author:
Ed. F. McFaddin, Associate Justice.
      Carleton Harris, Chief Justice

text:
    American Insurers' Life Ins. Co. v. The First Nat’l. Bank in Blytheville.
    5-2868
    367 S. W. 2d 97
    Opinion delivered April 1, 1963.
    [Rehearing denied May 20, 1963.]

      Barry E. Meek, for appellant.

      Graham Sudbury, Marcus Evrard, Pope, Pratt £ Shamburger, by: Richard L. Pratt and Joseph L. Buffalo, Jr., E. J. Ball, for appellee.
   Ed. F. McFaddin, Associate Justice.

This litigation arose by complaint filed by the First National Bank in Blytheville against The American Insurers’ Life Insurance Company and also Mrs. Gladys Gill, executrix of the estate of H. Noble Gill, deceased. There were answers, cross-complaints, and interventions by various parties; and a great mass of evidence and exhibits were offered in the trial in the Chancery Court, so that the record now before us is voluminous and the issues are varied. At the outset, we identify the parties:

(a) The First National Bank in Blytheville is a national banking corporation and is hereinafter identified as “Bank.”

(b) Mrs. Gladys Gill is the executrix of the estate of H. Noble Gill, who departed this life testate on June 11, 1960, a citizen and resident of Mississippi County, Arkansas.

(c) The American Insurers’ Life Insurance Company is an insurance company organized under the laws of Arkansas on the 28th day of February, 1958; and will be hereinafter identified as “American Insurers.”

(d) Lester Gill is a brother of H. Noble Gill, deceased.

(e) Other parties, referred to as “Intervenors, ’ ’ were creditors of H. Noble Gill, and are Primrose Oil Company, Blytheville Propane Company, Buchanan Agency, and Marcus Evrard.

This appeal brings into the open some of the tangled affairs of the late H. Noble Gill. He owned interests and equities in a number of enterprises in Eastern Arkansas, including' stock in the Cape County Milling Company of Jackson, Missouri, and in the Dell Compress of Dell, Arkansas ; and also lands in Mississippi County, Arkansas, and in the State of Mississippi. Most all of his holdings were encumbered, but the general public thought he had considerable equity. On February 28, 1958, H. Noble Gill organized the “American Insurers”; and transferred to it substantially all of his various holdings and equities for 1,941,468 shares of no par value stock in American Insurers. Among other assets there was the equity of his shares of stock in the Cape Comity Milling Company held by the Bank. Gill envisaged that he could sell some of his stock in American Insurers to pay the Bank’s claim, and also that a large income tax liability would be avoided. For convenience, we list and discuss the controversies between the various litigants.

I. The Issiies Between The Bank And American Insurers. At all times from August 4, 1956 to his death, H. Noble Gill was indebted to the Bank in large sums of money; and the Bank, along with other security, all the time hold for the protection of its loan all of the duly endorsed stock certificates of H. Noble Gill in the Cape County Milling Company. These certificates totalled three-fourths of all the preferred and common stock of said company. On May 4,1959, H. Noble Gill, to evidence accumulated indebtedness, executed a note to the Bank for $60,000.00, secured by all of his stock certificates in the Cape County Milling Company held by the Bank. There was also other security not necessary to be described. This $60,000.00 note was reduced by payments, so that at the time of Gill’s death the balance due the Bank was $30,000.00 and interest; and on September 7,1960, the Bank filed this suit.

The American Insurers claimed title to the certificates free of the claim of the Bank because (a) H. Noble Gill executed a “Transfer of Stock” to American Insurers on February 28,1958; (b) the Bank (acting by its Vice President Reese) informed American Insurers on February 28, 1958 that on payment of $74,000.00 the certificates would be delivered to American Insurers; and (c) American Insurers (by Mr. Butler) paid the Bank the $74,000.00. The Chancery decree awarded relief to the Bank; and against that decree American Insurers prosecutes this appeal.

We conclude that the decree, in favor of the Bank, was correct in awarding it a prior claim on the Cape County Milling Company stock. We begin with the thoroughly established fact that H. Noble Gill’s stock certificates in Cape County Milling Company were endorsed by him and pledged to the Bank as security for his then or thereafter indebtedness to the Bank. Furthermore, the Bank has completely established the amount of the indebtedness of H. Noble Gill to the Bank. So the Bank has made a complete case for itself, unless and until the American Insurers as the adverse claimant can disprove or rebut the Bank’s claim.

The claim of American Insurers was really estoppel: that is, American Insurers claimed that the representative of the Bank told it that for $74,000.00 the Bank would release the H. Noble Gill stock certificates in Cape County Milling Company held by the Bank; and American Insurers paid the $74,000.00. The American Insurers had the burden of proving such estoppel (Watson v. Murray, 54 Ark. 499, 16 S. W. 293); and the Chancellor, who saw the witnesses, held that the evidence was not sufficient to sustain American Insurers on this point. We rest our affirmance on the delay and laches of American Insurers. The alleged representation by Mr. Reese was on February 28, 1958. In March 1958 American Insurers learned — as it admitted — that the Bank would not deliver the stock certificates. Instead of demanding a return of the $74,-000.00, American Insurers kept the notes and the assignment tendered by the Bank, as tantamount to a novation.

The American Insurers never returned the notes and assignment to the Bank; so from March 1958 to and including the trial below, American Insurers kept what the Bank tendered in lieu of the Cape County Milling Company stock certificates. From March 1958 until American Insurers filed its first pleading in this case on September 23, 1960, American Insurers never asked any court to require the Bank to surrender the Cape County Milling Company stock certificates free of the claim of the Bank. In the interval from March 1958 to September 1960, Mr. Reese, the Vice President of the Bank and the person alleged by American Insurers to have made the $74,000.00 representation, has died. H. Noble Gill, who is alleged to have heard the $74,000.00 representation, has died. There was thus a delay of two years and six months by American Insurers after it had full notice of the Bank’s refusal; and during that time many, many events have happened which have materially changed the situation of the litigants from that existing in March 1958. American Insurers was the delaying party. It took the chance that H. Noble Gill would make a success of his insurance venture. American Insurers cannot “have its cake and eat it also.” This is a clear case of loss of a claim by laches. See Walker v. Norton, 199 Ark. 593, 135 S. W. 2d 315; and Falls v. Jackson, 205 Ark. 435, 186 S. W. 2d 787. We affirm the Chancery decree in favor of the Bank on the Cape County Milling Company stock certificates.

II. The Issues Behveen Lester Gill and American Insurers. On February 7, 1957, the indebtedness of H. Noble Gill to the Bank had become so large that it was in excess of the aggregate amount of credit that the Bank could extend to one individual (that is, it was in excess of $60,000.00); so on the date mentioned Lester Gill, as a favor to his brother, H. Noble Gill, and at the request of the Bank, executed a note to the Bank for $25,000.00, signed by Lester Gill. H. Noble Gill gave his personal note to Lester Gill for $25,000.00, which was endorsed and was also held by the Bank; and Lester Gill claimed that the Bank agreed that he would be subrogated to the security of the Cape County Milling Company stock certificates held by the Bank. Lester Gill intervened in this litigation to have his indebtedness paid out of any excess of the proceeds of said security after the Bank had been paid; and the Bank acquiesced in such intervention. American Insurers resisted the claim of Lester Gill.

In addition to its claim for all the stock certificates of Gill, as previously discussed, American Insurers further claimed: (a) that on February 28, 1958 H. Noble Gill executed a “Transfer of Stock” to it, whereby American Insurers became entitled to all the stock certificates of EL Noble Gill held by the Bank; (b) that the pledge instrument held by the Bank would not cover the Lester Gill claim; and (c) that the claim of subrogation was a mere afterthought.

The Chancery decree was in favor of Lester Gill’s claim; and a careful study convinces us that the decree in favor of Lester Gill was correct. It was clearly established that Lester Gill’s note was credited as a payment on H. Noble Gill’s indebtedness to the Bank; that H. Noble Gill’s note to Lester Gill was held by the Bank as collateral of the Lester Gill note; and that the loan agreement of H. Noble Gill to the Bank covering pledge of collateral covered any and all direct, indirect, absolute, or contingent liabilities of El. Noble Gill to the Bank, as well as any “endorsement, draft, bill of exchange, note, guarantee, letter of credit, or other obligation, or in any other manner.” Furthermore, there was positive testimony of the express representations of the Bank officials to Lester Gill that he would be subrogated to the Bank’s security.

The Chancellor saw the witnesses and heard them testify and believed their testimony; and we cannot say that the Chancellor’s findings on this issue are against the preponderance of the evidence. So we affirm the decree in favor of Lester Gill for subrogation. See Talbot v. Wilkins, 31 Ark. 411; and Briscol v. American Southern Trust Co., 176 Ark. 401, 4 S. W. 2d 912.

III. Amounts Received by American Insurers From Cape County Milling Company. It was shown that the Cape County Milling Company paid to American Insurers, or paid to others for its use and benefit, the total sum of $21,572.07. These payments were because American Insurers assumed control of Cape County Milling Company after February 28,1958; and this amount of $21,572.07 was claimed by American Insurers as ‘ ‘ dividends. ’ ’ American Insurers had acquired from another party the certificates for one-fourth of the common and preferred stock in Cape County Milling Company, and was entitled to actually receive only one-fourth of the $21,572.07; so in fact received an excess of $16,790.05. If the sale of the Cape County Milling Company stock fails to bring enough to satisfy the judgment of the Bank and Lester Gill, judgment shall then go against American Insurers and in favor of the Bank and/or Lester Gill for the deficit, up to the $16,-790.05, being three-fourths of the amount received by American Insurers from Cape County Milling Company.

IY. The Issues Behoeen American Insurers and Mrs. Gladys Gill, Executrix of the Estate of H. Noble Gill, Deceased. The Chancery Court found and decreed that the American Insurers had no valid claim to the stock of H. Noble Gill in the Cape County Milling Company that was pledged to the Bank; that the “transfer instrument” relied on by American Insurers was ineffectual; and that the Estate of H. Noble Gill should receive any and all proceeds from the sale of the pledged Cape County Milling Company stock above what was necessary to pay the Bank and Lester Gill. The American Insurers has appealed from such decree in favor of Mrs. Gill, Executrix; and we conclude that the Chancery Court was in error in the decree in favor of Mrs. Gill, as executrix, as against the American Insurers.

The American Insurers’ Life Insurance Company was organized on February 28, 1958, in Little Rock, Arkansas; and H. Noble Gill was the moving spirit in the said organization. Among other incorporators, there were W. H. Patton, an accountant, and E. J. Butler, an attorney. The plan of H. Noble Gill was to organize the American Insurers’ Life Insurance Company, to transfer to it substantially all of his various holdings and equities for no par value stock in American Insurers; and then to sell some of the said stock without incurring any large income tax liability. Gill did transfer to American Insurers by deed all of his equity in 2,000 acres of land in Mississippi County, Arkansas, 5,500 acres in the State of Mississippi, and certain other assets; for all such transferred and attempted transferred assets Gill received, either outright or in escrow, a total of 1,941,468 shares of no par value stock in American Insurers.

Among other stocks which H. Noble Gill attempted to transfer to American Insurers was his stock in the Cape County Milling Company, but this stock was pledged to the Bank, as previously mentioned, and Gill was unable to obtain the release of the stock from the pledge. When the final date arrived for Gill to transfer his holdings to the American Insurers for the said no par value stock, he informed his fellow incorporators that his stock in the Cape County Milling Company (he owned three-fourths of the total stock) was pledged to the First National Bank in Blytheville and he would have to transfer the stock subject to the claim of the Bank. There was insistence that the insurance organization be immediately completed and the charter issued that day, so E. J. Butler, as the organizing attorney of American Insurers, prepared this instrument, which H. Noble Gill executed:

“TRANSFER OF STOCK
“THIS WRITING WITNESSETH: That I, H. Noble Gill, of Blytheville, Arkansas, have on this twenty-eighth day of February, 1958, and by this instrument do on this date, bargain, sell, transfer, assign and set over unto the American Insurers’ Life Insurance Company, Little Rock, Arkansas, 4,023 shares of the capital stock of the Cape County Milling Company, Jackson, Missouri, said shares being represented by Cape County Milling Company Stock Certificate Numbers 61, 62, 63, and 66 and in consideration therefor, I have received from American Insurers’ Life Insurance Company of Little Bock, Arkansas, 450,023 shares of the no par capital stock of said Insurance Company.
“I hereby warrant to American Insurers’ Life Insurance Company, Little Bock, Arkansas, that the value of the Cape County Milling Company stock is $450,028.84 based on appraised values of The Lloyd Thomas Company, Chicago, Illinois, and I at this time leave up with American Insurers’ Life Insurance Company 438,608 shares of its stock in escrow to guarantee the value of the Cape County Milling Company stock, which is hereby transferred to said Insurance Company, and I do hereby irrevocably approve, constitute and appoint Tull Johnson my attorney to transfer the said Cape County Milling Company stock on the books of the said corporation with full power of substitution in the premises.
“WITNESS my hand on the date and year herein-before first written.
“/s/ H. Noble dill
“Witnessed by /s/ E. J. Butler.”

We have held in Topics I and II, supra, that the Bank, as the holder of the stock certificates, had a superior claim for itself and for Lester dill; and we now hold that the instrument entitled “Transfer of Stock” was effectual and valid as between H. Noble dill and American Insurers to transfer his remaining interest in the pledged stock to American Insurers. Section 64-310 Ark. Stats, is Section 10 of the Uniform Stock Transfer Act, and reads:

“An attempted transfer of title to a certificate or to shares represented thereby without delivery of the certificate shall have the effect of a promise to transfer and the obligation, if any, imposed by such promise shall be determined by the law governing the formation and performance of contracts.”

When H. Noble Gill signed the instrument entitled “Transfer of Stock” and delivered the real estate deeds to American Insurers, he received a total of 1,941,468 shares of no par value stock in American Insurers. The fact that he left 750,000 shares in escrow does not alter the fact that he received consideration for the transfer. On the strength of the signed instrument, $74,000.00 was paid by American Insurers to the Bank, as heretofore detailed. If H. Noble Gill were living today, he could not avoid his obligations and liabilities under the Transfer of Stock instrument. It is true that the executrix of an estate occupies the double role of being not only the person representing the decedent, but also the representative of creditors, legatees, etc. (Hobbs v. Cobb, 232 Ark. 594, 339 S. W. 2d 318); but Mrs. Gill, as executrix of the estate, stands in this case in the same position as H. Noble Gill would stand if he were alive and before the Court on the contract here involved. In 21 Am. Jur. 583, “Executors and Administrators” § 337, in discussing the contracts of the decedent, the holdings of the various jurisdictions are summarized in this language: ‘ ‘ Generally, all contractual obligations which survive the death of the obligor are binding on his executors and administrators in their representative capacity and may be enforced against his estate to the extent of the assets thereof, subject, of course, to all proper grounds of defense.”

The executrix claims that American Insurers has really disaffirmed the entire transfer of assets by Gill to American Insurers because it filed an instrument declaring the values as represented by Gill to be excessive. But that instrument did not amount to a disaffirmance of the conveyance: rather, it was an affirmance of the contract and a claim of breach of warranty.

The executrix, by cross-complaint against American Insurers, sought to recover the equity of H. Noble Gill in the stock certificates here involved. On such cross-complaint the executrix had a burden of proof which was not discharged. So we reverse all that part of the Chancery decree in favor of the executrix and against American Insurers.

V. The Issues Between The Intervenors And American Insurers. The intervenors were creditors of H. Noble Gill, with claims filed and allowed against his estate, and some, if not all, of these intervenors were creditors of Gill before he made the transfer of his assets to American Insurers. The germane allegations of the interventions were: (a) that the Cape County Milling Company stock pledged to the Bank was worth in excess of $200,-000.00; (b) that the instrument entitled “Transfer of Stock” was of no effect; (c) that stock was not issued and delivered to Gill by American Insurers for the Cape County Milling Company stock; and (d) that the purported transfer of the Cape County Milling Company stock by Gill to American Insurers was a fraudulent conveyance. The Chancery decree awarded relief to Mrs. Gill as executrix and thereby afforded relief to the intervenors. Since we have reversed the decree awarding* relief to Mrs. Gill as executrix, it becomes necessary to consider whether the intervenors have established any right to relief as against American Insurers, the transferee from Gill, even assuming each of the intervenors to have been a creditor of H. Noble Gill prior to the transfer to American Insurers on February 28, 1958.

When we sustained the “Transfer of Stock” instrument against Mrs. Gill, executrix (as we did in Topic IY, supra), we disposed of the claims of the intervenors as to the effectiveness of such instrument; so we pass to the other claims, as heretofore listed. The actual value on February 28, 1958 of the Cape County Milling Company stock pledged to the Bank is a matter of uncertainty. The value was materially increased by the death of H. Noble Gill, because the Cape County Milling Company collected approximately $100,000.00 on a life insurance policy it carried on his life. But for the purposes of this decision, we may assume the total value of the pledged stock to have been $200,000.00 on February 28, 1958. American Insurers issued to H. Noble Gill a total of 450,028 shares of its no par value stock for all of the shares of preferred and common stock in Cape County Milling Company. One fourth of the total shares of said preferred and common stock were owned by Tull Johnson unpledged, and he endorsed and delivered his certificates to American Insurers and in return therefore H. Noble Gill delivered to Tull Johnson 30,000 shares of Gill’s stock in American Insurers. Some of these shares delivered to Johnson came from unpledged shares of H. Noble Gill because he left 438,608 shares in escrow with American Insurers to guarantee the warranty of clear title of the shares pledged to the Bank. The fact that Gill left part of the shares in escrow to guarantee the warranty did not alter the fact that American Insurers had issued the shares to Gill.

The fact that stock issued by American Insurers to Gill had some value at the time of issuance is amply attested by the record: E. J. Butler paid Gill $25,000.00 in cash for 25,000 shares; and W. II. Patton paid Gill $40,000.00 for 40,000 shares. Gill sold stock to a number of people for $1.00 per share; Gill was able to borrow $93,000.00 from a large bank here in Arkansas on the pledge of some of his shares of stock in American Insurers; and shortly before his death Gill was in the process of organizing a sales campaign, to sell some of his shares in American Insurers at $3.00 per share. If the stock Gill received from American Insurers was not worth $1.00 per share, it was because Gill had overvalued his own assets; and if that be true, his creditors were in no worse position after the stock deal than they were before the stock deal. The value of Gill’s estate in 1960 is not the test of the value of the stock he received in 1958. The evidence is entirely insufficient to afford the intervenors any relief on the theory of a fraudulent conveyance under § 68-1302 et seq. Ark. Stats.

After exploring the entire record we reach the conclusion that the intervenors, as creditors of H. Noble Gill, have established no rights in excess of the rights asserted by Mrs. Gill as executrix, and the interventions should have been dismissed for want of equity.

YI. Rulings As To Evidence. In various instances some of the parties to this appeal have complained of the rulings of the Chancery Court, either for admitting, or refusing to admit, tendered evidence. We have not ignored these contentions: rather, we have considered proffered evidence which we found should have been admitted and have disregarded improper evidence against which proper and timely objections were made. It would unduly prolong this opinion and serve no useful purpose to discuss all of these instances. We merely mention them so that no one will think the contentions have been overlooked.

CONCLUSION

The Chancery decree is affirmed in part and reversed in part, all as herein stated; and the cause is remanded to the Chancery Court for further proceedings not inconsistent with this opinion; the costs of this appeal are to be borne equally by American Insurers and the executrix of the estate of H. Noble Gill.

Harris, C. J. and Johnson, J., dissent in part.

Carleton Harris, Chief Justice

(dissenting in part). I disagree with those portions of the opinion which hold:

(1) that the bank holds a first lien on the Cape County Milling Company stock;

(2) that Lester Gill has a lien on the Cape County stock.

Testimony on the part of appellant reflects that E. J. Butler, Secretary of the insurance company, contacted A. B. Reese, a vice-president of the First National Bank in Blytheville, for the purpose of determining the amount of payment that would be required by the bank before the latter released Noble Gill’s Cape County Milling Company stock. Butler stated that Reese advised that a payment of $74,000 would release the stock, together with a lien on certain real estate in Mississippi County. Since about $80,000 had been raised through the sale of Noble Gill’s insurance shares, Butler, around the middle of March, and in reliance upon Reese’s statement, sent $74,000 to the bank. This remittance was represented by a $67,000 cashier’s check and Butler’s personal check on his special account for $7,000. While the method of payment is not established, it is undisputed that the $67,000 cashier’s check was payable to Butler, as Trustee, and endorsed by him in that capacity. The $7,000 check was signed by Butler and drawn on “E. J. Butler Special Account.” After cashing these remittances, Reese sent Butler two promissory notes and a junior mortgage (which were of no value to the company as far as I can see), each instrument being assigned by the bank, to E. J. Butler. This would certainly indicate that Reese knew that someone other than Noble Gill had a beneficial interest in these funds.

The related facts are not commented upon by the majority, so I take it that there is no finding that Butler did not communicate with. Reese and obtain the assurances that he testified to. The majority opinion on this point is predicated on the delay and laches of American Insurers, i.e., the return of the $74,000 was not demanded, and for two and one-half years, the insurance company took no action to enforce its claim to the stock.

Let it be borne in mind that Noble Gill, as the founder and president of the company, actually had charge of the operations and the failure of the company to make demand was apparently because of the fact that Gill did not desire to do so. It would appear that Gill continued to receive personal advancements from the bank on the basis of the fact that the latter was holding the stock, but Gill, having assigned this stock to the insurance company, was in no position to use it for personal purposes.

It is difficult for me to understand why Reese, or other bank officials, would not have known that the stock had been assigned by Noble Gill to the insurance company, inasmuch as brochures announcing this fact had been circulated widely in Eastern Arkansas. This testimony incidentally, was not admitted, not considered by the trial court, (nor mentioned by this court) and I consider it competent and relevant evidence, and quite pertinent to the issue of whether the bank knew that someone else was making a claim to the stock.

It appears to me that the bank applied Butler’s remittance, either according to its own wishes, or according to the wishes of Gill, whereas, according to the testimony of Butler, the bank, through its vice-president, had knowledge that the money was sent for the purpose of acquiring the milling stock.

In fact, it can hardly be disputed that the bank, somewhere along the way, acquired knowledge of the stock transfer since, in filing its suit against the Gill estate to foreclose its alleged lien on the stock, the insuranee company was made a party defendant under the following allegation:

“The plaintiff has been informed, and therefore alleges, that prior to his death the said H. Noble Gill entered into an agreement by which he transferred all of his rights in the shares of corporate stock that have been mentioned herein, subject to the right of this plaintiff therein, to the defendant, American Insurers’ Life Insurance Company.”

If it developed that Mr. Reese underestimated the amount necessary to pay the bank’s lien on the Cape County stock, it is apparent to me that subsequent payments were more than adequate to cover the indebtedness. On the basis of the testimony of E. M. Regenold, President of the bank, it would appear that on the date the Butler remittance was applied by Reese, the Cape County stock was encumbered to the extent of $98,551.41; therefore, the estimate of Reese would have been short in the amount of $24,551.41. But it is admitted by the bank in its complaint that it had subsequently made collections totaling $29,687.11 on the balance of the indebtedness secured by the stock. It appears to me that the instant suit by the bank was predicated on additional advances made to Gill against the stock after the bank became apprised of the insurance company’s interest in such stock. A study of the liability ledger sheet shows that as of September 19, 1959, (which was more than a year after Butler protested to Reese that the $74,000 had been misapplied), Noble Gill’s debt had gone up to $65,200, including an obligation of $5,200, represented by a demand note which was an entirely new loan. Riley Jones, a vice-president of the bank, testified that in July, 1958, Gill’s debt was increased from $30,450 to $60,000.

While, as stated, I disagree with the majority holding as heretofore set out, I do recognize that, because of the failure of the insurance company to take steps to enforce its rights, there is something to be said for the view taken by the court majority. However, I much more strongly disagree with the court’s holding that Lester Gill is entitled'to a lien on the Cape County stock.

Aside from the fact that I feel that the hank had notice that Noble Gill had previously assigned the stock to the insurance company, I cannot see how Lester Gill, under the facts and circumstances herein, is entitled to such a lien. This transaction took place on February 25, 1957. Let it be borne in mind that Noble Gill did not receive one dime by virtue of the note executed from Lester Gill to the bank; he had already obtained his statutory limit from the bank (then $60,000), and the note given by Lester Gill was entirely for the benefit of the banlc. Here again the transaction was handled for the bank by Mr. Reese, and according to Lester Gill, “Mr. Reese told me the bank was in the process of helping Noble with some refinancing, but that his line of credit had been exceeded; that the bank was expecting examiners and that the matter of Noble’s account had to be straightened up before they could further proceed.”

I do not understand how the bank could create a lien on Noble Gill’s stock for the benefit of Lester; in my view, some overt act on the part of Noble Gill Avould have been required, and no such overt act appears in the record. Noble Gill gave to Lester his note to cover the $25,000, bu,t this note was unsecured. To me, the facts set forth in the preceding paragraph preclude any lien on the stock in favor of Lester Gill; in addition, further actions of the bank indicate that that institution did not consider that Noble Gill’s note to Lester Avas secured by the Cape County stock for,

(1) The bank sued Lester on February 3, 1961, in Circuit Court, asking judgment against Lester, but ashing no lien on the Cape County stock.

(2) The bank filed the suit here on appeal to foreclose a lien on the Cape County stock, but in this suit it made no claim that it held an additional lien on the stock arising out of the Lester Gill transaction.

(3) The bank’s liability ledger sheet, eoAmring Lester’s borroAvings, does not reveal the alleged lien.

The majority is relying upon the “anaconda” mortgage executed by Noble Gill. I cannot agree that this instrument lends any weight to the contentions made by appellee, Lester Gill. In the first place, the instrument was not signed by Noble Gill; rather, it was signed by O. E. Hunnicutt, acting as attorney-in-fact, and Hunnicutt, in affixing his signature purportedly acts on behalf of the “Gill Gin Company” and “H. Noble Gill,” the company and Gill being joint signers. I think, under a proper interpretation, the instrument would apply only to such line of credit as the bank might extend to Gill Gin Company and Noble Gill, as joint obligors.

In addition, I feel that the majority has reached a strained construction of this document when they hold that the stock securing Noble Gill’s original loan would also secure a subsequent note of Noble Gill’s which the payee (Lester Gill) merely hypothecated to the bank.

Lester Gill testified that (at the time of the trial) he had in his possession 10,000 shares (2,000 of which he held as trustee for his two sons) of the insurance company stock, which he had received from Noble Gill. When asked if the 10,000 shares were given to him in payment of the obligation that was due him from his brother, he replied, “It was not mentioned to me by him.” He then stated he had helped Noble financially at prior times, and that on a previous occasion he had loaned $25,000, and had been given 2,000 shares of American Insurers’ stock by Noble, who said, “Here is what you bought.” He testified that the insurance company stock was not issued to him in connection with this particular loan, but he stated that he did not know why the note given to him by Noble did not provide that it was secured by the Cape County stock. Finally, the transcript reveals that the cross-examination of Lester Gill concluded as follows:

“ Q. Do you have any record of these loans that you stated a while ago you previously made to Noble for which the American Insurers’ stock was issued to you?
A. American Insurers’ Insurance Company stock was not issued to me in connection with this loan.
Q. I say, do you have any record of the other loans you made to him for which you say this stock was issued?”
A. I didn’t say the stock was issued in connection with any loan.
Q. Do you say he gave it to you?
A. He handed it to me and said, ‘ This is what you bought.’ I did not know I was going to receive it and didn’t want it.
Q. Was it for the $25,000.00 note?
A. There was not anything mentioned.”

Irrespective of the significance of this testimony, I feel, for the reasons set forth in the preceding paragraphs, that Lester Gill is not entitled to a lien on the Cape County stock.

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

       With the exception of one block of 30,000 shares, all the other 225 persons who purchased stock in American Insurers purchased the H. Noble Gill shares.

       This instrument is copied in toto in Topic IV of this opinion.

       The wording of the pledge is an broad as can be imagined. A portion of the wording is mentioned in Topic II infra.

         Mr. Butler testified that his check to the Bank was dated March 17, 1958; that a few days later H. Noble Gill delivered to Butler for American Insurers the notes of Gill and the assignment from the Bank; that Butler called Reese at the Bank and was advised that the Bank had credited the $74,000.00 on the said notes, and would not surrender the shares of stock in Cape County Milling Company until additional amounts were paid; so American Insurers learned of all of this in March 1958.

       This instrument is copied in toto in Topic IV of this opinion.

       The fact that the numbers on the stock certificates differ is immaterial.

       For some cases from other jurisdictions involving this section, see Parsons v. Lipe, 286 N. Y. Supp. 60, 200 N. E. 31; Whitney v. Nolan (Mass.), 6 N. E. 2d 386; Johnson v. Johnson (Mass.), 13 N. E. 2d 788; Lockhart v. Dickey (La.), 108 So. 483; Estate of Ezra Connell (Pa.), 128 A. 503, 38 A. L. R. 1362; Salmon v. Moore (Miss.), 118 So. 2d 867. While not directly in point, we call attention to the following as persuasive: Aycock v. Bottoms, 201 Ark. 104, 144 S. W. 2d 43; and Leonard v. Taylor, 183 Ark. 933. 39 S. W. 2d 704.

       The Chancery decree contains this language: “e. If the ‘Transfer of Stock’ instrument were definite and certain in its terms and if the estate of H. Noble Gill were barred by estoppel from claiming title and ownership in said stock, such transfer would be void even as against the estate inasmuch as possession of the Cape County Milling Company stock did not accompany such instrument; no good consideration was received by Gill, and the transfer would have, in fact, delayed and hindered the collection of debts by creditors of Gill, from which the Court must presume the intent to hinder and delay creditors. Ark. Stats. Sec. 68-1302, Sec. 68-1304. . . . “(7) The Court concludes that the creditors intervening have sought the basic relief that the stock above described be declared the property of the estate of H. Noble Gill, deceased, which the Court has done, and no further relief or conclusions need be made relative thereto.”

       It was never established whether Butler sent these checks through the mail with a letter of transmittal, or whether the checks were taken and delivered to Reese, personally, by Noble Gill. Butler’s office had been destroyed by fire, and many records were burned.

       Butler testified that he personally gave Reese a copy of the brochure which stated that the Cape County stock had been transferred to American Insurers’ Co. — though this was subsequent to the $74,000 transaction.

       So characterized by this court in Fuller v. Berger, 180 Ark. 372, 21 S. W. 24 419.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Koonce v. Owens.
    5-2908
    366 S. W. 2d 196
    Opinion delivered April 1, 1963.

      Burl G. Botenberry, Cockrill, Laser, McGehee <3 Sharp, for appellant.

      Marvin Holman, Mark E. Woolsey, for appellee.
   George Rose Smith, J.

The appellee sued for personal injuries sustained by her in a traffic accident that occurred in Pine Bluff. The jury’s verdict was for the defendant, but the trial court granted a new trial, finding the verdict to be against the weight of the evidence. Bockman v. World Ins. Co., 222 Ark. 877, 263 S. W. 2d 486. In appealing from this order the defendant has filed the required stipulation for judgment absolute if the order be affirmed. Ark. Stats. 1947, § 27-2101.

In a case of this kind the question is whether the trial court abused its discretion in ordering a new trial. As we said in Blackwood v. Eads, 98 Ark. 304, 135 S. W. 922: “The witnesses give their testimony under the eye and within the hearing of the trial judge. His opportunities for passing upon the weight of the evidence are far superior to those of this court. Therefore his judgment in ordering a new trial will not be interfered with unless his discretion has been manifestly abused.”

Here we think the trial judge’s action to have been clearly correct. There was hardly any question about the defendant’s negligence. Just before the accident three cars were standing in line in the street, waiting for the forward car to make a left turn at an intersection. The defendant, without any apparent excuse, drove his car into the rear end of the third vehicle and propelled it with great force against the middle car, in which the plaintiff was riding as a passenger.

The plaintiff alleged that the impact caused a whiplash injury to her neck and back and also caused her to develop a severe case of diabetes. Whether the trauma could have caused diabetes was a sharply disputed question of fact, but the allegation of a whiplash injury was supported by the decided weight of the proof. Hence the trial judge did not abuse his discretion in setting aside the verdict for the defendant.

The judgment is affirmed and the cause remanded for a new trial upon the issue of damages only. Ark. Stats., § 27-2150.


author: Paul Ward, Associate Justice.

text:
    U. S. Rubber Co. v. Northern.
    5-2902
    366 S. W. 2d 186
    Opinion delivered April 1, 1963.

      Rose, Meeh, House, Barron, Nash & Williamson, by J. W. Barron, for appellant.

      Hall, Purcell & Bosivell, for appellee.
   Paul Ward, Associate Justice.

Appellee, Dalton O. Northern, operated a filling station at Benton for many years. In 1952 he entered into a written agreement with appellant, United States Rubber Company, to handle its automobile tires. Appellant guaranteed its tires against defective materials and workmanship. Under the agreement appellee was to make adjustments on tires when purchasers complained of defects. The way in which these adjustments were to be made is the real issue in this litigation.

Hoto this litigation arose. The written agreement under which the parties operated was renewed (by a new instrument) nearly every year from 1952 to 1958 but the agreement relative to adjustments is, in substance, the same in all the written agreements. During these years appellee purchased tires from appellant, resold them to his customers, and made a large number of adjustments.

When the parties dissolved their business relations in 1959, it was found that appellee owed appellant about $2,300 for merchandise purchased. Accordingly, appellee executed three notes — all payable in 1959. When appellee failed to make payment appellant filed suit on July 29, 1960. Since appellee, in effect, confessed judgment, that item is no longer an issue.

On October 28, 1960 appellee filed a counterclaim (to the above mentioned complaint) which, in effect, stated: (a) the written contract is admitted; (b) according to the written agreement the company “guaranteed unconditionally its tires and tubes against defective workmanship and material without limit as to time or mileage”; (c) according to agreement appellee was to adjust with his customers tires which were found to be defective; (d) after such adjustments the company was to reimburse appellee for all his costs and expenses in making the adjustments; (e) tires delivered to him by the company during 1955, 1956, 1957, 1958, and the first part of 1959 were for the most part defective in both workmanship and marterials and were of an inferior nature which resulted in appellee having to make numerous adjustments; (f) the cost to appellee in making these adjustments during said years was $27,533.95; and, demand for said amount had been made on and refused by the company. In reply, appellant denied every material allegation in the counterclaim.

A trial resulted in a jury verdict in favor of appellep (on his counterclaim) and against appellant for the sum of $12,600 (later, apparently, adjusted to $9,854.01).

At the close of all the testimony appellant moved for a directed verdict in its favor. The trial court denied the motion, which action, in our opinion, constituted reversible error.

The Issue. We set out below certain portions of the written agreements which are pertinent to the main issue in this case.

(a) The company’s guarantee reads:

“Every tire or tube of our manufacture, bearing our name and serial number is guaranteed to be free from defects in workmanship and material without limit as to time or mileage. If our examination shows such tire or tube has failed under the terms of this guaranty, we will either repair it or make a reasonable allowance on the purchase of a new tire or tube.” (Emphasis supplied.)

(b) Regarding adjustments the agreements provide that appellee:

“Would handle adjustments of the Company’s merchandise in accordance with the terms of its policy for adjustment in effect from time to time.
* * *
. shall refer, in accordance with the Company’s established procedure, all claims for adjustments or replacements of tires to the Company and shall await the Company’s approval and instructions before malcing any adjustment or replacement on behalf of the Company.” (Emphasis supplied.)

The agreements further provide:

“This contract constitutes the entire agreement between the parties and supercedes all prior or contemporaneous agreements, written or oral, of every sort.
“This agreement is not subject to change or modification by any verbal statements or agreements, or by trade customs of any kind, or by written communication of any kind except when signed by Sales Manager of the Company or other properly authorized person on his behalf.”

From the above it seems apparent that the written agreement invested appellant with the right to say when adjustments could or could not be made. In spite of this, however, appellee seeks now to recover from appellant for adjustments which appellant had admittedly rejected. As we understand appellee’s position he admits he cannot recover under the terms of the written agreement. We take this to be true because, at the close of his testimony, he asked the court for permission to proceed on the theory that the written agreement was changed by an oral agreement, and that such oral agreement gave him the exclusive right to make adjustments regardless of whether appellant approved or disapproved the same. There are two reasons why we cannot accept appellee’s contention.

One. Appellee bases his claim on adjustments made as early as December 14, 1955 and as recent as September 2, 1958, but he does not fix the date of the alleged oral agreement. It is apparent however that, in order to substantiate his earliest claim, the oral agreement must have been in existence prior to December 14, 1955. We find however that appellee signed a written agreement on November 25, 1957 which contains the following language:

“This contract constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements, written or oral, of every sort.”

The same language also appears in the written contract signed by the parties on January 20, 1958. The case of Dunlop Tire & Rubber Corporation v. Fred E. Thompson, et al., (Ark. 1959) 273 F. 2d 396, is very similar both as to facts and issues to the case here under consideration, and is decisive against appellee’s contention here. Pertinent here is the following paragraph found in that opinion:

“ ‘When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.’ ”

Tioo. Aside from what we have said above, we find no substantial evidence in the record to support a finding that appellant orally agreed to waive its right to reject adjustments made by appellee. There is evidence that appellee did make adjustments without first submitting the tires to appellant for its approval or disapproval, but this in no way tends to prove appellant waived its right to reject adjustments already made by appellee. The record is replete with evidence that appellant did, through the years 1955 to 1959, exercise its right to reject or disapprove adjustments previously made by appellee. Appellee could not deny but readily admitted that he knew appellant never ceased to exercise its right to reject. This was made clear by appellee’s own testimony as to how the claims for adjustments were made:

‘‘ Q. And in numerous instances the company would pay the claim and in numerous instances they would refuse the claim, is that correct?
“A. Right.
“Q. And the controversy that we are squabbling about today is the claims they did not pay, the claims the company refused, is that correct?
“A. Yes.
“Q. And that went on during the years ’57, ’56, and ’55, is that correct?
“A. Right.”

At another time appellee testified that each time he sent in an adjustment he had made and appellant declined to allow it, appellant “. . . would send me back a letter on each tire that was turned down”. In view of the above state of the record we are driven to the conclusion that the trial court should have directed a verdict in favor of appellant. The judgment of the trial court is reversed as to appellee’s counterclaim and said cause of action is dismissed.

Reversed and dismissed.


author: Sam Robinson, Associate Justice.

text:
    Ark. State Highway Comm. v. Marlar.
    5-2927
    366 S. W. 2d 191
    Opinion delivered April 1, 1963.
    [Rehearing denied May 6, 1963.]

      Dowell Anders, Thomas B. Keys, for appellant.

      Graves c& Graves, for appellee.
   Sam Robinson, Associate Justice.

The Arkansas State Highway Commission filed this suit to enjoin appellee, Steve Marlar, from interfering with the Commission in removing shade trees and building a road on property in which Marlar owns the fee. The Chancery Court issued the injunction, but as a condition required the Commission to make a bond in the sum of $10,000.00.

On appeal the Commission contends that the Chancellor erred in requiring the bond. The Complaint herein was filed on June 12, 1962; the matter was set for hearing and heard on June 22, 1962. The appellee had filed no pleading at the time of the hearing. The statutory time in which a pleading could be filed had not expired.

It developed at the hearing that a county court order had been entered in 1958 condemning for- highway purposes the property involved in this proceeding; and that another court order was entered in January, 1962 condemning the same property. The Chancellor did not reach the merits of the case, but simply required the Highway Commission to make a bond to protect the property owner in the event it should develop at a hearing-on the merits that he was entitled to recover damages. It may develop that Marlar is bound by the 1958 order; that he filed no claim within a year and is not entitled ¿o recover damages. On the other hand, it maji be that Nevada County or the Highway Commission will have to reimburse him for damages sustained by the taking under the 1962 order.

Appellant made the required bond, thereby putting the restraining order into effect and has, therefore, accepted the benefits of the decree. Presumably, the shade trees have been removed, the road has been widened, and Marlar has suffered all the damages he will ever suffer by reason of the restraining order having been issued. In these circumstances, by making the bond the appellant is estopped to say that the Court erred in requiring the bond.

The general rule is that one cannot accept the benefits of a decree and question its validity. Baker v. Adams, 198 Ark. 482, 129 S. W. 2d 597; Mathis v. Litteral, 117 Ark. 481, 175 S. W. 398; Bolen v. Cumby, 53 Ark. 514, 14 S. W. 926. In 2 Am. Jur. 974 it is said: “The general rule ... is that a litigant who has, voluntarily and with knowledge of all the material facts, accepted the benefits of an order, decree, or judgment of a court, cannot afterwards take or prosecute an appeal or error proceeding to reverse it.”

In the case at bar, appellant could not have gone on the property and destroyed the shade trees and widened the road, pending appeal, without making the bond as provided in the court order, which the appellant chose to do. In these circumstances, appellant is now estopped to say that the Court erred in requiring the bond.

The appeal is dismissed.

MoFaddin, J., not participating.


author: Jim Johnson, Associate Justice.

text:
    Allen v. Overturf.
    5-2944
    366 S. W. 2d 189
    Opinion delivered April 1, 1963.

      M. D. Anglin, for appellant.

      J. E. Simpson, for appellee.
   Jim Johnson, Associate Justice.

This is a suit for damages allegedly sustained by appellants, Frank C. Allen and Laura E. Allen, as a result of alleged false representations of appellee, Elmer Overturf, a real estate broker. In 1958 appellee showed appellants some farm property near Green Forest which appellants contracted to purchase the same day, and thereafter took possession. In 1960 appellants filed this suit against appellee, alleging that appellee had knowingly falsely represented to appellants that there was plenty of water on the farm, that as a result of relying on these representations and buying the farm, appellants had to have a well drilled, stock pond built, and otherwise suffered damage to the total extent of $6,687.50. Appellee answered, denying the allegations and pleaded affirmatively that appellee had been relieved of any responsibility by the following provision in the escrow (purchase) agreement:

“Purchasers herein agree and state that they have personally viewed and inspected the above described property and hereby release and relieve Elmer and Fay Overturf of and from any responsibility regarding said sale and property, except as herein stated.”

and cross-complained for $5,000.00 damages for slander in filing the action.

On July 20, 1961, after submission of appellants’ evidence to the court and jury, the trial court directed a verdict for appellee on the ground that appellants had relieved appellee of any liability in the escrow agreement. Appellants appealed, and this court reversed the trial court, stating in its mandate that “The court erred in directing a verdict as testimony introduced was sufficient to raise a jury question as to whether there was fraud on the part of the appellee. ’ ’ See Allen v. Overturf, 234 Ark. 612, 353 S. W. 2d 343.

On retrial, the jury found for appellee on the complaint and appellants on the cross-complaint, and judgment was entered accordingly, from which this appeal was taken. For reversal, appellants rely on six points, none of which are discussed, for the reason hereinafter stated.

The procedural rules of the Supreme Court are designed to foster efficient and intelligent review of the cases presented on appeal. For the expedition desired by all litigants and attorneys, this court has provided that appellant should abridge the pleadings, proceedings, facts, documents, and other matters contained in the record and necessary to an understanding of the questions presented to this court. This abstract we deem far more desirable from the standpoint of the court’s time as well as appellant’s purse, than requiring multiple copies of the record. Obviously it is impractical and inefficient to expect each of the seven justices to have to minutely examine the usually-voluminous record in each of the seven or more cases assigned each week. Hence the provision in Rule 9 that:

“The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.” [Emphasis ours]

Appellants have attempted to abstract a 129-page record into five pages of their brief. While we can visualize instances where such succinctness would be an adequate or ample abstract of the pertinent record, in the case at bar the condensation of the record contained in the abstract and brief is insufficient for the members of this court to reach that understanding of the questions presented necessary for a decision.

We remind the Bar:

“We are not required to explore the one record (transcript) that is presented to us, this duty rests on appellant, and it is further his duty, as indicated, to furnish this court such an abridgement of the record that will enable us to understand the matters presented. This he has not done.’ Ellington v. Remmel, 226 Ark. 569, 293 S. W. 2d 452; Porter v. Times Stores, Inc., 227 Ark. 286, 298 S. W. 2d 51.

For such failure, we have no choice but to affirm the judgment of the trial court. Commissioner of Labor v. Danco Construction Co., 226 Ark. 797, 294 S. W. 2d 336; Griffin v. Mo. Pac. Rd. Co., 227 Ark. 312, 298 S. W. 2d 55; Farmers Union Mut. Ins. Co. v. Watt, 229 Ark. 622, 317 S. W. 2d 285; Royster v. Royster, 233 Ark. 20, 342 S. W. 2d 302, Anderson v. Stallings, 234 Ark. 680, 354 S. W. 2d 21.

Affirmed.


author: Frank Holt, Associate Justice.

text:
    City of Piggott v. Eblen.
    5-2951
    366 S. W. 2d 192
    Opinion delivered April 1, 1963.

      Trantham £ Knauts, by Hugh W. Trantham, for appellant.

      Kirsch, Cathey £ Brown, for appellee.
   Frank Holt, Associate Justice.

The appellant, the City of Piggott, Arkansas, enacted Ordinance 209 declaring that: “ * * * Pinball machines or other gaming devices are a public nuisance * * * ”. The ordinance further provides that it is unlawful for any business establishment or individual to possess pinball machines in any manner within the city. A violation of this ordinance is punishable by a fine of not less than $5.00 nor more than $25.00 per day.

The appellee, Mrs. Dena Eblen, doing business as Paragould Music Company, is the owner of coin operated pinball machines which she had placed on the business premises of the other appellees, Henry C. Martin, doing business as A & W Root Beer Stand; Raymond Arehart, doing business as Ray’s Drive-In; and Amos Latta, doing business as Mohawk Cafe and Latta’s Service Station. These appellees, the machine owner and location owners, brought suit in chancery court seeking injunctive relief and a declaratory judgment invalidating the ordinance.

Appellant, a City of the Second Class, in its response denied that pinball machines are classified in the ordinance as gaming devices and alleged that minors [school children] were permitted to use them and play them in such a manner as to constitute a public nuisance. Appellant contended that it had the power and authority to enact and enforce the questioned ordinance.

The chancery court held the ordinance unconstitutional as being contrary to the Constitution and Statutes of Arkansas by classifying pinball machines as gaming-devices and prohibiting them within the limits of the city. The court permanently enjoined the appellant from enforcing the ordinance as to pinball machines and amusement games as defined by Ark. Stat. § 84-2611. From this decree appellant brings this appeal.

On appeal it is the conteniton of appellant that the ordinance, declaring the possession and operation of pinball machines to be a public nuisance, is not contrary to the Constitution and the Statutes of Arkansas and, further, that a nuisance per se did in fact exist by reason of the operation of pinball machines within the limits of the city.

Appellees and appellant agree by their pleadings that the gross receipts from the pinball machines are distributed equally between the machine owner and the location owner; that the machines are coin operated and permit the person operating the machine, upon deposit of a coin therein, to play a game by the shooting of marbles or round objects which, depending upon the skill of the operator, will register various scores and record them upon the machine; that neither the machine owner nor the location owner pay any rewards for the scores except that free games are given upon certain specified scores being registered; and that the appellees have paid all city and state license fees imposed by both the city and state.

The question presented is whether the appellant has the authority to enact and enforce this ordinance. We have had occasion in many cases to define the extent of the powers of municipalities in our state. We have consistently followed the definition which was reiterated in Yancey v. City of Searcy, 213 Ark. 673, 212 S. W. 2d 546, in the following language:

“It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.” [Emphasis ours]

Also see Arkansas Utilities Co. v. City of Paragould, 200 Ark. 1051, 143 S. W. 2d 11; 37 Am. Jur., 722.

The function and purpose of a municipal government was succinctly expressed in Cumnock v. City of Little Rock, 154 Ark. 471, 243 S. W. 57, where we find this principle of law quoted by this court with approval:

* * Municipal corporations are created to aid the State Government in the regulation and administration of local affairs. They have only such powers of government as are expressly granted them, or such as are necessary to carry into effect those that are granted. ’ ’

With this well established principle of law before us we now proceed to review legislation in our state on the subject of coin operated amusement devices. Act 167 of 1931 [Ark. Stat. 84-2601] provides that the business of owning, operating, or leasing such machines is a privilege for which licenses can be required and taxes imposed. Its validity was approved in Thompson v. Wiseman, 189 Ark. 852, 75 S. W. 2d 393. Act 137 of 1933 [Ark. Stats. 84-2602] defines such machines as: “ * * * any machine, * * * which is operated by placing in same through a slot, or any kind of opening or container, any coin, * * * before such machine operates or functions.”

Act 201 of 1939, as amended, [Ark. Stat. 84-2611] specifically provides that amusement games played on pinball machines are lawful even though free games be given upon certain scores being made. This Act provides in pertinent part:

“Amusement games shall include such games as Radio Raffles [Rifles], Miniature Football, Golf, Baseball, Hockey, Bumper, Tennis, Shooting Galleries, Pool Tables, Bowling, Shuffleboard, Pinball Tables, Marble Tables, and other Miniature games whether or not it shows a score and not hereinafter excluded in Section 3 [§ 84-2612] hereof, and where the charge for playing is collected by a mechanical device. The terms ‘any money or property,’ or ‘other articles,’ or ‘other valuable thing,’ or ‘any representative of anything that is esteemed of value,’ as used in the anti-gambling statutes * * * shall not be expanded to include a free amusement feature such as the privilege of playing additional free games if a certain score is made on a pinball table and on any other amusement games described in this section.’ [Emphasis added]

This same Act [Ark. Stats. 84-2613 — 2617] provides for the imposition of a privilege tax by the state at $5.00 per machine annually and, also, permits municipalities to tax the pinball machines provided the municipal tax does not exceed that imposed by the state. This Act [Ark. Stat. 84-2614] further provides that where the state tax has not been paid the machine is declared to be a public nuisance subject to seizure and sale by the state upon an order by the Pulaski Chancery Court if the owner does not redeem the machine within ten (10) days by paying the tax due and the costs. No such power is granted to municipalities if a municipal tax is not paid. Act 60 of 1949 [Ark. Stats. 41-1122 — 1123] makes it unlawful to permit any person under eighteen (18) years of age to play or operate a pinball machine and provides for a fine of not less than $25.00 and not more than $500.00 for violation thereof. Act 120 of 1959 [Ark. Stat. 84-2622] provides that the business of owning, operating, or leasing coin operated devices is a privilege subject to a state tax, and Ark. Stat. 84-2625 imposes an annual license fee of $250.00 and expressly prohibits any municipality from levying such a privilege tax on the basis of this Act.

Thus, it is readily apparent that a conflict exists between the questioned ordinance and the statutes. In Shipley Baking Co. v. City of Hartford, 182 Ark. 503, 31 S. W. 2d 944, the municipality adopted an ordinance requiring payment of a fee for inspecting food sold in the city. The Legislature had conferred upon the State Board of Health the power to inspect bakeries and regulate the sale of their products. There our court said:

“* * * the statute giving the power of regulation in the sale of foods and drinks was paramount, and that it is elementary law that a municipal ordinance, in so far as it conflicts with the statute, is invalid. The rear son is that the statute of the State operates within the limits of the municipal corporation the same as it does elsewhere, and that local laws and regulations are at all times subject to the paramount authority of the Legislature. Hence, ordinances of cities and towns inconsistent with statutes on the same subject must be held of no effect unless they are authorized by an express legislative grant.” [Emphasis added]

When we apply, in the case at bar, the long recognized rule governing municipal powers, as announced in the cited cases, we must agree with the trial court that the ordinance in question is in conflict with our state statutes on this same subject. The statutes of our state, being paramount and supreme, have pre-empted the appellant in this field of legislation and, therefore, render the ordinance a nullity.

The appellant contends that the use of the pinball machines by minors [school children under eighteen (18) ] constitutes a public nuisance and, therefore, pursuant to Act 24 of 1897 [Ark. Stat. 19-2305] empowering municipal corporations to prevent and abate nuisances the city can validly abate the alleged nuisance by this ordinance. In this case three adult witnesses testified that they had observed children under the age of eighteen (18) playing these machines between school hours. Two of these minors testified that they had played the machines on many occasions. There is no evidence of gambling on these machines. Appellant is not empowered, of course, to declare something to be a public nuisance which the state has clothed with legality because the state law is paramount and supreme. Therefore, this contention is not valid.

Further, we have held in many cases that the mere declaration in a city ordinance that a certain act constitutes a nuisance does not make it such in fact. Ward v. City of Little Rock, 41 Ark. 526; Town of Arkadelphia v. Clark, 52 Ark. 23, 11 S. W. 957; Merrill v. City of Van Buren, 125 Ark. 248, 188 S. W. 537; Wilkins v. City of Harirson, 218 Ark. 316, 236 S. W. 2d 82; Arkansas State Board of Architects v. Clark, 226 Ark. 548, 291 S. W. 2d 262. In Town of Dardanelle v. Gillespie, 116 Ark. 390, 172 S. W. 1036, the city adopted an ordinance declaring the keeping of a pool hall in the city limits to be a nuisance and prohibited the keeping or operation of such. In declaring this ordinance invalid the court said:

“* * * not being nuisances per se, town councils would have no authority to prohibit their maintenance, unless that authority was conferred by express legislative enactment, or unless their maintenance was made unlawful by the laws of the State.”

We have held that although pool halls might be regulated by a city council to prevent them from becoming public nuisances, such authority would not permit a city to suppress completely the existence of a lawful business by imposing an annual fee of $600.00 and requiring a bond of $1,000.00 conditioned upon the observance of certain regulations. Bryan v. City of Malvern, 122 Ark. 379, 183 S. W. 957.

Declaring pinball machines to be illegal is a subject which addresses itself to the wisdom of the legislature. It is not the function or within the power of this court to invade the constitutional authority of the legislature, a coordinate branch of our government. The fact that this ordinance cannot stand does not leave appellant helpless and disarmed in suppressing the alleged illegal acts. It is not denied in this case that no request or effort was ever made to invoke any of our penal laws that might be applicable to the facts in this case. The statutes which presently legalize the existence of pinball machines also make it a violation of the law to permit any person under eighteen (18) years of age to play them. [Ark. Stats. 41-1122 —1123, supra] The owners of those establishments which permit children under eighteen (18) years of age to play these machines are subject to these provisions.

The trial court was correct in declaring the questioned ordinance invalid as being contrary to the Constitution and Statutes of this state. The decree is affirmed.

       “Nothing herein contained shall be deemed to legalize, authorize, license or permit any machine commonly known as slot machines, Roscoes, Jackpots or any machine equipped with any automatic money payoff mechanism.”


author: Cableton Habéis, Chief Justice.

text:
    Clay v. State.
    5066
    366 S. W. 2d 299
    Opinion delivered April 8, 1963.

      Shaver & Shaver, for appellant.

      Bruce Bennett, Atty. General, by Richard B. Adkisson, Asst. Atty. General, for appellee.
   Cableton Habéis, Chief Justice.

Sam Henry Clay was charged with the crime of burglary, the information alleging that Clay unlawfully broke and entered a house belonging to the prosecuting witness herein, and located in the city of Wynne, with the intention to commit a felony. After the court appointed counsel to represent appellant, a motion was filed for a Bill of Particulars, and the Prosecuting Attorney provided the information that the felony referred to was the offense of rape and/or sodomy. A plea of not guilty was entered and on trial Clay was found guilty of the offense of burglary, but the jury was unable to agree upon his punishment. Thereafter, the court fixed the punishment, and sentenced Clay to a term of 21 years in the Arkansas State Penitentiary. Prom the judgment so entered, appellant brings this appeal. Por reversal, two points are relied upon, first, that the evidence is insuffieient to show that appellant unlawfully broke into or entered the borne of the prosecutrix, and second, the evidence is insufficient to show the criminal intent necessary to convict appellant of burglary. These points will necessarily have to be discussed together as the evidence offered by the state bears upon each separate contention.

The testimony reflects that the prosecuting witness received a telephone call on a Thursday afternoon, the party at the other end of the line inquiring if he could speak to a Miss Gats singer. Upon being informed that no one lived at the residence by that name, the party said, "No, don’t you remember, I talked to you in the saloon yesterday.” The prosecutrix then advised the caller that he had the wrong number, and hung up.

The prosecuting witness awakened around 6:10 on the morning of March 4, 1962. She heard someone walk up the steps to the house, which she took to be the paper boy, and, thinking nothing about it, ‘ ‘ dozed for about 10 more minutes. ’ ’ She awakened of a sudden and turned on her light. "I do not know why. When I did, I saw this much of somebody. Not their head, but saw their arm, like this, around the bannister of my stairs, the thing that holds up the stair steps. ’ ’ She stated that a glove was on the hand that she saw, and when she yelled, "Who are you, and what do you want?”, the person fled. She then observed that the front door was ajar, but did not see anyone. Around two hours later, the witness received a telephone call and the person on the telephone apologized for coining to her house, for doing what “he had did,” and stated he was sorry and meant no harm, but ‘ ‘ had to see ’ ’ the prosecutrix. He inquired if she would meet him somewhere, and made other remarks, to which she replied, “You get across town with your kind. ’ ’ The witness testified that she recognized the voice of the caller as the same man who had called on Thursday; immediately thereafter, she notified the Chief of Police and gave him the information which has been herein related.

The witness stated that on the same day, she found on the steering wheel of her car a paper (gross receipts tax monthly report form) which contained the following item of printing, “I am playing this while you are sleeping” (referring to radio). She also stated that her car would not start because the battery had ‘‘run down. ’ ’ This paper also was turned over to the Police Department.

The evidence reflects that on March 7, the prosecuting witness received a paper back book through the mail, entitled “Another Kind of Love.” The inside cover and first page contained filthy and obscene language which had been printed by pencil, and which included the following phrase, “The same thing Laura (one of the characters in the book) want to — do to — this other girl is what I want to do to you........................” (Here appeared the given name of the prosecuting witness.) Enclosed in the book Avas a printed letter Avhich requested her to meet the writer of the letter at the ice plant. This book was likewise turned over to the authorities. About a month later, appellant was taken into custody. Among his personal effects was a card which had been issued to him by the Cross County Department of Public Welfare entitling appellant to food assistance. On the back of this card appeared a telephone number which Kenneth ShaAv, the Chief of Police at Wynne, testified was the telephone number of the prosecuting witness. Other exhibits were offered in evidence which were taken from Clay’s personal effects, but a discussion of these exhibits is not necessary in determining whether there was sufficient evidence to sustain the conviction.

Clay made a statement to Shaw in the presence of State Patrolman W. A. Tudor, which was reduced to writing and offered in evidence at the trial. According to these policemen, the statment was voluntarily made; Clay was not threatened, abused or coerced in any manner, and no promises were made to induce the giving of the statement. The officers testified that appellant was advised that he could'have an attorney, but Clay declined the offer. In his statement, which was introduced into evidence, Clay related that he went to the home of the prosecuting witness on a Saturday night, sat in her car for a while (which was parked in the driveway), and at that time printed the words on the paper which she subsequently found on,the steering wheel. He stated that the next morning (about 8:00 o’clock) he went back to the house and knocked on the front door, and upon doing so, the door “came open because it wasn’t shut good.” He said that he “stuck” his head in the door, but turned around and left when the prosecutrix came to the head of the stairs.. He then stated that he called her On the telephone and told her that he was sorry for coming to the house; that he kept thinking about her and “wanted to be with her,” and on the next day, he printed a letter which he sent to her, together with the book heretofore mentioned. Clay admitted printing words to the effect that he desired to commit the act of sodomy upon her, but stated, “I didn’t really mean all of this stuff.” Subsequently, according to the testimony of the police chief, Clay denied that he had gotten into the car belonging to the prosecutrix or that he had gone to her house. Appellant subsequently told the officers that a white man had told him to write the letter and mail it and had given him $2.00 for doing so. However, Clay later gave a statement to Deputy Sheriff Ivy Bingold and Officer Tudor to the effect that these last statements were not correct. Ringold testified that Clay reiterated the truth of the original statement, i.e., that he sent the book, printed the words in the book, and had intended to do to the prosecuting witness what he had printed. As the deputy quoted Clay, ‘ ‘ That was my intention, but now it is not. ’ ’

Eddis Heath, a barber of Wynne, testified that appellant was employed by him in February and March of 1962, as a shoe shine boy. Heath stated that he saw the book, “Another Kind of Love,” in the possession of appellant, and also saw the hand printing on the inside of the cover and the first page; that Clay put the printing-in the book around the last of February. Heath also testified that he saw Clay printing a letter, which was done at the same time the printing was placed in the book. The barber said that he picked up both the book and letter and glanced at them, noticing the printing, but did not read the contents. He testified that the last time he saw appellant with the book, the latter was “wrapping it up” in paper similar to Exhibit 1, placed in evidence by the State.

Four letters were offered in evidence which Clay purportedly had written to the prosecuting witness. These letters bear the signature of ‘ ‘ Sam Henry Clay, ” “ Samuel H. Clay,” and “Sam H. Clay.”

No evidence was offered on behalf of the appellant.

To summarize, we have the testimony of the prosecuting witness that a person did unlawfully enter her home; that she received a call on Thursday, and a call on Sunday (following- the entry) from a person seeking a date; that she received the book, “Another Kind of Love, ’ ’ which contained hand printed matter (wherein the person doing the printing- expressed the desire to commit the act of sodomy upon her); she found the printed note on the steering- wheel, the note indicating that someone was sitting- in her car, playing- the radio; and the battery of her ear was “run down” to the extent that the car would not start. The testimony of Heath corroborates that Clay had the book in his possession at the shop, that he printed words in the book, and wrapped it in the manner in which it was received by the prosecuting witness. The testimony of the Chief of Police, Kenneth Shaw, established that the telephone number of the prosecuting witness was found in the possession of appellant, and appellant admitted the acts herein enumerated. We have held that the extrajudicial confession of a defendant, accompanied by proof that the offense charged was actually committed by someone, will warrant a conviction. Monts v. State, 233 Ark. 816, 349 S. W. 2d 350; Ezell v. State, 217 Ark. 94, 229 S. W. 2d 32, and cases cited therein. Here, of course, there are several facts that corroborate the admissions of the appellant. We think the testimony is sufficient to establish that Clay unlawfully, and with the intent to commit a felony, entered the home of the prosecuting witness. We have held that the offense of burglary is complete even though the intention to commit a felony is not consummated. Thomas v. State, 107 Ark. 469, 155 S. W. 1165, and cases cited therein. The prosecutrix testified positively that the intruder was coming up the stairs, that she saw part of his body, and that he fled when she screamed. Clay admitted his presence at the house on this Sunday morning, though he stated that he only ‘ ‘ stuck ’ ’ his head in the door. We think the evidence is sufficient that Clay entered the premises for the purpose of committing a felony, viz., sodomy. As stated in Duren v. State, 156 Ark. 252, 245 S. W. 823, “It is not essential that the state prove by direct evidence an intention to commit a felony, for this fact may be, and generally is, established by proof of circumstances which indicate the intention of the burglar***”. We are of the opinion that the circumstances herein set out constituted evidence of a substantial nature, and justified the jury in reasonably finding that Clay entered the home with the intention to commit a felony.

No contention is made that the confession was unlawfully obtained, and no ruling of the court which would constitute prejudicial error, is asserted. It is simply contended that the evidence is not sufficient to establish that Clay entered the home, or that he entered with the intention to commit a felony. As herein stated, we find no merit in these contentions.

The judgment is affirmed.

Holt, J. not participating.

       The witness originally testified that the date was February 11, and the information charged that the offense was committed on that date. It developed, however, during the trial that she was confused about the date, and the proper date was undoubtedly March 4. The prosecuting witness subsequently testified that she reported the occurrence to the Chief of Police on the same day that it occurred, and if his records reflected March 4, “they would be correct.” Out of hearing of the jury, the state moved that the information be amended to conform to the proof, i.e., to change the date accordingly, and counsel for appellant objected.
      The court then inquired, in case it permitted the information to be amended, if counsel desired time within which to produce evidence concerning the change in date. This request was not made by appellant, and the court stated: “The court would' not permit the information to be amended to reflect a different date if it appeared that such a change would materially and substantially prejudice the defendant’s defense in this case. The reason that the court made the previous inquiry was so that it could be informed as to, whether or not, a delay in the immediate proceedings would, in the judgment of counsel for the defendant, enable them to provide evidence which might be productive of some recognizable defense. The question is one rather of fact than of law, and in the absence of a specific request for a continuance to some future time certain, the court will permit the information to be amended as indicated to conform to the proof introduced in the court.”

       The name and address of another person also appeared on the back of the card, but apparently have no connection with the instant charge.

       This exhibit consisted of the book, and paper in which it was wrapped.

       This term has been used throughout the opinion, interchangeably with “prosecuting witness” to prevent embarrassment to the intended vitcim, though, of course, the state is the actual party.


author: En. F. McFaddin, Associate Justice.

text:
    Pickens v. State.
    5061
    366 S. W. 2d 283
    Opinion delivered April 8, 1963.
    No brief filed for appellant.

      Bruce Bennett, Atty. General, by Jack Holt, Jr., Asst. Atty. Gen., for appellee.
   En. F. McFaddin, Associate Justice.

The jury found the appellant, Elvis Pickens, guilty of the crime of knowingly receiving stolen property (§ 41-3934 Ark. Stats.), and fixed his punishment at five years in the penitentiary. From a judgment on the verdict and an unavailing motion for new trial there is this appeal. The motion for new trial contains nine assignments, but we find it necessary to consider only such assignments as relate to the action of the Court in submitting the case to the jury on the charge of knowingly receiving stolen property.

On the morning of April 11, 1962, Mr. Hale found that a plateglass window had been broken in his store and three power saws had been taken. Each of these had a value of $150.00 or more. About 11:00 o’clock the same morning, the appellant, Elvis Pickens, tried to sell one of these power saws for $25.00 to the manager of the Economy Lumber Company. Pickens carried the saw to the Lumber Company store; while the attempted sale was in progress the officers arrested Pickens; and Hale identified the saw as one of the three that had been stolen from his store. Pickens admitted he knew that the saw was stolen, and took the officers to his home and showed them the other two stolen saws concealed in the house. Pickens claimed — so the officers testified — that three men (two of whom he named) brought the saws to his home in the night time, telling him that they were stolen, and offering to give him one of the saws for concealing the other two. The law enforcement officers were never able to find either of the named men, if there were such persons. Mr. Hale identified all three of the saws as stolen from his store, and they were returned to him.

The appellant and another man were brought to trial on an information which contained only two counts. The first count charged burglary (§ 41-1001 et seq. Ark. Stats.) in breaking and entering the store of Hale with intent to commit larceny; and the second count in the indictment charged the offense of grand larceny (§ 41-3901 Ark. Stats.) in the stealing and taking away of the property of Hale in excess of the value of $35.00 (§ 41-3907 Ark. Stats.). There was no count in the indictment'charging the appellant or the other man being tried with the crime of knowingly receiving stolen property (§ 41-3934 Ark. Stats.). When all the evidence had been heard, the Court charged the jury on the crimes of (1) burglary, (2) larceny, and (3) knowingly receiving stolen property. The jury acquitted the other defendant of all three crimes; and the jury acquitted the appellant Pickens of the crimes of burglary and larceny, but convicted him of the crime of knowingly receiving stolen property; and it is this submission of the issue — of knowingly receiving stolen property —that is now before us.

The appellant’s attorneys objected most strenuously to the Court submitting the case to the jury on the charge of knowingly receiving stolen property, pointing out that the information on which the appellant was tried had only two counts — that of burglary and grand larceny — and had no count charging the offense of knowingly receiving stolen property. We are thus presented with the question of whether the defendant may be convicted of the offense of knowingly receiving stolen property when no count in the information charged that offense.

It is axiomatic that a defendant cannot be convicted for an offense of which he is not charged. In Thornhill v. Ala., 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093, the Court quoted from an earlier case: ‘ ‘ Conviction upon a charge not made would be a sheer denial of due process.” The Supreme Court of South Carolina in State v. Cody, 186 S. E. 165, used this language:

“In all criminal prosecutions, the defendant has a constitutional right to be informed of the accusation against him; and it is a rule of universal observance in administering the criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment. It would be contrary to all rules of procedure, and violative of Ms constitutional right, to charge him with the commission of one crime and convict him of another and very different one. He is entitled to be informed of the accusation against him, and to be tried accordingly. State v. Harbert, 185 N. C. 760, 118 S. E. 6.”

Of course, when a defendant is charged and tried on a greater offense, he may be convicted of a lesser offense included in the greater offense. Some examples showing this rule are: (a) trial on a charge of first degree murder will support a conviction of second degree murder or manslaughter (McPherson v. State, 29 Ark. 225; Arnold v. State, 179 Ark. 1066, 20 S. W. 2d 189; (b) trial on a charge of rape will support conviction of assault with intent to rape (Sherman v. State, 170 Ark. 148, 279 S. W. 353). Without giving other examples, the point is clear that it is only when the lesser offense is included in the greater offense that the conviction of the lesser offense can stand ; so the question here becomes: Is the offense'of knowingly receiving stolen property (under § 41-3934 Ark. Stats.) a lesser offense of either burglary or larceny, so that an indictment or information charging only the greater offense will support a conviction of knowingly receiving stolen property?

We answer the posed question in the negative. Knowingly receiving stolen property (§ 41-3934 Ark. Stats.) is an entirely separate offense from larceny or burglary and is not a lesser offense of either. In Hughey v. State, 109 Ark. 389, 159 S. W. 1129, a defendant was charged with grand larceny; and we said: ‘‘Neither can he be convicted upon an indictment for larceny of receiving stolen property, knowing it to have been stolen.” The holdings in other jurisdictions are in accord with our own holdings on this question. In Abshire v. Gommomvealth (Ky.), 136 S. W. 2d 567, the Kentucky Court of Appeals used this language:

“The crimes of larceny and of knowingly receiving stolen property are not degrees of the same offense,.although they may be joined in one indictment under Section 127, Criminal Code of Practice; Goodin v. Commonwealth, 235 Ky. 349, 31 S. W. 2d 380. There was no count in the instant indictment charging defendant with knowingly receiving stolen property, therefore, he could not have been convicted of that offense under the present indictment. ’ ’

In 52 C.J.S. 800, “Larceny” § 5, the holdings from the various jurisdictions are summarized:

“The crimes of larceny and receiving stolen goods knowing them to have been stolen are different offenses, and not degrees of the same offense, ...”

We point out that since knowingly receiving stolen property is a separate offense from either burglary or larceny, it follows that the appellant, Elvis Pickens, has not been placed in jeopardy in this case for the offense of knowingly receiving stolen property under § 41-3934 Ark. Stats., and may still be charged and tried for knowingly receiving stolen property. In 22 C.J.S. 760, “Criminal Law” § 290, the holdings on this point are summarized :

“Larceny and receiving stolen goods. Although there is some authority to the contrary, an acquittal or conviction of larceny, or of aiding, abetting, and procuring the commission of larceny, is no bar to a subsequent indictment for receiving stolen goods, as the two crimes are separate and independent, require different facts to prove them, and the proof of either will not sustain a charge of the other. A prosecution for receiving stolen goods will not bar a prosecution for alleged theft of the same property; ...”

We therefore conclude that the Trial Court was in error in this case in submitting to the jury the question of whether the appellant was guilty of the offense of knowingly receiving stolen property; and the judgment herein is reversed. Since the appellant is on bond, the cause is remanded with directions to cancel liability on the bond; but without prejudice to the right of the State, if it so desires, to legally charge and try the appellant for the offense of knowingly receiving stolen property.

Holt, J., not participating.

       We mention some of the specific objections and exceptions made by the attorneys for the defendants: “The information in this case charges the defendants, each and both, with the offense of burglary and grand larceny; that was the accusation against them and that was the charge upon which we prepared, and the charge upon which we announced ready for trial; and we are objecting to a charge of receiving stolen property being submitted to the jury because it is not charged in the information. It is not embraced in the charge. ... We had no idea there would be an issue of stolen property involved — of receiving-stolen property; that there would be any such charge submitted to the jury. . . . And in connection with this objection they ask leave to withdraw their announcement of ready upon the case and that the Court declare a mistrial and that they be permitted a reasonable time to prepare their defense to the charge of receiving stolen property. That at no time were they apprised of the fact that they would be prosecuted for receiving stolen property and that they were entitled in advance to be so apprised. At no time were they given an opportunity to- get ready on this charge. That the defendants are entitled to know the nature of the charge against them and the theories upon which the State would seek to take this case to the jury; and that they did not in their opening statements make any statement about the case being submitted on the issue of receiving stolen property. That the defendants object and except to the action of the Court in overruling their motion to be permitted to withdraw their announcement of ready in this case, and ask for a mistrial.”

       For other instances of the lesser offense being included in the greater, see West’s Arkansas Digest, “Indictment and Information” § 189.

       For those interested in pursuing a further study of this question, we mention the following: In Re Powell (N. C.), 84 S. E. 2d 906; State v. Neill (N. C.), 93 S. E. 2d 155; Goodin v. Commonwealth (Ky.), 31 S. W. 2d 380; Aaronson v. U. S. (4th Cir.), 175 F. 2d 41; People v. Negrin, 201 N. Y. S. 2d 59; Samples v. State (Okla.), 337 P. 2d 756; State v. Dancyger (N. J.), 143 A. 2d 753; People v. Russell (Calif.), 94 P. 2d 400; and see Annotation in 136 A.L.R. 1087, entitled: “May participant in larceny or theft be convicted of offenses of receiving or concealing the stolen property.”


author: Geobge Eose Smith, J.

text:
    Martin v. State.
    5042
    366 S. W. 2d 281
    Opinion delivered April 8, 1963.
    No brief filed for appellant.

      Bruce Bennett, Attorney General, by Bussell J. Wools, Asst. Atty. General, for appellee.
   Geobge Eose Smith, J.

The appellant, Minnie Lee Martin, was charged with first degree murder, convicted of second degree murder, and sentenced to twenty-one years in prison.

The proof would have sustained a verdict of guilty upon the more serious charge. The accused, a woman of 55, and the decedent, Eosie Lee Futrell, aged 26, lived across the street from each other in Texarkana. On the morning of the homicide the two women happened to meet in the home of two neighbors, Percy Williams and his wife. Minnie Lee had recently been reconciled with her husband, Charlie Martin, after an extended separation. Minnie Lee accused the younger woman of having “gone” with Charlie and insisted that in the future she leave Charlie alone. After a brief argument Minnie Lee drew a pistol from her pocket and fired three shots at Eosie Lee, inflicting fatal wounds.

The only real question for the jury was whether the appellant acted in self defense. There is no testimony supporting this defense except the accused’s own statement that Eosie Lee was moving her hand along her dress, which led the accused to think she might be about to reach into a pocket for a knife. The jury was justified in rejecting this explanation. The deceased was apparently unarmed, while the accused had a loaded pistol. Minnie Lee testified that she was carrying the weapon because there was no lock on the door of her home; she was afraid the gun might be stolen if she left it at home. Obviously this flimsy explanation did not account for the incriminating fact that the pistol was loaded.

There was testimony that immediately after the crime the appellant voluntarily admitted' to the arresting officers that she had shot the deceased. The only timely objection to this proof was based on the fact that the accused’s declaration did not amount to a detailed confession. Even so it was competent as an admission. Reed v. State, 102 Ark. 525, 145 S. W. 206. Later on there was a motion to strike all the testimony of both officers, on the ground that the accused’s statements were not shown to have been voluntary. Even though we think the voluntary nature of the admissions to have been a question for the jury, the point is actually immaterial. Most of the officers’ testimony was clearly admissible; so in any event the motion to exclude all their testimony was properly denied. Buchanan v. State, 214 Ark. 835, 218 S. W. 2d 700.

Minnie Lee at first told the officers that she had thrown the pistol into an outdoor toilet. "When the weapon was not found there the coroner, with the permission of Minnie Lee’s husband, searched the Martin home and found the gun in a chest of drawers. We find no reversible error in the court’s action in permitting the State to introduce the pistol in evidence. Even if the weapon had been inadmissible it does not appear that the appellant could have been prejudiced. Both Percy Williams and his wife, witnesses for the State, testified that Minnie Lee shot the deceased. The two arresting officers testified that Minnie Lee admitted the shooting. As a witness in her own behalf Minnie Lee stated without hesitation that she shot Rosie Lee. The fact that the decedent was shot by the accused with a pistol has been throughout the case an undisputed fact, established by the testimony offered both by the prosecution and by the defense. We are unable to see how the appellant could have been prejudiced in any manner whatever by the fact that the jurors were permitted to see the pistol.

After the case was submitted to the jury the jurors deliberated for about an hour before being excused for’ the night. The next morning the court gave an instruction urging them to reach a verdict if they could conscientiously do so. At that point the court correctly denied the defense attorney’s request for permission to make an additional argument to the jury. Such a request is properly granted when a supplemental instruction brings into the case a new rule of law for the jury to consider, Jackson v. State, 216 Ark. 341, 225 S. W. 2d 522, 15 A. L. R. 2d 484; but here the court’s additional charge did not have that effect.

We do not find any other issue of sufficient merit to require discussion.

Affirmed.

Holt, J., not participating.