text:
    Robert BARNES v. STATE of Arkansas
    5812
    494 S.W. 2d 711
    Opinion delivered May 7, 1973
    [Rehearing denied June 18, 1973.]

      Harold L. Hall, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Ralph C. Hamner, Jr., Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Robert Barnes, the appellant herein, contends that the circuit court grossly abused its discretion by revoking the suspension of a sentence of 15 years’ imprisonment imposed upon him on March 21, 1972, after his plea of guilty to a charge of assault with intent to rape. We affirm because we do not find such an abuse of discretion.

There was evidence on behalf of the state that when the circuit judge advised Barnes that his sentence would be suspended and that he would be placed on probation for three years, Barnes was told that his probation would be based on his good conduct. Thereafter, the court’s probation officer, Harold Allison, read conditions of the probation and suspension to Barnes from a document entitled “Statement of the Court Respecting a Suspended Sentence” addressed to Barnes. These conditions required that appellant not violate any law, not associate with persons who have criminal records, report to the probation officer once a month, work regularly at a lawful occupation, seek psychiatric care and make the results of his psychiatric treatment known to the court. The probation officer also imposed a condition that appellant not carry any firearm. Allison testified that Barnes signed a statement accepting the conditions of the probation, and indicated to the probation officer that he understood its terms.

On April 26, 1972, appellant was charged by information with kidnapping in the second degree and rape in the first degree, both alleged to have been committed on the 19th and 20th days of April, 1972. On the preceding date, the state had filed a petition for revocation of probation. A verdict of acquittal was directed on the kidnapping charge over the state’s objection when the charges were brought to trial on May 24 and 25, but a mistrial resulted on the rape charge when the jury reported that it was deadlocked on a nine to three vote with no chance of reaching a verdict. Hearing on the petition for revocation was then held on May 31, resulting in the order and judgment from which this appeal is taken.

Appellant concedes that the action of the trial court in revoking the suspension of a sentence will not be reversed on appeal unless there has been a gross abuse of the trial court’s discretion. Bodner v. State, 221 Ark. 545, 254 S.W. 2d 463; Calloway v. State, 201 Ark. 542, 145 S.W. 2d 353.

The petition for revocation charged that appellant had raped Carla McMullen, the alleged victim in the charge of rape on which there was a mistrial. It also alleged that Barnes had impersonated a police officer. The probation officer testified that even though he had gotten Barnes an appointment with the state psychiatrist, he had received no reports concerning any visit to any psychiatrist by Barnes. From the record of appellant’s trial on the charges of kidnapping and rape, we find that the Sheriff of Pulaski County testified that appellant had been issued an “active deputy sheriff’s card” when he served as a North Little Rock policeman, but that in April 1971 Barnes had no authority to carry the card because he was no longer a member of the Pulaski County Sheriff’s Department. This card was in appellant’s possession when he was arrested on the rape charge.

The alleged victim of the kidnapping and rape testified, on the trial of those charges, that during a late evening automobile drive she went to her home in an apartment building in Little Rock after she noticed a car pursuing her, and that, when she pulled in her driveway, this vehicle was driven in behind her. According to her testimony, she acted as if she were leaving, and as she started to drive out of the driveway, appellant walked up to her car, identified himself as a county sheriff, ordered her to roll down her window, asked to see her driver’s license, told her she was speeding, asked her what she’d had to drink, inquired whether she would be willing to go to the station and take a test, told her a $1,000 bond would be required for striking an officer’s car, said that there would be a fine for carrying a fake driver’s license, and remarked that the matter would involve a lot of money.

The testimony as to appellant’s representing himself as an officer was corroborated by Opal Rudd, the occupant of a neighboring residence, who said that she raised her window when she was disturbed by noises and saw two cars in the driveway, and upon asking the parties to be quiet, appellant came to her window and said that he was a member of the North Little Rock police department and that the lady had too much to drink. Miss Rudd said that when she complained about the disturbance appellant assured her that the matter would be taken care of.

Carla McMullen also testified that when she told appellant she was frightened and was crying because her boyfriend had broken off their “dating,” appellant professed understanding and suggested that she’d feel better if she had a drink. She then related that he had taken her to the American Legion Club, but when she was ready to go home, appellant took her via the freeway across the Arkansas River to a dirt road instead, where he and a companion undressed her and raped her. She stated that while they were at the club, appellant mentioned that he had a gun. She saw what she called a “sheriff’s sticker,” which turned out to be an Arkansas Municipal Peace Officers Association sticker, on the windshield of the car driven by appellant.

There was evidence indicating that appellant’s companion had been convicted in California of a felony, which had been reduced to a misdemeanor upon termination of a period of probation..

Appellant concedes that if the court had held a hearing on the petition for revocation before the mistrial, there would have been no abuse of discretion, but that the court grossly abused its discretion in view of the testimony of a juror in the case that the jury stood hopelessly deadlocked at nine for acquittal and three for conviction, and the failure of the state to show that appellant had placed any restraint on Miss McMullen or caused her to submit to his custody.

We do not agree that the jury’s inability to reach a verdict carries the implications appellant seems to find. If his arguments in this respect are accepted, then a retrial of a charge after such a result would seem to be barred, which, of course, is not the case. We have heretofore held that conviction of a subsequent offense is not a prerequisite to revocation of such a suspension. Gross v. State, 240 Ark. 926, 408 S.W. 2d 75. Furthermore, we do not find support for appellant’s position on the question of his impersonation of an officer. He contends that before the court could take this evidence into consideration, there must have been an actual undertaking by Barnes to arrest Miss McMullen, and that his merely announcing his intention to do so in order to accomplish a wrongful purpose did not constitute the offense denounced by Ark. Stat. Ann. § 42-110 (Repl. 1964), relying upon Martin v. State, 114 Ark. 230, 169 S.W. 776. In the Martin case, however, there was no evidence that the accused had claimed to be an officer, or ever placed the person of Martin in restraint or that Martin ever submitted himself to the custody of the accused, and Martin testified that he did not think the accused meant to arrest him. The court there held that, in order to constitute the offense, the accused must exercise some of the powers, duties, functions or privileges incident to the office that he asserts that he holds at the time. We think that the evidence shows that Barnes did attempt to exercise functions of a police officer in preventing the movement of Miss McMullen’s vehicle and demanding that he be shown her driver’s license, if not otherwise.

Be that as it may, the sufficiency of the evidence to support the revocation of a suspended sentence lies within the sound judicial discretion of the trial court. Smith v. State, 241 Ark. 958, 411 S.W. 2d 510. We have indicated that there is not a gross abuse of that discretion unless there is no basis in fact for the court’s action. Spears v. State, 194 Ark. 836, 109 S.W. 2d 926. When we view all the evidence hereinabove recited, keeping in mind that the same judge who revoked this suspension saw and heard the witnesses at the trial, we cannot find that there was a gross abuse of the trial court’s discretion, so we affirm the judgment.

      The record of the trial on the kidnapping and rape charges was introduced at the hearing of the petition for revocation by stipulation. The- judge who suspended the sentence also presided over the kidnapping and rape trial and heard the petition for revocation.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Ardell RICKETTS v. STATE of Arkansas
    5810
    494 S.W. 2d 462
    Opinion delivered May 7, 1973
    [Rehearing denied June 11, 1973.]

      Bob Scott and Robert D. Smith III, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Ardell Ricketts was charged with murder in the first degree for the killing of Ward Phillips. He was convicted at a jury trial of murder in the second degree and was sentenced to the penitentiary for a term of five years. The errors he assigns on this appeal are hereafter discussed but first we relate some of the background leading to the difficulty between Ricketts and Phillips.

Ricketts maintained a campsite on the Buffalo River near his home in Newton County about 18 miles down river from Jasper. Ward Phillips used and maintained a campsite formerly owned by his family on the river some distance down stream from Rickett’s campsite and a few hundred yards up stream from a low water bridge across the river. On June 8, 1972, Ricketts’ wife and young daughters together with his sister and brother-in-law, Mr. and Mrs. Ralph Wallen, and their children were occupying the Ricketts campsite.

Bill Houston and Mr. Phillips worked together in conducting float trips down the Buffalo River. Mr. Houston furnished the boats and guides and Mr. Phillips furnished sleeping facilities and prepared campsites and meals at the end of the day’s trip. A Mr. Allen Johnson and his friend, Earlie Woods, lived in Missouri and they made arrangements with Houston and Phillips for a fishing float trip on the Buffalo River. They met Houston and Phillips in Jasper and on June 8 started what was to have been a two day float down the river in one of Houston’s boats operated by Houston’s employee. In the meantime Phillips drove overland to his campsite \yith his pickup truck and camper trailer in order to have the campsite prepared for Johnson and Woods at the end of their first day’s float down the river.

The Phillips campsite was protected by a gate across the road leading down into the campsite, and the gate was kept locked with a padlock and chain. Mr. Phillips parked his pickup truck with the attached camper trailer inside.his camp area some distance from the gate. He arranged to sleep in the “hull” on the back of his pickup and had arranged for Johnson and Woods to sleep in the camper he pulled behind the pickup. When Johnson and Woods arrived at the campsite late in the afternoon on June 8, Mr. Houston was there for the purpose of taking his employee home. After cleaning some fish Johnson and Woods had caught, Mr. Houston left with the intention of returning early the next morning with another boat to continue the float trip down river from the low water bridge below the campsite. After Houston and his employee had gone, Johnson and Woods desired a bath and fresh clothes so they, as well as Mr. Phillips; went bathing in the river adjacent to the campsite at the lower end of a long hole of water, which was also more or less a popular swimming place used by the public. After taking a bath in the river and eating the evening meal Phillips had prepared, they all three retired for the' night in their respective sleeping quarters.

In the meantime at the Ricketts’ campsite, Ricketts’, wife and sister and their young daughters had been boat riding on the river in the afternoon of June 8, and Mb. Ricketts had been on a business trip to Kansas City, Missouri. When Ricketts arrived at his campsite about 10 o’clock that night, someone in his group told him that they had paddled their boat down the river that afternoon and saw three men swimming nude adjacent to the Phillips campsite; that upon seeing their boat one of the men remarked that it was a boatload of. “damn women,” and one of the men then left the water totally nude and stood on the sandbar and dried himself with a towel.

Mr. Ricketts drove his automobile to the Phillips campsite and after sounding the automobile horn for a short period of time at the gate, he drove on to his home about six miles away where he exchanged the automobile for a truck and obtained a .30-.30 rifle and a .22 caliber pistol. He then returned to the Phillips campsite where he harassed and intimidated the occupants the remainder of the night. When Mr. Phillips finally attempted to leave his campsite early on the morning of June 9, Mr. Ricketts followed him and killed him with the .22 caliber pistol, The facts are more specifically set out herein from, the evidence discussed under the assignments of error.

The appellant first contends there was no substantial evidence to sustain the conviction and argues that theje was no malice proven. We do not agree. Murder is defined as the unlawful killing of a human being, in the peace of the State, with malice aforethought, either express or implied. Ark. Stat. Ann. § 41-2201 (Repl. 1964). Malice is implied by statute when no considerable provocation appears, or when all the circumstances of the killing manifest an abandoned and wicked disposition. Ark. Stat. Ann. § 41-2204 (Repl. 1964). Certainly the evidence in this case fits at least the statutory definition of implied malice.

According to the testimony of Mr. Johnson and Mr. Woods, after they and Mr. Phillips retired about 9 or 10 o’clock on the night of June 8 they were awakened about midnight by an automobile horn blowing near the camp. They saw the rear of the automobile as it left their campsite and assumed it was occupied by teenagers. A short time later they were awakened again by a truck’s headlights flooding the campsite and a horn blowing. The truck was parked at the closed campsite gate and its horn was blowing constantly. A man, later, identified as Ricketts, was standing outside his truck cursing and firing weapons and demanding that Mr. Phillips come to the gate and talk with him. While Johnson and Woods were getting dressed, Mr. Phillips made various excuses for not going to the gate. Ricketts then threatened to fire his rifle through the camper trailer if Mr. Phillips did not come up to the gate and talk with him. Ricketts demanded that Phillips come to the gate unarmed and, according to Johnson and Woods, he told Mr. Phillips he would get hurt if he came to the gate armed. Mr. Phillips handed Johnson and Woods a flashlight and shouted to Ricketts that he could not come to the gate because he was barefoot. He warned Ricketts that he might injure a woman if he shot through the camper trailer and suggested that Ricketts come to where Phillips was if he wanted to talk with him. As Ricketts approached the trailer camper carrying his rifle, Johnson and Woods slipped out of the camper and hid in the woods between the campsite and the river until daylight. According to Johnson and Woods, Mr. Ricketts remained at the Phillips’ campsite the remainder of the night after they hid in the woods and the horn on the truck continued to blow until it appeared to die out because of a depleted battery.

Mr. Houston returned to the campsite just after daylight as he had agreed the previous day in order to continue the float trip. From where they were hiding Johnson and Woods saw Mr. Houston drive across the low water bridge where he turned around and started back across the bridge. Mr. Ricketts also drove his truck across the bridge and stopped and talked with Houston. He then drove across the bridge and also turned around and drove back toward the campsite. After hearing a truck leave the campsite, Johnson and Woods slipped back in sight of the area and found that Mr. Phillips’ truck and camper trailer as well as Ricketts’ truck were gone. Johnson and Woods then caught a ride with a Mr. Waters who was crossing the low water bridge on his way to work in Jasper. They rode with him back past the Phillips’ campsite and when they had traveled about a mile from the bridge, they came upon Mr. Phillips’ vehicles stopped on the side of the road and found Mr. Phillips lying on the ground beside his truck shot through the chest. Mr. Phillips was still alive and conscious and told them that Mr. Ricketts shot him. They placed Mr. Phillips in Waters’ pickup truck but he died before they arrived in Jasper. A .22 caliber bullet fell from Mr. Phillips’ clothing as he moved about in the bed of Waters’ pickup and the bullet was later identified by a ballistics expert as having been fired from Ricketts’ pistol.

On cross-examination Johnson and Woods denied swimming in the nude but stated that they as well as Mr. Phillips had their undershorts on while they were bathing in the river. They denied that any of them made any remark concerning the women in the boat. They said they did see a boat with some people in it turn around at the upper end of the long hole of water where they were bathing, but that the boat was so far from them they could not tell who was in it. They said someone did remark that they would stay in the water above their waists if the boat should come on down the river.

Mr. Bill Houston testified that when he returned to Mr. Phillips’ campsite around 6 o’clock on the morning of June 9 to continue the float trip down the river, Mr. Ricketts was at the campsite with Phillips and that Ricketts’ truck was parked at the gate entrance to the camp. He said that as soon as he parked his own truck at the gate, Mr. Phillips came toward the gate and told him not to say anything to Mr. Ricketts about Johnson and Woods being down there. He said Mr. Phillips then disposed of some garbage in a ditch, and went back toward the trailer. He said that Mr. Ricketts then came up from Mr. Phillips’ camp to the gate and insisted that he put his boat into the water there at Mr. Phillips’ camp instead of putting it in below the low water bridge. He said that Ricketts was armed with a pistol in a holster on his belt and that he aimed the pistol at the lock on the gate several times but did not fire it. He said that Ricketts then attempted to beat and pry the lock off the gate with a tire tool. He said Mr. Phillips came back up to the gate and told Ricketts there was no point in beating the lock off the gate and offered Ricketts a key to the lock. He said Ricketts did not accept the key but pushed Mr. Phillips aside and that Mr. Phillips walked back down to his camp and he did not see Mr. Phillips again. Houston said that Ricketts then asked him to help get his (Ricketts) truck started. He said Ricketts told him the truck battery was down because he had left the lights on and the horn blowing. He said he asked Mr. Ricketts why he left the lights on and the horn blowing and Ricketts said: “I wanted the son of bitches to shoot my lights out.” Houston said that Ricketts remarked something about these men didn’t have any respect for his wife and children and that he had a 13 year old daughter. He said Ricketts didn’t appear tó be drunk but did appear to be angry. He said that after he helped Ricketts get his truck started, Ricketts backed his truck through the gate and knocked it open. He said that he drove his own truck down to and across the low water bridge looking for Johnson and Woods and that as he returned, he met Mr. Ricketts in his truck and they sat and talked for a few minutes with their vehicles parked beside each other. He said he then returned to Jasper and ate breakfast and had started back to the area of the bridge to search for Johnson and Woods when he met them in Mr. Waters’ pickup after they had found Mr. Phillips.

The appellant, Ricketts, testified in his own defense. He said that when he arrived at his campsite after dark on June 8, the two smallest children mentioned about having seen a man on the creek bank without any clothes on. He said he went to bed but could not sleep. He then testified as follows:

“Q. Why couldn’t you sleep?
A. For studying about this man — these men — coming in from out of state, abusing my family while I was off working trying to make a living.”

Mr. Ricketts testified that he got up and went outside and chunked up the campfire and sat there awhile and probably drank two cans of beer. He said that after sitting at his campfire awhile he got into his automobile and went to his home about six miles away and in doing so he had to drive by Mr. Phillips’ camp. He said he blew his horn as he passed Phillips’ camp and when he reached his home he exchanged his automobile for his truck. He said he got his BO-BO Winchester rifle and his .22 pistol and returned to Mr. Phillips’ camp in the truck. Mr. Ricketts then testified as follows:

“Q. What did you do when you got back to camp, Mr. Ricketts?
A. I cut a green stick and fastened it in under the steering wheel on the top of my horn and I left my lights shining through the camp and I got out to the side of my truck and hollered a time or two; I shot the gun a time or two.
Q. Where did you shoot the gun?
A. Straight up.
Q. Why did you holler?
A. I wanted to know if somebody was there, and if tfte^ had disturbed somebody, I thought I had the same right to disturb them ás they did to disturb somebody.
Q. Did you see Ward Phillips there?
A. Yes sir, my family told me that Ward had been there and I figured he was there and I hollered for Ward.
Q. Did he come out to where you were?
A. No, but he asked me to come down to the camp where he was.
Q. Did you go down there?
A. Yes, sir, I did.
Q. Did you see these two men from Missouri at any time?
A. No, sir, I did not.
Q. Did you inquire of Ward where they were, or if they were there?
A. Yes, sir, I did.
Q. Did you tell him why you were upset or why you were ¿here?
A. Yes, sir, I 'did.'
Q. Did he make any response "-to' yoiir accusing them of being naked in the river?
A. I don’t remimber vinhat he said about it, but he said there was npbody with him.
Q. He said there was mobody else - there?
A. Yes, sir.
Q. What happened after that?
A. He said that he would show me that they was nobody with him, so he shined the light in Ijis camper and trailer and he shined the light in his truck and he had three beds, but they was nobody there with him.”

Ricketts said he returned to his own camp but within about *jn hour, when it was coming daylight, he returned to Mr. Phillips’ camp .and Mr. Phillips was still alone. He said when Mr. Houston arrived at Phillips’ camp, he talked with Houston at the gate. He said Mr. Phillips was present at the gate but left while he talked with Houston. He said he asked Mr. Houston to help him get his truck started and he did so with jump cables from his own truck. He said he backed his truck through Mr. Phillips’ gate and then talked with Mr. Phillips some more. He said he then drove his truck down to the low water bridge where he met Mr. Houston coming back across the bridge. He said he talked a few minutes there with Houston and then drove his own truck across the bridge and turned around and came back up the hill to talk some more with Mr. Phillips. He then testified as follows:

“Q. What did you do at that point?
A. I first turned towards the camp, then I seen Ward’s camper sitting at the top of the hill, and I wanted to talk to him some more so that he could tell me about these guys that was with him.
Q. You were looking for these two men from out of state?
A. Yes, sir.
Q. Did you go to where Ward’s camper was parked?
A. Yes, sir.
Q. Was it parked by the side of the road?
A. Yes, sir.
Q. How far from the camp turnoff up the hill was the camper parked?
A. I would say three hundred yards or something, two or three, I couldn’t tell just which.
Q. Did you stop at the truck there?
A. Yes, sir, I did.
Q. Mr. Ricketts, tell the jury what took place at that point.
A. Ward had pulled over to the side of the road and when I went to the back of the truck, I pulled around past his truck and got out of my truck and walked back beside his and he jumped out of his truck and he says ‘Damn you, you knocked my gate down,’ and I said ‘Ward you told me last night that was not your gate’ and he started to crowding me and I went to running backwards, and I backed a circle in the road, back near his camper and I kept hollering for him to stop.
Q. Where were his hands?
A. His right hand was in his pocket and I don’t remember where his left hand was.
Q. Go ahead, what happened then?
A. Well, he didn’t stop, and I jerked the gun out and I thought I shot it three times.
Q. The first time you shot the gun, in which direction was it pointed?
A. Straight up.
Q. And then you fired again?
A. I fired three times real fast, two or three times real fast.
Q, What did Ward say or do?
A. Ward stopped, and he said ‘Ardell you shot me,’ and I said ‘no, I didn’t, Ward,’ and he said ‘yes, you did’ and I looked at him and seen he was shot.”

Mr. Ricketts then testified that he asked Mr. Phillips if he thought he could drive and Phillips indicated he could. He said he told Mr. Phillips that he would help him get to a doctor so he jumped in his own truck and took off up the road ahead of Mr. Phillips’ truck. He said when he could not see Phillips’ truck following him, he backed into a side road and when Mr. Phillips never did drive by, he turned around and went back and found Mr. Phillips lying beside his truck. He said he then went straight back to his camp. He testified that he was not especially afraid of Mr. Phillips but that he was afraid he had a gun and that he was also aware that there were two more men down there with him somewhere. He said he was upset over the thoughts of men parading around naked before his wife and children but that he never did find the men who were with Mr. Phillips.

On cross-examination Mr. Ricketts testified that he became aware that Mr. Phillips had been shot when he saw a little spot on him somewhere along his chest. He said he did not know whether he shot Mr. Phillips or not; that there were two other men around somewhere but that he did not hear other gunshots or see anyone else shoot Mr. Phillips. Mr. Ricketts identified the pistol offered in evidence as the one he had strapped on when he was talking to Mr. Houston at the Phillips’ camp. He testified that he was about seven feet from Mr. Phillips when Mr. Phillips was shot. He said Phillips was advancing toward him with his hand in his pocket.

“I told him to stop or I would shoot and he was talking at the same time, I don’t know what he said, but I repeated three or four times; I jerked the gun out and shot it up in the air real fast to try to get him to stop, because I had went back as far as I could without turning my back on him.”

Mr. Ricketts then was asked and answered the following questions:

“Q. . . . [I]s it your position that you shot Ward Phillips to protect your own life, is that what you are saying?
A. No, sir, I didn’t say that. I will not say that I shot him to protect my own life.
Q. Then, there wasn’t any reason for you to shoot him, was there?
A. That we don’t know.
Q. You told Ralph Wallen you shot him, didn’t you?
A. I don’t remember.
* * #
Q. If you think somebody else shot him out there, why didn’t you come in and tell somebody about it?
A. Because he told me I shot him, because I had been up practically for about thirty something hours without sleep, and I was mad and aggravated at the two guys that was down there, and I guess I just got scared, and panicked, is all I know.
Q. Wouldn’t it be closer to the truth that you were mad at Ward Phillips because he wouldn’t tell you who these people; you saw he was leaving and when he wouldn’t tell you, you shot him?
A. No, sir.”

Mr. Ricketts was asked what he was going to do with Mr. Johnson and Mr. Woods if he had found them. His testimony on that point is as follows:

“A. I was going to bring them and let my family identify them.
Q. You were going to drag them back up there and have your family identify them?
A. Yes, sir.
Q. Then what were you going to do with them — shoot them?
A. We are supposed to have a law that prosecutes people like that.”

Continuing on cross-examination Mr. Ricketts was asked when did he go back to Mr. Phillips’ camp the following morning and his testimony was as follows:

“A. Just about daylight — it wasn’t good daylight, but you could see.
Q. Did you ever have your truck down there where
the camper was?
A. Yes, sir, I did.
Q. When did you do that?
A. After I run backwards through the gate.”

Mr. Ricketts testified on cross-examination that when Mr. Phillips failed to show up while he was waiting for him in a side road, he drove back to where Mr. Phillips’ truck had stopped and he then testified as follows:

“Q. Where was he when you saw him that time?
A. He was laying by his truck in the edge of the road.
Q. What did you do then?
A. I slowed up, and I thought he was dead and. I went on back to the camp.
Q. You just left him there to die, is that right?
A. I thought he was already dead.
Q. But did you stop to see?
A. No, I did not stop to see.”

The county sheriff testified that Phillips’ truck had run from the road and was damaged from an impact against a tree. He testified as to the considerable amount of blood he observed inside, as well as outside and around, Phillips’ wrecked vehicles. Certainly the evidence was sufficient to sustain the conviction for second degree murder and the jury was very lenient in assessing the minimum sentence of five years in this case. We are of the opinion that Ricketts’ own testimony would have sustained his conviction.

,; % ‘The appellant’s second contention is that the court epqed in instructing the jury on first degree murder. Under "Ark. Stat. Ann. § 41-2205 (Repl. 1964) willful, deliberate, malicious and premeditated killing constitutes murder in the first degree; all other murder is murder in the second degree, § 41-2206. The trial court did not err in. giving the first degree murder instruction for two reasons. In the first place, the evidence we have already set. put would have sustained a jury verdict of murder in the first degree. In the second place, the jury only found Mr. Ricketts guilty of murder in the second degree, and he could not have been prejudiced by the instruction on murder in the first degree. Brewer v. State, 251 Ark. 7, 470 S. W. 2d 581.

The appellant next contends that the court erred in failing, to inform the jury at the beginning of the trial that .the defendant was presumed innocent until proven guilty. This assignment is totally without merit. Ark. Stat. Ann. § 43-2134 (Repl. 1964) provides as follows:

“Whén the evidence is concluded, the court shall on motion of either party, instruct the jury on the law applicable to the case.”

The court did give the instruction on presump don of innocence at the conclusion of the evidence in this case.

The appellant next contends that the court erred in removing a prospecdve juror because he stated that he .. would not send the defendant to the penitentiary if he found him guilty. This assignment is so totally without merit we do not dwell upon it except to point out that the appellant’s peremptory challenges were not exhausted in this case.

. Appellant next contends that the state failed to produce evidence that it should have known would be beneficial to the appellant. This assignment is likewise (without merit. The appellant argues that the .22 caliber bullet found to have been fired from Ricketts’ gun was offered in evidence under testimony that it fell from Phillips’ clothing, and the appellant’s attorney did not discover until after the trial thát the shirt Mr. Phillips was wearing at the time he was shot had a bullet hole in the back as well as in the front. He argues that the prosecuting attorney had possession of Mr. Phillips’ clothing and failed to reveal to the defense that the shirt contained two bullet holes. The prosecuting attorney explained at the hearing on a motion for a new trial, that he did not offer the shirt in evidence because of its blood stained condition and that the shirt and other clothing were available to the defense upon request at all times. This is not denied by the appellant.

The judgment is affirmed.


author: Frank Holt, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Joan SPENCE, Administratrix of the estate of Carl SCHMOLL, deceased, et al
    73-31
    494 S.W. 2d 469
    Opinion delivered May 7, 1973
    [Rehearing denied June 11, 1973.]

      Thomas B. Keys and Billy Pease, for appellant.

      Williams if Gardner, for appellees.
   Frank Holt, Justice.

In this land condemnation case a jury returned a $22,500 verdict for appellee against the appellant as just compensation for the 84.52 acres appellant condemned for interstate highway construction and a roadside park.

We agree with the appellant’s two assertions of errors regarding the value testimony of appellee’s expert value witness, Robert Darr; first, that the court erred in not striking the value testimony of this witness because he used small lot sales to establish the value of the large tract of land taken which contained raw acreage; second, that land values on a portion of the condemned tract were “based in part on what it would cost to engineer a large tract into small residential lots.”

Darr, admittedly an expert, testified that his before the taking value was based in part upon a $700 per acre valuation of 82 acres of the tract which he considered to be suitable for residential development. It appears that the basis for this $700 per acre value is the major concern of appellant in this appeal. Darr’s opinion as to the difference in the before and after the taking value, i.e. fair market value, of the property was $53,888.

In fairness to Darr, we observe that he testified he used other methods in valuing the condemned property. However, it appears that none of these methods were fully developed by him at trial except that of comparable sales as a basis. The sales utilized as comparisons were those of small lots as evidenced by the following testimony:

“I do not find an actual comparable sale to a tract this size that would apply in this case. Therefore, I am utilizing the sale of smaller parcels, such as these half acre parcels **** which in effect would be $1500 per acre, if you wanted to take it across the board; but **** the land value could not be this much, in my opinion, because the developer has to add many improvements, such as engineering costs, that would be absorbed by a portion of the $1500 per acre that he would receive from the development of the property. Therefore, my valuation of $700 an acre on the property.”

In our recent opinion on this same litigation we pointed out the speculative nature of such evidence which uses the sales price of lots for comparable sales in arriving at the valuation of large tracts of raw ground. Arkansas State Highway Commission v. Schmoll, 248 Ark. 52, 449 S.W. 2d 938 (1970). Our holding on that issue has become the law of the case. Riddell and McGraw v. Little, Adm’x, 253 Ark. 686, 488 S.W. 2d 34. In the case at bar, nevertheless, the appellee adduced, through the testimony of Darr, as comparisons four of six sales of the same lots which were disapproved by our previous opinion as a basis for valuation of raw acreage.

In Arkansas State Highway Commission v. Schmoll, supra, we said:

“[I]t appears to us that appellee is using plot sales (comparable to the sales of finished lots) along existing roadways with other improvements and comparing the price paid for the acreage involved in those sales with his raw acreage for purposes of determining its value without taking into consideration the many variables such as demand; the cost of engineers; the installation of improvements, such as roads, water and sewer or septic tanks; and the numerous man hours and financing charges that go into the development of a residential area.”

Darr did testify that he took into consideration such variable costs as “streets, engineering, surveys, legal expenses, abstracts, and various types of things.” However, it is our observation that the following testimony on cross-examination reflects Darr’s unfamiliarity with such variable costs:

“Q. All right. What would it cost to engineer this entire property as a subdivision?
A. I do not know what it would cost.”

Therefore, we are of the opinion Darr’s testimony is defective as being too speculative.

In reversing we are not unmindful of appellee’s assertion that this appeal should be dismissed because of ihe appellant’s failure to comply with our Rule 9 by not abstracting the testimony of other witnesses. However, m our view the appellant’s abstract of only Darr’s testimony is sufficient to understand the issue presented to this court. Furthermore, the presumption is that an error is prejudicial unless it affirmatively appears otherwise. Arkansas State Highway Commission v. Roberts, 246 Ark. 1216, 441 S.W. 2d 808 (1969), Arkansas State Highway Commn. v. Parks, 240 Ark. 719, 401 S.W. 2d 732 (1966). In the case at bar it is not demonstrated the incompetent evidence is nonprejudicial.

Reversed and remanded.

Brown, J., not participating.


author: Carleton Harris, Chief Justice.

text:
    John M. HENDERSON III, Adm’r of the Estate of J. M HENDERSON Jr. v. FIRST NATIONAL BANK of Dewitt, Arkansas, and Hattie Boone BLACK
    73-2
    494 S.W. 2d 452
    Opinion delivered May 14, 1973
    [Rehearing denied June 11, 1973.]

      Macon, Moorhead & Green, for appellant.

      Coleman, Gantt, Ramsay ir Cox, for appellees.
   Carleton Harris, Chief Justice.

This case involves the obtaining of title to personal property by adverse possession, and apparently is the first reported case relating to such a situation for over one hundred years. The contentions of the parties are as follows:

On January 24th, 1928, First National Bank of DeWitt, Arkansas, issued to J. M Henderson, Jr. its Common Stock Certificate No. 186 for 20 shares.

J. M. Henderson, Jr. brought this action in the Circuit Court for the Southern District of Arkansas County, Arkansas, seeking recovery of possession of Certificates 186 and 198 from Miss Hattie Boone Black, and recovery of 160 shares of dividend stock and $8,250.00 in accumulated money dividends from First National Bank of DeWitt. Hattie Boone Black answered with a general denial, and pleaded the statute of limitations, and later laches and estoppel as a defense, also moving to transfer to equity. Henderson replied, inter alia, pleading counter-estoppel, and joined appellee Black in her motion to transfer. First National Bank of DeWitt has taken a neutral position. This cause was transferred to equity.

During the course of the litigation, J. M. Henderson, Jr. died and the cause was revived in the name of his Administrator, John M. Henderson, III, the appellant.

The dispute centers around Henderson’s original acquisition of Certificates 186 and 198, whether Henderson and L. A. Black (father of appellant Hattie Boone Black) had a property settlement in the fall of 1945 out of which Henderson was to take the. certificates free of debt after having pledged them to L. A. Black, whether certain correspondence and transactions which occurred in 1950 and 1951 would start the running of the three year statute of limitations against Henderson, and whether certain acts and omissions on the part of the appellant, Hattie Boone Black,^and her mother, Mary B. Black, would be sufficient to bar Miss Black from pleading the statute of limitations, laches and estoppel as a defense. Appellant, without conceding that he was barred by limitations from recovering possession of Certificates 186 and 198, also contended that as to the dividend stock and money dividends issued to John M. Henderson, Jr. and held by First National Bank, Miss Black could not in any event claim the bar of limitations, laches and estoppel, having never been in possession of these certificates and monies.

A number of witnesses testified and the record is rather large; at the conclusion of the testimony, and after the submission of briefs, the court rendered a comprehensive written opinion discussing the contentions of the parties and we will quote freely from that opinion in setting out the facts and law relied upon by the court in rendering its decision. The opinion commenced as follows:

“There are certain relevant facts that are not in dispute. It is undisputed that in January, 1928, Henderson was issued twenty shares of stock in Bank represented by certificate number 186 and in January, 1954, he was issued twenty more shares in Bank represented by certificate number 198. This was done at the instigation of Black, the then president and principal stockholder.
“The certificates were endorsed by Henderson in blank and, even though Henderson testified that they were placed in the stock book, they apparently did not remain there for very long because Lawrence Dearing, president of Bank, testified that he had been associated with Bank for many years and he could not recall ever seeing the certificates in the stock book. The evidence would sustain a finding that Black and then his widow and then his daughter, the Defendant herein, have had the physical possession of the two stock certificates for most of the time subsequent to the date when Henderson endorsed them in blank.
“It is also undisputed thát additional shares have been issued as stock dividends on the stock certificates in dispute in addition to cash dividends of $8,250.00. These stock and cash dividends have been held by the Bank since 1951, and the Bank, in this case, simply seeks instructions as to which party is the owner and entitled thereto.
“For the sake of clarity, the Court will discuss the principal issue under three topic headings in question form, i.e., (I) Did Henderson originally contract to purchase the forty shares represented by certificate numbers 186 and 198? (II) Did Henderson receive these shares in a settlement with Black or otherwise pay the agreed price for them? (Ill) Is Henderson’s personal representative now barred from recovering these certificates and dividends by the statute of limitations, laches or estoppel?
“These topic headings will be discussed in the order listed.”

Proof on the part of appellee was directed to the fact that L. A. Black simply made the transfers of stock as a book transfer to enable Henderson to continue serving on the board of directors of the bank, but the court rejected this contention, stating that a finding to that effect would mean that the court was placing “the stamp of charlatan upon two men who lived most of their lives in Arkansas County and commanded the very highest respect from their fellow citizens”; that if this were only a “book transfer”, the two men would have been violating the National Banking Act which requires that a director of a bank be “the owner in good faith, and in his own right, of the number of shares of stock required by this chapter. . .”. The court stated:

“In the absence of more proof than is now in the record, this Court must reject any suggestion or implication that Black and Henderson descended to the status of a knave and engaged in chicanery solely for the purpose of retaining Henderson on the Board of the Bank. To the contrary, the evidence is rather clear that Black arranged for Henderson to acquire additional stock in 1928 and again in 1934 in order that Henderson would ‘own in his own right’ the minimum required by law. ***
“The Court finds that Henderson, in good faith, became the beneficial as well as the legal owner of the forty shares purchased in 1928 and 1934. The evidence further reflects that Henderson did not pay Black in cash at the time of acquisition, but the parties agreed that Black could receive the dividends, if any, from the stock until Henderson paid for them.”

The court held that parol evidence was admissible to explain the circumstances surrounding Henderson’s blank endorsement of Certificates 186 and 198, and then stated:

“(II) Did Henderson receive these shares in a settlement with Black or otherwise pay the agreed price for them? According to Henderson’s testimony taken by deposition, he and Black had done business together for many years and in October, 1945, just two months before Black died, they had a complete settlement of their affairs. In this settlement, according to Henderson, he (Henderson) was to receive free and clear of any claim or encumbrance of Black stock certificate numhers 186 and 198.” ***
“The Defendant introduced into the record certain ledger sheets reflecting certain transactions between Black and Henderson. If the Court accepted these ledger entries as containing the complete business affairs and transactions between Black and Henderson, then a holding would have to be made for Defendant in this case. Defendant Black’s Exhibit No. 11 reflects five entries for 1945, the first entry reading: ‘Jan. 1 — To Balance — $3970.44.’ The other debit en- . tries are: March 16 — Hardware—$1.40; Dec. 24— to check — $1500.00; and Dec. 31 — to hardware— $12.39. Only one credit entry appears and that was on Dec. 24 — ‘By Exp. — Atty Fee 8c Abstracting,’— $2000.00. The balance owed Black from Henderson at the end of the year, according to this ledger sheet, was $3484.23.
“The important question is: Did Henderson and Black have business transactions and dealings that never found their way to ledger sheets and other business records? If Henderson is to be believed, they did. Even though Henderson’s testimony at times is a bit indefinite on details — and this is understandable since he was approaching ninety years of age when he gave his deposition — his overall testimony has a ring of truth about it. Henderson’s testimony relating to the business dealings between himself and Black have not been disputed, with the exception of the disputed stock certificates. Henderson testified that he and Black acquired a printing company in the late 1920s or early 1930s and that both put up $1500.00 in cash each. Among the assets of this printing business was some real property. According to Henderson, Black received this real property and the other assets of the printing company and he (Henderson) was to get the Bank stock free and clear of any claim by Black. Henderson’s testimony implies that Black desired to remain a silent partner or owner in this printing business.
“The decisive evidence as to whether Henderson acquired the disputed Bank stock free and clear of any indebtedness to Black is found in the manner in which the interested parties dealt with and treated certificate numbers 186 and 198 following Black’s death in late December, 1945.”

The court then listed several facts that it considered vital in determining ownership of the stock. First, it was pointed out that the disputed shares of stock were not listed in the estate tax return filed in the estate of L. A. Black. Second, the court mentioned that the disputed shares were not listed in the estate tax return of Mrs. Mary B. Black, wife of L. A. Black. Third, quoting the court, “There is some evidence that the disputed shares of stock were not listed.in the inventory of the estates of either L. A. Black or Mary B. Black.” Fourth, Henderson paid federal income tax on certain dividends from the stock represented by Certificates 186 and 198, or from stock that in itself was originally a dividend from those two certificates. Fifth, Henderson had remained on the board of directors until his death, and would not have been eligible to serve in the absence of his ownership of the disputed stock certificates, and finally, Henderson exercised the rights of ownership by voting the disputed shares of stock at stockholders’ meetings throughout the years.

The court then went into the question of whether Henderson’s personal representative was barred from recovering the disputed shares because of the statute of limitation, laches and estoppel. After a discussion of adverse possession and the statute of limitations, the court stated:

“The rul'e involving the inseparable connection between the statute of limitations and the principle of adverse possession is well stated in 54 C.J.S., Limitations of Actions, Sec. 119: 'In suits to recover personal property, the statute of limitations and the principle of adverse possession are inseparably connected, on the theory that the statute does not begin to run until the possession becomes adverse, and a limitations statute relating to suits to recover personalty is affected by the doctripe of adverse possession by defendant.’
“The Court holds that the Arkansas law is that not only the remedy has been cut off where there has been an adverse holder of chattels, but the title has been lost also.
“The general rule is that ownership of a chattel may be lost or acquired through adverse possession. See 2 C.J.S., Adverse Possession, Sec. 236 and 1 Am. Jur., Adverse Possession, Sec. 96. *** Also, the general rule is that on the expiration of the limitation period, the disseisor becomes possessed of a vested right or title, and that title relates back to the inception of his possession. See 1 Am. Jur., Adverse Possession, Sec. 13.”

The court also quoted 2 C.J.S., Adverse Possession, Section 203, to the effect that on the expiration of the limitation period, the holder by adverse possession becomes possessed of a vested right or title relating back to the inception of his possession. Further, from the opinion:

“The decisive question of this case is: Has the statute of limitations run, thus effectively barring Plaintiff’s cause of action? Another way to state the proposition is: Has the Defendant and her predecessors in title acquired the disputed stock certificates and/or dividends by adverse possession?
“The Plaintiff’s action was originally filed as a replevin suit in the Circuit Court of Arkansas County. It was subsequently transferred to Chancery Court. The pertinent limitations statute applicable here is Ark. Stats. 37-206 and under this section ‘all actions for taking or injuring any goods or chattels’ must be brought within three years after the cause of action has accrued. ***
“In order for the statute of limitations to begin to run in this case, it was necessary that Henderson make a demand for delivery to him of the certificates and that this demand be refused or that Henderson be put on actual notice that the Blacks’ holding was adverse and hostile to the claim of Henderson-
“Since the Court has held that Henderson received the disputed stock certificates in the settlement with Black in October, 1945, the fact that the physical possession of the certificates was in Black or his personal representative or the Defendant would not, in itself, deprive Henderson of his title.
“The parties introduced certain correspondence from Henderson and Mrs. Mary B. Black to the Bank, and correspondence from the Bank to Henderson and Mrs. Black. There are four letters from Henderson to the Bank and one letter from Mrs. Black to the Bank. Until October 16, 1969, Henderson never demanded of either the Defendant, her mother or the Bank a return or delivery to him of the stock certificates or cash dividends in possession of the Blacks or the Bank. On that date, he wrote to the Bank formally demanding delivery to him of all stock and cash dividends held by the Bank. The Bank responded that it would not be able to meet Henderson’s request ‘except on a judgment of a court of competent jurisdiction.’ Henderson filed suit the following month.
“On January 5, 1951, Mrs. Mary B. Black, writing as the executrix of the estate of L. A. Black, addressed a letter to the Bank in which she stated: ‘I hand you herewith for transfer and re-issue to me Stock Certificates Nos. 186 and 198, each for twenty shares of stock of The First National Bank of DeWitt.’ Mrs. Black requested the Bank to transfer these shares to her and to issue new certificates therefor. The Bank, under the same date, advised Mrs. Black that it was ‘returning herewith the Stock Certificates pending settlement of the ownership of the Stock in the Bank between you as Executrix of the Estate of L. A. Black, and J. M. Henderson, Jr.’
“In the letter from C. P. Chaney, President of the Bank, dated January 5, 1951, to Mrs. Mary B. Black, the following statement is found: ‘I have talked with Mr. Henderson and he asks that the transfer on the Bank’s records be not made at this time. For this reason I am returning herewith the Stock Certificates pending settlement of the ownership of the Stock in the Bank between you as Executrix of the Estate of L. A. Black, and J. M. Henderson, Jr.’
“Henderson, in his deposition, testified that sometime prior to August 29, 1950, one Charlie Ruffin told him that ‘they (meaning the Blacks) bad the stock, that’s how I got it.’ He further testified that the letter of August 29, 1950, was written shortly after Charlie Ruffin gave him that notice. Henderson testified further that ‘he (Ruffin) told me that they had found them (disputed stock certificates nos. 186 and 198) the day before in the bottom of Black’s desk, that what he told me.’ He further testified that Ruffin told him, ‘They are going to give you trouble about those certificates’ and he asked me if I sold my certificates and said they were going to give me trouble about them and I wrote that letter to the bank.’ Henderson further testified that in 1951 one Clay Shilling, field manager for the Black estate at that time, presented the disputed certificates to the Bank’s Board of Directors ‘for the purpose of having stock certificates issued, the Bank had notified the stockholders that the stock certificates were going to be issued.’ He testified that he was present when Shilling presented the certificates to the Board to be reissued and that he (Henderson) said to Shilling at that time, ‘Those are my stocks,’ and he (Shilling) said, ‘Well, I don’t know anything about it, she sent me down here with them.’ Henderson testified further that since 1951 the stock and cash dividends have been held by the Bank because both he and Mrs. Black had given notice (of their respective claims) to the Bank. Then at the bottom of page 47 and the top of page 48 of his deposition, this question and answer appears:
‘Q. In other words since 1951 Mrs. Black was claiming ownership of the stock, is that correct sir?
‘A. That’s what I understand.’
“By Henderson’s own testimony, he knew as early as August, 1950 that Mrs. Mary B. Black had actual possession of the certificates of stock that he (Henderson) received in the settlement with Black and that she was claiming to own the certificates. He also knew that she was attempting to have the stock reissued by the Bank in her name. At that time, he was placed on notice that her possession was not a continuation of the original lawful possession but was hostile and adverse to his claim to the certificates. ***
“The Court holds that the Defendant and her predecessor in title have acquired the title to certificate numbers 186 and 198 by adverse possession and that Plaintiff’s cause of action is barred in that his cause of action accrued in January, 1951, when Henderson was put on actual notice that Mrs. Mary B. Black was holding the certificates and claiming them as her own. ***
“Which party is entitled to the stock and cash dividends which have been held by Bank since early 1951? The Plaintiff contends that he has had constructive possession of some of these dividends and, therefore, is entitled to a portion of them. The Court cannot agree. As stated in Bir mingham Securities Co. v. Southern University, 55 So. 240, 173 Ala. 116, according to Words & Phrases: ‘ “Constructive possession” follows the legal title, the rightful owner being deemed in possession until he is ousted and disseised. Possession follows the title, in the absence of actual possession adverse to it.’ As will be pointed out herein, the legal title to the original certificates from which the dividends were derived has been in the Defendant at all times that are material here.
“The record in this case reflects that the first stock dividend on certificate numbers 186 and 198 was sixty shares issued on January 31, 1951. The next stock dividend was for sixty shares issued on March 19, 1959 and the last stock dividend was for forty shares issued January 21, 1966. The first cash dividend was for $200.00 and this was paid December 31, 1951. There were other cash dividends up to and including a $500.00 cash dividend paid December 31, 1971. The Court attaches as an addendum to this opinion a list of all cash and stock dividends giving the amounts, number and dates.
“Since these dividends are all derivative of the forty shares represented by certificate numbers 186 and 198, their ownership will follow the ownership to numbers 186 and 198.
“Sixty shares of the dividend stock represented by certificate number 25 were issued at a time when title to the stock from which the sixty were derived was in Henderson. Also, some of the cash dividends were paid before the statute of limitations had run. However, as the authorities cited herein state, the title of the Defendant to the original certificates relates back to the beginning of her possession that was hostile and adverse to the possession and title of Henderson. This would be at a time prior to the issuance of any stock or cash dividends. Since this ‘relation back’ theory has the same effect as if Henderson had actually assigned all of his interest in the certificates to Mrs. Mary B. Black in January, 1951, the dividends declared during the time and prior to the expiration of the running of the statute of limitations would also follow the title to the certificate numbers 186 and 198. The dividends declared after the statute of limitations had run would clearly, of course, be the property of Defendant.
“The Court holds that the Defendant is the owner of the cash and stock dividends being held by the Bank.”

From the decree entered in accordance with this opinion, appellant brings this appeal. For reversal, five points are asserted but all really relate to two points as follows:

I
“The Court erred in finding plaintiff’s right of recovery and plaintiff’s title to all of the bank stock and stock dividends involved in this action has been lost by the plaintiff as a consequence of the running of the three statute of limitations (Section 37-206 Ark. Stats.).”
II
“The Court erred in failing to find from the evidence that the defendant, and her predecessor Mary B. Black, were guilty of such inaction, and delay on their part in asserting their claim of ownership and the right to possession of the stock in litigation as would in equity bar and estop defendant from pleading the statute of limitations, laches and estoppel as defenses to plaintiff’s right of recovery of:
(1) Stock Certificates Nos. 186 and 198; and
(2) The dividend stock and money dividends which have remained in the possession of First National Bank of DeWitt.”

These points, of course, are really linked together and will be discussed together.

I

There is no dispute but that title to personal property can be acquired by adverse possession, nor is it disputed that the applicable statute of limitations is three years, i.e., adverse possession for more than that period of time would vest title in the adverse possessor. Only one Arkansas case on this point, involving a slave, was cited by the parties, but our research has resulted in revealing four cases relating to this question. All of these cases occurred prior to the Civil War and three of them also involved the ownership of slaves. The other case, Hicks v. Fluit, 21 Ark. 463 (1860), involved adverse possession of a horse and this court held that three years adverse possession “not only takes away the remedy from the original owner, but vests possessor with the absolute property”. Some of the arguments made by appellant can be bypassed for it is certain from the record that J. M. Henderson, Jr. had knowledge that Mrs. Mary B. Black, widow and executrix of the estate of L. A. Black, was claiming the stock certificates as property of the estate as early as January, 1951. Actually, it would appear that he had knowledge some time prior to August 29, 1950, since he testified that one of the Black employees (Ruffin) advised him that Certificates 186 and 198 had been found in Black’s desk and Henderson was told “They are going to give you trouble about those certificates.” This evidence, unless there were other circumstances that prevented the running of the statute, certainly upholds the chancellor’s finding that Henderson’s cause of action was barred since he was put on actual notice that Mrs. Black was holding the certificates and claiming them. Appellant’s argument is directed to the fact that because of the conduct of Mary Black and her daughter, Hattie Boone Black, appellee is estopped to raise the defense of the statute of limitations. The circumstances relied upon are that, though advised by the bank that it would not transfer the stock because Henderson objected, neither Mrs. Black, nor Hattie Boone, took any steps against Henderson; further, that Henderson voted the stock during all the years preceding the filing of the lawsuit with the knowledge of the Blacks.

We see no great significance in this last mentioned. Hattie Boone testified that she had been a stockholder in the First National Bank since the death of her father, but that she had never attended a stockholders’ meeting and that neither she nor her mother had any objection to Mr. Henderson serving on the board of directors. “He was on there when Daddy was living. She was glad for him to be on there in her lifetime and I was, too. . . . He had been on there all those years and we were happy for him to serve and didn’t want to cause any disturbance.” Of course, during the entire time, the contested stock, endorsed in blank, was in the possession of the Blacks, and if they were not interested in voting the stock themselves, there was no reason to complain. Certainly, Mr. Henderson was not lulled into the belief that the Blacks were not claiming the stock simply because no objection was raised to his voting the stock, for the bank during this period of time, was withholding the stock dividends and cash dividends because of the claim of the Blacks, and Henderson was certainly also aware that the original stock certificates were in the possession of appellee under a claim of ownership.

We do not agree that the fact that no legal action was instituted against Henderson by Mrs. Mary Black, or appellee, for the eighteen year period (between 1951 and 1969) estops appellee from claiming the defense of the statute of limitations. In the first place, let it be borne in mind that the period of time that is actually pertinent is that period from January 1, 1951 to January 1, 1954 and the record does not reveal very much, other than what has already been mentioned about the actions of the parties (relative to the stocks) during that time. Appellant’s argument is largely devoted to the acts of the parties during the full eighteen year period (1951 to 1969). The Blacks had the stock in their possession, not only the stock itself, but it bore the endorsement in blank of Henderson. What action could they have taken against Henderson? Of course, had he been holding the stock with them also claiming it, it would have been necessary to institute suit. But under the circumstances, there was nothing to be gained by suing Henderson, and really nothing to sue him about. The only party that was withholding anything from the Blacks was the bank, and the bank has not pleaded delay; in fact, as previously stated, the bank is merely sitting in the middle awaiting the outcome of

litigation between Henderson and appellee. On the other hand, Henderson was in dire need of the stock certificates before he could pursue his quest for monetary benefits. According to the finding of the court, Henderson, after the settlement in 1945, was the owner of the certificates, and it was his duty to seek possession of his property. There is a discussion of estoppel in American Casualty Company v. Hambleton, 233 Ark. 942, 349 S.W. 2d 664. There, we said:

“Elements of ‘estoppel’ arising from nondisclosure are ignorance of party claiming estoppel, silence of other party where there is duty to speak amounting to misrepresentation or concealment of material fact, action by party relying on the misrepresentation or concealment, and damages resulting if estoppel be denied. Nelson v. Chicago Mill & Lumber Corporation, 76 F. 2d 17 (C.C.A., Ark. 1935)
“Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights of property, contract or remedy, which might otherwise have existed, as against another person who has in good faith relied thereon and been led to change his position for the worse. Geren v. Caldarera, 99 Ark. 260, 138 S.W. 335 (1911).
“A party who, by his acts, declarations or admissions, or by failure to act or speak under circumstances where he should do so, either designed or with willful disregard of interest of others, induces or misleads another to conduct or dealings which he would not have entered upon but for such misleading influence, will not be allowed, because of estoppel, afterwards to assert his right to the detriment of person so misled. Dobbins v. Martin Buick Co., 216 Ark. 861, 227 S.W. 2d 620; Williams v. Davis, 211 Ark. 725, 202 S.W. 2d 205; Rogers v. Hill, 217 Ark. 619, 232 S.W. 2d 443.”

Is Miss Black estopped under the rules of law just set out? We think not. Henderson was not ignorant of the fact that the certificates were held and claimed by the Blacks. Mrs. Mary Black had made it clear that claim was being made, and Henderson, by his own admission, was aware of this fact from several different sources. According to Henderson’s own evidence, nothing was said by either Mrs. or Miss Black amounting to a misrepresentation, nor did they seek to conceal the fact that they had the stock. Having made it clear that they were claiming the certificates as their own, there was no further duty to say anything else. Yet, Henderson though contending ownership of- the stock, and even paying tax on dividends which he had not received, sat for eighteen years before instituting suit to regain the certificates and this despite the fact that he was an attorney, and had also received a suggestion that suit be instituted. Accordingly, we find that the conduct of the Blacks did not induce or mislead him into inaction, nor did Henderson so contend in his testimony.

II

Here, admittedly by appellant, “new ground” is being plowed. No cases are cited by appellant in his brief, and counsel, during oral argument, candidly and frankly conceded that no cases had been found to support appellant’s view.

It might be here stated that there is no contention if appellee was not estopped to claim the statute of limitations, and thus acquired title by adverse possession, but that such title relates back to the commencement of the running of the statute. The argument that appellee has not acquired the dividend stocks and cash dividends is simply based on the contention that the Blacks never, at any time, had possession of the dividend stock or cash dividends, and accordingly could not have acquired adverse possession of those items. While no cases are cited by either appellant or appellee involving the exact issue here present, i.e., the title to derivative stock and cash dividends, we think logic compels the view that title to this stock vests in that person who owns the original stock, unless there is an agreement to the contrary. This is certainly the law as far as the ownership of animals is concerned, i.e., the owner of the cow owns her calf. West v. Ankey, 134 N.E. 2d 185 (Ohio), and John Deere Plow Co. v. Gooch, 91 S.W. 2d 149 (Mo.). Analogous is the law that one who acquires title to land by adverse possession is entitled to all accretions to said land. Bellefontaine Imp. Co., et al v. Neidringhaus, et al, 55 N.E. 184 (Ill.). Were the court to hold with appellant in this contention, such holding might well result in extending ad infinitum the tolling of the statute. As pointed out by appellee, where a person’s stock had been converted, no matter how many years previously, that person would have a continuing cause of action each time that a cash or stock dividend was declared on the stock. The trial court correctly held that, since the title obtained by adverse possession by appellee related back to the beginning of her hostile possession, and since this occurred before any of the stock or cash dividends here at issue were payable, such dividends belong to appellee.

Inasmuch as we agree with the chancellor in his findings relative to adverse possession, there is no need to discuss the question of whether the court erred in holding that Henderson had met the burden of proving his claim of ownership of the original shares, though this question is forcefully and persuasively argued by appellee.

On the whole case, we find no reversible error.

Affirmed.

      For brevity, the court used the term "Henderson” referring to J. M. Henderson, Jr.; “Bank” referring to the First National Bank of DeWitt; the term "Defendant” referring to Hattie Boone Black; and "Black” referring to L. A. Black.

       According to Henderson, the forty shares were assigned to him out of stock belonging to Black for the sum of $2,000, said sum of money being in the nature of a loan; the endorsement in blank by Henderson was for the purpose of securing to Black the advance for the stock purchase.

      The record reflects the following question and answer during direct examination of Henderson.
      "Q Now at any tíme since 1945 have you had any communications either verbal or written with Miss Hattie Boone Black with respect to this stock?
      A Not a word.”
      He had previously stated that he had not talked with Mrs. Black with regard to the stock.

      From the. record:
      “Q At any time since 1945 have you had any communication either verbal or written with respect to this stock with Mrs. Georgea Black McKinley?
      A No. She talked to me about it some and insisted that I file suit and get it straightened out.”

      In 3 Am. Jur. 2d, § 242, page 342, we find:
      “It is a general theory underlying adverse possession that once the title is matured it relates back to the beginning of the adverse holding; and under such theory it is presumed that the origin of the title was rightful, not wrongful, that the possession which has’ matured it was in support, not in derogation of the rightful title, and that he who by a possession perfect in the law has matured a title has in theory of law been the pwner of the title from the beginning.”


author: George Rose Smith, Justice.

text:
    Richard F. MORTON v. James H. BAKER, County Judge et al
    73-22
    494 S.W. 2d 122
    Opinion delivered May 14, 1973

      Thomas B. Tinnon, P.A., for appellant.

      Poynter, Huckaba ¿r Osmon, for appellees.
   George Rose Smith, Justice.

In 1961 Marion county and Baxter county Industrial Development Commission, a public corporation which issued tax-supported bonds under Constitutional Amendment 49 for the purpose of attracting an industry to the area. See Hackler v. Baker, 233 Ark. 690, 346 S.W. 2d 677 (1961). The bonds were scheduled to mature over a period of 25 years, but tax collections were such that the bonds were actually paid in full in only 10 years. After the retirement of the bonds there remained in the bond account in each county surplus funds arising from the tax levy that supported the bonds.

This is a taxpayer’s suit brought to determine the proper disposition of the surplus in Baxter county, amounting to $46,222.90. All parties to the suit agree that the proof shows that the money cannot be returned to the taxpayers, because the expense of such a refund proceeding would be prohibitive. Lawrence v. Jones, 228 Ark. 1136, 313 S.W. 2d 228 (1958). The chancellor, after a hearing, directed that the surplus be paid into the County General Fund. The appellant, a taxpayer who intervened in the case, insists that the funds should instead be turned over to the Industrial Development Commission, which issued the bonds and used the proceeds therefrom to erect a factory building that is rented to the Mar-Bax Shirt Company, the industry attracted to the area.

We cannot say that the chancellor’s decision was wrong. It must be noted at the outset that the tax was not levied, as the appellant argues, for the broad purpose of securing and developing industry. By the explicit language in Section 3 of Amendment 49 the tax is levied for the purpose of paying the bonds. That purpose has been accomplished; so it cannot be said that the surplus money is earmarked for some other particular purpose. Hence the proper disposition of the fund becomes a question to be decided in the light of the evidence adduced by the litigants.

That evidence supports the chancellor’s decision. The taxes giving rise to the surplus were paid by the taxpayers of Baxter County. It is admittedly impractical to attempt to refund the money to them. Those taxpayers, however, will presumably be fairly and proportionately benefited by the application of the funds to general county purposes. Hence the trial court’s solution to the problem appears to be a good one unless the appellant has demonstrated that his proposal is a superior alternative.

That showing has not been made. The appellant brought the Industrial Development Commissioners into the case, but they filed no pleading and have riot joined in the appellant’s request that the surplus funds be paid over to them. Thus the appellant stands alone in demanding that the tax money be awarded to the Commission.

The basic defect in the appellant’s position is that he has not shown that the Commission needs the money for a public purpose. The Commission used the proceeds of the bond issue to construct a building which it leased to Mar-Bax for 35 years at an annual rental of one twenty-fifth of the construction costs. In the lease the Commission, as the lessor, assumed certain continuing obligations, such as the duty to insure the factory building, to maintain access roads to the property, to provide certain sewer facilities, etc. The appellant contends that the tax money in question should be turned over to the Commission to enable it to discharge those obligations.

The Commission’s need, however, is not shown. Section 18 of the lease provides that the rentals shall be used solely for the payment of the lessor’s obligations to the lessee. The annual rentals are unquestionably substantial. There is no proof that they have fallen short, or threaten to fall short, of enabling the Commission to meet its obligations. In fact, the Commissioners’ failure to join in the appellant’s asserted cause of action indicates the contrary.

The appellant also suggests that some years after the construction of the factory the Commission executed a mortgage to raise money to build an addition to the factory and pledged the annual rentals to secure the mortgage. There is no proof, however, that the pledge impaired the Commission’s ability to discharge its obligations to the lessee. The county judge, who alone testified upon the point, stated that there had been no delinquency in the mortgage payments, that he foresaw no problem in retiring the indebtedness, and that he did not know whether the rentals provided any surplus after the mortgage payments had been made. Thus there is simply no evidence in the record that would justify our saying that the appellant has met his burden of proving that his proposed disposition of the surplus funds is superior to that approved by the trial court’s decree.

Affirmed.


author: Lyle Brown, Justice.

text:
    John Henry BRYANT v. STATE of Arkansas
    CR 73-17
    494 S.W. 2d 126
    Opinion delivered May 14, 1973

      Fred Newth, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Ralph C. Hamner Jr., Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant was convicted of first rape reversal because of the alleged misconduct of two of the trial jurors.

From the abbreviated record it appears that witness Charles E. Finley testified that on the night of the alleged offense he saw the prosecuting witness with a man other than appellant. Finley was on the witness stand when a noon recess interrupted his testimony. Before the reconvening of court at 1:15 p.m., the trial judges called the attorneys into chambers and made this report:

Now, let the record show that shortly after the recess for. noon, two of the jurors. . . came in and asked to talk to the court. They came in here and told me that they had seen the defendant, and the witness that should now be sitting on the stand, whatever his name is, leave the courthouse together. . . and that they went down the street together, and wondered if that would make a difference.

Counsel for appellant moved for a mistrial, contending that it was improper for jurors to discuss the case with anyone, citing Ark. Stat. Ann. § 43-2122 (Repl. 1964):

The jury, whether permitted to separate or kept in charge of officers, must be admonished by the court that it is their duty not to permit anyone to speak to or communicate with them on any subject connected with the trial, and that all attempts to do so should be immediately reported by them to the court, and that they should not converse among themselves on any subject connected with the trial, or form or express any opinion thereon until the cause is finally submitted to them. This admonition must be given or referred to by the court at each adjournment.

The trial judge explained with respect to the incident: “I didn’t talk to them, I only, they talked to me. They explained to me what they had seen and wondered if it made any difference”. The trial judge suggested that the attorneys might want to proceed with questions regarding any conversation between the witness and appellant, and to offer to the jurors the opportunity to ask additional questions regarding the matter. Counsel for appellant was not agreeable to the suggested procedure, insisting that the very confrontation of the jurors with the trial judge entitled appellant to a mistrial. When trial resumed the only questions asked concerning the incident reported by the jurors was by the prosecuting attorney. The witness replied that he had not discussed the case with appellant at any time.

The trial court offered to call the two jurors into chambers and to permit appellant’s counsel to question them about the incident, and that offer was declined. No admonition to the jurors was requested. The only thing the record shows about the incident between the judge and jurors was that the jurors reported what they had seen, to which the judge apparently replied that he could not discuss the matter.

There is a complete absence of showing that contrary to § 43-2122, any juror received from anyone any information on any subject connected with the trial, or that the jurors formed any opinion prior to the submission of the case. Furthermore, the trial judge acted with complete fairness in reporting the incident and giving appellant’s counsel the opportunity to question the jurors further about the incident.

Affirmed.


text:
    Attwood C. DUNCAN v. STATE of Arkansas
    CR 73-26
    494 S.W. 2d 127
    Opinion delivered May 14, 1973

      Robert Edwards, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Richard Mattison, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

In early 1972 appellant was convicted of burglary and grand larceny in White County was given 25 years on each count. He was sentenced under our habitual criminal statute as a fourth offender. The matter now before us is based on a Rule I petition. First, appellant contends that the prior offenses should not have been introduced against him because he had ineffective assistance of counsel. Secondly, he insists that he received a pardon from one of those prior convictions and therefore it was error to use that conviction against him.

We find no merit in appellant’s contention that he had ineffective assistance of counsel. All of the convictions which we shall describe occurred in Bradley County. The first offense was in 1956, burglary and grand larceny, case number 1698. Attorney Tom Haley was appointed to defend. Appellant entered a plea of guilty. He received a sentence of five years, two years of which were suspended during good behavior. Within a short time after being released from the penitentiary appellant went on a crime spree in Bradley County which resulted in charges of assault to rape, two burglaries, grand larceny, and jail escape. The docket sheets show that in all of the cases appellant was represented by appointed counsel.

Appellant contends that the ineffectiveness of counsel is revealed by the fact that (1) the court changed his attorneys three times in six months, that (2) the record shows that one of the appointed attorneys represented appellant after that attorney had been permitted to withdraw from the case, and that (3) the fact that he received the maximum sentence in two cases shows that his counsel did not effectively utilize plea bargaining. Argument (1) merely states a conclusion and there is no attempt to show just how the changes in attorneys affected appellant’s rights. Argument (2) is based on the fact that Attorney Max Smith was permitted to. withdraw on September 5 while the docket shows Mr. Smith appeared for appellant on September 15. In absence of proof to the contrary we assume the trial court had good reason to ask Attorney Smith to reappear for appellant. Furthermore, no proof was offered to the effect that the reappearance of Attorney Smith was prejudicial to appellant. Argument (S) — failure to utilize plea bargaining — is likewise without merit. In fact the allegation is based on a mere presumption arising from the fact that appellant received maximum sentences for burglary and grand larceny. After all, appellant’s attorneys had little room for bargaining. Within a matter of months this appellant committed a series of serious crimes, to all of which he entered pleas of guilty. Nevertheless, someone undoubtedly intervened in appellant’s behalf. That is evidenced by the fact that two years ot his first sentence was suspended, that a twenty-one year sentence was ordered to run concurrently with other sentences, and that the charge of jail escape was passed indefinitely.

In 1967 appellant obtained a pardon from Governor Rockefeller from one of his twenty-one year sentences imposed in Bradley County. That was in case number 1825. Because of the pardon appellant contends that it was error to use that conviction to enhance his sentence in the case in White County. We consider the point meritorious. That conclusion is due to a combination of two factors. First, the United States Supreme Court held in Ex parte Garland, 4 Wall. 333 at page 380 (1866): “A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and, when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.” Our court quoted the foregoing with approval in Williams v. Brents, 171 Ark. 367, 284 S.W. 56 (1926). It can be forcefully argued that the recited quotation was dictum in Williams; however, there is another factor, when combined with at least the persuasiveness of Williams, which swings the pendulum in favor of appellant’s point. Prior to our present habitual criminal law, our law provided that “Any person convicted of any offense punishable by imprisonment in the penitentiary, who has been discharged, either upon compliance with the sentence or upon pardon or parole, and shall subsequently be convicted of any offense committed after such discharge, pardon or parole, shall be punishable as follows: .” Ark. Stat. Ann. § 43-2328 (Repl. 1964). The recited provision was changed in 1967 to read: “Any person convicted of an offense, which is punishable by imprisonment in the penitentiary, who shall subsequently be convicted of another such offense, shall be punished as follows: .” Ark. Stat. Ann. § 43-2328 (Supp. 1971). Thus it can be argued with considerable force that the legislature chose not to include pardoned convictions under the later statute. That is the conclusion we reach when we combine the persuasiveness of the two factors — the statement in the Williams case and the deletion made by the legislature.

Our holding on the second point does not require a reversal. Not counting the pardoned crime, appellant had three prior felony convictions in Bradley County and two convictions were added in White County. That made him guilty of a fifth subsequent offense. The minimum time he could have received under § 43-2328 (3) was 21 years on each count. By reducing his sentences to the minimum time, any possibility of prejudice is removed. His sentences are therefore modified accordingly.

Affirmed as modified.


author: John A. Fogleman, Justice.

text:
    Charles M. KING v. PURYEAR WOOD PRODUCTS et al
    73-16
    494 S.W. 2d 123
    Opinion delivered May 14, 1973

      Brockman, Brockman ir Gunti, for appellant.

      Coleman, Gantt, Ramsay ir Cox, by: Jeff Starling, for appellees.
   John A. Fogleman, Justice.

This is a “hernia” workmen’s compensation case. See Ark. Stat. Ann. § 81-1313 (e) (Repl. 1960). The appellant contends that the commission erred in not granting him a temporary total disability award because under the allegedly undisputed facts, he sustained a compensable hernia resulting from severe strain which arose out of and in the course of his employment. We find substantial evidence to support the commission’s finding denying recovery.

The evidence and testimony reveal that appellant’s work involved removing boards from a conveyor belt and placing them on a lower shelf. At approximately 11:00 a.m. on the day of the alleged injury, the claimant suffered a “sharp pain” in the groin area, but continued working until his lunch break. After returning from lunch, appellant again suffered these pains and was forced to quit work. Here the evidence becomes conflicting as to what occurred prior to these pains. There was testimony that they resulted from an increased tempo of the conveyor belt. However, appellant admitted having signed a statement relating that he could recall no particular act which caused the pain.

After quitting work in the afternoon, appellant visited a Dr. Blackwell, who diagnosed the alleged injury. His letter constitutes the principal medical evidence adduced by the appellant. This letter revealed that appellant was suffering from a double hernia. One was a moderately large indirect left inguinal hernia, and the other was a right definite indirect inguinal hernia. The letter also revealed that the left hernia was in existence prior to the alleged injury, having been diagnosed by Dr. Blackwell in 1968.

The only issue before the commission was whether or not the appellant had satisfied the first three of the five requirements of the hernia statute. That statute requires:

(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region;
(3) That such pain caused the employee to cease work immediately; * * *.

The commission found that the appellant did not prove these three requirements by a preponderance of the evidence, and we find substantial evidence to support that finding.

The policy underlying these rather strict requirements is designed to make the award of compensation for a hernia dependent on the manner in which the hernia occurred and not on its mere existence. This was amply stated in Harkleroad v. Cotter, 248 Ark. 810, 454 S.W. 2d 76, where we said:

Consequently, the people have seen fit to make, and the legislature has seen fit to leave, a compensable hernia a rather dramatic occurrence under the statute, with little or no room left for question or doubt that it did occur within the course of employment as an immediate result of sudden effort, severe strain or force applied to the abdominal wall. The wording of the statute assumes the existence of a hernia. The statutory requirements of proof are directed at claims for hernia and not the existence or occurrence of a hernia.

Another rationale for these requirements is to separate congenital or pre-existing hernias from those resulting from trauma or effort at work. The Crossett Co. v. Childers, 234 Ark. 320, 351 S.W. 2d 841. See also, Larson, Workmen’s Compensation § 39.70. Thus, since the only evidence with respect to the left hernia reveals that it was in existence prior to the date of the alleged injury, unquestionably, the commission was correct in denying recovery. Potlatch Forests v. Burks, 244 Ark. 714, 426 S.W. 2d 819. See also, Crossett Co. v. Childers, supra; Larson, Workmen’s Compensation, supra.

The denial of recovery based on failure to meet the statutory requirements for the right hernia is also supported by substantial evidence. There was no direct proof that the hernia resulted immediately from sudden effort, strain, or the application of force directly to the abdominal wall. Also, a portion of the doctor’s letter revealed that when the claimant first visited the doctor after his alleged injury, he complained of pain on his left side only and not his right. This we find to be substantial evidence to refute appellant’s contention, that he had met the severe pain requirement with respect to the right hernia.

The conflict in the appellant’s affidavit and testimony, the demeanor of the witnesses and any inferences to be drawn therefrom were matters solely within the province of the commission. See May v. Crompton-Arkansas Mills, 253 Ark. 1080, 490 S.W. 2d 794; Brower Manufacturing Company v. Willis, 252 Ark. 755, 480 S.W. 2d 950.

Since there was substantial evidence to support the commission’s findings and there were questions of credibility involved, the judgment is affirmed.