent to the entry of a judgment within the intent of the rule just stated.

When Hays, in 1958, deposited $6,500 in the registry of the court he also filed an instrument entitled “Bond,” but this instrument was signed by Hays alone and did not even purport to bind anyone else as a surety. The instrument recited Hays ’ intention to prevent the oil runs from being impounded during the pendency of the suit, referred to the cash deposit that was being made, and concluded by declaring that if Hays should pay any judgment that might be rendered in favor of Crabtree ' ‘ then this bond is void; otherwise it shall remain in full force and effect. ” It is argued that there was never any breach of the condition of the bond, that consequently Hays became entitled to the return of the entire deposit, and that therefore the attempted garnishment should be held to have been ineffective.

This argument is not persuasive. The instrument was not a true bond, which would have involved a surety who might reasonably expect that the principal would be given an opportunity to discharge his obligation before any claim would be asserted against the surety. Hays voluntarily chose to dispense with a surety. Instead, he made a cash deposit in the registry of the court. If it had become necessary for Crabtree to enforce the chancellor’s award it could not in seriousness have been contended that Crabtree, before resorting to the cash deposit that had been made to provide for that very contingency, should first have given Hays an opportunity to pay the award from other resources he might have. The fund in court unquestionably stood as a guaranty of Hays’ primary liability rather than as a guaranty of the secondary liability of a nonexistent surety.

The chancellor, in drafting his opinion, not only made an award to Crabtree but also directed that the award be paid from the fund in court. This directive was not unauthorized, as the appellants suggest. To the contrary, it gave effect to the exact purpose for which the deposit was made. The award was in substance a judgment in Crabtree’s favor and gave him an interest in the fund that was subject to garnishment. Thereafter Crabtree and Hays, by a stipulation that may have been a collusive attempt to deprive Conklin of his rights, attempted to undo the chancellor’s action. In simple justice that attempt ought to fail.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Thompson v. Helms.
    5-3020
    370 S. W. 2d 609
    Opinion delivered September 23, 1963.

      Bernard Whetstone, for appellant.
    No brief filed for appellee.
   Paul Ward, Associate Justice.

Roy Thompson, a student in the Smackover High School, was injured when a scaffold, on which he was standing, collapsed. At the time of the injury Roy, along with several other boys, was doing carpentry work as a part of the regular lesson assignment. Also, at the time of the injury the scaffold was being used by appellee (Clifton C. Helms) and his employees while engaged in making repairs on the Smack-over High School auditorium.

In the complaint, filed by Roy’s father as Next Friend, there appear (in substance) the following allegations : (a) In the summer of 1959 appellee entered into a contract with the school district to repair the auditorium, and that (as a part of the contract) appellee was to build the scaffold in question which was to be used by him in performing his contract; (b) On April 12, 1960 Roy was injured as previously stated; (c) The scaffold collapsed because appellee, in constructing the scaffold, was negligent in the following particulars, to-wit:—he used faulty lumber, the workmanship was poor, and he failed to inspect the scaffold periodically. To the above complaint appellee entered a general denial.

At the close of appellant’s testimony the trial court sustained appellee’s motion for an instructed verdict. In this we think the trial court was correct because we find no substantial evidence in the record from which the jury could have found in favor of appellant. This being true the trial court must be affirmed. See: Smith v. McEachin, 186 Ark. 1132, 57 S. W. 2d 1043; Collett v. Loews, 203 Ark. 756, 158 S. W. 2d 658; and Stobaugh, Admx. v. Hubbard, Admr., 234 Ark. 917, 355 S. W. 2d 283.

Before he would be entitled to recover from appellee it was incumbent on appellant to show negligence on the part of appellee. We agree with appellant’s argument that it will suffice to show appellee was negligent either (a) as a contractor or (b) as an individual. We think the evidence wholly fails in both respects.

Appellant (Boy) and one of his classmates testified, but there is not, and could not be, any contention that either of them testified to any negligence on the part of appellee. The only other testimony introduced was given by appellee who was called by appellant to testify.

(a) The scaffold in question was constructed (apparently) the latter part of 1959 or the early part of 1960, before appellant was injured on April 12, 1960. Appellee had a contract with the School District to make certain specified repairs on the auditorium for $8,200. There is no testimony that the construction of the scaffold was a part of the contract, but there was definite testimony to the contrary—that it was constructed by the school district which merely permitted appellee to use it in performing his contract work. It conclusively appears from the record that Boy and his classmates were at all times on the scaffold at the direction of the school authorities in pursuance of assigned class work. There is no evidence or contention that the boys were working for appellee or that they were under his control in any manner.

(b) It is admitted by appellee that he, along with several other people (including school officials and employees), helped construct the scaffold. The uncontradicted and definite evidence is that he (appellee) did not help in the capacity of a contractor and that he had no control over the other workers. The evidence shows one leg of the scaffold contained a large knot which probably caused it to break and the scaffold to collapse. There is however no evidence that appellee knew of or had anything to do with procuring or installing that particular piece of timber.

In the cases previously cited we pointed out that, in testing the substantiality of the evidence in a situation like this, all reasonable inferences deducible from the evidence should be viewed in the light most favorable to appellant. We have so viewed the evidence in this case and still find that the action of the trial court must be affirmed.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Johnson v. State.
    5082
    370 S. W. 2d 610
    Opinion delivered September 23, 1963.

      Felver A. Rcnvell, Jr., for appellant.

      Bmee Bennett, Atty. General, by Leslie Evits, Chief Asst. Atty. Gen., for appellee.
   Sam Robinson, Associate Justice.

Appellant was convicted of the crime of forgery, sentenced to five years in the penitentiary, and has appealed.

First, appellant argues that the trial court should have granted his motion for a mistrial because of the method used by the prosecuting attorney in cross-examining the defendant about the commission of other offenses. When the defendant takes the stand, as in the ease at bar, he is subject to the same rules of evidence as other witnesses, and for the purpose of throwing light on his credibility, he may, in good faith, be asked about other crimes he may have committed and other convictions, but he cannot be asked if he has been charged, indicted, or accused of other crimes. Sullivan v. State, 171 Ark. 768, 286 S. W. 939; Mathis v. State, 191 Ark. 1053, 89 S. W. 2d 599; Morrison v. State, 191 Ark. 720, 87 S. W. 2d 50; Kennedy v. Quinn, 166 Ark. 509, 266 S. W. 462.

If the defendant denies that he has committed other crimes he cannot be impeached by showing that he has given false answers. Montague v. State, 213 Ark. 575, 211 S. W. 2d 879. Here, the defendant was asked on cross-examination about other convictions which he readily admitted, but he denied other crimes for which apparently there had been no trial or conviction. The prosecuting attorney asked the defendant specifically if he had cashed a check in Lucille Brent’s Cafe. He answered “no”. The prosecuting attorney then said: “I ask the Court’s indulgence. I sent after some records and they will be here in just a minute.”

The prosecuting attorney then proceeded to question-the accused about other check writing offenses. The record is not exactly clear at this point as to whether the State’s attorney was using the alleged records in such manner as to lead the jury to believe that he was examining the accused from official records of charges against him, but apparently this was being done. The attorney for appellant then stated that if other records were to be introduced, he would like to discuss the matter in chambers. Finally, the Court and counsel retired to chambers and there, in the course of the discussion, the prosecuting attorney said: “I, at the time of this objection, am doing nothing more or less than looking at old information sheets with which the man was charged, specific checks and the specific name . . .”. The Court then asked: “Are these convictions according to the witness?” The prosecuting attorney replied: “They are charges.” The Court sustained the defendant’s objection, but did not grant the motion for a mistrial.

In view of the fact that the cause is being reversed on the question of the sufficiency of the evidence, we do not deem it necessary to rule on the above assignment of error any more than to point out that although it is proper for the State’s attorney, in good faith, to ask the defendant on cross-examination about the commission of, or the conviction for, other offenses, he should not attempt to get before the jury in an indirect way, or otherwise, the fact that the defendant has been charged, indicted, or accused of other crimes.

The appellant was charged by felony information with forging the name of James Odam to a check drawn on the Morrilton Security Bank in the sum of $38.00. Billy F. Davidson, Assistant Cashier of the First State Bank (not the Morrilton Security Bank on which the check was drawn) was called' by the State as a witness regarding the alleged forged check. The name of James Odam appeared on the check as maker and the name James Payne appeared on the back of the check as endorser. The witness, Mr. Davidson, testified:

“ Q. At this time I hand you a check dated October 19, 1962, and ask you if you can, how it came into your hands originally?
A. "Well, that’s the one thing I can’t tell you, how it got into our bank. Presumably, someone cashed it at the window, but who, we don’t know, but its possible it came to us on a deposit and they didn’t put a stamp on it or write their name on it.”

The witness then testified that the check was forwarded to the Morrilton Security Bank and was returned by that bank with the notation “Sig. Inf.” written in pencil at the end of the name of the endorser on the back of the check. The witness further testified that the notation on the back of the check along side the endorsement means, in banking circles, that the signature does not correspond; that the known signature at the bank does not correspond with the signature on the check. He further testified: “We get them quite often, but not too often, occasionally.” The witness then stated that they (the bank) wrote to James Payne, whose name appeared on the check as endorser. The State attempted to prove by the witness what James Payne said, but, of course, such evidence was excluded by the Court as hearsay.

The State produced as a witness Dr. Orlando W. Stephenson, who testified as an expert, and said, in effect, that the defendant—appellant Johnson, had written the check in question, but apparently, to reach that conelusion it required about 30 days work on the part of the witness in comparing the handwriting on the check with known specimens of Johnson’s writing.

Other than the testimony of Dr. Stephenson, there is no competent evidence in the record that the defendant signed the name of James Odam on the check, and there is absolutely no evidence that James Odam’s name was forged. In order to constitute the offense of forgery it is necessary that there be an intent to defraud. Ferrell v. State, 165 Ark. 541, 265 S. W. 62; Rickman v. State, 135 Ark. 298, 205 S. W. 711. Of course, if one has permission to sign another’s name to the instrument in question, there could be no forgery.

Although the circumstantial evidence shows that there is such a person as James Odam who has a checking account at the Morrilton Security Bank, Odam was not called as a witness, and neither was anyone from the bank on which the check was drawn. The mere fact that one person signs another person’s name on a check or other instrument does not necessarily mean that a forgery has been committed.

Whether Odam authorized someone else to sign his name could have been proved very easily by calling him as a witness. There is nothing in the record indicating that he was not available as a witness, and certainly someone could have been called from the bank on which the check was drawn and Odam’s signature card could have been produced or its absence explained. It does not appear that Dr. Stephenson ever examined a signature of Odam known to be genuine. It might be asked why did the defendant not do these things. The answer is that the burden was on the State to prove the defendant guilty, the burden was not on the defendant to prove his innocence.

The evidence is not sufficient to support the verdict, but the case does not appear to have been fully developed; therefore, the cause is reversed and remanded for a new trial. Poole v. State, 234 Ark. 593, 353 S. W. 2d 359; Anderson v. State, 226 Ark. 498, 290 S. W. 2d 846; Grigson v. State, 221 Ark. 14, 251 S. W. 2d 1021.


author: Jim Johnson, Associate Justice.

text:
    Perez v. State.
    5083
    370 S. W. 2d 613
    Opinion delivered September 23, 1963.

      Sam L. Anderson, for appellant.

      Bruce Bennett, Attorney General, by Richard B. Ad~ Jcisson and John P. Gill, Assistant Attorneys General, for appellee.
   Jim Johnson, Associate Justice.

Appellant Julian Perez was one of three men arrested for robbery of a Safeway Grocery Store. On February 11, 1963, he was charged with robbery by information, and trial was set in Garland Circuit Court for May 9, 1963. On the morning of May 9th, an article appeared in the local newspaper relating the facts of the robbery and stating that the other two men charged in the same robbery had pleaded guilty and been sentenced to six years in the penitentiary. In chambers before trial, appellant moved the court for a continuance because of the article and introduced the article into evidence. The motion for a continuance was denied.

At the conclusion of the trial that day, the jury found appellant guilty and sentenced him to six years in the penitentiary.

Appellant has appealed contending that the trial court erred in refusing to grant a continuance on the motion submitted on the morning of trial.

The applicable Arkansas Criminal Procedure statute on continuances is Ark. Stat. Ann. § 43-1705 (1947), which states:

“Postponement.—When an indictment is called for trial, or at any time previous thereto, the court, upon sufficient cause shown by either party, may direct the trial to be postponed to another day in the same term, or to another term.”

The following section (% 43-1706) provides that the civil procedure statutes (§§ 27-1402-27-1404) on postponement of trial in civil actions will apply to the postponement of prosecutions on behalf of defendants. These civil procedure statutes relate to postponement after amendment of pleadings, continuance for absence of evidence or witnesses, and payment of costs. Review of our case law reveals that other grounds frequently used are physical or mental condition of defendant, objections to the jury, want of time for preparation, absence of counsel, and surprise at trial.

In Moore v. State, 229 Ark. 335, 315 S. W. 2d 907, the trial .court gave permission for television filming in the corridors during appellant’s trial. A radio newscast the night before announced the planned televising, and appellant’s attorney moved for a continuance to determine whether the radio announcement adversely affected his client. The motion was denied, and in upholding that ruling this court stated simply, “We fail to see how the radio announcement could be a cause for continuance. The statutes (Ark. Stats. § 43-1705 et seq.) and construing cases specify the essential content and showing that must be made in a motion for continuance; and no such content or showing was here made.”

There is no doubt that the granting or refusing of a motion for continuance is addressed to the sound discretion of the trial court, Martin v. State, 194 Ark. 711, 109 S. W. 2d 676; Brockelhurst v. State, 195 Ark. 67, 111 S. W. 2d 527; Gentry v. State, 201 Ark. 729, 147 S. W. 2d 1; and will not be reversed unless the trial court abuses its discretion. Burriss v. Wise, 2 Ark. 33; Smith v. State, 200 Ark. 1152, 143 S. W. 2d 190; Turner v. State, 224 Ark. 505, 275 S. W. 2d 24. In Shushan v. United States, 117 F. 2d 110, 133 A. L. R. 1040, cert. den. 313 U. S. 574 (CA 5th La., 1941), the Court of Appeals held that the trial court had not abused its discretion in denying a continuance because of allegedly prejudicial newspaper publicity, pointing out that the trial judge was a resident of the vicinity and personally cognizant of the true situation. In an overwhelming number of cases appellate courts have refused to reverse the trial court for refusing continuances sought on the basis of excitement or prejudice. In Finnegan v. United States, 204 F. 2d 105 (8th Cir. 1953), the Court of Appeals went so-far as to say that newspaper publicity tending to excite public prejudice against a defendant is not usually considered a sufficient reason for granting an application for continuance.

A number of well-reasoned cases have held that refusal to grant a continuance is not an abuse of discretion because voir dire examination is sufficient protection, giving the defendant ample opportunity to determine whether jurors have been prejudiced by newspaper articles about the crime or the defendant. Bianchi v. United States, 219 F. 2d 182 (8th Cir. 1962), cert. den. 349 U. S. 915, 75 S. Ct. 604, 99 L. Ed. 1249; United States v. Hoffa, 156 F. Supp. 495 (D. C. N. Y. 1961); State v. Sheppard, 100 Ohio App. 345, 128 N. E. 2d 471; Wilcoxon v. State, Okl. Cr., 343, P. 2d 194; State v. Sanders, (Mo.) 313 S. W. 2d 658; 39 A. L. R. 2d 1314. In the case at bar, appellant introduced no evidence or testimony to show prejudice, although the burden was upon him to do so. Further, on voir dire, the court examined the jury accordingly:

“The Court: There was an article in the paper, probably some of you read it and some of you did not. Have you read anything in the paper about two of these parties having disposed of their cases prior to this morning, and if you have, would that fact effect you in any way at arriving at a verdict based upon the evidence you hear from the witness stand and the law given to yon by the Court? In other words, anything that you may have read in the newspapers about the other parties involved —if you have read it—from that did you form any opinion as to the innocence or guilt of this defendant?”

The record reflects no affirmative or negative response to this part of the examination. The appellant had the opportunity to examine the panel further on this point if he was not satisfied, and he could and did excuse certain of the jurors. The statute (§ 43-1705, supra) calls for “sufficient cause” for postponement. This we have not been shown and we must therefore affirm the judgment of the trial court.


text:
    Blaylack v. State.
    5086
    370 S. W. 2d 615
    Opinion delivered September 23, 1963.

      Dale L. Bumpers, for appellant.

      Bruce Bennett, Attorney General, by John P. Gill, Asst. Atty. Gen., for appellee.
   Frank Holt, Associate Justice.

The appellant was charged by information with the crime of assault with intent to kill. Upon a jury trial he was found guilty of the lesser offense, assault with a deadly weapon, and his punishment assessed at one (1) year imprisonment and a fine of fifty dollars ($50.00). Upon rendering judgment, the Trial Court suspended nine (9) months of this sentence. From that judgment appellant brings this appeal urging four (4) assignments of error.

First it is urged by the appellant that the jury verdict was arrived at by lot. We do not agree. Upon the return of the verdict, counsel for the appellant polled the jury. One of the jurors, Mrs. Gibson, replied that she agreed to the verdict and it was the result of a compromise. At a subsequent proceeding Mrs. Gibson was called by the appellant to support his argument that the verdict was arrived at by lot. She testified that some of the jurors were of the opinion that the defendant was innocent of any offense and that some of them were of the opinion that he should be convicted of the crime of assault with intent to kill. The effect of her testimony was that the verdict was the result of compromise between the jurors and that she “voted for the verdict as rendered” and “the entire twelve [12] agreed.” This was not a verdict by lot. A verdict by lot involves an element of chance. Speer v. State, 130 Ark. 457, 198 S. W. 113; Arnold v. State, 150 Ark. 27, 233 S. W. 818; Patton v. State, 189 Ark. 133, 70 S. W. 2d 1034.

In the case at bar the verdict was arrived at by the exercise of the free choice of the jurors and in the absence of any element of lot, chance, hazard or fortune. There was no evidence of any contrivance to determine appellant’s guilt by any of these elements. A verdict reached by a jury through a compromise of their views is not a verdict by lot. It is a fair expression of their views. Smith v. State, 160 Ark. 178, 254 S. W. 463. Since this was not a verdict by lot, we hold it was not competent for the appellant to thus impeach the verdict of the jury. The Court was correct in denying appellant’s motion for a new trial on this point.

Secondly, the appellant insists that the Trial Court erred in refusing his requested Instruction No. 4 which reads as follows:

‘ ‘ If you find that the defendant, Earl Blaylack, had reasonable cause to believe that the prosecuting witness, Raymond Foster, and those around him were approaching the defendant with the intent to take his life or to commit an assault upon his person, and that the defendant had done all that he could do to avoid difficulty without retreating, then you should find that the firing of the gun toward the said Raymond Foster and the others was justified and the defendant should be acquitted.” [Emphasis ours.]

We discuss only one of the reasons why we find no merit in this contention. It is well settled in our State that it is not the duty of the Court to give an instruction on any point of appellant’s theory of his case unless he offers a correct instruction to the Court. Hays v. State, 219 Ark. 301, 241 S. W. 2d 266. In the early case of Carpenter v. State, 62 Ark. 286, 36 S. W. 900, we held that the plea of self-defense is available only if the assault upon the defendant is of such character as to be with murderous intent. Upon a review of the many cases since then, including a most recent case, Seward v. State, 228 Ark. 712, 310 S. W. 2d 239, we find throughout these cases, as a condition precedent to the plea of self-defense, that an assault upon the defendant must be of such a character that it is with murderous intent, or places the defendant in fear of his life, or great bodily harm. A mere assault is not sufficient to justify the plea of self-defense. See, also, Bazzell v. State, 222 Ark. 473, 261 S. W. 2d 541. According to the evidence on behalf of the appellant he was entitled to an instruction on self-defense, however, the Court was correct in refusing defendant’s requested instruction on self-defense as offered.

Thirdly, it is contended by the appellant that the verdict rendered against him by the jury was based upon insufficient evidence. We do not agree. In testing the legal sufficiency of evidence to support a verdict in the case at bar we must view it, on appeal, in the light most favorable to the State. Allgood v. State, 206 Ark. 699, 177 S. W. 2d 928; Hadaway v. State, 215 Ark. 658, 222 S. W. 2d 799.

Appellant and the prosecuting witness, Foster, were strangers. They met at a picnic and engaged in an argument on the subject of “drag racing” which terminated with a handshake. Appellant drove his car about fifty (50) yards down the road, stopped and engaged someone in conversation. According to the prosecuting witness, he thought he understood the appellant to curse him. Thereupon he went to the appellant and made inquiry of such without being armed. Again their meeting ended on a friendly basis. After walking away a short distance he again understood appellant to curse him and he turned around, tearing loose from a companion. As he was advancing, unarmed, toward the appellant he was shot by appellant while approximately eight (8) to ten (10) feet away from him. The appellant contends that the prosecuting witness was armed with an empty whiskey bottle upon his first approach and when he advanced upon him a second time he had a shiny object which appeared to be a knife in his right hand; that the prosecuting witness and those around him were advancing upon appellant in a threatening manner and he understood the prosecuting witness to say “I’m going to cut you all to pieces ’ ’; that he shot Foster -when he failed to heed his warning to stop. Reviewing the conflicting versions in the light most favorable to the State, as we must do in this case on appeal, we hold there was sufficient evidence upon which the jury could base its verdict.

Fourthly, the appellant asserts that the Court erred in refusing to allow a witness in his behalf “to testify whether or not he was sitting in such a position as to be able to see whether the prosecuting witness, Baymond Foster, had anything in his hand as he approached the appellant.” Upon reviewing this testimony we think that the witness was allowed to fully testify from what he knew of his own knowledge. However, since this point was not raised by the appellant in his motion for a new trial, we cannot consider it as an assignment of error upon appeal. Lambdin v. State, 150 Ark. 580, 234 S. W. 987.

Finding no error, the judgment is affirmed.

       Ark. Stat. Ann. § 43-2203 (1947) reads: “Grounds ior new trial.—• * ** * Where the verdict has been decided by lot, or in any other manner than by a fair expression of opinion by the jurors.” Also, Ark. Stat. Ann. § 43-2204 (1947) reads: “Competency of juror.—A juror can not be examined to establish a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot. [Grim. Code, § 269; C. and M. Dig., § 3220; Pope’s Dig., § 4060.]”


author: Ed. F. McFaddin, Associate Justice. George Eose Smith, J.

text:
    Ouachita Industries v. Anderson.
    5-3023
    370 S. W. 2d 811
    Opinion delivered September 30, 1963

      Spencer & Spencer, for appellant.

      Brown, Compton £ Prewett, for appellee.
   Ed. F. McFaddin, Associate Justice.

We are here asked to determine whether the indorsement in question was an unqualified indorsement under the Uniform Negotiable Instruments Law.

In 1954 Lloyd P. Cox and wife executed their note, which in due time was owned by appellee, W. S. Anderson ; and he placed on it the following writing:

“State of Arkansas'! County of G-arlandj ss'
“For value received I hereby assign, transfer, set over and convey all of my interest in and to the note on the reverse side hereof together with the security therefor, to CRESWELL-KEITH, INC., AN ARKANSAS CORPORATION, TRUSTEE FOR CRESWELLKEITH MININO TRUST.
“This the 12th day of January, 1957. /s/ W. S. Anderson. ’ ’

Either by change of corporate name, or other procedure, the appellant, Ouachita Industries, Inc., became the owner of the note; and on February 14,1961, filed the present suit against W. S. Anderson seeking to hold Mm liable as an unqualified indorser of the note because of the writing above copied. Anderson filed Ms demurrer, claiming that the said writing was not equivalent to an unqualified indorsement. The Trial Court sustained the demurrer and dismissed the complaint when the plaintiff refused to plead further. On appeal, the appellant urges one point: “Under the Uniform Negotiable Instruments Law, Effective at the Time of the Indorse-meat, the Indorsement as a Matter of Law was an Unqualified Indorsement. ’ ’

The question under consideration turns on whether the holding of this Court in Spencer v. Halpern (1896), 62 Ark. 595, 37 S. W. 711, 36 L.R.A. 120, was changed by the passage of the Uniform Negotiable Instruments Law, which was Act No. 81 of 1913 (see Ark. Stat. Ann. §68-101 et seq. [Kepi. 1957]). In Spencer v. Halpern, there was this indorsement: “For value received I hereby transfer my interest in the within note to Isaac Halpern. (Signed) Geo. Spencer.” When the note was unpaid, Halpern sued Spencer on the indorsement; and Spencer pleaded that he was not liable because the indorsement was restricted. This Court held that by the quoted indorsement Spencer avoided the liability of an unqualified indorser under the law merchant. In the opinion, Justice Wood recognized that, under the law merchant, Spencer would be liable as an indorser unless the language he used was sufficient to restrict his liability; and Justice Wood recognized that Mr. Daniels (in his work on Negotiable Instruments) and many adjudicated cases held that such an indorsement as Spencer made was not sufficient to exempt Spencer from liability as an unqualified indorser. But Justice Wood quoted Tiedeman on Commercial Paper, §265:

“ ‘The declaration that the payee assigns or transfers all Ms right, title and interest in the paper would seem to limit in a most effective way the rights acquired by the transferee to those which the transferrer had therein, and thus prevent the writing from operating as an indorsement.’ ”

Justice Wood then continued;

“Why should we not let the contract mean and have the effect that is plainly expressed by the terms ‘my interest’ in their ordinary acceptation? Had the payee intended to be bound as indorser, why use so many words? Had the transferee expected more than the ‘interest’ of the transferrer, why did he accept the instrument transferring only his ‘interest?’ We must accept and interpret the completed contract as the parties made it. They have seen proper to express it at length, and have used unambiguous terms. Construing the terms ‘my interest’ most strongly against the transferrer, we do not feel authorized to say they mean anything more than simply ‘my interest.’ They are clearly terms of limitation, when used in an indorsement on a negotiable instrument. Compare Reynolds v. Shaver, 59 Ark. 299.”

We find nothing in the Uniform Negotiable Instruments Law that does other than declare what the law merchant had been on this matter of what is a qualified indorsement. Ark. Stat. Ann. §68-138 (Repl. 1957) (being §38 of the UNIL) reads in part: “A qualified indorsement constitutes the indorser a mere assignor of the title to the instrument. It may be made by adding to the indorser’s signature the words ‘without recourse’ or cmy words of similar import.” (Emphasis supplied.) Ark. Stat. Ann. §68-163 (Repl. 1957) (being §63 of the UNIL) says: “A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor, is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.” (Emphasis supplied.) Ark. Stat. Ann. §68-166 (Repl. 1957) (being §66 of the UNIL) says: “Every indorser who indorses without qualification, warrants to all subsequent holders in due course: ...” that payment will be made by him under circumstances stated in the section. (Emphasis supplied.) In Spencer v. Halpern, supra, it was held that an indorsement such as the one here was an indorsement with qualification in that the words had a similar import to “without recourse”; and we fail to see wherein the holding in Spencer v. Halpern was changed by the adoption of the Uniform Negotiable Instruments Law in 1913.

We concede that a majority of the States hold that an indorsement, such as that in Spencer v. Ealpern, and in the case at bar, is not sufficient to constitute a qualified indorsement; but in 8 Am. Jur. p. 254, “Bills and Notes” §546, it is stated that the reasoning in Spencer v. Ealpern is the better reasoning on this point. Here is the language in Am. Jur.; and we have italicized that portion of the text which cites Spencer v. Halpern in support thereof:

“Indorsement in Form of Assignment.—There is a direct conflict of authority upon the question whether one who transfers an instrument by words purporting only an assignment of the paper is to be held bound in accordance with the contract implied by law from an indorsement in blank. The majority of the courts considering the question have taken the view that the liability of an ordinary indorser is imposed upon one who makes an assignment upon the back of a negotiable instrument; such an assignment, according to this view, is not a qualified or a restrictive indorsement. Accordingly, one who writes and signs on the back of a negotiable instrument an assignment thereof is held liable as an indorser to the same extent as if he had merely indorsed his name without any other words. A reason given for this view is that the so-called £ assignor, ’ in expressing the assignment, is merely expressing one part of what the law implies from a general indorsement, and that if the person making the assignment wishes to avoid the liability of such an indorser, he should put that wish into words clearly indicating his intention. The better reasoning, however, would seem to favor the vieio that the person making an assignment in express terms thereby signifies his intention to do nothing more than assume the liability of an assignor or restrictive indorser and that, the assignment should not be held to import the contract of indorsement. In accordance with this view, it has been held that where the holder of commercial paper transfers merely his interest therein, he will not be liable upon the note in case of the maker’s failure to pay at maturity.”

The above quotation in Am. Jur. was published in 1937; and certainly the author of the above quoted text had no idea that the Arkansas holding in Spencer v. Halpern was changed in any way by the 1913 adoption by Arkansas of the UNIL, or else there would not have been the citation of Spencer v. Halpern as supporting “the better reasoned view.”

We therefore conclude that the holding in Spencer v. Halpern is governing in the case at bar; and that the Trial Court was correct in so holding.

Affirmed.

Harris, C. J. and George Eose Smith, J., dissent.

George Eose Smith, J.

(dissenting). The question before the court in Spencer v. Halpern, relied upon by the majority, was not the same as that confronting us today. There the issue was whether an assignment purporting to convey all the transferror’s interest in a note amounted to a qualified indorsement at common law. The court held the indorsement to be a qualified one.

In the ease at hand we are not concerned with the common law. The statute has greatly sharpened the conception of a qualified indorsement by declaring explicitly that the transferror may use “the words ‘without recourse ’ or any words of similar import. ’ ’ Ark. Stat. Ann. § 68-138 (Eepl. 1957). Hence in the case at hand the narrow question is whether the words of the indorsement, “I hereby assign, transfer, set over and convey all my interest in and to the note, ’ ’ are of similar import to the statutory phrase “without recourse.” I think this question should be answered in the negative, both upon reason and upon authority.

The transferror’s real intent is not apt to be open to doubt when the indorsement is prepared by one skilled in the law of commercial paper, such as a banker or a lawyer, for then the draftsman will select whatever statutory language he needs to express his purpose. The ambiguous indorsements, for which today’s decision will become a controlling precedent, are those prepared by laymen not well versed in the law of negotiable instruments.

The laity’s unfamiliarity with this field of law, however, is not unlimited. Nearly everyone old enough to be dealing with checks and promissory notes knows perfectly well that he can protect himself against liability upon such an instrument by indorsing it “without recourse.” Hence in the overwhelming majority of cases the parties, if they really mean to bring about the limited liability that is involved in a qualified indorsement, will accomplish that purpose by indorsing the instrument without recourse.

It follows as a corollary that the parties, whether learned in the law or not, will not resort to the cumbersome indorsement now before the court as a deliberate device for achieving a transfer without recourse. Thus it seems to me that as a matter of practical thinking and sound policy the majority are demonstrably mistaken in declaring that the language now before us expresses the same intention as the familiar phrase “without recourse.” Nor does the majority’s position have any particular equitable appeal. One who assigns a note or check ordinarily receives value; so there is no injustice in holding him liable upon the instrument if it proves to be worthless.

The authorities point to this same conclusion. The decision in Spencer v. Halpern followed what was the minority rule at common law and what is even more decidedly the minority rule under the N.'I.L. The eases were carefully reviewed by the Supreme Court of Nebraska in an opinion that refers to the “decisive majority” of the courts that hold such an indorsement to be unqualified and to the ‘ unanimity ’ ’ that prevails under the N.I.L. Baldwin-Heckes Co. v. Kammerlohr, 123 Neb. 317, 242 N. W. 661. One may infer that the majority view was also favored by Dean J. S. Waterman, a genuine scholar in the law of Bills and Notes. See Waterman, The Assignment and Guaranty of Promissory Notes, 1 Ark. Law School Bulletin 25.

I think the rule of Spencer v. Halpern to be unsound. We are not compelled to follow that decision; it was a declaration of the common law rather than an interpretation of the statute. We have recognized the desirability of construing uniform laws in harmony with the decisions in other jurisdictions. Grauman v. Jackson, 216 Ark. 362, 225 S. W. 2d 678. There is every reason for us now to abandon the minority rule and align ourselves with the majority. It is especially regrettable that this opportunity is being lost, for the language of the Commercial Code, Ark. Stat. Ann. § 85-3-414 (Addendum 1961), is so similar to that of the N.I.L. that today’s decision will doubtless apply to the new statute as well as to the old one.

Harris, C. J., joins in this dissent.

       The Uniform Negotiable Instruments Law was adopted in Arkansas by Act 81 of 1913. In 1961 the Arkansas Legislature, by Act No. 185, adopted the Uniform Commercial Code, now contained in Ark. Stat. Ann. §85-1-101 et seq. (Addendum 1961); and that Act provides that the Uniform Commercial Code would become effective in Arkansas at midnight December 31, 1961; but that all transactions validly entered into before the effective date, and all rights, duties, and interests flowing from them, would be governed by the laws prior to the adoption of the Uniform Commercial Code. So the present case is not affected by the Uniform Code: we decide this case under the Uniform Negotiable Instruments Law, hereinafter referred to as “UNIL.”

       The learned Chancellor delivered a written opinion, from which we copy:
      “The Court further finds that the indorsement should be and is interpreted as a limited indorsement, rather than a general indorsement, in that the indorsement states: ‘ALL OF MY INTEREST IN AND TO THE NOTE ON THE REVERSE SIDE HEREOF, TOGETHER WITH THE SECURITY THEREFOR, . . .’
      “The Court further finds that the language as above quoted, under the decision of the Supreme Court of Arkansas as announced in Spencer v. Halpern, 62 Ark. 595 and cited in an opinion not reported, 65 Ark. Page 631, and also as announced in 8 Am. Jur. Sec. 46, does constitute a restrictive indorsement. The Court further finds that although the above cited case of Spencer v. Halpern was decided prior to the adoption by the Arkansas Legislature of the ‘Uniform Negotiable Instruments Law,’ such adoption did not change the law merchant. The text writers and the decisions of the courts of Arkansas seem to give full force to such language in the indorsement as ‘without recourse’ and ‘all my right, title, and interest,’ This principle of restrictive indorsement by the use of such terms as stated was also followed in the case of Bennett v. Semmes, 287 Fed. 745, as decided by Judge Trieber, District Judge, Eastern District of Arkansas. The opinion having been rendered on March 27, 1923, after the passage of the Uniform Negotiable Instruments Law adopted in Arkansas in 1913. It further appears from the authorities submitted to this Court that the sections of the Uniform Negotiable Instruments Law of Arkansas pertaining to restrictive indorsements, and particularly where the same language is used as was in this present indorsement, ‘all my right, title and interest,’ are in effect re-enactments of the well established law of the law merchant.”

       In Bennett v. Semmes, 287 F. 745, Judge Trieber, United States District Judge for the Eastern District of Arkansas, said that the UNIL was a re-enactment in that case of what the law merchant had been; and in the case at bar, the UNIL was a re-enactment of what the law merchant was on the question here.

       The Supreme Court of Utah, in Johnson v. Beickey, 228 F. 189, clearly stated the distinction between assignment and indorsement:
      “ ‘Assignment’ and ‘indorsement,’ as applied to negotiable instruments, are not synonymous terms. An indorsement is not merely a transfer of title, but a new and substantive contract by which the indorser becomes a party to the instrument and liable, on certain conditions, for its payment. An assignment means a transfer of the title. It neither includes nor implies becoming in any way a party to the payment, or responsible for the insolvency or default of the maker.”
      Even though the Supreme Court of Utah holds against Spencer v. Halpern, the foregoing discussion of assignment and indorsement is clear and concise.

       See annotations in 2 A.L.R. 216, and in 44 A.L.R. 1353.


author: George Rose Smith, J.

text:
    Graves & Parham v. State.
    5079 and 5080
    370 S. W. 2d 806
    Opinion delivered September 30, 1963.

      Skillmcm & Webb, for appellant.

      Bruce Bennett, Attorney General, by Russell J. Wools, Asst. Atty. Gen., for appellee.
   George Rose Smith, J.

The two appellants, Deltha Ann Graves and Dan Parham, were separately charged with the crime of robbery. The cases were consolidated for trial and resulted in verdicts of guilty, with a sentence of seven years imprisonment in each case. On appeal the principal issue is the sufficiency of the evidence.

We view the testimony in the light most favorable to the verdicts. The State’s principal witness was Leonard D. Bronk, the victim of the robbery. Bronk testified that he had been having dates with Deltha, who was separated from her husband. On the night of the crime Deltha telephoned Bronk, who arranged to pick her up at a service station in Memphis. The couple first drove to Deltha’s apartment, which she said she had forgotten to lock. The jury might have believed, however, that this statement was merely a pretext and that the woman really went to the apartment to report to her husband and to the other defendant, Dan Parham, who were eating supper there.

Bronk testified that Mrs. Graves wanted to drive over to Marion, Arkansas. Between West Memphis and Marion the couple were overtaken by Graves and Par-ham, who tried to stop Bronk’s car. He at first eluded them, but a little farther down the highway Deltha took the keys from the car, forcing Bronk to stop. Graves and Parham again caught up, alighted from their car, and came up to Bronk and Mrs. Graves.

According to Bronk, Graves demanded $25 from Bronk for his being out with Graves ’ wife, and Parham offered to fight Bronk on account of Bronk’s having had Parham arrested a few days earlier. Bronk had locked the doors of his car, but his assailants broke the windows and attacked Bronk, knocking him unconscious. "When he recovered consciousness he found that $128 was missing from his wallet. The money had been in the form of a one-hundred-dollar bill, two tens, a five, and three ones. When Parham and Mr. and Mrs. Graves were arrested they had in their possession, along with other currency, bills that corresponded in denomination to those described by the prosecuting witness. When Mrs. Graves was taken into custody she attempted to hide a one-hundred-dollar bill in her shoe.

The three who were implicated in the robbery denied the State’s testimony. They insisted that Parham and Graves had followed the Bronk car only because Bronk was forcing Deltha Graves to accompany him. According to the defendants, no assault or robbery occurred; Parham and Graves merely rescued Mrs. Graves from her abductor.

Upon the conflicting testimony the issues of fact were properly submitted to the jury. The appellants are in error in arguing that the State’s failure to prove its case beyond a reasonable doubt entitles them to a reversal. The jury must be convinced of the accused’s guilt beyond a reasonable doubt, but there is no requirement that the members of this court be similarly persuaded by the proof. Here the test is that of substantial evidence. If the verdict is supported by such proof we are not at liberty to disturb the conviction, even though we might think it to be against the weight of the evidence. Fields v. State, 154 Ark. 188, 241 S. W. 901.

Error is predicated upon the trial court’s refusal to give this requested instruction: “In weighing the testimony of police officers, greater care should be used in weighing their testimony than that of an ordinary witness because they are in effect hired witnesses and have a natural and unavoidable tendency to procure and remember with partiality such evidence as would be against a defendant or defendants.” This assignment of error is wholly without merit. The assertion that every police officer is invariably a prejudiced witness is so plainly unfounded as not to require serious notice. Had the requested instruction been given the court would have fallen into error, not only because the charge involves a misstatement of fact but also because it would have amounted to a comment by the court upon the weight of the evidence.

It is also contended that the bills taken from the appellants and from Graves were improperly received in evidence and, further, that the prosecuting attorney was permitted to make an improper argument. These contentions do not appear to have merit, but we forego an extended discussion, for there was no objection to the introduction of the bills and no exception to the court’s ruling upon the prosecutor’s argument.

Affirmed,.