author: Darrell Hickman, Justice. Steele Hays, Justice,

text:
    Larry Wayne MILLER v. STATE of Arkansas
    CR 82-152
    660 S.W.2d 163
    Supreme Court of Arkansas
    Opinion delivered November 14, 1983

      Lessenberry & Carpenter, by: Thomas M. Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: Michael E. Wheeler, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

The death penalty decreed in this case is reduced to life without parole unless the State elects to retry Larry Wayne Miller. Prejudicial error occurred during the penalty phase of the trial. In all other respects the judgment finding Miller guilty is affirmed, the evidence being not only substantial but convincing that he killed Marilee Brewer and intended to kill James Brewer after he and a woman robbed them at their home at Little Rock, Arkansas on January 7, 1982.

After the jury found Miller guilty, the State attempted to prove as an aggravating circumstance that Miller had committed crimes on two other occasions involving an element of violence. Since the State could not produce convictions in either instance it, in effect, tried Miller for these crimes during the penalty phase of the case. The defense objected, pleading surprise, and asked for a continuance to prepare for a defense to this approach by the State. The request was denied and the State proceeded. The State’s efforts fell utterly short of the burden of proof; it had to prove, beyond a reasonable doubt, that Miller committed these aggravated robberies, one offense occurring in Missouri, the other in Alabama. The trial judge found the State’s proof that Miller had committed robbery in Alabama insubstantial and told the jury to disregard this evidence. He allowed the'jury to consider the evidence that a crime was committed in Missouri, however. The victim of that crime testified that he not only could not identify Miller at the trial, but that he did not identify him when shown photographs by an officer after the crime. The only evidence of Miller’s guilt of the Missouri crime was an officer’s testimony that at the time the victim was shown the photographs he had picked out Miller as one of his assailants. That is not sufficient evidence to support a finding beyond a reasonable doubt that Miller committed the crime — a finding which the jury made.

The penalty phase of capital murder cases ought not to be turned into a separate trial for other crimes. But the legislature has made it plain that the State can offer evidence that a defendant “committed” another crime which involves an element of violence. Before 1977, the law read: “(2) [T]he defendant was previously convicted of another capital murder or of a felony involving the use or threat of violence to the person.” [Emphasis added.]

That language was amended by Act 474, 1977, to read: “(B) [T]he person previously committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person.” [Emphasis added.]

In the Commentary to the statute it is noted: “First, the prosecution need no longer prove that the defendant was previously convicted of another offense. The prosecution may establish an aggravating circumstance through proof that the defendant previously committed another specified type of offense.”

So, it is clear the State can proceed as it did in this case. But when it attempts to prove another unrelated crime, without having evidence of a conviction, it does so at some risk and the trial court must prevent prejudicial evidence from reaching the jury. Obviously the State cannot utterly fail in its burden as it did here because the prejudice cannot be removed. The jury in this case heard evidence that merely amounted to an accusation that Miller had committed two other crimes — not substantial evidence he did so. Also, a defendant has a right to present rebutting evidence in such a case, just as in a trial. How else can a defendant be granted due process of law? That right was asked for but denied in this case. Such a procedure would not necessarily apply in a case where evidence was already before the jury that a separate but related crime was committed during the course of the commission of the capital felony charge in question. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983); See Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982).

Here the State unquestionably fell short of its burden and the jury made a finding that cannot be sustained. The trial court also refused the defendant a chance to rebut the evidence, so we have double error. Those errors, however, do not taint in any way the conviction nor prevent a lawful sentence of life without parole from being entered. A reduction in sentence will cure the error. See Neal v. State, 274 Ark. 217, 623 S.W.2d 191 (1981); Giles v. State, 261 Ark. 413, 549 S.W.2d 479, cert. denied 434 U.S. 894 (1977).

Because of these errors, the death penalty is reduced to life without parole, provided the State of Arkansas may elect within 17 days to retry the appellant rather than accept the reduction.

The other arguments will be reviewed but they are meritless.

James Brewer testified that he was a salesman of tobacco products and made deliveries on a route in Little Rock, Arkansas. When delivering he was paid with cash or checks. After work on January 7, 1982, Brewer returned to his home in Little Rock at about 5:00 p.m. He and his wife had supper and when he heard his wife talking to someone in the kitchen, he went in and found a man and woman who had apparently had car trouble and they asked to use the telephone. They all talked for several minutes. Brewer noticed that the man looked familiar but he could not place him. (It was later proved Miller had worked at a service station on Brewer’s route.) As the couple started to leave, the man turned with a revolver in each hand and ordered the Brewers into the living room where he told them to lay down on their stomachs. Brewer’s hands were tied with a cord fish stringer. He was never blindfolded. He cooperated by telling them where his money was in the bedroom and where his wife’s purse was. The man came back from the bedroom and asked Brewer to show him where the rest of the money was and Brewer went with him. Brewer was lying on the bed when he heard the man pick up a revolver off of Brewer’s chest and pull it out of a holster. Brewer testified he had a .38 and .22 revolver in the bedroom. He then heard a shot and felt the bullet hit the back of his head. He did not lose consciousness however. Shortly thereafter he heard another shot in the living room. After some time, Brewer was able to get off the bed and go into the living room where he found his wife shot and killed. He managed to free his hands and cut the bond on his wife’s hands and call the police.

On January 25,1982, less than three weeks later, Brewer was in a store on Stagecoach Road. He visited with Mr. Goss, the owner of the store, who was apparently an acquaintance of Brewer’s. Then he went to Goss’ residence. He returned to the store with the owner’s wife, who wanted to talk to him about the incident. At about 3:00 p.m., a man walked into the store and Brewer immediately recognized him as his assailant. The man walked down an aisle, stayed for just a minute, left without buying anything and then left in his car. Brewer asked Mrs. Goss who the man was and she told him it was Miller. He called the police and told them he had the name of the man who had shot his wife. He gave them a description of the car and Miller was arrested. He said he noticed that Miller had about a three week growth of beard on his face but nothing else was different. Miller’s residence was searched and the police found one red nylon fish stringer, the inexpensive kind, with a ring on one end and a sharp metal piece on the other. Brewer and his wife were tied up with similar cord fish stringers, one red and one green, except the sharp metal piece was removed. Mrs. Goss corroborated Brewer’s version of the confrontation in the store and said that Brewer was pale and nervous when he pointed out Miller to her. Testimony was offered that Miller had worked at a gas station on Asher Avenue in Little Rock for about two months in 1981 which Brewer serviced. The owner testified that he would buy between five hundred and seven hundred dollars a week from Brewer and usually paid him in cash.

The appellant argues strongly in support of other points, that the identification of Brewer was legally insufficient. The reliability of the identification was a discretionary decision for the trial court which we cannot say was wrong. Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983).

It is argued that the admission of the fish stringer was prejudicial error because it had no relevance to the murder. The police also found two cane poles when they searched Miller’s place. Obviously the fish stringer was not prejudicial per se and could not inflame the jury. Therefore, it became a question of relevance to be decided by the trial court whether it was admissible, a decision ordinarily discretionary. Rasmussen v. State, 277 Ark. 238, 641 S.W.2d 699 (1982).

“Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Unif. R. Evid. 401.

The State was able to demonstrate that the fish stringer was just like the fish stringers used to tie the hands of the Brewers. Actually, it was of the same color as one of those used to tie the Brewers. In the case of Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981), we upheld the admission of a role of black electrical tape as being relevant. It was tape similar to that used to tie the arms of a victim of a rape. It was determined to be admissible because of the similarity between it and the tape used to bind the victim, therefore making the appellant’s identity more probable than it would have been without the evidence. In this case the stringer was evidence that the State should have been able to use to show that it could have been Miller who was the killer. It was circumstantial evidence which could be considered by the jury in determining Miller’s guilt. Plummer v. State, 270 Ark. 11, 603 S.W.2d 402 (1980).

Just after the close of the evidence the trial court remarked, “Ladies and Gentlemen, we have an option and I will leave it to you. We can continue through closing arguments and let you retire to decide the first stage of the trial. .. and then come back tomorrow for the second phase of the trial.” Counsel for the appellant approached the bench and asked the court to change its last statement because it implied that there would be a second phase of the trial. The judge remarked to the jury, “If there is a second phase. Picky, lawyers are picky.” It is argued that these remarks by the judge were prejudicial and clearly indicated to the jury that the court felt Miller was guilty. There was no motion for mistrial in this case and even after the court made a correcting statement at the request of counsel, there was no motion for a mistrial. Even if it were error, it was manifestly harmless. See McCarley v. State, 257 Ark. 119, 514 S.W.2d 391 (1974).

The court gave what is commonly called an “Allen” or “dynamite” instruction when the jury returned after deliberating for five hours and indicated it was deadlocked. It is argued this was error. This instruction has been approved before and we do not overrule our prior decisions. Walker v. State, 276 Ark. 434, 637 S.W.2d 528 (1982).

Some other of the usual arguments made in death cases are perfunctorily recited.

It is argued that the findings regarding pecuniary gain, avoiding arrest and causing serious physical injury to another person are unconstitutional. As the appellant concedes, we have already answered these arguments in other cases. See, e.g., Woodard v. State, 261 Ark. 895, 553 S.W.2d 259 (1977); Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980). An objection was made to the so-called death qualified jury, which we have ruled on several times, and uniformly rejected, Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983); Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983).

Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.

Affirmed as modified.

Adkisson, C.J., and Hays, J., concur.

Steele Hays, Justice,

concurring. I take exception to that part of the majority opinion that in the penalty phase of the trial the evidence that the accused has committed other crimes must be substantial. We have said categorically that we do not require the same degree of proof that an aggravating or mitigating circumstance exists as would be required to sustain a conviction, and if there is any evidence of aggravating or mitigating circumstances, however slight, the matter should be submitted to the jury. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980). The jury must still determine beyond a reasonable doubt that the accused did commit the aggravating circumstance with which he is charged. Ark. Stat. Ann. § 41-1303 (Repl. 1977).

Moreover, we have held that even in the guilt phase of the trial, where the rules of evidence are more strict, the state can offer independent evidence that a victim identified a suspect as the offender. Martin v. State, 272 Ark. 376, 614 S.W.2d 512 (1981). Here, the majority opinion disallows that evidence in the penalty phase of the trial, where the rules of evidence are more relaxed.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    CARROLL-BOONE WATER DISTRICT and McGOODWIN, WIlLIAMS AND YATES, INC. v. M. & P. EQUIPMENT COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, and HERCULES, INC.
    83-38
    661 S.W.2d 345
    Supreme Court of Arkansas
    Opinion delivered November 14, 1983
    [Rehearing denied January 9, 1984.]

      W. S. Walker; Epley, Epley ir Castleberry, Ltd., and Friday, Eldredge ir Clark, by: Robert V. Light, for appellant Carroll-Boone Water District.

      Wright, Lindsey ir Jennings, for appellant McGoodwin, Williams and Yates, Inc.

      Herby Branscum, Jr. and Ashley ir Ashley, for appellee M. & P. Equipment Company.

      Warner ir Smith, by: Douglas O. Smith, Jr. and G. A lan Wooten, for appellee Hercules, Inc.

      Peterson, Young, Self if Asselin; James B. Blair, and Cypert if Roy, for appellee Safeco Insurance Company of America.

      Hollingsworth, J., not participating.

   John I. Purtle, Justice.

The issues of this case were submitted to a Carroll County jury on interrogatories. The jury determined that: the engineering firm of McGoodwin, Williams & Yates, Inc., proximately contributed 100% of the negligence in regard to the damages in this case; McGoodwin was the agent of the owner, Carroll-Boone; the absence of builder’s risk insurance on behalf of the contractor, M. & P., materially altered Safeco’s performance bond for M. & P.; the owner sustained damages in the amount of $639,927.33; M. & P. sustained damages in the amount of $219,279.71; and the owner still owed M. & P. $174,735. The owner, Carroll-Boone and the engineer, McGoodwin, appeal from the findings and judgment of the trial court. The arguments will be set out and discussed below. We modify the judgment and remand the case.

The facts reveal that on April 28, 1976, Carroll-Boone Water District engaged the services of McGoodwin, Williams & Yates, Inc. as engineer to plan and follow construction of a water intake structure on Beaver Lake in Carroll County, Arkansas. McGoodwin prepared the plans and specifications for the intake structure and invited bids on same. M. & P. Equipment Company was the successful bidder and as such obtained a performance bond, as required by the contract, from Safeco Insurance Company of America. The contract between the owner and the contractor dated July 27,1977, required a builder’s risk policy be obtained by the contractor. The owner and the contractor were to be insured by the policy as their interests might appear. The owner, engineer and contractor were all charged with seeing that the builder’s risk policy was obtained. Although the engineer informed the contractor that all was in order to proceed with construction, the builder’s risk policy was never procured.

After the intake apparatus was constructed it became necessary to remove the land mass between the completed structure and the lake in order to allow the water to be received by the water intake system. The area to be removed contained mostly rock and it was necessary to use blasting procedures in order to loosen the rock for removal. The contractor had originally wanted to tunnel to create an access between the water and the intake but the engineers overruled the idea and required open blasting.

M. & P. contracted with Hercules, Inc. to furnish the blasting material and a supervisor for the blasting sequences. It was agreed that the blasting would be done in three separate shots on different dates. The first two went off without any problems. The contractor, engineer, owner and Hercules were present for the first two shots. The Hercules representative was not present for the third and final blast; however, he did approve the contractor’s plans for this last shot. The contractor had prepared the completed structure in accordance with the engineers’ plans and specifications. After the third blast it was discovered that the intake unit had suffered severe damage which the contractor unsuccessfully attempted to repair. The engineer refused to give instructions for repairs but did draw up plans or solicit bids from other contractors. M. & P. spent $219,279.71 trying to repair the damage. Safeco refused to undertake repairs because no builder’s risk policy had been procured.

The owner filed suit against M. 8c P., Safeco and Hercules, and eventually filed a cross complaint against McGoodwin. M. & P. filed a counterclaim against Carroll-Boone and a third party complaint and suit for contribution against McGoodwin, alleging McGoodwin was an agent for the owner. A claim for the balance due under the contract was included in the contractor’s counterclaim against the owner. At the conclusion of the 14 day trial the matter was submitted to the jury on interrogatories. The interrogatories and the jury’s answers to them are set out as follows:

INTERROGATORY NO. 1: Do you find from a preponderance of the evidence that M. 8c P. Equipment Company was guilty of negligence which was a proximate cause of the occurrence?
ANSWER: No. DATE: 4/14/82
INTERROGATORY NO. 2: Do you find from a preponderance of the evidence that Hercules, Inc. was guilty of negligence which was a proximate cause of the occurrence?
ANSWER: No. DATE: 4/14/82
INTERROGATORY NO. 3: Do you find from a preponderance of the evidence that McGoodwin, Williams & Yates, Inc. was guilty of negligence which was a proximate cause of the occurrence?
ANSWER: Yes. DATE: 4/14/82
INTERROGATORY NO. 5: Do you find that M. & P. Equipment Company breached its agreement with Carroll-Boone Water District to build the project in accordance with the plans and specifications which failure resulted in damages to Carroll-Boone Water District?
ANSWER: No. DATE: 4/14/82
INTERROGATORY NO. 6: Do you find that Jack Barton was incompetent to perform the work that he undertook in connection with the blasting on this project, and that such incompetence was a proximate cause of the occurrence?
ANSWER: No. DATE: 4/14/82
INTERROGATORY NO. 8: Do you find from a preponderance of the evidence that during the course of the project McGoodwin, Williams & Yates was acting as the agent of Carroll-Boone Water District?
ANSWER: Yes. DATE: 4/14/82
INTERROGATORY NO. 9: Do you find from a preponderance of the evidence that the absence of builders risk insurance for the project constituted a material alteration to the contract bonded by Safeco?
ANSWER: Yes. DATE: 4/14/82
INTERROGATORY NO. 10: State the amount of any damages (exclusive of liquidated damages as provided in the contract between Carroll-Boone and M. & P.) which you find from a preponderance of the evidence were sustained by Carroll-Boone Water District as a result of the damage to the intake structure.
ANSWER: $639,927.33 DATE: 4/14/82
INTERROGATORY NO. 11: State the amount of any liquidated damages as provided in the construction contract which you find from a preponderance of the evidence Carroll-Boone Water District is entitled to recover from M. & P. Equipment Company, Inc.
ANSWER: None. DATE: 4/14/82
INTERROGATORY NO. 12: State the amount of any damages which you find from a preponderance of the evidence were sustained by M. & P. as a result of the occurrence.
ANSWER: $219,279.71 DATE: 4/14/82

The court then entered judgments as follows:

Carroll-Boone was awarded judgment against McGoodwin in the amount of $639,927.33 for their negligence;
M. & P. was awarded judgment against Carroll-Boone for the sum of $219,279.71 and Carroll-Boone the same amount over against McGoodwin;
M. & P. was awarded $174,735 against Carroll-Boone for the unpaid balance on the construction contract;
The complaint and all cross complaints against Safeco were dismissed;
The complaint and cross complaints against Hercules, Inc. were dismissed.
Carroll-Boone’s complaint and all cross complaints against M. 8c P. were dismissed, and all costs were assessed against McGoodwin.

Carroll-Boone and McGoodwin moved for judgments N.O. V. and for a new trial which motions were denied by the court. Both parties then gave notice of appeal. We do not set out each argument for reversal as they will be discussed separately. The judgments will be affirmed as modified.

The first argument is that the court erred in permitting the jury to decide the question of agency between the owner and the engineer. This question was presented to the jury as interogatory No. 8 and was answered in the affirmative. It is insisted by appellants that no factual issue on the question of agency developed during the trial. The contract between the owner and the engineer was a standard form used by most architect/engineers. The contract provided, among other things, that the engineer would perform studies, design and prepare plans and specifications, and furnish engineering surveillance and inspection during construction of the project. All of these duties were set out in detail in the body of the contract but we do not set them out because after reviewing the contract we are of the opinion that it does not of itself create an agency relationship. We will have to look elsewhere to determine if other factors created an agency situation. We have searched the record and cannot find evidence that McGoodwin did anything other than that prescribed in its contract with the owner.

The parties have all relied on our previous decisions relating to the relationship between and owner and architect/engineer. In the case of Erhart v. Hummonds, 282 Ark. 133, 334 S.W.2d 869 (1960), we affirmed a judgment against the architect who was by express contract supervising construction of the job for the owner. This supervision was in addition to the duties of an architect as provided in the standard architect/engineer contract. There was no such additional agreement in the present case. In Inc. Town of Bono v. Universal Tank & Iron Works, 239 Ark. 924, 395 S.W.2d 330 (1965), we held that the standard language used in the architect/engineer contract did not create an agency relationship whereby the architect/engineer could bind the owner in attempting to grant an extension of time to the contractor within which to complete the project. In Bono we stated:

The architect’s authority is limited. He may not direct the work to be done otherwise than is provided by the plans and specifications, except as he has been given authority to do so therein or by the contract.

In Walker v. Wittenberg, Delony & Davidson, Inc., 241 Ark. 525, 412 S.W.2d 621 (1966), we considered the liability of an architect to an injured employee of a contractor. Upon rehearing we held that before an architect could be considered to be exercising direct control of a contractor with respect to day to day safety supervision such agreement must clearly appear from the terms of the agreement, the conduct of the parties or the nature of the work. Walker v. Wittenberg, Delony & Davidson, Inc., 242 Ark. 97, 412 S.W.2d 621 (1967). However, agency was not considered in Walker II. In Erhart, supra, there was an inherently dangerous condition included in the construction project and the architect had knowledge that the condition needed immediate attention. Furthermore the architect’s employee was actively involved in bringing about the injuries. Walker I is of little value because on rehearing we decided it differently. In Walker II we held that the architect was not exercising control over a contractor by the terms of the contract between the owner and the architect. The contract in Walker II appears to be the same as the contract in the present case. Therefore we hold that before an architect/engineer becomes an agent for the owner such authority must be contained in the terms of the contract, the nature of the work, or the conduct of the parties. There being no such evidence in the present case, we hold it was error to submit the matter to the jury.

The second issue we consider is whether the trial court improperly presented to the jury the question of material alteration of the contractor’s agreement to obtain a builder’s risk policy. Interrogatory No. 9, answered affirmatively by the jury, was whether the absence of a builder’s risk policy constituted a material alteration to the contract with Safeco, as surety on the contractor’s performance bond. The contract between the owner and contractor provided that work would not commence until all required insurance was in force. Builder’s risk insurance was not taken out by the contractor. The effective date of the builder’s risk was to be when the owner had any insurable property at the site. By the terms of the contract the builder’s risk was not necessary before work commenced even though one clause seemed to indicate otherwise. In any event, it should have been in force on the date the structure was damaged. The contract required the owner to approve all insurance policies. Apparently none of the parties to this action realized the builder’s risk coverage had not been procured until after the loss. Mr. Sweeney was an agent for Safeco and as such issued the performance bond guaranteeing performance by the contractor. The contractor relied upon Sweeney to place the builder’s risk policy in force at such time as the owner acquired an insurable interest. Therefore, Safeco is charged with notice such as was had by Sweeney, who was receiving progress reports from Mr. Patton (contractor) on a regular basis. Standard Motors Finance Co. v. Mitchell Auto Co., 173 Ark. 875, 293 S.W. 1026 (1927). Sweeney was aware of the requirement for builder’s risk coverage.

The problem presented here is whether Safeco’s performance bond contract was materially altered or whether there was simply a breach of contract. In determining whether an alteration is material the courts look to see whether the surety has been placed in a position different from that which it promised to guarantee. National Bank of Eastern Arkansas v. Collins, 236 Ark. 822, 370 S.W.2d 91 (1963). The alteration is not material unless the surety is placed in the position of doing more than the undertaking contained in the performance bond. Failure to do an act required to be done by the surety’s agreement is a breach of the contract rather than a material alteration. The contract between the owner and the contractor specifically required the contractor to obtain a builder’s risk policy. This was one of the provisions of the contract to be performed by the contractor. Builder’s risk coverage was primarily for the benefit of the owner. In any event, the surety had knowledge of the failure to procure the builder’s risk because Sweeney was agent for both the contractor and the surety. We find no Arkansas case directly on point; however, we are persuaded of the correctness of our position by the case of Hartford Fire Insurance Co. v. Riefolo Construction Co., Inc., 81 N.J. 514, 410 A.2d 658 (1980). Hartford differs from the present case only in that the contractor had obtained builder’s risk coverage but had allowed it to lapse. The New Jersey Supreme Court held the failure to maintain builder’s risk insurance was a breach of contract and the contractor’s surety was liable for the contractor’s failure to perform. According to Black’s Law Dictionary 171 (5th ed. 1979), a breach of contract is “[f]ailure, without legal excuse, to perform any promise which forms the whole or part of a contract.” Clearly the contract between the owner and the contractor expressly required a builder’s risk policy. The performance bond contained the following paragraph:

Provided, further, that the said Surety, for value received hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract or to the work to be performed thereunder or the specifications accompanying the same shall in any wise affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the contract or to the work or to the specifications.

Neither the surety agreement nor the facts relating to failure to obtain the builder’s risk policy are in dispute. Therefore, it was error for the trial court to submit interrogatory No. 9 to the jury. Safeco, the surety, was not released from its obligations contained in the performance bond. Therefore, the owner is entitled to recover from the surety.

We next consider the matter of absolute or strict liability. Appellants argue that appellees are strictly or absolutely liable for damages resulting from blasting. It is not disputed that employees of M. 8c P., in cooperation with Hercules, detonated the explosives on the property of the owner and that the plans and specifications had required that the rock be removed by blasting. The owner and the engineer were present when the damage occurred. The damage in the present case occurred on the appellant/owner’s premises and to its own property. We do not know whether the jury found the damage resulted from the blast or from the force of the water and missiles rushing against the intake structure creating what it termed “the dam break effect.” We treat the argument because it was possible the jury could have found either type damage resulted from the negligence of the engineer. There was testimony that all the damage occurred below the level which would have been affected by blast damage alone.

Strict liability is a harsh rule and should be applied only in very limited situations. Due to the destructive nature and inherent danger involved in blasting, a majority of jurisdictions, including Arkansas', have adopted the rule of strict liability. Western Geophysical Co. v. Mason, 240 Ark. 767, 402 S.W.2d 657 (1966). We agree with the decision in Mason and affirm the rule of strict liability in blasting cases. However, when blasting is conducted on the property damaged with the knowledge and consent of the owner the rule of strict liability is not applicable. In 35 C.J.S. Explosives, § 8 (1960) it is stated:

The rule that one who, by blasting, throws rocks and material on the adjacent land of his neighbor is liable for the damage resulting from such act without regard to the question of negligence, has no application where the person blasting has the right to the.use of the land on which the blasted material is thrown.

It would be unfair to allow a property owner to employ a contractor to use dynamite on the property and then recover for damage caused by the dynamite, with no proof of negligence. 31 Am.Jur.2d Explosions and Explosives, § 47 (1967). Since the case of Holden v. Carmean, 178 Ark. 375, 10 S.W.2d 865 (1928), this court has applied the rule of strict liability for blasting resulting in injuries to third parties. Even applying our rule of strict liability for damages resulting from the use of explosives the owner in the present case is not entitled to damages. Therefore, the trial court did not err in refusing to instruct the jury on strict liability.

It is also argued that the court erred in awarding judgment to M. & P. for $219,279.71. M. & P. was awarded judgment against the owner, and the court granted judgment over against the engineer in favor of the owner in the same amount. The jury and the court determined that the engineer was 100% at fault for all damages incurred by the contractor and the owner. The court should have awarded M. & P. a judgment against the engineer but not against the owner, because M. & P. breached its contract, as we point out later on.

It is argued that AMI 203 should have been given. No one offered such an instruction or even suggested it to the trial court. ARCP, Rule 51, requires a specific objection to giving or failing to give an instruction before error may be argued on appeal. Chandler and Ramsey v. Kirkpatrick, 270 Ark. 74, 603 S.W.2d 406 (1980). The reporter’s notes to ARCP, Rule 49 (b) state that courts have the power and authority to correct or reconcile inconsistent answers to interrogatories submitted to the jury. It is obvious the trial court attempted to have the jury answer all factual disputes and we think he did so. The factual issues were decided against the engineer and in favor of the contractor. Each interrogatory answered by the jury is a special verdict on that particular fact. McChristian v. Hooten, 245 Ark. 1045, 436 S.W.2d 844 (1969). One verdict found the contractor to be without fault and another found the engineer entirely at fault. Therefore, we uphold the judgment of the contractor against the engineer.

Another argument for reversal is that the trial court erred in refusing to instruct the jury that M. & P. breached its contract to build the project. Regardless of the propriety of giving such an instruction, the undisputed evidence does show that M. & P. breached its contract. It had agreed to build the concrete intake structure, which it did. But it also agreed to dynamite a channel from the lake to the structure, and in that phase of the work the concrete structure was extensively and seriously damaged by the effects of the blasting. M. & P. argues that it followed the plans and specifications, but the manner in which the blasting was to be carried out was not detailed by the plans, nor was the engineer asked to provide such plans. M. & P. worked with a Hercules representative in planning the blasting, without assistance from the engineer. Some sort of blasting schedule, not shown by the abstract, was submitted through the engineer to the Corps of Engineers so that the Corps could take safety precautions for persons in the vicinity, but there is no indication that the engineering firm assumed responsibility for the actual blasting plan.

Hence the real question for the jury was not whether M. & P. breached its contract, but which party was at fault. The jury exonerated both M. & P. and Hercules from any negligence and attributed all the negligence to the engineer. That conclusion was supported by the testimony of the expert witness Oriard, who testified that the blasting could have been done without damaging the structure by not fragmenting the rock so extensively as was done by the third dynamite shot. He also attributed responsibility to the engineer by testifying that the engineer could have designed the structure to withstand the blast or have defined for the contractor what limits of force the actual structure would withstand or have insisted that the contractor’s blasting plans be submitted for approval. The court did submit the matter of comparative negligence to the j'ury, which found on substantial evidence that the engineer alone was responsible.

The engineer here argues the court erred in failing to give an instruction stating the standard of care for engineers was the “same locality.” The court rejected the proffered instruction. Appellant engineer misreads AMI 1501 and Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945 (1975). AMI 1501 states that the standard which is to be applied is that “in the locality in which he practices,” or “similar locality.” This instruction applies only to physicians, surgeons and dentists. In Stroud we held that the standard required of physicians and dentists was not limited to the “same locality” but rather extended to similar practice in similar localities, giving consideration to location, size and character of the community.

To limit the standard of care required of a professional to one locality would lead to no standard in some cases. Where a professional is the only one in a community his standard would automatically be the gauge of proficiency. There is nothing in the record of this case to indicate that locality affects in any manner the degree of skill and knowledge required of a design engineer. The Arkansas General Assembly did not see fit to include any other profession in the similar locality rule as found in Ark. Stat. Ann. § 34-2614 (Supp. 1983), which governs the degree of skill and learning required of the medical profession. It was the duty of the engineer to offer a proper instruction. ARCP, Rule 51. Appellant McGoodwin argues that a proper instruction was offered and is set out at R. 3834. We find the proffered instruction but its wording is “same locality.” Since Arkansas does not have the “same” or “similar” locality rule for any profession other than medical it was not error for the court to reject the appellant engineer’s instruction.

It was not error to award M. & P. damages in the amount of $219,279.71 because the testimony of Mr. Patton was not disputed. The contractor was ordered by the engineer to return to work after the damage occurred; however, no instructions were given as to the manner in which repairs were to be made. The jury determined that the contractor was not negligent and did not breach the construction contract and that the engineer was 100% responsible for the damages. There being no contract on the repairs attempted by M. & P., it was proper to allow the jury to determine the amount owed for this work.

In Texarkana Housing Authority v. Johnson Const. Co., Inc., 264 Ark. 523, 573 S.W.2d 316 (1978), we held that the owner who furnished the plans and specifications was liable to the contractor for damages resulting from faulty plans and specifications. There we stated:

We are persuaded that where, as here, the owner supplies plans and specifications to a contractor detailing the work to be performed, the owner implicitly warrants the adequacy and suitability of the plans and specifications for the purpose for which they are tendered.
Therefore, where delays result, as here, because of faulty specifications and plans, the owner will have to respond in damages for the resulting additional expenses realized by the contractor.

In the case before us there were no plans and specifications relating to the matter of blasting. Liability here is based upon negligence of the engineer. The jury found M. & P. suffered damages in the amount of $219,279.71. Therefore, the judgment in favor of M. & P. against the owner should be changed to a judgment against McGoodwin.

The engineer objected generally and specifically to the giving of instruction No. 44 on the grounds that there was no competent evidence to support such instruction. Instruction No. 44 reads:

A contractor or builder does not impliedly warrant that he has engineering skill or the knowledge of an architect.

The general rule is that a contractor or builder impliedly warrants that the work he undertakes will be done in a good and workmanlike manner and will be reasonably fit for the intended purpose. Coney v. Stewart, 263 Ark. 148, 562 S.W.2d 619 (1978); Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970); 17A C.J.S. Contracts § 329 (1963). In the present case the owner employed a firm of engineers to do the engineering phase of the work and entrusted them to supervise the project from an engineering viewpoint. There is nothing in the record to indicate the owner or anyone else looked to the contractor for engineering skills. The fact that the contractor had an engineer on his staff, at least part of the time, in no manner indicates the owner was relying upon the contractor to perform any engineering skill. The express duties of the contractor, according to the terms of the contract, were to construct the project in accordance with the plans and specifications which the owner’s engineers had prepared. Therefore we see no prejudicial error in the giving of instruction 44.

The trial court gave instructions 26, 27, 28, 29, and 42, over the engineer’s objections. Two of the instructions, 27 and 42, concern the owner’s duty to supply correct plans and specifications to the contractor. The other three concern the engineer’s duties and liability with respect to preparing the plans and supervising the work. We do not see any misstatement of the law in any of the five instructions, nor was any such error pointed out to the trial court by counsel. ARCP, Rule 51 requires that objections to instructions be specific; a general objection is insufficient. As to some of the challenged instructions the objection was that they were “an incorrect statement of the law.” Such a general objection raises no point for review. Capital Steel Co. v. Foster & Creighton Co., 264 Ark. 683, 574 S.W.2d 256 (1978). Another objection was that the instruction was not based on facts in evidence. If so, the particular instruction would be an abstract statement of law, but an abstract instruction is harmless unless it may mislead or confuse the jury. Courson v. Chandler, 258 Ark. 904, 529 S.W.2d 864 (1975). We are unable to perceive how any of the questioned instructions could have prejudiced the engineer, and in any case the possibility of such prejudice was not specifically brought to the attention of the trial judge.

The owner sought to recover an unliquidated sum of money from the contractor as a result of a claim of another contractor for damages resulting from the delay in completing the intake project. The owner had not paid the claim and the other contractor was not a party to the suit. Therefore, it was not error for the trial court to refuse to send this claim to the jury.

We need not discuss the matter of punitive damages against Hercules, for that claim was waived as a basis for reversal during oral argument before this court. The trial court did not err in refusing to grant judgment N.O. V. or a new trial. The rulings by the trial court were not clearly against the evidence. Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982).

At a two-week trial all parties developed their proof or had an opportunity to do so. The jury settled the principal disputed issue of fact — that of fault. Its verdict was not adversely affected by the improper admission or exclusion of evidence or by prejudicially erroneous instructions. The case is remanded for the trial court to enter judgment in accordance with this opinion. The engineer was not the agent of the owner. Safeco is liable to the owner in the amount of its bond and is entitled to judgment over against the engineer. The owner is liable to the contractor for the sum of $174,735, representing the balance of its contract; and the contractor is entitled to damages in the amount of $219,279.71 against the engineer.

Modified and remanded.


author: Robert H. Dudley, Justice. Richard B. Adkisson, Chief Justice, John I. Purtle, Justice,

text:
    Leonard SPEARS, William CASSELL and Joseph L. BUMGARNER v. STATE of Arkansas
    CR 83-20
    660 S.W.2d 913
    Supreme Court of Arkansas
    Opinion delivered November 14, 1983
    [Rehearing denied December 19, 1983.]

      Kelley W. Webb, for appellant Spears.

      Michael Everett, for appellant Cassell.

      Larry R. Jennings, for appellant Bumgarner.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.

      Purtle, J., would grant rehearing.

   Robert H. Dudley, Justice.

On April 2, 1979, Leonard Spears and William Cassell represented themselves as agents of the Federal Bureau of Investigation in order to gain entrance into the Poinsett County home of Frank and Margie Hyneman. Once inside they brandished pistols and robbed the Hynemans of a large amount of jewelry. Joseph Bumgarner and Bill Caplinger stood guard while the robbery took place. The four of them were charged, as habitual offenders, with aggravated robbery, burglary and conspiracy. Caplinger obtained a severance. Spears, Cassell and Bumgarner were each found guilty of aggravated robbery and burglary, but not of conspiracy. Each was sentenced to life imprisonment plus a fine of $15,000 for the aggravated robbery and thirty years imprisonment with another fine of $15,000 for the burglary. No reversible error is shown in the many arguments for reversal.

By the time of the trial, July 16, 1982, Frank Hyneman had died. Margie Hyneman testified that at the time of the crime, they lived on a large farm near Trumann. Her husband was the chairman of the board of the First National Bank of Poinsett County and was accustomed to interviews by agents of the Federal Bureau of Investigation because a bank employee had recently embezzled funds. She testified that at about 6:30 p.m. on April 2,1979, two men knocked on the front door and identified themselves to the servant as F.B.I. agents. Upon entering, they pulled out handguns and stated that they wanted the Hynemans’ jewelry. Margie identified appellants Spears and Cassell as the two robbers. She stated they took Frank’s wallet, which contained between $2,000 and $2,300 in cash and his Rolex watch with a diamond bezel and a diamond base with numerals. They took her eight carat solitaire diamond ring, her ring with a cluster of diamonds centered around a three carat diamond, her ring with an aquamarine stone circled by twenty diamonds and her drop necklace made from a group of diamonds. After taking the jewelry appellant Cassell opened an attache case which contained chains, gags, two-way radios and padlocks. The chains and padlocks were used to chain the Hynemans and their servant, Neelon Smith, to a refrigerator before appellants Spears and Cassell departed.

Patti Bumgarner, who was ruled to be a co-conspirator and an accomplice to the robbery and burglary as a matter of law, testified that Danny Owens, a night club owner from Memphis, told defendant Caplinger about the Hynemans’ jewelry, that he had a purchaser for the eight carat solitaire diamond ring, and that he wanted defendant Caplinger to obtain that ring along with the other jewelry. Caplinger, in turn, contacted Patti’s husband, appellant Joe Bumgarner, and asked him to obtain the jewelry. She testified that, in late 1978, a man from Illinois named Michael Anderson came to the Bumgarner residence, which was just outside Harrisburg, to visit Joe Bumgarner.

Patti stated that on March 9, 1979, the three appellants and defendant Caplinger, who was granted a severance, met at her home and discussed Danny Owens’ request that they obtain the jewelry. Her testimony is abstracted as follows:

They were all discussing it. They discussed several ways of doing it, but they finally decided because there had been a deal over the Bank of Trumann with a guy named Brewer, they felt that if they went as FBI, then the Hynemans wouldn’t think anything about it because it was an investigation into what Brewer had done. About a week before the real robbery they went through the ropes to figure out the robbery. Jeep Spears and Bill Cassell went out in Jaylene Parker’s car and they knocked on the door. Joe was in our truck and Bill was in his truck. One was at Weona and another one at Payneway, and if they saw, like, police coming they could radio into the other two. They had walkie talkies for communication.

She stated that she purchased chains at a store in Bay and padlocks at a truckstop in Mississippi. They had two-way portable radios, including a police radio which allowed them to monitor police broadcasts. She placed all of these items in an attache case and placed it in Jaylene Parker’s car.

During the last week in March, Patti saw the three appellants and defendant Caplinger leave her home for the purpose of robbing the Hynemans. They returned and said the servant had told them that the Hynemans were not home.

On April 2, at 6:30 p.m. the four of them again left the Bumgarner residence for the purpose of committing the burglary and robbery. They returned at about 7:30 p.m. with a bag full of jewelry which they gave to Patti and she hid at Bay. About a week later the three appellants and defendant Caplinger met and, in front of Patti, discussed the errors made during the robbery, the jewelry, and the amount of money they should receive from Danny Owens. They ultimately decided to sell the jewelry to whomever they chose but agreed to give Owens ten percent “off the top.” Patti stated she then went to Bay, got the jewelry, gave it to her husband and defendant Caplinger, who both went to Memphis to meet Owens. Her husband, appellant Joe Bumgarner, returned home with $7,000 as his “first cut.” She testified that there were more trips to Memphis and, as a result of other sales, her husband received more money.

Michael Anderson also testified in detail about the “Hillbilly Mafia.” He stated that appellant Spears contacted him about committing robberies in Arkansas. He was an experienced criminal and stated that he, appellants Spears and Cassell, defendant Caplinger, along with two others, eventually committed a total of twenty-six armed robberies. He and appellant Spears drove from Peoria, Illinois to the Bumgarner residence where they met appellant Bumgarner and defendant Caplinger. They discussed various “jobs” in Arkansas. One job discussed “was about a gentleman and his wife who had a lot of jewelry, which was supposed to be worth, like, three hundred thousand dollars.” After the discussion, Anderson and appellant Spears went back to Illinois. Later, Anderson brought some guns and handcuffs to the home of appellant Joe Bumgarner just outside of Harrisburg and immediately went back to Illinois where appellant Spears told him the couple’s name was Hyneman and the husband was the president of a bank. Anderson testified that he detested appellant Bumgarner and, because of that, he told appellant Spears that he would not take part with appellant Bumgarner in the crimes against the Hynemans. He stated that he did not come to Arkansas with appellant Spears to commit the Hyneman robbery even though he loaned Spears a suit of clothes which Spears wore during the robbery. Anderson testified that when Spears returned to Illinois he described the robbery in detail.

Anderson testified that about a month later he saw appellant Cassell and his wife at a bar in Springfield, Illinois where Cassell told him details about the robbery. He observed Cassell’s wife wearing a ring which Anderson identified from a picture as being Margie Hyneman’s ring with the aquamarine stone in the center circled by diamonds. Anderson testified that appellant Cassell told him the ring was from the Hyneman robbery and they had trouble selling it so he just kept it for his wife. Anderson testified that he and separate defendant Caplinger later went to Memphis and picked up a sack from Danny Owens which contained $36,000 or $37,000 in one hundred dollar bills which came from the sale of the eight carat solitaire diamond ring.

Arthur Baldwin, a convicted felon serving a sentence in a federal penitentiary at the time of trial, testified that Danny Owens offered to sell him some large unmounted diamonds, one of them being as large as five carats, and a ring with a cluster of diamonds. He bought the ring which was identified as Margie Hyneman’s. He testified that he had purchased a Rolex watch with diamonds from Jimmy Webster and that appellant Bumgarner then told him it was “hot.”

The three appellants were found guilty of the burglary and the aggravated robbery but were not found guilty on the charge of conspiracy.

The appellants’ first three assignments of error related to the conspiracy charge. The burglary and aggravated robbery occurred on April 2, 1979. The appellants were charged with burglary and aggravated robbery on October 16, 1981. Then on May 26, 1982, more than three years after the burglary and aggravated robbery occurred, the information was amended to include the charge of criminal conspiracy. Appellants contend (1) the statute of limitations had run on the conspiracy charge; (2) it was error to allow Patti Bumgarner and Michael Anderson to testify about a past act and not something done in furtherance of the conspiracy; and (3) their statements were erroneously admitted before the conspiracy was proven by independent testimony.

We need not decide whether the statute of limitations had run on the charge of conspiracy because (1) the appellants were not found guilty of the charge; and (2) the admissibility of the testimony of Patti Bumgarner and Michael Anderson was not dependent upon a charge of conspiracy. Rule 801 (d) (2) (v) of the Ark. Unif. Rules of Evid., Ark. Stat. Ann. § 28-1001 (Repl. 1979) provides that testimony about an out-of-court statement by a co-conspirator of a party during the course and in furtherance of a conspiracy is not hearsay. The absence of a conspiracy charge simply has no bearing on the competency of a co-conspirator’s testimony. Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980).

Appellants argue that error was committed by allowing Michael Anderson’s testimony of statements by co-conspirators about their activities after completion of the burglary and armed robbery. The statements were admissible for two reasons: (1) the statements were admissions; and (2) the Hyneman conspiracy was not complete.

Anderson testified about statements made to him by appellants Spears and Cassell after the robbery. Neither appellant implicated the other in these statements; thus, Spears’ statement was admissible as his admission, and Cassell’s statement was admissible against him.

The only statement about post-robbery activity that implicated a party other than the speaker was the statement by Spears that “they left and met Bumgarner and Caplinger down the road.” However there was no objection to this statement by appellant Bumgarner. Failure to object precludes the consideration of a matter on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

The statements were admissible for yet another reason — the conspiracy was not completed on the day of the robbery. In addressing the same issue in Hooper v. State, 187 Ark. 88, 58 S.W.2d 434 (1933), we stated:

It is next insisted that the court erred in admitting the testimony of Mrs. Hulse and Mrs. Mills, her daughter, to the effect that Biddy Hooper, another accomplice, brought Hulse some of the money obtained in the bank robbery after the robbery was committed and the robbers had left the state; the purpose of the conspiracy having been consummated. Although it is true that the acts and declarations of a conspirator are inadmissible against his coconspirator after the accomplishment of the purpose of the conspiracy, such is not the case here. The purpose was to rob the bank and procure the money, and necessarily distribute it among those participating in the enterprise, and the conspiracy cannot be said to have ended so long as the money procured in the robbery had not been divided among the robbers. [Emphasis added.] Wiley v. State, 92 Ark. 586-592, 124 S.W. 249.

Likewise, in the case at bar the objective had not been completed. The objective of the conspiracy was the sale of the jewelry and a distribution of the proceeds.

The appellants next contend that the trial court committed error since the State was not required to prove the conspiracy by independent evidence before the co-conspirator’s statements were allowed into evidence. But see Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979), cert. denied, 447 U.S. 923 (1980). However, no objection was made on this basis and there was not a request for a limiting instruction. We will not consider it on appeal for the first time. Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981).

On cross-examination the appellants sought to impeach the credibility of State’s witness Michael Anderson by asking him about convictions of prior crimes. They also sought to demonstrate prejudice by asking questions about an agreement with federal prosecutors by which he would testify in the case at bar in exchange for leniency in the federal sentencing. Following the questions and the responses, the appellants attempted to read a transcript of the federal sentencing procedure. The trial court sustained the State’s objection. We agree. The transcript was consistent, not inconsistent, with the witness’ testimony. A trial court is authorized to judiciously expedite a trial and to prevent an unjustifiable delay. Rule 102, Ark. Unif. Rules of Evid., Ark. Stat. Ann. § 28-1001 (Repl. 1979). Reading verbatim the transcript of the sentencing hearing under these circumstances would have amounted to a waste of everyone’s time.

Appellant Bumgarner argues that there is not sufficient evidence for his conviction. He contends that his wife, Patti, and Michael Anderson were both accomplices as a matter of law and their testimony was not sufficiently corroborated. The trial judge ruled that Patti was an accomplice as a matter of law but that Anderson’s status presented a question of fact for the jury. The jury found that he was not an accomplice.

In Cate v. State, 270 Ark. 972, 606 S.W.2d 764 (1980), we stated: “... the finding of a jury as to whether a witness is an accomplice is binding unless the evidence shows conclusively that the witness was an accomplice. Wilson & Dancy v. State, 261 Ark. 820, 552 S.W.2d 223 (1977).” Here, the evidence does not show conclusively that Anderson was an accomplice. The evidence reveals that Anderson was involved in a general conspiracy to commit armed robberies. He had knowledge that the robbery of a bank officer in Trumann was being planned and, later, that it had been committed. In Illinois, he loaned appellant Spears a suit which Spears wore during the robbery. However, he took no part in planning the Hyneman robbery. He told Spears he wanted no part of the robbery and it is undisputed that he took no part in it. In a similar situation, we stated:

The term accomplice does not embrace one who had guilty knowledge or who is morally delinquent; it includes only one who takes or attempts to take some part, performs or attempts to perform some act or owes some legal duty to the victim of the crime to prevent its commission; and mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of some legal duty to act, concealment of knowledge or failure to inform officers of the law, is not sufficient to make one an accomplice. Wilson v. State, 261 Ark. 820, 552 S.W.2d 223; Ark. Stat. Ann. § 41-303 (Repl. 1977).

Hicks v. State, 271 Ark. 132, 607 S.W.2d 388 (1980).

Despite Anderson’s moral delinquency he was not an accomplice as a matter of law in the Hyneman robbery and burglary. His testimony was sufficient evidence for the conviction of appellant Bumgarner.

Appellant Bumgarner next contends that the Interstate Agreement on Detainers, Ark. Stat. Ann. § 43-3201 (Repl. 1977), was violated and the trial court erred in failing to dismiss the charges against him. The Interstate Agreement on Detainers is an interstate compact which operates in conjunction with a federal enactment. Article III provides that where a detainer is lodged against a prisoner based upon an untried indictment, information or complaint of another state, the prisoner, upon request, must be brought to trial within 180 days from the date of receipt of written notice of the place of his confinement and demand for trial. Ark. Stat. Ann. § 43-3201 Art. Ill (a). Failure to accord a timely trial may mandate dismissal of the untried charge. Padilla v. State, 279 Ark. 100, 648 S.W.2d 797 (1983). Here the demand was received and filed on January 4,1982, and appellant was not tried until July 14, 1982, which was a period of 190 days. However, the time limits are tolled during the periods when the prisoner is removed from the custodial place of incarceration to a place other than the demanding jurisdiction. Young v. Mabry, 471 F. Supp. 553 (E.D. Ark. 1978), aff’d. 596 F.2d 339 (8th Cir. 1979), cert. den. 444 U.S. 853 (1979). Here, after the demand, the custodial place of incarceration, United States Penitentiary at Terre Haute, Indiana, sent the prisoner to the Federal Correctional Institute at Memphis to appear before the grand jury of the Western District of Tennessee before he was available to the demanding state, Arkansas. According to pleadings prepared and signed by appellant Bumgarner, he was sent to the Federal Correctional Institute on January 21,1982, and was still there on March 12,1982. The speedy trial limit was tolled during this period and the Interstate Agreement on Detainers was not violated.

Appellant Bumgarner contends that error occurred by submitting the issues of guilt and sentencing to the jury at the same time but there was no objection to the procedure. Failure to object precludes the consideration of a matter on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). He also contends that his Sixth Amendment right to counsel was denied when the trial court refused to grant a continuance for him to employ new counsel.

The trial judge did not abuse his discretion. Bumgarner is well acquainted with the criminal court system. He testified about his expertise in penitentiary “writ writing” and his wife testified that he deliberately helped her establish grounds for a mistrial in a different criminal case. He clearly understood the charges against him and, without question, understood his rights. He vigorously sought to represent himself. Even so, the trial court took the precaution of appointing standby counsel shortly after the charges were filed. The standby counsel was present and assisted Bum-garner at trial. On the morning of trial Bumgarner claimed he wanted the continuance in order to employ some unnamed attorney. While he was demanding a continuance, he was also demanding dismissal for lack of a speedy trial under provisions of the Interstate Agreement on Detainers. The denial of such a ruse does not constitute error. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983). The trial judge quite properly considered the need for proper court administration and the public’s interest in a suitably prompt trial.

Appellant Bumgarner next contends that the trial court committed error in refusing to dismiss the charges against him because of illegal surveillance by the State. The argument must fail for two reasons. First, the trial court found that there was no proof the State obtained any evidence by illegal surveillance. There is no evidence to the contrary. Second, appellant neither cites any authority for dismissal of charges if illegal surveillance occurred, nor does he make a convincing argument for such a proposition. Therefore we will not consider the matter. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Appellant Bumgarner contends that the trial court abused its discretion by refusing to grant his motion for a severance from the trials of appellants Spears and Cassell. The overriding duty of a trial judge in ruling on a severance motion is to determine whether the jointly charged defendants can be tried together without substantial injustice. In making such a determination, the following factors are to be considered:

(1) where defenses are antagonistic; (2) where it is difficult to segregate the evidence; (3) where there is a lack of substantial evidence implicating one defendant except for the accusation of the other defendant; (4) where one defendant could have deprived the other of all peremptory challenges; (5) where if one defendant chooses to testify the other is compelled to do so; (6) where one defendant has no prior criminal record and the other has; (7) where circumstantial evidence against one defendant appears stronger than against the other.

McDaniel & Gookin v. State, 278 Ark. 631, 648 S.W.2d 57 (1983).

In the case at bar the defenses were not antagonistic. The evidence was easily segregated. The State’s case was strong against all of the appellants. No peremptory challenge problems were presented. Bumgarner was not compelled to testify by the testimony of Spears or Cassell. In short, the appellants were tried together without any prejudice to appellant Bumgarner.

Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.

Affirmed.

Adkisson, C.J., concurs in part and dissents in part.

Purtle, J., dissents.

Richard B. Adkisson, Chief Justice,

concurring in part and dissenting in part. I concur in the affirmance of the convictions of defendants Spears and Cassell but dissent in the affirmance of the conviction of defendant Joseph Bumgarner.

Accomplice testimony is not sufficient to convict unless corroborated by other evidence which tends to connect the defendant with the commission of the offense. Ark. Stat. Ann. § 43-2116 (Repl. 1977). The corroborating evidence must be independent of evidence given by the accomplice. Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960). Here the only evidence at trial that actually connected defendant Joseph Bumgarner with the crime came in testimony by Patti Bumgarner, his wife, and Michael Anderson. Both were accomplices as a matter of law. The trial court so found as to Patti Bumgarner, but the finding as to Michael Anderson was erroneously left for a determination by the jury.

Anderson admitted at trial that he was a part of an ongoing criminal conspiracy to commit a series of crimes. In regard to the particular crime here in question, Anderson admitted that he provided Spears with a suit to wear during the robbery and brought, for use in the crimes, guns and handcuffs to Bumgarner’s home. In view of this undisputed testimony, and in the absence of any inference to the contrary, Anderson should have been declared an accomplice as a matter of law.

Michael Anderson testified at trial about a statement made to him by co-defendant Spears which implicated defendant Bumgarner. The majority justifies the admission of this testimony by supposing that the conspiracy had not ended, thereby bringing the statement within Unif. R. Evid., Rule 801 (d) (2) (v) which provides for admission of a statement by a co-conspirator of a party “during the course and in furtherance of the conspiracy.” The majority bases this supposition on the case of Hooper v. State, 187 Ark. 88, 58 S.W.2d 434 (1933), where this Court held the conspiracy to rob one bank did not end until the split of the cash between the accomplices. Here, all proceeds from the robbery had been distributed. Clearly, the conspiracy had ended, and the statement was inadmissible hearsay.

The majority justifies the admission of Anderson’s statement implicating Bumgarner by asserting that there was no objection by appellant Bumgarner to this statement. But, there was an objection to this testimony. The trial court, in ruling on the objections of the three co-defendants, said, “[a]ny objection made by any [one defendant] will inure to the benefit of any other defendant.” Clearly the objection by defendant Cassell was sufficient to preserve the issue as to defendant Bumgarner.

John I. Purtle, Justice,

dissenting. I respectfully dissent because in my opinion there were at least four reversible errors at trial and in the events surrounding it.

First the evidence conclusively showed that Anderson was an accomplice as a matter of law. It was error to give that question to the jury. The majority simply misreads the facts when they say that “it is undisputed that (Anderson) took no part in (the robbery).” What is actually undisputed is that Anderson helped plan 26 robberies including the one under consideration. He drove from Peoria, Illinois to Arkansas to discuss various “jobs” in Arkansas. He stated that he remembered discussing a case of a gentleman and his wife who had a lot of jewelry. Anderson admitted that Spears told him the couple’s name was Hyneman and the man was a bank president. Anderson also testified that he brought guns and handcuffs from Illinois to Arkansas. Anderson lent Spears a suit to wear during the robbery, and he admitted that he knew why Spears wanted it and what he would do with it.

In my opinion the evidence showed conclusively that Anderson was an accomplice. Ark. Stat. Ann. § 41-303 (Repl. 1977). As such was the case, the trial court should have so instructed the jury and should have required the corroboration of his testimony.

Second, it was error to allow the conspiracy charge to stand. The majority state that no prejudice resulted because the appellants were not convicted of conspiracy. Of course, it is clear that the appellants could not have been convicted of conspiracy and the substantive offenses. Conspiracy merges with the substantive offense. After the act is consummated the conspiracy is not indictable. Owen v. State, 263 Ark. 493, 565 S.W.2d 607 (1978); Zachry v. State, 260 Ark. 97, 538 S.W.2d 25 (1976); Elsey v. State, 47 Ark. 572, 2 S.W. 337 (1886). In addition, Ark. Stat. Ann. § 41-105 makes it clear that the appellants could not have been convicted of both conspiracy and the substantive offenses. In my opinion it was error to allow evidence of a crime of which the appellants could not be convicted. I think the conspiracy charges were filed solely for allowing the state to introduce evidence not otherwise admissible.

In addition, there was no evidence to support the majority’s assertion that the conspiracy was ongoing past the date of the robbery. While there was evidence that individual conspirators were disposing of the robbery loot, there was no evidence of any concerted effort to do so and no evidence that any of the proceeds were distributed to anyone other than the person disposing of some particular item from the robbery. The evidence in Hooper v. State, 187 Ark. 88, 58 S.W.2d 434 (1933), upon which the majority relies clearly established an ongoing effort to distribute proceeds to the members of the conspiracy.

Third, the trial court erred in restricting the cross examination of Anderson concerning the bargain he made in return for his testimony. The record clearly shows that such a deal was made. I am not arguing that the appellants were entitled to read the entire sentencing transcript to the jury, but I do insist that the court should have allowed any portions of it directly relating to the deal Anderson made.

Finally, I believe Bumgarner was denied effective assistance of counsel. He was locked in isolation several days before the trial began and separated from his co-defendants as well as from potential witnesses. Bumgarner acted as his own counsel and his isolation unnecessarily hampered his efforts at preparing an adequate defense.


author: Robert H. Dudley, Justice.

text:
    Clifton Eddie THOMAS v. STATE of Arkansas
    CR 83-133
    660 S.W.2d 169
    Supreme Court of Arkansas
    Opinion delivered November 14, 1983

      Guy H. (Mutt) Jones, Phil Stratton and Casey Jones, by: Casey Jones, for appellant.

      Steve Clark, Atty. Gen., by: Marci L. Talbot, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

At 10:30 on the night of August 31, 1982, Dearl Durham drove his car into Allsopp Park in mid Little Rock, parked, got out, and walked into some nearby woods to urinate. While standing there, he felt a knife at his throat. The knife was wielded by someone standing behind him and was held with sufficient pressure to cut his throat. The attacker then moved directly in front of him, demanded his money, and stabbed him in the stomach. Durham identified the appellant, Clifton Eddie Thomas, as the person who stabbed him. Two of appellant’s accomplices suddenly appeared and pushed Durham to the ground. While lying on the ground Durham managed to hand over his car keys. One of the assailants went to his nearby parked car and stole his billfold. Durham was stabbed twice more while lying on the ground. Appellant was charged and convicted of battery in the first degree in violation of Ark. Stat. Ann. § 41-1601 (1) (c) (Repl. 1977) and aggravated robbery in violation of Ark. Stat. Ann. § 41-2102 (1) (a) (Repl. 1977). He contends that his conviction for first degree battery should be set aside as a lesser included offense of aggravated robbery. We affirm both convictions. Jurisdiction is in this Court as the appeal involves the construction of a statute. Rule 29 (1) (c).

Ark. Stat. Ann. § 41-105 (Repl. 1977), the provision pertinent to this issue, provides:

(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other, as defined in subsection (2); . . .
(2) . . . An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged.

We have construed the above to provide that there may not be a conviction for two separate offenses when the statutory definition of one criminal offense encompasses all of the statutorily defined elements of a lesser included offense. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982).

Following that reasoning we have set aside convictions for first degree battery as a lesser included offense of aggravated robbery when the charge is made under one particular subsection of the first degree battery statute. Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983); Sanders v. State, 279 Ark. 32, 648 S.W.2d 451 (1983); and Robinson v. State, 279 Ark. 61, 648 S.W.2d 446 (1983). In each of those cases the appellant was charged with first degree battery under subsection (1) (d) of § 41-1601. It is as follows:

(1) A person commits battery in the first degree if:
(d) acting alone or with one or more other persons, he commits or attempts to commit a felony, and in the course of and in furtherance of the felony, or in immediate flight therefrom:
(i) he or an accomplice causes serious physical injury to any person under circumstances manifesting extreme indifference to the value of human life; or
(ii) another person who is resisting the offense or flight causes serious physical injury to any person.

(Emphasis added:')-

By the statutory definition of the offense under this subsection the State must prove the defendant committed a felony, here aggravated robbery, and, in the course of committing aggravated robbery, caused serious physical inj ury to another person. Consequently, proof of the first degree battery, by statutory definition, must include proof of the aggravated robbery when the charge is for violating that particular subsection.

In the case before us the charge of first degree battery was made under a different subsection. It was made pursuant to subsection (1) (c) of § 41-1601 which provides:

(1) A person commits battery in the first degree if:
(c) he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life; . . .

The charge of aggravated robbery was made pursuant to subsection (1) (a) of § 41-2102 which is:

(1) A person commits aggravated robbery if, [with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to employ physical force upon another,] and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; . . .

The elements of the statutory definition of the two offenses under these subsections are different. Under the subsections utilized for charges in this case, first degree battery requires serious physical injury to another while aggravated robbery does not. Aggravated robbery requires the purpose of committing theft and being armed with a deadly weapon, or the representation that one is so armed while first degree battery, by statutory definition, requires neither of these elements. Each offense by statutory definition requires proof of a fact which is not required by the other. Convictions for both crimes are valid under the statutory subsections utilized in the case now before us.

In an alternative argument the appellant recognizes the distinctions in the above quoted subsections but contends that we should not allow a prosecutor to "engineer” double punishment. The argument is fully answered in a paragraph from Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980):

The answer to this argument is that the possible exercise of such discretionary authority is not fatal to the statues, for even in capital cases, which this one is not, the evil to be guarded against is the capricious selection of a group of offenders. Gregg v. Georgia, 428 U.S. 153, 199 (1976). In the first place, it is impossible to avoid the use of general language in the definition of certain offenses. State v. Weston, 255 Ark. 567, 501 S.W.2d 622 (1973). Moreover, the prosecutor or grand jury is often compelled to choose one or two or more offenses, no matter how precise the statutes may be. For example, the conflicting testimony of eyewitnesses may, depending on their varying credibility, establish capital murder if the accused committed robbery but only murder in the first degree if he committed a lesser felony such as theft of property, battery, or aggravated assault. §§ 41-2103, -2203, -1601, and -1604. There can be no constitutional objection to the exercise of a reasonable discretion in that situation.

Affirmed.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    David Lee ALLEN v. STATE of Arkansas
    CR 83-98
    660 S.W.2d 922
    Supreme Court of Arkansas
    Opinion delivered November 21, 1983
    [Rehearing denied December 19, 1983.]

      Thomas G. Montgomery, Crittenden County Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant Allen was charged with aggravated robbery with a firearm and with possession of a firearm by a convicted felon. At his first, trial he was found guilty, but that conviction was reversed for error in the exclusion of testimony. Allen v. State, 277 Ark. 380, 641 S.W.2d 710(1982). A second trial resulted in a hung jury. At a third trial Allen was again found guilty and sentenced to life imprisonment for the aggravated robbery and to a concurrent six-year term for the other offense. We find no merit in his arguments for reversal.

The essential facts are that in the course of robbing a convenience store in West Memphis the appellant shot the store clerk four times, not fatally. Details are given in our earlier opinion and need not be repeated.

The first point has to do with the voir dire examination of two prospective jurors. Venirewoman Coleman at first stated she did not think she would consider life imprisonment as a possible sentence. After the court indicated that she was excused for cause, defense counsel asked permission to question her further, and in the ensuing colloquy the juror was in fact asked additional questions. She said she would consider life, but because of her beliefs she would not return a verdict of life regardless of the facts. She was thus properly excused for cause. Stephens v. State, 277 Ark. 113, 640 S.W.2d 94 (1982). The court next refused to excuse for cause another venireman who said he knew two police officers who were expected to testify, but he could set aside that acquaintanceship and weight their testimony as he would that of a stranger. Inamatter of this kind thedemeanor of thejuror in answering the questions is so important that much discretion is vested in the trial judge, who has the advantage of seeing and hearing the voir dire as it takes place. We perceive no abuse of discretion in this case.

The appellant’s second argument complains of the trial judge’s denial of defense counsel’s request to be allowed to call Allen’s accomplice, Dorothy Jean Gatewood, for limited testimony. Allen’s confession had been found to be voluntary. Counsel wanted to call Ms. Gatewood to testify only that while Allen was being questioned she was outside the room and heard loud banging and knocking (suggesting mistreatment). The State had not called Ms. Gatewood at this third trial. Counsel knew that Ms. Gatewood had twice denied under oath that she had heard any such noises, but he wanted her to state her denial a third time before the jury so that he could show by a defense investigator that she had made a contrary unsworn statement to him. The court’s ruling was right. The inconsistent out-of-court statement was not admissible as substantive evidence in a criminal case, because it was not under oath. Unif. R. Evid. 801 (d)(1); Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983). Nor was it admissible for impeachment, because counsel did not want Ms. Gatewood to give any testimony except the bare denial; so her credibility would not have been in issue.

A related argument under this point concerns an issue that arose twice during this third trial of the charges against Allen. The issue first arose on the morning of trial, at a conference in chambers. The defense expressed its desire to call Ms. Gatewood to testify about a discussion outside the courtroom during the second trial a week earlier. Defense counsel stated in support of his request that another witness, Rosemary Bullins, had identified the defendant at the second trial, but after leaving the courtroom she had expressed to Ms. Gatewood some doubt about her identification. The defense wanted to call Ms. Gatewood to ask her if she had not told Mrs. Bullins during that encounter that the defendant looked different because when he was first incarcerated he had stitches in his mouth as a result of having been beaten by the police. The court ruled that any testimony about stitches would not be relevant unless Allen took the stand and laid a foundation by specifying how and when he got the injuries. It is now argued that the court was wrong, because his ruling in effect required the defendant to take the witness stand.

We need not pass upon this argument, for if the court was wrong the error became harmless when the issue arose a second time. During the State’s presentation of its case the witness Bullins again identified the defendant. On cross examination she admitted having talked to Ms. Gatewood outside the courtroom, but she denied having expressed any doubt about whether Allen was the right man. After the State had rested and while the defense was presenting its testimony, defense counsel at a conference in chambers asked permission to call Ms. Gatewood to ask her only about her conversation with Mrs. Bullins. Since counsel said that he did not know what Ms. Gatewood’s answer would be, the court ruled that defense counsel would not be allowed to call Ms. Gatewood “on a fishing expedition,” but the court suggested that the defense lawyer and the prosecutor “go out there and talk to her about it. If she has a different version than that given by Mrs. Bullins, then you will be permitted to call her.” The court granted the defense counsel’s request for a recess “for that purpose.” After the recess, which was taken at once, the point was not pursued further. We must conclude that Ms. Gatewood’s testimony would not have, been favorable to Allen and that the issue was abandoned for that reason.

A third point involves a defense effort to present to the jury a supposed fact that was never supported by testimony. At an earlier trial the prosecutor had asked a State witness, Officer Presley, during a Denno hearing, if he knew that after Allen was questioned he had been taken to a hospital because he complained about head injuries (implying mistreatment). The witness had then answered, “No, sir, I didn’t know what area,” and apparently had said that the examining doctor found nothing except arthritic pain in the patient’s neck. Defense counsel wanted to interrogate Officer Presley about the possibility of head injuries, with no basis for the questioning except the assumption in the prosecutor’s question at the Denno hearing. The court correctly ruled, in chambers, that there was no good faith basis on which counsel might go into the supposed head injuries.

In the fourth point, a minor one, the court was not in error in ruling that the prosecutor did not make an improper closing argument in responding to defense counsel’s closing argument, in which he had said to the jury, “Why didn’t the State call Dorothy Jean Gatewood?” We think the defense argument opened the door to a response by the State.

Fifth, it is insisted that possession of a firearm by a felon is an offense included in aggravated robbery, so that only the latter conviction should be permitted to stand. Not so. The Criminal Code provides that one offense is included in another if the lesser is established by proof of the same or less than all the elements required to establish the commission of the offense charged. Ark. Stat. Ann. § 41-105 (2) (a) (Repl. 1977). Here the lesser offense requires proof that the person possessing the firearm had been convicted of a felony. § 41-3103. That fact not being an element in the proof of aggravated robbery (Section 41-2102), this lesser offense is not included in aggravated robbery.

Allen’s last argument questions the admissibility of a pistol that was ballistically shown to have fired the bullets that wounded the store clerk. The State’s proof showed that Allen and Ms. Gatewood entered the store together and committed the robbery, that the clerk was shot, and that a police officer found the pistol in a trash can in Memphis after an interview with Ms. Gatewood. The witness Bullins identified the pistol, stated that it belonged to Ms. Gate-wood, and testified that she had seen Ms. Gatewood with the weapon a week before the robbery. Upon that train of proof the pistol was properly admitted into evidence.

No prejudicial error is shown either in the points that are argued or in the other abstracted objections, which we have considered under Rule 11 (f).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The defense sought from the beginning of appellant’s three trials on this incident to bring out evidence that appellant was subjected to physical violence by the interrogating officers prior to his one paragraph confession. We reversed the first conviction. A mistrial because of a hung jury was declared in the second. The first two trials allowed questioning of an accomplice who received a suspended sentence (after cooperating with the officers in implicating the appellant). During the third jury trial the defense was again trying to prove force had been used to obtain the confession. It was undisputed that appellant was taken to the doctor the day after his confession. The officers explained that appellant’s arthritis acted up and he was treated for that but not for any head injury. While cross examining the chief investigating officer, the defense counsel asked the officer: “But yet it took an hour to get this paragraph from him: is that right?” The court upheld the state’s objection to the question on the ground it was possibly argumentative and that the matter had been covered several times before. The record does not reveal this question to have been asked prior to this time. During a bench conference the state’s attorney stated: “They took him there, Tom, because he had made complaints about his head injuries.” Appellant explained that the officers beat and injured him and that Gatewood stated she heard some banging around in the area where appellant was being questioned. The court stopped this line of defense questioning on the grounds that there was a lack of good faith in such attempt. I cannot think of a more good faith effort than is presented here. Had appellant been allowed to prove his confession was the result of physical force he may not have been convicted. What error could have been more prejudicial? The court further stated: “For a witness to get up and say that he had stitches in his mouth would permit the jury to infer that he was beaten by law officers and requiring stitches when there is no evidence that that is the way he got them. ’ ’ Exactly! The court then in a series of rulings held the only way to get this evidence in was to have the appellant take the stand. Of course he cannot be required to take the stand. The series of rulings appear to me to be designed to force appellant to appear as a witness and be subject to consequential cross examination by the state, in violation of his 5th Amendment rights. These rulings not only stopped proper cross examination of the officer but precluded the calling of defense witnesses who might testify to the effect that appellant appeared to have been beaten. This same officer had admitted at an earlier trial that he took appellant to the doctor because he was complaining about head injuries. Evidence of good faith is abundant. The cross examination should have been allowed to continue.


author: Darrell Hickman, Justice.

text:
    James A. CLAWSON et ux v. Phillip D. RYE, A Minor, and Samuel M. RYE
    83-205
    661 S.W.2d 354
    Supreme Court of Arkansas
    Opinion delivered November 21, 1983
    [Rehearing denied January 9, 1984.]

      Peel & Eddy, for appellants.

      Tom Forest Lovett, P.A., by: Tom Forest Lovett, for appellees.
   Darrell Hickman, Justice.

This case was certified to us by the Court of Appeals pursuant to Ark. Sup. Ct. R. 29 (1) (o) because it presents a question in the law of torts. Specifically, the case involves a lawsuit over an automobile accident and the subsequent admissibility of certain evidence.

The appellant, Florence Clawson, a 62-year-old woman, suffered from a cervical degenerative disease and arthritis. On April 12, 1977, the car she was driving was hit from behind by another vehicle, causing her to sustain injuries which aggravated her pre-existing health problems. On November 11, 1977, the appellant was involved in a second, similar accident in which she was again struck from behind. Two lawsuits were filed on November 1, 1979, suing separate defendants over the accidents. The lawsuit over the first accident was settled out of court. The lawsuit over the second accident resulted in a jury award of $51,600. That judgment was set aside and a second trial resulted in a verdict in favor of the appellants for $11,000. It is from that second judgment in their favor that this appeal is taken.

Appellants challenge four evidentiary rulings made during the course of the second trial. They object to the trial court’s failure to exclude testimony regarding the first lawsuit and settlement; to the exclusion of testimony by a witness to the accident; and to the exclusion of testimony by Mr. Clawson and by an expert witness assigning a percentage value to the extent of Mrs. Clawson’s disability. The appellees also raise two separate points on appeal. First, they argue that the appellants are not entitled to appeal a judgment in their favor because there was no showing the award of the jury was inadequate and there is no other error. Second, the appellees claim the court erred in failing to award attorney’s fees pursuant to ARCP Rule 68.

First, we discuss the appellants’ arguments. They contend the court was wrong in excluding testimony that Mrs. Clawson appeared to be “in pain” immediately after the accident. When Mrs. Clawson’s automobile was struck, she was stopped behind the car of Fred M. Duncan. At the trial, Mr. Duncan was asked what Mrs. Clawson’s appearance was immediately after the accident. He replied, “Well, the best I could tell looked like she was in pain.” The appellants also argue that the court erred in excluding similar opinion testimony by Mr. Clawson that Mrs. Claw-son was “eighty five percent back to normal” after the first accident and before the second accident. Both statements were excluded as being beyond the scope of permissible testimony by a lay witness as provided for in Unif. R. Evid. 701.

Rule 701 permits a lay witness to offer opinion testimony that is rationally based on a perception of the witness and is helpful to a clear understanding of his testimony, or the determination of a fact in issue. For example, lay witnesses have been allowed to testify that in their opinion someone was intoxicated, nervous, distraught, or surprised. 3 Weinstein’s Evidence § 701[02], n. 18 (1982). “Rule 701 authorizes a witness to testify on terms that are familiar to him rather than in artificial circumlocutions which may cause the jury to miss the point. Many witnesses can clarify what they mean only by sprinkling opinions and inferences among their detailed descriptions.” Id.

Here, the testimony by both Mr. Duncan and Mr. Clawson was based on their personal observation of Mrs. Clawson. The fact that Mrs. Clawson was in pain after the accident, like the fact that she had recovered significantly from the first accident before the second one occurred, are both helpful to the determination of a fact in issue; namely, the extent to which Mrs. Clawson was injured by the accident which is the subject matter of this suit. We have held that the jury is the proper judge of the weight to be given testimony, Ingram v. Marshall et al, 23 Ark. 115 (1861), and of the credibility of witnesses. Smith v. State, 258 Ark. 601, 528 S.W.2d 389 (1975), cert. denied, 425 U.S. 912.

But, we would not reverse this case merely because these two questions were not permitted, because there is some discretion allowed in such instances and the witnesses were allowed to testify to facts that essentially placed before the jury the same evidence. If there was error it was harmless, and we have held that “[e]rror, unaccompanied by prejudice, commonly called harmless error, is not ground for reversal.” McCoy Farms, Inc. v. J. & M. McKee, 263 Ark. 20, 563 S.W.2d 409 (1978), cert. denied, 439 U.S. 862. Nor do we say that on retrial of this case, these statements must be admitted. The admission or exclusion of testimony is a matter best left to the sound discretion of the trial judge.

We do however find the trial court’s exclusion of part of the testimony of the appellants’ expert witness was prejudicial error. Dr. Wilburn Giles testified, “I think she has a permanent disability to the body as a whole of 15% as a result of her injury.” Because the doctor could not say definitely the 15% disability injury was caused by either accident, merely she suffered a 15% disability after the second accident, the trial judge excluded the testimony.

It was the responsibility of the jury in this case to assess the damages for the injuries suffered by Mrs. Clawson in the second accident. In making that determination, the jury is allowed to consider the full extent of any injury sustained, even though the degree of injury proximately resulted from the aggravation of a pre-existing condition. AMI 2203; Owen v. Dix, 210 Ark. 562, 196 S.W.2d 913 (1946). Therefore, the doctor’s assignment of a percentage figure to the disability suffered by Mrs. Clawson was a relevant fact for the jury to consider when determining the damages suffered by the appellant and should not have been excluded. The jury had the testimony of Mrs. Clawson of her condition before the first accident, after it and after the second accident. Similar testimony was offered by Mrs. Clawson’s husband and daughter. The fact she suffered a total of 15% disability overall was a relevant fact the jury needed in order to find her injury from the second accident. Normally, the admission or rejection of such evidence is discretionary, but we find no basis for excluding the testimony in this instance. See Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (1980).

The appellants argued that the trial court erred in denying their motion in limine and allowing testimony regarding their prior lawsuit and settlement. Although we held in Elrod v. G & R Const. Co., 275 Ark. 151, 628 S.W.2d 17 (1982), that offers of compromise or settlement are not admissible, that case involved the settlement of a separate claim arising out of the same accident. The fact that a settlement was made in Mrs. Clawson’s first lawsuit was allowed simply to show she had prior injuries. The information was relevant to the jury’s determination of damages and as admissible. It had to know she suffered damages from a prior accident in order to fairly decide the injury and damages in this case.

Appellees’ contention that the appellants cannot appeal from a judgment in their favor without first offering proof of the inadequacy of the judgment is without merit. In Thompson v. Universal C.I.T. Credit Corp., 234 Ark. 1056, 356 S.W.2d 735 (1962), we said that an appeal from a judgment and verdict in a party’s favor is permissible “if an award of substantial damages is inadequate and is accompanied by other error.” Appellees maintain that since the appellants offer no proof of the inadequacy of their damages, their appeal is not permissible. This is a misstatement of the rule in Thompson. First, we cannot say as a matter of law the verdict was adequate. Next, by demonstrating prejudicial error, the exclusion of the testimony of Dr. Giles, the inclusion of which could affect the amount of damages the appellants could receive, appellants have satisfied Thompson, and their appeal is therefore permissible.

We also deny the appellees’ request for attorney’s fees pursuant to ARCP Rule 68. The appellees tendered a judgment of $16,000, a sum larger than the appellants ultimately received. Consequently, they argue they are entitled to be paid the cost of the lawsuit. They argue that attorney’s fees ($2,500) are included in the term “costs” as stated in Rule 68. “The term ‘costs’ ... as used is not understood ordinarily to include attorney’s fees. Lewallen v. Bethune, Adm’x, 267 Ark. 976, 593 S.W.2d 64 (Ark. App. 1980). Absent express authority, we do not award attorney’s fees.

Reversed and remanded.