author: TOM Glaze, Justice.

text:
    Waymon Derrall HOLBERT v. ARKANSAS COUNTY CIRCUIT COURT; The Honorable Russell Rogers, Arkansas County Circuit Judge, Arkansas County, Arkansas
    CR 99-886
    5 S.W.3d 474
    Supreme Court of Arkansas
    Opinion delivered December 16, 1999

      Boyd & Buie, by; Christina Boyd, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   TOM Glaze, Justice.

Petitioner Waymon Derrall Holbert requests us to issue a writ of prohibition. He alleges his case should be dismissed because the State has violated his right to a speedy trial. We have jurisdiction of this matter under Ark. Sup. Ct. R. 1-2(a)(3) (1999) and Ark. R. Crim. P. 28.1(d) (1999).

The events leading to Holbert’s rape charges and his arrest commenced in August of 1993 when a five-year-old girl reported to the DeWitt Department of Human Services that Holbert had sexually molested her. On August 31, 1993, DeWitt police officers interviewed Holbert concerning the girl’s accusations; he denied them. The police had no immediate contact with Holbert after the August 31 interview, but rape charges were eventually filed against Holbert on March 15, 1994. Holbert was not arrested on the charges until October 6, 1998. After the court set a trial date, Holbert moved to dismiss, asserting that his right to a speedy trial, as provided by Ark. R. Crim. P. 28.1 and 28.2(a), had been violated. He claimed that he should have been brought to trial within twelve months from the date he was charged, and that period ended on March 15, 1995. The State countered, claiming the delay between the filing of charges against Holbert and the obtaining of his arrest was due to his absence and unavailability, and this period of delay should be excluded in computing Holbert’s speedy-trial time. See Ark. R. Crim. P. 28.3(e) (1999). After taking evidence on this issue, the trial court denied Holbert’s dismissal motion.

In arguing that the trial court erred in rejecting his speedy-trial motion, Holbert cites three cases he believes require dismissal of his charges. We find all three cases to be factually distinguishable from Holblert’s situation and not controlling here. In each of the three cases relied on by Holbert, this court granted a writ of prohibition based upon the defendants’ speedy-trial violation claims. In the first, Caulkins v. Crabtree, 319 Ark. 686, 894 S.W.2d 138 (1995), this court held that the State faded to show Caulkins had been absent or unavailable during a sixty-six-day period, which the State claimed was excludable when computing speedy-trial time. This court recognized the established rule that the State had the duty to make a diligent, good-faith effort to bring the accused to trial, but the court held that the State had failed to meet that burden because the Rogers Police Department’s investigating officer knew of Caulkins’s place of employment, but made no effort to arrest him at work.

In Holbert’s second case, Duncan v. Wright, 318 Ark. 153, 883 S.W.2d 834 (1994), Duncan was charged on January 31, 1992, with violating Arkansas’s Hot Check Law, but he was not arrested and brought to trial within the twelve-month period required under Arkansas’s speedy-trial rule. While the State initially responded that Duncan had absented himself “from the area and/or by using alias names,” the prosecutor later advised the trial court that he had no proof to show the State had made any attempt to locate or to arrest Duncan. Because of the State’s failure to show it had exercised due diligence to arrest Duncan, this court granted Duncan’s petition to dismiss his charges on speedy-trial grounds.

Finally, Holbert refers us to Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985), where the defendant Chandler was arrested on August 14, 1981, for murder. She subsequently failed to appear for plea and arraignment which resulted in her arrest in March 1984 — well outside the twelve-month speedy-trial requirement. The proof showed that Chandler had previously informed the police and court personnel that she was returning to Stuttgart. Her bond release form showed her address at 624 North Wood, Stuttgart, and a phone number of 673-4209. The form also identified Chandler’s relative, Amelia Scott, who had the same address and telephone number. This court granted Chandler’s request for writ of prohibition, holding that the State had a duty to make a diligent, good-faith effort to bring an accused to trial, and the State failed to do so when it did not check the available court records or otherwise demonstrate any diligent attempt to locate the accused.

As is readily discerned by reading the decisions in Caulkins, Duncan, and Chandler, the facts in each case were undisputed, showing the State made no attempt to locate the accused in order to bring him or her to trial. That is not the situation here. In the instant case, the evidence reveals that disputed questions of fact exist as to whether the State made a diligent, good-faith effort to locate Holbert or whether Holbert’s absence or unavailability was due to his own conduct.

At the hearing below, Holbert offered evidence questioning whether the State made a good-faith attempt to locate him. He testified that he was aware of the five-year-old girl’s accusations against him in August of 1993, but he denied knowing that the State had filed rape charges against him on March 15, 1994. Holbert related that, during the time of his divorce in August 1993, he had gone to Louisiana and stayed with his brother, but claimed he had returned in late 1993 or January 1994 to Altheimer (Jefferson County), where he lived and was employed as a farmer until he was arrested on October 6, 1998. He testified that he assessed his personal property and paid utilities in his name, although he offered no documents to support those claims.

Holbert offered additional testimony from his ex-wife and two daughters who all agreed they had known of Holbert’s whereabouts in 1993 and after his return to Arkansas in January 1994. Nonetheless, they said that no officers ever contacted them about where Holbert was. One of Holbert’s daughters testified that her husband had been a patrolman for DeWitt and later worked for the Arkansas County Sheriff, but she averred that her husband never asked about her father’s whereabouts. Holbert’s other daughter stated that the prosecuting attorney represented her in a divorce action, but never mentioned her father. Finally, Holbert called his employer, Joey Adams, as a witness, who said that Holbert had lived on Adams’s property and worked for him since January 1994.

The State called four officers as witnesses, who testified concerning their respective efforts to locate Holbert after he was formally charged with rape. DeWitt Police Officer Milton Peebles said that he made efforts to locate Holbert, and, in doing so, almost arrested his brother, thinking he was Holbert. Peebles talked several times with Holbert’s relatives, including Holbert’s brother-in-law, and learned Holbert had gone to Louisiana.

Wayne Simpson, Sheriff of Arkansas County until 1997, stated that he checked the National Crime Information Computer (NCIC) and the Arkansas Crime Information Computer (ACIC), and confirmed that Holbert’s name had been entered in them. Simpson also ran Holbert’s license number through NCIC, but the address given by the computer reflected an address where Holbert did not reside. Simpson also checked with a farmer for whom Holbert had worked, but learned Holbert was no longer employed there; he was told Holbert had gone to Louisiana. The former sheriff further related that he had spoken with Holbert’s brother several times and the brother claimed he did not know where Holbert was.

Deputy Sheriff Donnie Stephens testified next, stating that he, too, had spoken with Holbert’s brother on several occasions and was told Holbert was “somewhere” in Louisiana. Stephens also confirmed that Holbert’s name had been entered in the ACIC.

The State’s final witness, Deputy Sheriff Jack Lock, testified that, when he was employed by the Arkansas County Sheriff’s Office in 1995, he was told Holbert was at an unknown location in Louisiana. Later in 1995, Lock obtained information suggesting Holbert might be in Jefferson County, so he sent a description of Holbert to the Jefferson County Sheriff’s office thinking the Jefferson County officers might find Holbert. Deputy Lock said that he last re-entered Holbert’s name on the NCIC and ACIC in March 1998.

It is setded law that we do not grant a writ of prohibition unless it is clearly warranted and only in a case where there are no disputed facts. Brown v. State, 330 Ark. 239, 952 S.W.2d 673 (1997); State v. Langston, 290 Ark. 238, 718 S.W.2d 446 (1986). When considering the foregoing testimony given by the State and Holbert, the trial court was not required to believe Holbert’s story that he was easily available to the law enforcement officials if they had made a diligent good-faith effort to locate him. See Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994). Holbert’s claim to this effect is in sharp contrast to the testimony given by several officers who consistently testified that Holbert’s relatives had informed them that Holbert was in Louisiana. This factual dispute alone precludes the issuance of a writ of prohibition. Therefore, we deny Holbert’s petition without prejudice.

Corbin, J., concurs.


source: Caselaw Access Project

author: TOM GLAZE, Justice.

license: Public Domain

text:
    Sedric Maurice SIMPSON v. STATE of Arkansas
    CR 98-423
    6 S.W.3d 104
    Supreme Court of Arkansas
    Opinion delivered December 16, 1999

      Robert N. Jeffrey, for appellant.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   TOM GLAZE, Justice.

Appellant Sedric Maurice Simpson ticeguilty . capital murder for the shooting deaths of Wendy Pennington and Lena Sue Garner. Simpson was sentenced to death by lethal injection. He appeals his conviction, raising five points for reversal.

The sufficiency of the evidence is not challenged in this appeal, so a brief summary of the facts will suffice. In the early morning hours of June 20, 1997, the H & H Grocery in Holly Springs was robbed and the two women working there, Pennington and Garner, were shot and killed with a 12-gauge shotgun. About an hour later, Sedric Simpson hurriedly went to see Bernard Gregory and left a 12-gauge and some blood-covered money with him; Gregory later testified that, at this same time, he also saw blood on Simpson’s hands. After seeing Gregory, Simpson went to the home of Frederick Wright in Sparkman and told Wright that he had just “offed two bitches.” Simpson was later arrested at Wright’s house. After being advised of his Miranda rights and taken to jail, Simpson signed a waiver-of-rights form and gave a statement implicating his co-defendant Ezekiel Harrison. The officers taking the statement said that Simpson did not appear to be under the influence of drugs or alcohol at the time. Later, Simpson’s mother reported that two guns were missing from the trunk of the car that Simpson had been driving, so the Dallas County officers searched the car and seized evidence from it. Simpson had taken the car, which actually belonged to his sister, from his mother’s house without her knowledge or permission.

At the end of a three-day jury trial in May of 1998, Simpson was convicted of two counts of capital murder. The jury found three aggravating factors — (1) the murders were committed for the purpose of avoiding or preventing an arrest, (2) the murders were committed for pecuniary gain, and (3) Simpson caused the death of more than a single person in the same criminal episode — and no mitigating factors. Simpson was sentenced to death by lethal injection. On appeal, he raises five points, none of which has merit.

Simpson first argues that the trial court’s submission of pecuniary gain to the jury as an aggravating circumstance in the penalty phase of his trial was an unconstitutional “double-counting” which violated his Eighth and Fourteenth Amendment rights. He asserts that, because pecuniary gain is both an element of the felony underlying his capital murder conviction and an aggravating circumstance justifying imposition of the death penalty, that element fails to narrow the class of crimes for which the death penalty may be imposed. The Supreme Court, the United States Eighth Circuit Court of Appeals, and this court have all rejected this “double-counting” and narrowing argument in numerous cases. Lowenfield v. Phelps, 484 U.S. 231 (1988); Perry v. Lockhart, 871 F.2d 1384 (8th Cir.), cert, denied, 493 U.S. 959 (1989); Reams v. State, 322 Ark. 336, 909 S.W2d 324 (1995), cert denied, 519 U.S. 832 (1996); Wainwright v. State, 302 Ark. 371, 790 S.W2d 420, cert, denied, 499 U.S. 913 (1990); Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988), cert, denied, 489 U.S. 1100 (1989); O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988), cert, denied, 119 S. Ct. 1048 (1999). As we stated in Reams, we see no need to revisit or reconsider this issue yet again. Reams, 322 Ark. at 340, 909 S.W.2d at 327.

. For his second point on appeal, Simpson asserts that the trial court erred in denying his motion to exclude the death penalty on the basis of an arbitrary exercise of prosecutorial discretion. Simpson argues that there is nothing in the facts of his case to distinguish it from other cases in which the State has not sought the death penalty or has agreed to plea bargain for a sentence of less than death; therefore, he says, his Eighth and Fourteenth Amendment rights have been violated.

We have held that the choice of which charges to file against an accused is a matter entirely within the prosecutor’s discretion. State v. Vasquez-Aerreola, 327 Ark. 617, 627, 940 S.W.2d 451, 455 (1997). Moreover, we have specifically concluded that even the decision to seek the death penalty is a matter within the discretion of the prosecutor, and we have held that this discretion does not render Arkansas’s death-penalty statutes arbitrary and capricious. Clines, Holmes, Richley, and Orndorff v State, 280 Ark. 77, 82, 656 S.W.2d 684, 686 (1983). Because this decision rests within the discretion of the prosecutor, an appellant must prove that the exercise of that discretion was arbitrary or capricious. See Lee v. State, 327 Ark. 692, 704, 942 S.W.2d 231, 237 (1997). Here, however, Simpson presented no evidence to this effect to the trial court, nor has he provided this court with anything other than general allegations that the prosecutor’s discretion was exercised arbitrarily. Thus, there was no error in denying his motion to exclude the death penalty.

Simpson’s third argument for reversal is that the trial court erred in denying his motion to suppress his custodial statement. He asserts that even though he was advised of his Miranda rights, his statement was given in an environment that was hostile, threatening, and coercive. The sheriff had told Simpson at the time of his arrest that he was “going to see [Simpson] fry” for killing the two women, and the uncle of one of the victims was present for part of Simpson’s interview. Because of these circumstances, he argues that it was error for the trial court to allow his statement into evidence.

The difficulty with this argument, however, is that the trial court never allowed Simpson’s statement to be introduced into evidence. Although Simpson attempted to lay a foundation and introduce the statement during the testimony of the officer who took it, the prosecutor objected on the basis of hearsay. The objection was sustained, and the statement was never admitted into evidence. Because Simpson’s statement was never used at trial, he cannot demonstrate prejudice. Hayes v. State, 274 Ark. 440, 447, 625 S.W.2d 498, 502 (1981). In that case, Hayes argued that the court erred in finding that a statement was given voluntarily. However, because the statements were not introduced at trial, the court said, “we fail to perceive nor has appellant demonstrated how he was prejudiced by the non-use of these statements.” Id.

Even assuming that Simpson had been able to demonstrate some kind of prejudice, the State has met its burden of showing by a preponderance of the evidence that the statement was voluntarily given. Id. at 445, 625 S.W.2d at 501. This court makes an independent determination based on the totality of circumstances surrounding the statement, and we will not reverse a trial court’s finding of voluntariness unless clearly against the preponderance of the evidence. Id. At the hearing on the suppression motion, five Dallas County officers testified that Simpson voluntarily signed the Miranda form and the waiver-of-rights form; several of them also testified that Simpson did not appear to be under the influence of drugs or alcohol at the time. Although Simpson testified that he felt coerced, the trial court found that he knowingly and voluntarily gave the statement. As in Hayes, it was for the trial court to resolve the credibility of the witnesses and any conflict in their testimony, Hayes, 274 Ark. at 446-47, 625 S.W.2d at 501, and that court’s finding of voluntariness was not clearly against the preponderance of the evidence.

For his fourth point, Simpson asserts that the trial court erred in denying his motion to suppress evidence seized from the car he was driving the night of the murders. This argument must fail for the simple reason that Simpson had no standing to challenge the vehicle’s search. An appellant must have standing to challenge a search on Fourth Amendment grounds because the rights secured by the Fourth Amendment are personal in nature, that is, he must have a legitimate expectation of privacy in the area to be searched. Stanley v. State, 330 Ark. 642, 644, 956 S.W.2d 170, 171 (1997) (citing Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997)). This court has repeatedly held that a defendant has no standing to question the search of a vehicle owned by another person. Stanley, 327 Ark. at 644, 956 S.W.2d at 171; see also State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992). In order to establish a legitimate expectation of privacy in an automobile owned by another person, a defendant must show that he gained possession of the vehicle from the owner or from someone who had authority to grant possession. Stanley, 327 Ark. at 644, 956 S.W.2d at 171; Littlepage v. State, 314 Ark. 362, 863 S.W.2d 276 (1993).

As discussed above, the car in this case belonged to Simpson’s sister, who had loaned it to her mother at the time of the murders. Not only did Simpson fail to show that he gained possession of the car from the owner, he admitted at trial that his mother did not know that he took the car that evening. Indeed, he did not even so much as ask her permission to take it. Because Simpson had neither a property interest nor a possessory one in the vehicle, he had no legitimate expectation of privacy in it. Accordingly, he failed to establish that he had standing to object to the vehicle’s search.

For his final point on appeal, Simpson states that the trial court erred in denying his proffered mitigating circumstances as a jury instruction during the sentencing phase of his trial. During the sentencing phase of his trial, Simpson asked the trial court to submit to the jury verdict forms that included as mitigating circumstances the disposition of the charges of his co-defendant, Ezekiel Harrison, who pled guilty to two counts of second-degree murder and robbery and was sentenced to two twenty-year sentences. The trial court refused Simpson’s request.

There was no error in the court’s refusal for two reasons. First, the proffered verdict forms were misleading and confusing. Simpson stated that Harrison had been sentenced to twenty years for each murder, but failed to indicate whether the sentences were being served consecutively or concurrently, or whether Harrison had also been convicted of and sentenced for robbery. Because the proffered forms could have misled and confused the jury, the trial court did not err by refusing to submit them. See Townsend v. State, 308 Ark. 266, 273, 824 S.W.2d 821, 825 (1992).

Second, the disposition of Harrison’s charges was not relevant to Simpson’s punishment. Arkansas Code Annotated section 5-4-602(4) (Repl. 1997) provides in pertinent part: Thus, to be admissible, evidence of mitigating circumstances must be relevant to the issue of the defendant’s punishment. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999).

Evidence as to any mitigating circumstances may be presented by either the state or the defendant regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but mitigation evidence must be relevant to the issue of punishment, including, but not limited to, the nature and circumstances of the crime, and the defendant’s character, background, history, and mental and physical condition as set forth in § 5-4-605. [Emphasis added.]

The disposition of Harrison’s charges, which Simpson sought to offer to the jury as a mitigating circumstance, had nothing to do with Simpson’s character, record, background, history, condition, or the circumstances of his crime. This information was not relevant to the issue of Simpson’s punishment, and the trial court therefore did not err in refusing to submit the proffered forms to the jury.

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3 (h), and it has been determined that there were no rulings adverse to Simpson which constituted prejudicial error. Therefore, we affirm.


author: DONALD L. Corbin, Juthe decision of the GLAZE, J.,

text:
    Jimmy WHITE v. GEORGIA-PACIFIC CORPORATION
    99-647
    6 S.W.3d 98
    Supreme Court of Arkansas
    Opinion delivered December 16, 1999

      Robert L. Depper, Jr., for appellant.

      Mark Alan Peoples, PLC, by: Mark Alan Peoples, for appellee.
   DONALD L. Corbin, Juthe decision of the

Appellant Jimmy White appeals the decision of the Arkansas Workers’ Compensation Commission denying him disability benefits. The Arkansas Court of Appeals affirmed the Commission’s decision in White v. Georgia-Pacific Corp., 66 Ark. App. 337, 989 S.W.2d 942 (1999). We granted White’s petition for review pursuant to Ark. Sup. Ct. R. 1-2(e). White’s argument on appeal is meritorious, and we reverse the Commission’s decision.

Standard of Review

Upon a petition for review, we consider a case as though it had been originally filed in this court. Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). We view the evidence in a light most favorable to the Commission’s decision, and we uphold that decision if it is supported by substantial evidence. Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Pickett, 336 Ark. 515, 988 S.W.2d 3; ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).

Facts and Procedural History

The record reflects that White was employed as a forklift driver at Appellee Georgia-Pacific’s plant in Crossett. His employment responsibilities consisted of continually loading four veneer dryers with lumber. While at work on May 5, 1997, White injured his foot and ankle after he slipped on a step covered with algae. White fell approximately two to three feet from his forklift as he attempted to step through a door located in front of one of the dryers. At the time White was injured, he was on his way to an area adjacent to his work station so that he could smoke a cigarette during his work break.

White testified before the Commission that he was supposed to be provided three scheduled work breaks per shift: two ten-minute breaks and one twenty-minute break. White further testified that he is frequently unable to utilize his ten-minute breaks because his employer consistently failed to provide relief staff to cover his work station. Because of this lack of relief staff, White would try to get ahead on his loads, and then take a break to smoke a cigarette in an area where he could view his work station and immediately return to work if necessary. White testified that on the evening he was injured his supervisor told him to take a break “when [he] could.”

The area where White went to smoke was not the designated smoking area, but he testified that he did not go to the designated area because he would not be able to see his work from there. White also testified that he was not required to perform any job-related duties in the area where he smoked. He further admitted on cross-examination that he had turned his forklift off prior to the accident because he was not working when he got off the forklift. On redirect, however, White explained that he was instructed to turn his forklift off anytime he got off it for safety purposes. White further testified that it was necessary for him to observe the dryers during these break times in the event one of them needed his attention.

Georgia-Pacific denied White’s claim for workers’ compensation benefits, alleging that he was not performing employment services at the time of his injury. A hearing was conducted before an administrative law judge (ALJ), who concluded that White failed to demonstrate that he was performing employment services at the time of his injury. White appealed this finding to the Commission, arguing that the ALJ’s decision was contrary to the law and the facts of the case. After conducting a de novo review of the record, the Commission adopted the findings and affirmed the decision of the ALJ.

White then appealed to the court of appeals arguing, (1) that there was not substantial evidence to support the Commission’s decision, and (2) that the injury is compensable under the personal-comfort doctrine. The court of appeals held that there was substantial evidence to support the Commission’s finding that White was not performing employment services at the time of his injury and that the injury was not compensable under the personal comfort doctrine. While we agree that the injury is not compensable under the personal-comfort doctrine, we disagree that there was substantial evidence to support the Commission’s decision.

Employment Services

Act 796 of 1993, which applies to all injuries incurred after July 1, 1993, initiated important changes in the workers’ compensation statutes. Relevant to the case at bar is the change that excludes from the definition of “compensable injury” any injury received by an employee at a time when employment services are not being performed. Ark. Code Ann. § 11 -9-102(5)(B)(iii) (Supp. 1997). Further, Act 796 requires that the provisions of the workers’ compensation statutes be strictly construed. Ark. Code. Ann. § 11-9-704(c)(3) (Repl. 1996). The Act, however, does not in any way define the term “employment services.”

Section ll-9-102(5)(A)(i) provides that an accidental injury causing internal or external harm arising out of and in the course of employment is a compensable injury. We have held that the test for determining whether an employee was acting within the “course of employment” at the time of the injury requires that the injury occur within the time and space boundaries of the employment, when the employee is carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997); Pilgrims Pride Corp. v. Caldarera, 54 Ark. App. 92, 923 S.W.2d 290 (1996).

Related to the issue of whether an injury arose in the course of employment is the requirement that the employee be performing “employment services” at the time of the injury. The court of appeals has held that when an employee is doing something that is generally required by his or her employer, the claimant is providing employment services. See Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999); Shults v. Pulaski County Special Sch. Dist., 63 Ark. App. 171, 976 S.W.2d 399 (1998).

In the present matter, Georgia-Pacific argues that White was on a personal break and not performing any employment services; thus, his injury is not compensable. This argument ignores the fact that someone had to monitor the dryers, whether it be White or a relief worker. Because there was no relief worker provided, White was forced to remain near his immediate work area in order to monitor those machines. If one of the dryers needed to be loaded or his supervisor needed him for some reason, White would have been forced to return to his forklift immediately. Georgia-Pacific’s argument also ignores the fact that White’s supervisor instructed him to take a break “when he could.”

We believe the present situation is analogous to the facts presented in Ray, 66 Ark. App. 177, 990 S.W.2d 558. In Ray, appellant was employed by the University of Arkansas as a food-service worker in a cafeteria. She was entided to two unpaid thirty-minute breaks and two paid fifteen-minute breaks each day. During one of her paid breaks, appellant slipped and fell as she was getting a snack from the cafeteria for her own personal consumption. The Commission denied appellant’s claim for disability benefits after determining that she was not performing employment services at the time of her injury. The court of appeals reversed the Commission’s decision, noting that White was paid for her fifteen-minute breaks and was required to assist student diners if the need arose. Based on those facts, the court of appeals held that the employer gleaned benefit from appellant being present and required to aid students on her break. Likewise, in this matter Georgia-Pacific also gleaned benefit from White remaining near his work station in order to monitor the progress of the dryers and immediately return to work if necessary.

We recognize the rigorous standard of review applied in reviewing workers’ compensation cases, but we have previously held that we will reverse the Commission if we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion reached by the Commission. Deffenbaugh, 313 Ark. 100, 852 S.W.2d 804. We cannot ignore the fact that what seems to be lacking the most in this case is the type of substantial evidence needed to support the Commission’s decision. .

This court has previously addressed the issue of what constitutes substantial evidence in the context of a workers’ compensation case. In Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979), this court stated:

Substantial evidence has been defined as “evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture.” Ford on Evidence, Vol. 4, § 549, page 2760. Substantial evidence has also been defined as “evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.” Wigmore on Evidence, Vol. IX, 3rd ed. § 2494, footnote at page 300. See also Tigue v. Caddo Minerals Co., 253 Ark. 1140, 491 S.W.2d 574, Goza v. Central Ark. Dev. Council, 254 Ark. 694, 496 S.W.2d 388.

Id. at 330-31, 584 S.W.2d at 25 (quoting Aluminum Co. of America v. McClendon, 259 Ark. 675, 535 S.W.2d 832 (1976)).

Georgia-Pacific argues that White’s own testimony about the nature of his breaks is sufficient evidence to support the Commission’s decision. In her statement of the case, the ALJ mistakenly reported that White conceded on cross-examination that his unofficial breaks were not sanctioned by his employer. White simply testified, however, that he did not know whether or not the breaks were sanctioned by his employer. More importandy, Georgia-Pacific presented no evidence to rebut White’s testimony on several critical points: (1) that he was entided to a ten-minute break after completing two hours of his shift; (2) that Georgia-Pacific failed to provide White with a relief worker so that he could take his break; (3) that White’s supervisor told him to take a break whenever he got the chance; and (4) that it was necessary for White to take his break in the area adjacent to his work station in order for him to monitor the dryers.

Georgia-Pacific also points to White’s testimony that he did not consider himself to be working at the times that he took these breaks. While it is true that White was not loading the dryers at these times, he was in fact monitoring them, which was a required part of his job duties. White testified that it was necessary to watch the dryers and load them as the need to do so arose. It was this fact that necessitated the presence of a relief worker. Due to the fact that Georgia-Pacific failed to provide such relief staff, it was necessary for White to monitor the dryers, even when it was time for one of his breaks.

Based on the foregoing, we cannot say that there was substantial evidence to support the Commission’s determination that White was not performing employment services at the time of his injury. We reverse on this point and remand the case to the Commission for the determination of benefits.

GLAZE, J.,

concurs and is of the opinion that when an employer, as a matter of policy, establishes work breaks, an employee’s injury sustained during the break may be compensable.


author: PER CURIAM.

text:
    Keith Aaron BUCHHEIT v. STATE of Arkansas
    CR 98-1042
    6 S.W.3d 109
    Supreme Court of Arkansas
    Opinion delivered December 16, 1999

      Jeff Rosenzweig, for appellant.

      Mark Pryor, Att’y Gen., by: Mac Golden, Ass’t Att’y Gen., for appellee.
   PER CURIAM.

Keith Aaron Buchheit pleaded guilty to first-degree murder and was sentenced to thirty-two and one-half years in the Arkansas Department of Correction. Buchheit entered his plea pursuant to a negotiated plea agreement with the prosecutor. Shortly after the judgment was entered, Buchheit alleged ineffective assistance of counsel in a petition for relief under Arkansas Criminal Procedure Rules 26 and 37. Specifically, Buchheit claimed that his guilty plea was involuntary because his attorney failed to advise him of a statute that would require him to serve at least seventy percent of his sentence before becoming eligible for parole. After a hearing, the circuit court found that there was conflicting testimony regarding the extent of the representations Buchheit’s counsel made concerning his client’s eligibility for parole. The circuit court resolved the conflict in favor of the attorney and denied relief. We now affirm that order.

During his testimony at the postconviction hearing, Buchheit’s counsel conceded that he was unaware of the existence of Ark. Code Ann. § 16-93-611 (Supp. 1997), which requires defendants convicted of first-degree murder to serve at least seventy percent of their sentence before becoming eligible for parole. Counsel stated that as a consequence, he did not advise Buchheit about the statute when the topic of parole eligibility was discussed. Counsel testified, however, that he did tell Buchheit that, as he considered whether or not to accept the State’s offer of thirty-two and one-half years, “he needed to assume that he would do the full amount of time.” Counsel also stated that he told Buchheit that while he was likely to get some credit toward the reduction of his sentence, he could not tell his client what that credit would be, and that it was “left up to the board of pardons and paroles.”

For his part, Buchheit testified that his attorney did not inform him that he would have to serve at least seventy percent of his sentence before he would become eligible for parole. Buchheit also claimed that if he had known that information, he would not have pleaded guilty and would have insisted on a trial. He testified that his attorney never told him that he needed to be prepared to serve the entire sentence offered by the State. Rather, Buchheit claimed that his attorney assured him that he would only serve one half, or perhaps one third, of his sentence.

Charles Buchheit, the appellant’s father, also testified. Mr. Buchheit claimed that his son’s attorney never mentioned the seventy percent rule, but that he did make representations that Keith would have to serve only a fraction of his sentence before becoming eligible for parole. Mr. Buchheit was unable to recall the specific fraction that counsel mentioned, but he stated that he understood that his son would serve a maximum of about ten years before parole could be considered.

The rule for evaluating ineffective-assistance-of-counsel claims in cases involving guilty pleas appears in Hill v. Lockhart, 474 U.S. 52 (1985). In that case, the Supreme Court held that the “cause and prejudice” test of Strickland v. Washington, 466 U.S. 668 (1984), applied to challenges to guilty pleas based on ineffective assistance of counsel. The Court further held that in order to show prejudice in the context of a guilty plea, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. at 59.

In its order, the Circuit Court found that there was conflicting testimony as to whether counsel ever misadvised Buchheit, in the form of an estimation of the minimum amount of time he would have to serve, about his eligibility for parole. The Court resolved the conflict in counsel’s favor, finding that “[t]he defendant’s attorney stated unequivocally that he advised the Defendant Buchheit that he was not in a position to make any representations as to parole eligibility and, that the defendant must accept the sentence of thirty-two and one-half years with the realization that he could serve the entire sentence.” The court then denied relief without making any further findings concerning the prejudice prong of the analysis for ineffective assistance of counsel.

Consequently, the issue that we must resolve in this appeal is whether the circuit court erred when it found, in essence, that Buchheit did not establish the “cause” prong under the analysis in Hill v. Lockhart, because he could not prove that his attorney made a positive misrepresentation about the time he could expect to serve before becoming eligible for parole.

In Hill v Lockhart, Hill filed a petition for habeas corpus in which he alleged that his guilty plea was not voluntary and intelligent because his attorney misinformed him about the length of time he would have to serve before becoming eligible for parole. Hill’s attorney, and the court that accepted his plea, both informed Hill that he would have to serve one-third of his sentence before becoming eligible for parole. Hill was a “second offender” under Arkansas law, however, and was therefore actually required to serve one-half of his sentence before becoming eligible for parole.

The Supreme Court affirmed the denial of habeas corpus relief on the basis that Hill did not make the required showing of prejudice under Strickland v. Washington, supra. Consequently, the Court did not make any finding as to whether Hill’s counsel, by misinforming him about his parole eligibility, rendered deficient performance.

In his brief, Buchheit argues that his attorney’s failure to check the law and make him aware of the seventy percent rule, under circumstances where parole eligibility was a primary concern in deciding whether or not to accept the plea offer, constituted deficient performance. He relies on case law that resulted from litigation pursued by the petitioner in Hill v. Lockhart after the decision of the Supreme Court. Hill v. Lockhart, 877 F.2d 698 (8th Cir. 1989) (panel opinion); Hill v. Lockhart, 894 F.2d 1009 (8th Cir. 1990) (m banc, adopting the reasoning of the panel), cert, denied 497 U.S. 1011 (1990).

Hill began the subsequent litigation when he filed a second habeas petition in which he made a showing of prejudice as required by the Supreme Court opinion. Specifically, Hill was able to show that his attorney’s representations about parole eligibility induced him to accept the State’s plea offer, and that without such information, he would not have pleaded guilty and would have insisted on a trial. The United States Court of Appeals, Eighth Circuit, held that habeas corpus relief was warranted under the circumstances. Hill v. Lockhart, 894 F.2d 1009 (8th Cir. 1990).

Regarding the first prong of the Strickland analysis, the Eighth Circuit concluded that the advice that Hill received from his attorney about the decision to plead guilty was not within the range of competence demanded of attorneys in criminal cases. The Court also agreed that Hill was prejudiced by his attorney’s erroneous advice. Specifically, the Court wrote:

Not only had Hill explicitly asked his counsel about the parole system in Arkansas, but he had made clear that the time of eligibility was the dispositive issue for him in accepting or rejecting a plea bargain. He told his attorney that he considered it no bargain to forego a trial unless his eligibility would be sooner than seven years, which he understood to be the time he could serve with commutation of a life sentence.... Given the attorney’s knowledge of his client’s particular concern, a failure to check the applicable law was especially incompatible with the objective standard of reasonable representation in Strickland.... [H]ere, the misadvice was of a solid nature, direcdy affecting Hill’s decision to plead guilty.

Hill v. Lockhart, 894 F.2d at 1010.

In relying on the subsequent litigation in Hill v. Lockhart, Buchheit apparently seizes on the Eighth Circuit’s recognition of the fact that the erroneous advice rendered by Hill’s counsel could have been avoided by checking the applicable law, and that such failure occurred under circumstances when the decision of whether or not to plead guilty depended entirely upon Hill’s eligibility for parole. What he ignores, however, is that the error of Hill’s counsel is of a different kind than the alleged error in this case. Where Hill’s attorney and the trial court made a positive misrepresentation about the length of time that Hill could expect to serve before becoming eligible for parole, in the instant case, Buchheit’s attorney and the trial court did not. Rather, Buchheit’s counsel’s alleged error was one of omission — he failed to inform his client of the minimum amount of time he would have to serve before parole could be considered, but, he did advise his client that he should assume that he would serve the full sentence.

In Haywood v. State, 288 Ark. 266, 704 S.W.2d 168 (1986), we held that Haywood’s counsel did not perform deficiently when he did not tell Haywood how much time he would have to serve, as a habitual offender, before he would become eligible for parole. We recognized that the United States Constitution does not require the State to furnish the defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary. We applied that rule to Haywood’s ineffective-assistance-of-counsel claim and concluded that there is also no constitutional requirement for defense counsel to inform his client about his parole eligibility and “[tjherefore, his action, or inaction, in that regard, did not fall outside the range of competence demanded of attorneys in criminal cases.”

We apply the reasoning in Haywood to this case. Buchheit’s counsel had no constitutional duty to inform his client about the existence of the seventy percent rule, or the specifics of parole eligibility. Unlike the petitioner in Hill v. Lockhart, Buchheit had been advised that he could serve the entire sentence offered by the State. He was further advised that the issue of parole eligibility was a matter left to prison officials. While it may have been preferable to make his client aware of the statute, it cannot be said that counsel made any misrepresentation or engaged in any other conduct that induced Buchheit to forego a trial and plead guilty. Accordingly, the circuit court’s denial of postconviction relief was not clearly erroneous. See Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998).

Affirmed.

       Buchheit pleaded guilty in 1997. At that time, Ark. R. Cr. P. 26.1 allowed a motion to withdraw a plea of guilty after entry of the judgment. That rule has since been amended to require such motions to be filed before the entry of the judgment.


author: PER Curiam.

text:
    Jerry Dewayne JOHNSON v. STATE of Arkansas
    CR 98-1210
    5 S.W.3d 477
    Supreme Court of Arkansas
    Opinion delivered December 16, 1999
    Appellant, pro se.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for . appellee.
   PER Curiam.

In 1994, Jerry Dewayne Johnson pleaded guilty m. rape and aggravated robbery for which imposition of a sentence of fifteen years’ imprisonment was suspended for each charge. In 1997, the suspended sentences were revoked, and Johnson was sentenced to two concurrent terms of twenty years’ imprisonment. The court of appeals affirmed. Johnson v. State, CACR 97-1351 (June 24, 1998). Appellant subsequently filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37. The trial court denied appellant’s petition because it was untimely. The appeal of the order denying appellant Rule 37 relief is now before us.

Appellant argues that the trial court erred in finding that appellant’s Rule 37 petition was untimely. Appellant contends that he filed his petition within sixty days of the court of appeals’ mandate in accordance with Ark. R. Crim. P. 37.2. We agree.

Arkansas Rule of Criminal Procedure 37.2(c) provides:

(c) If a conviction was obtained on a plea of guilty, or the petitioner was found guilty at trial and did not appeal the judgment of conviction, a petition claiming relief under this rule must be filed in the appropriate circuit court within ninety (90) days of the date of entry of judgment. If the judgment was not entered of record within ten (10) days of the date sentence was pronounced, a petition under this rule must be filed within ninety (90) days of the date sentence was pronounced.
If an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty (60) days of the date the mandate was issued by the appellate court. In the event an appeal was dismissed, the petition must be filed in the appropriate circuit court within sixty (60) days of the date the appeal was dismissed. If the appellate court affirms the conviction but reverses the sentence, the petition must be filed within sixty (60) days of a mandate following an appeal taken after resentencing. If no appeal is taken after resentencing, then the petition must be filed with the appropriate circuit court within ninety (90) days of the entry of the judgment.

When the trial court revoked appellant’s suspended sentence, it entered a judgment of conviction, and appellant appealed from that judgment to the court of appeals. The court of appeals’ mandate affirming appellant’s revocation was issued on June 24, 1998; appellant filed his Rule 37 petition within sixty days on July 29, 1998. Thus, appellant timely filed his Rule 37 petition with regard to any postconviction claims associated with his 1997 revocation proceedings. Any claims submitted by appellant in his Rule 37 petition which relate to his 1994 guilty pleas are untimely. See Ark. R. Crim. P. 37.2(c).

Because appellant timely filed his Rule 37 petition, we reverse and remand for the trial court to consider appellant’s post-conviction claims that pertain to appellant’s revocation.

Reversed and remanded.


text:
    Dana Daniel THETFORD v. STATE of Arkansas
    CR 99-1352
    5 S.W.3d 478
    Supreme Court of Arkansas
    Opinion delivered December 16, 1999

      John Wesley Hall, Jr., for appellant.
    No response.
   PER Curiam.

Appellant Dana Daniel Thetford, by and through John Wesley Hall, Jr., attorney, has filed a motion for belated appeal. Appellant filed a timely notice of appeal from the denial of his postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. Attorney Hall admits by motion that the record of the postconviction proceedings was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See Polletta v. State, 327 Ark. 677, 939 S.W.2d 310 (1997) (per curiam); Guss v. State, 325 Ark. 521, 928 S.W.2d 336 (1996)(per curiam); McCready v. State, 325 Ark. 418, 924 S.W.2d 813 (1996)(per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Granted.


author: Turner, Sp. J.

text:
    Collins, Trustee, vs. Wassell.
    1. Married Woman: May mortgage or sell her property for husband's debts.

    The rule that a wife can charge her separate estate only for its, or her personal benefit, does not prevent her from mortgaging or selling it absolutely for her husband’s debts. She is for most purposes, in equity, a femme sole, as to her separate property, when not restricted by the deed of settlement, in terms or by implications equivalent to express provisions.
    2. Same : Need not acknowledge assignment of rents.

    She may assign or transfer rents and profits accruingto her under a deed of trust, without conforming to the requirements and formalities prescribed for the alienation of real property.
    APPEAL from Pulaski' Chancery Court.
    Hon. J. E. Eakin, Chancellor.

      M. Collins, for appellant.

      Wassell Sf. Moore, for appellees.
   Turner, Sp. J.

The original bill states, that on the thirteenth day of September, 1867, Noah H. Badgett, conveyed to his son, William B. Badgett, certain real estate situate in the city of Little Rock, and described as lots No. five (5) and six (6) and part of lot No. four (4) constituting a part of what is known as the Badgett Block, in trust, first: to rent or lease the same and to take and collect and receive the rents, issues and profits, and out of the same to keep the premises in good order and repair, and properly insured, and pay all taxes and assessments and charges that might be legally imposed thereon. And in trust, secondly, to pay the residue of such rents, issues and income, to Lucetta S. Badgett, wife of the said Noah PL, and mother of the said William B-. Badgett, upon her sole receipt, free from the contract and liability of her then or future husband. And it was further provided that upon the death of the said Lucetta S., the trust thereby created, should be deemed executed, and the said real estate, divested of the trust, belong in fee simple to the children and heirs at law of the said Lucetta S.

That on the fifteenth day of March, 1870, the said trustee died, and that no successor was appointed until in March, 1876, previous to which time Lucetta S. Badgett filed a bill in the Pulaski chancery court against her heirs, setting foith that there was a large amount of taxes then due upon the houses and lots; that she had no funds to pay the same, and that the whole was about to be sold. The matter was submitted to the direction and control of the chancellor, who ordered and superintended the sale of one of the lots to save the balance.

On the eleventh day of March, 1876, the chancellor appointed Charles S. Collins, trustee in place of William B. Badgett, deceased, and on the twenty-ninth of May, following, he filed the bill under consideration in behalf of his cestui que trust, and himself as trustee, against the said John Wassell;;the objects being to have an account taken of the rents and profits of the trust estate, it being alleged that the same had been improperly taken and diverted from the purpose of paying taxes and charges on the trust estate, and by the said Wassell appropriated to his own use, on a claim of a debt alleged to be due him from Noah H. Badgett and his wife, the cestui que trust, whereby the necessity arose of applying to the court of chancery for an order to sell a part of the property to save the residue, and to compel a return of the misapplied rents, or an appropriation of them to the benefit of the cestui que trust, by crediting them on certain notes held by the said John Wassell by assignment of E. Darwin Ayres, secured by a vendor’s lien on certain other real estate, it being the homestead of the said Lucetta S.

That on the twelfth day of July, 1872, the defendant, representing that it was for the benefit of her separate estate, induced the said Lucetta, the cestui que trust, to join her husband Noah H. Badgett, in the execution of a certain promissory note, payable to the defendant, for $1,000, due January 1, 1873, with interest at the rate of twenty-four per cent, per annum, and at the same time, as security therefor, to assign the rents, issues and profits of the trust estate to the said defendant, which note and assignment are exhibited with, and made part of, the bill.

That, contrary to said representations, no part of said $1,000 note was for the benefit of the separate estate of the cestui que trust; that the true nature of the transaction was concealed from the said cestui que trust; that, instead of being executed and delivered in consideration of a present advance for the benefit of her separate estate, said promissory note was made to embrace and take up certain previously-existing claims in favor of the defendant and the firm of Wassell & Moore, and against Noah II. Badgett.

That again, on the fifteenth day of April, 1874, the defendant induced the said cestui que trust to join in a certain other promissory note for $1,523.80, and to secure the same, induced her to make a certain other assignment of the rents and profits of the trust estate with power to collect the same after the note matured, which said last note and assignment are exhibited with and made part of the bill.

That notwithstanding at the time of the execution of said note and assignment, the defendant represented to said cestui que trust that the same was for an advance then made to her for the benefit of her separate estate, such representations were mainly untrue. That in fact the said sum of $1,523.80 was made up as follows: $554.55 was for interest on the first note for $1,000 three times compounded at the rate of 24 per cent, per annum. The sum of $429.25 was to take up a note of Noah H. Badgett to defendant, also bearing 24 per cent, interest per annum given in consideration that said defendant had discharged a certain judgment against him, and the balance of $540 was advanced in good faith and paid out on taxes against the trust estate for the year 1873, but that $300 of this amount was returned to the defendant by the said Noah Ii. in a few days, leaving the balance of $240 as the real amount advanced for the benefit of the cestui que trust. The note for $1,523.80 was du© on the first day of October, 1874, with interest at the rate of 2 per cent, per month from date until paid.

The last assignment has the following clause: “This assignment has no relation to one of date of 12th of July, 1872, which is still unpaid and in full force in all things. This being for a further advance.” That the defendant has collected the rents under his power down until the first day of April, 1876. An account in statement of nett receipts is filed with the bill and made an exhibit in the ease.

The defendant, Wassell, answers and says: That William B. Badgett never undertook or in any manner exercised any authority whatever under the said deed of trust, but on the contrary left the whole management and direction of said trust property to the care of the said Noah H. and Lucetta S., his father and mother; they renting out and controlling the same without the intervention of any trustee or other person in any manner or for any purpose whatever. That for a period of over eight years the said Noah II. and Lucetta S. exercised and controlled the occupation and disposition of the rents of said property, made all contracts for repairs, paid all taxes due thereon, rented the property and received the rents therefor.

The defendant denies that he made any representations to the said Lucetta to induce her to execute the note and assignment of July 12, 1872, but says the loan for which the note was executed was made at her express request. That she owed Wassell & Mooré a note of $200 for professional services in a suit concerning other property of her own, and agreed that said note with interest should be included in the note for the loan. The balance was handed to the said Noah TL He denies the charge of compounding and re-compounding interest That said assignments of rents gave the defendant the right to commence collecting the rent on the first day of January, 1873, but upon the earnest solicitation of the said Noah EL and Lucetta S. the defendant allowed them to continue to collect the rents until July 31, 1874, when defendant commenced collecting only upon a small portion of the rents assigned. That on or about the first day of April, 1874, the said Noah IT. and Lucetta S. again made application to defendant for a further loan of money to enable them to live and to prevent their personal property from being sold under execution, saying to defendant that it had taken all their ready money to pay taxes and subsist upon, and that they had to assign the rents already assigned to him, to Eletcher & Walker, and asking defendant to indulge them further in carrying out their plans and permit said Eletcher & Walker to receive the rents to the amount of $1,500.

That to help them in their troubles, defendant agreed to make further advances to pay off a certain judgment referred to by them; that he did pay off said judgment and protected their property from execution and sale, and permitted Eletcher & Walker to take the rents for the payment-of money advanced by them to pay the taxes for 1872.

That upon said agreement and request a second note and assignment of rents to secure the same was made on the fifteenth day of April, 1874, and payable on the first day of October, 1874. That the statement in the bill that the defendant represented to the said Lucetta B. that the same was for advances then made for her separate estate is absolutely untrue in every particular, but says she conferred freely with him about her busihess and requested the loan as a favor she could obtain from no one else. He denies that any part of the interest account on the first note was included in the second, but says there was included a certain other joint indebtedness due the defendant upon an entirely different matter which Badgett and wife desired to discharge.

Admits the payment to him of $300 by Noah II» Badgett, but s&ys it was applied to his personal and private account; that no credit therefor was entered on either note, nor was it requested. That the said Noah II. had a running account with defendant entirely different from their joint dealings. That this defendant has collected, after great trouble and expense, on his assignment of rents, about two-thirds of the amount due him, leaving a large amount still due, which the trustee refuses to pay. That in renting and controlling the buildings and stores the defendant by agreement never had any control, that having been alone by the said Noah II. ancf Lucetta S. That while the defendant was collecting rents the said Noah II. and Lucetta S. were making large tails with the respective tenants, which was taken out Of the rents due on assignment. At their earnest request this was permitted in their straitened circumstances to help them along in their trouble about their money matters.

That in January, 1876, a statement of the accounts connected with the assignment of rents was made out by Mrs. Badgett’s son, a competent aeeountant, which was satisfactory to him and to her.

And defendant denies that the account of rents, marked exhibit <£D,”to the bill of complaint is true, in any of its parts or statements.

There is a demurrer to the bill, on account of multifariousness in the joinder of separate and distinct causes of action.

Prayer for an account of what may be due defendant on the notes, and money received by him for rent, and that the balance be paid him out of rents to be received by the trustee, and be made a lien on the property.

By way of cross bill, the defendant adopts and reiterates the allegations and statements contained in his answer; and says that the money for which th.e note for $1,000, dated the 12th July, 1872, and the note for $1,523.80, dated the 15th April, 1874, was advanced and paid by defendant to the said Lucetta S., was for her benefit, and at her instance and request, and in relation to matters concerning her separate estate, and that the said notes and assignment of rents as a security therefor, were given by the said Lucetta S., with a full knowledge of the facts connected with the same. That there is a large balance justly due the said Wassell. That the said Lucetta S. has only a life estate in the property described in the deed of trust. That the husband, Noah IT. Badgett, is insolvent, and that in case of the death of said Lucetta S., defendant could have no hope of realizing any part of the amount which he claims is justly due him on said notes. That the trustee is proceeding to collect the rents, and refuses to pay the same to defendant; and that Collins also is insolvent, who he prays may be enjoined from paying over any of the said rents to his cestui que trust, or otherwise disposing of them, until his debts be fully satisfied.

On the ninth of April, 1877, this cause was submitted to-the court, and on the 18th of June following the chancellor decided “ that the two notes, and the assignment of rents in this cause involved, are so far valid as to amount to directions for the appropriation of the rents and profits of the trust property received by defendant Wassell, and that said notes are entitled to credits for the several sums of rent so received at the respective dates, without any diminution for commissions, less amount of insurance paid on trust property by defendant, Wassell', and in addition, the first note for $1,000 is entitled to a credit for the interest of the first year; and the second note, for $1,523.80, is entitled to credit for $300, of the date of the payment by N. H. Badgett, of $500 in State scrip.”

Whereupon a reference of this cause was made to the clerk of the court as master, to state an account of the said notes and credits in accordance with the principas announced by the chancellor, giving credits in conformity with the laws regulating partial payments, until the first note be extinguished, then passing any balance to the credit of the second note, until the whole be paid or the rents become exhausted, less the amount of insurance on the trust property, paid by said Wassell, allowing the notes to continue to bear interest at the rate expressed on their face; and if there be an excess of rents over the balance of the notes, such excess to bear six per cent, interest from the date of their receipt.

Subsequently the special master made a report accompanied by a detailed account and statement, which was made a part thereof, from which it appears that the first note executed by Badgett and wife, for $1,000, dated July 12, 1872, and bearing interest at 24 per cent, per annum, had been fully paid, as follows:

First — By allowing of one year’s interest, or by computing interest thereon from July 12, 1873, instead of from July 12, 1872, and rents collected by Wassell on the trust property after allowing the insurance paid by him out of the first rents collected.

Second — The second note for $1,523.80, dated April 15,1874, and bearing 24 per cent, interest per annum, had been fully paid off. as follows : By credit of $300, for State scrip, and collections of rents from the trust estate by Wassell, leaving due to Badgett, over and above the two notes referred to, $384.53, as shown by the account and statement accompanying the report.

Exceptions were filed to the master’s report by the plaintiffs and the defendant, all of which were overruled by the court. \

And it was further ordered that the directions of the court to the master be so modified as to compute the interest upon the excess down to the date of the decree in cause No. 735; and as so modified the report of the master was in all things confirmed.

In the further progress of this cause (No. 733), on motion of complainants, it was consolidated with cause No. 735, a suit brought by the said John Wassell against the said Lucetta S. Badgett and Noah II. Badgett to enforce a vendor’s lien on certain real estate in the complaint mentioned.

The material allegations of the complaint in suit No. 735 are, that on the twenty-eighth day of January, 1871, E. Darwin Ayres, who was the owner of lots No. 1, 2, 3, 4, 5 and 6, in block Ro. 43, west of the Quapaw line in the city of Little Rock, sold the aforesaid lots to the said Lucetta S. Badgett, for the sum of $9,288 in cash, and the further sum of $2,212, evidenced by five promissory notes of the said Noah II. Badgett, husband of the said Lucetta S. — two of which notes are for $500 each, dated January 28, 1871, and. bearing interest at the rate of 25 per cent, per annum from date, and payable ten months after date.

Two of which notes were ior the further sum of $500 each, bearing date January 28, 1871, with interest at the rate of 18 per cent, per annum from date, and payable twelve months from date; and one note for $212, bearing-date January 28, 1871, with interest at the rate of 8 per cent, per annum from date, and payable twelve months after date. Copies of the notes are exhibited with a^id made part of the bill of complaint.

That the said Ayres, at the date aforesaid, by deed conveyed to the said Lucetta S. Badgett the said real estate, reciting therein the terms of sale, the payment in cash, and the five (5) promissory notes mentioned, for the unpaid balance of the purchase money, and retaining a lien on the land for the unpaid balance of the purchase money. A copy of the deed of conveyance is exhibited with and made part of the bill of complaint.

That the said notes, and all right, title and interest of the said Ayres, have been assigned to the said Wassell for a valuable consideration, and are now held and owned by him. The deed of assignment is also filed with, and made part of, the complaint.-

That one of said $500 notes was paid and surrendered to said Badgett before the remaining four notes were assigned to Wassell. That the defendant entered into and remained in possession of said lands.

That no part of said notes so assigned have been paid, except the sum of $865, which appears by indorsements on the said notes. Plaintiff prays judgment against the defendants for the amount due on said notes, with interest and costs of suit; that plaintiff's lien as vendor may be enforced in respect of said lands, and that, if the judgment be not paid by a short day, that the equity of redemption to said real estate may be forever barred and foreclosed, and the same sold by a commissioner, etc., and that the proceeds of such sale, after paying the costs of suit, be applied to tbe payment of the amount found to be due on said notes, etc.

The said Lucetta S. Badgett, answered, admitting the purchase of the lots, as alleged in the complaint, and the execution of the promissory notes of the said Noah H. Badgett, for a part of the purchase money, and of the assignment of the notes to the plaintiff, as alleged in the complaint.

Denies that but $865 of said notes in the hands of the plaintiff have been paid, and alleges that they have long since been paid off and discharged, and should be surrendered up for cancellation, etc.

The residue of the answer is in the nature of a cross-bill:

And sets up, by way of defense to bill No. 735, the substance of her allegations contained in bill No. 733, which, according to the view we take of the case, it will not be necessary to repeat here.

Noah II. Badgett answered, admitting the purchase of the lots by tbe said Lucetta S. from the said Ayres, as described in said complaint, and that the assignments were as alleged therein.

The plaintiff, Wassell, answered the cross-bill of the said Lucetta S., but it is in substance a repetition of the facts and statements contained in his answer to the original bill, No. 733.

On the thirtieth day of June, 1877, the consolidated causes, No. 733 and No. 735, were heard upon the bill and answer and the proofs and exhibits in cause No. 733, and upon tbe bill and answer and cross-bill, and answer thereto and exhibits to the papers in cause No. 735, and upon the report of the master in cause No. 733.

Whereupon the coui’t found that the notes and assign-merits of Lucetta S. Badgett, of July 12, 1872, and of April 15,1874, were fully paid and satisfied on the first day of February, 1876, and that there was in the hands of said Wassell, on that day, $1,628, which, with additional rents received by him from said trust property, amounted, on the first day of April, 1876, to $356.28, which the court directed to be applied as credits on the notes of Noah Ii. Badgett, sued on in cause No. 735, at the dates when received by the said Wassell, in such manner that the samo shall first go to extinguish the first note, which is a lien on lots Nos. 1, 2, 3, 4, 5 and 6, in block No. 43, W. Q. L., in the city of Little Rock, which first note bears interest at the rate of 25 per cent, per annum, and that the remainder, if any, upon the remaining notes of said N. H. Badgett, which are a lien upon said lots of said L. S. Badgett, which bear 18 per cent, interest per annum.

And the court found that, after applying the credits provided for, there was still due upon the last of these notes of N. H. Badgett (the first one bearing 25 per cent, interest per annum, having been discharged), the sum of $2,232, allowing all the credits provided for.

And thereupon the court decreed that the notes and assignments of the said Lucetta S. Badgett, of the twelfth July, 1872, and of April the 15th, 1874, are fully paid off and satisfied, and that the same be delivered up to the clerk for cancellation, and that the plaintiff recover from ■ the defendant, in cause No. 735, his costs down to the order for consolidation, etc.; and that the plaintiff, Wassell, in cause No. 735, recover judgment against the defendant, Noah, H. Badgett, in said cause, the sum of $2,232, with costs, and that said sum bear interest from the date of the decree, at the rate of 10 per cent, per annum, »nd that sum be declared a lien upon said lots Nos. 1, 2, 3, 4, 5 and 6, in block No. 43, W. Q. L., in the city of Little Rock.

And it was further decreed that, unless the said sum of $2,232 be paid within ninety days from the entering of the decree, with interest and costs, of suit, that the equity of redemption of the said defendants, and all persons claiming under them, to said lots of land, be forever barred and foreclosed, with order to sell, etc.

The plaintiff's in the oi’iginal suit, No. 733, excepted, and took an appeal to this court.

The evidence in this cause is voluminous, and, to some extent, contradictory', but sufficiently clear and consistent, we think, to lead us to correct conclusions.

There is no questión made about the execution of the deed of trust, nor the purposes for which it was made, nor as to the rights of the parties under it.

And there is no question about the execution by the said Noah H. and Lucetta S. Badgett, of the note for $1,000, nor of^the note for $1,523.80, nor of the instruments of writing purporting to be assignments of the rents and profits of the trust property to secure the payment of the notes.

But the record presents the question distinctly, as to the powers of a married woman to charge or dispose of her separate property, to secure the payment of her husband’s debts, and the further question as to the validity of the assignment.

The deed of trust provides that the trustee, out of the rents and profits, shall keep the premises in good order and repair and properly insured, and pay all taxes and assessments legally imposed upon the same, and the residue of said rents and profits were to be paid over to the said Lucetta S., upon her sole receipt, to the intent and purpose that she might enjoy, possess and have the same free from the control, interference and liability of her present or any future husband.

The deed of trust is in the nature of a settlement, and invests the cestui que trust with a separate estate in the rents and profits of the property described in the deed of trust, and this without express restrictions on her power to dispose of the same.

According to the English doctrine, the right of a married woman to dispose of her separate property, in the absence of specific restraining provisions in the settlement,’ is well settled. Peachy, who is quoted extensively by Bishop, says: “Even where trustees have been interposed, unless their assent is rendered necessary by the instrument which gives the wife the property, she may bind it without the trustees ; for their assent not being required, their dissent cannot have any effect.”

“Indeed, from the moment in which a wife takes personal property to her sole and separate use, from the same moment she has sole and separate right to dispose of it; for upon being once permitted to take personal property to her separate use as a femme sole, she takes it with all its. privileges and incidents, including the jus disponendi.”

See 1 Bish., sec. 8j9, 850. Peachy, Mar. Set., £60, 26j, and authorities there referred to.

The doctrine of the American courts is not uniform on this subject. The decisions of some of the state courts conforming to, and of others departing more or less widely from, the English decisions; yet we think the tendency of the judicial mind, in most of the states at this time, is to favor restrictions and limitations on the right of a married woman to dispose of her separate property.

Cases affecting the power of a married woman over her separate estate have been, on several occasions, before this court.

In the ease of Stillwell and wife v. Adams and others, executors, Mr. Justice Walker, in delivering the opinion of the court, after quoting the English rule, said: “While this rule has been sanctioned and adopted in the states of Connecticut, Maryland, North Carolina, Missouri, Elonda and Georgia, the states of New York, Vermont, Wisconsin andNew Jersey limit the power of contracting, to contracts in relation to her separate estate, or for the benefit of such estate. By this rule the wife’s general engagements, which have no reference at the time to her separate estate, cannot be enforced against said estate.” & Perry on Trusts, sec. 660.

The court continues quoting from Perry: “In a majority of the United States a more limited rule wa3 applied, and the contracts of married women were not enforced against their separate estates unless their contracts were made in relation to their estates, or for their personal benefit.” 2 Perry, sec. 680.

The court further said: “ It will he perceived that the point of difference between the decisions of the courts of the several states is, that part of them have adopted the rule as held by the English courts, which gave validity to the wife’s contracts, which had no reference to her separate estate; whilst others have limited the right of the wife to contract alone with regard to her separate estate, made for the benefit of her.estate, or for her personal benefit. To the correctness of this more restricted right to contract, we yield our assent.” 29 Ark., 346.

The rule then adopted by this court, in the case of Stillwell and wife v. Adams et al., executors, is that which limits the right of the wife to contract alone with regard to her separate estate, to contracts made for the benefit of her separate estate, or for her personal benefit.”

And this rule is recognized and approved by this court in the case of Henry v. Blackburn; 32 Ark., 445, and in the case of Collins and Barton, administrators, etc., v. Underwood, decided at the present term of this court.

Does this rule affect the right of a married woman to dispose of her separate property to secure the payment of her husband’s debts ? ¥e think not.

This court has never expressly decided that a married woman can mortgage or otherwise dispose of her separate estate to secure the payment of a husband’s debts, because the question has never legitimately arisen for our decision. Although! in the case of Stillwell and wife v. Adams et al., executors, it seems to be assumed that such power exists.

But it has often been decided in other American states that a married woman can mortgage or charge her separate property to secure the payment of her husband’s debts, and that equity will enforce against her separate estate, her mortgage, or other express contract, evidenced by an instrument in writing, whether made for the benefit of herself, or the sole benefit of another,

Jones, in his Treatise on Mortgages, says: “The mortgage of a married woman upon her property, given to secure the debt of her husband, but taken by the mortgagee in good faith and without fraud on his part, will seldom, if ever, be set aside, even on proof that her husband procured her execution of it by fraudulent representations.

See 1 Jones on Mort., sec. 118; 15 Gray (Mass.), 328; 3 Johns (N. Y.) Chan., 144; 4 Barber (N. Y.), 407; 1 Hals. (N. J.) Chan., 465; 41 Iowa, 44; 33 Mich., 410; 52 Ala., 456 ; 44 Md,., 108; 44 Md., 632; 51 Miss., 329; 65 Ill, 170. See also 1 Wash, on Real Property, 314.

If, then, a married woman can mortgage or otherwise charge her separate estate to secure the payment of her husband’s debts, can not she sell or dispose of it absolutely for the same purpose?

Por most purposes, the wife is to be regarded in equity as a femme sole, as to her separate estate, when the deed of settlement does not in terms, or by implication equivalent to an express provision, impose restraints upon her.

The deed of trust in this case imposes no restrictions upon the wife, but leaves her free to'dispose of the rents and profits as she may think proper; and this, we think, she could well do, provided it is evidenced by an instrument in writing, showing clearly a purpose on her part to dispose of such rents and profits.

The said Lucetta S. Badgett had no interest in the real estate described in the deed of trust, except the rents and profits, to the extent and for the purposes indicated in the settlement.

The execution of the written assignments by the cestui que trust is not questioned. These assignments clearly transfer to Wassell so much of the accruing rents and profits of the real estate described in the deed of trust, as may be sufficient to pay the debts intended to be secured by said assignments, with authority to Wassell to collect the same, and apply such rents and profits to the payment of said debts. ' ,

The transfer of the rents and profits to Wassell, is coupled with a power, whereby he is constituted the agent of the cestui que trust, to collect and appropriate such rents and profits; and the assignments may be assimilated to an order in favor of Wassell, simply authorizing him to collect and apply the accruing rents and profits to the payment of the debts.

The rents and profits of said real estate thus transferred to the said Wassell, do not carry to him the entire interest of the cestui que trust in such rents and profits, but only so much thereof as may be necessary to pay the debts intended to be secured by said assignments; and such transfer of the accruing rents and profits might well be made without conforming to the requirements and formalities necessary to be observed in the alienation of real estate.

We are, therefore, of opinion, that said assignments are valid and binding in equity, and transfer to the said Was-sell so much of the accruing rents and profits of said real estate as may be necessary for the payment of said debts, unless it is shown that the execution Of said assignments was obtained by such false and fraudulent representations of the said Wassell as would taint the transaction with fraud, in which case equity would hold the assignments absolutely null and void.

The plaintiffs allege that the said Lueetta S. was induced to join her husband in the execution of the note for $1,000 and the assignment of the rents and profits, as security for the payment thereof, in consequence of the defendant’s representations to her that the same was for the benefit of her separate estate, and that she was induced to join her husband in the execution of the note, for $1,523.80, and the second assignment of the rents and profits, to secure the payment thereof, in consequence of the defendant’s representation to her that the same was for an advance then made to the said Lueetta S., for the benefit of her separate estate.

The defendant, in his answer, denies these allegations in every particular.

A great deal of evidence was taken to show that the cestui que trust was imposed upon, and induced by the fraudulent representations of the defendant, or others, to execute said notes and assignments; that she was in feeble health and mentally incapable of transacting business.

"While some of the evidence tends to show that the said Lucetta S. labored under a misconception as to the objects and purposes of the notes and assignments, caused principally by the misrepresentations of the said Noah H. to the said Lucetta S., there is no satisfactory evidence going to show that the defendant participated in, or was cognizant of, such misrepresentations. And although the cestui que trust appears to have been a delicate woman, and in feeble health, yet it also appears that she was intelligent and sensible, and as capable as most ladies of attending to her own business affairs; and although her husband may not at all times have dealt fairly and truthfully with her in t'egard to the purposes for which the notes and assignments were executed, we must suppose, from the evidence, that she was fully informed as to the nature and extent of her husband’s indebtedness to the defendant, and intended, by executing the assignments, to secure the payment of the indebtedness out of the rents and profits assigned. We must, therefore, dismiss the theory of fraud, because, as we think, not sustained by the weight of evidence; and recognize the assignments of the said Lucetta S. Badgett as binding in equity upon her separate property, and a valid transfer to the said Wassell of said rents and profits to the extent, and for the purposes, indicated in the assignments.

The only remaining "questions relate to the matters of account between the parties, about which there was some conflicting evidence. But upon a careful review of the evidence, and rulings of the court touching the matters of account between the parties, we are of the opinion that there is no error in the rulings, orders, judgments and decree of the chancellor in this cause, and we do, therefore, affirm the same in all things.

Hon. J. R. Eakin, J., did not ait in this case.


author: Enslish, C. J.

text:
    Rie vs. Rie.
    1. Divorce: Not granted on pleadings, etc.

    A divorce will not be granted on a demurrer to a bill, or upon a failure to answer, or upon admissions in an answer, or alone upon declarations or admissions of the defendant, proven by depositions or otherwise.
    2. Same: Non-cohabitation sufficient for.

    Actual abandonment of matrimonial cohabitation, without reasonable cause, for the period of one year, intentional on the part of the wife, is cause for divorce, notwithstanding she make occasional visits to the house of her husband to look after her children, and while there engag e in domestic duties.
    3. Same: Not granted on evidence of parties. Conflict between.

    The uncorroborated evidence of the parties, though admissible for what it is worth, is not sufficient to authorize a divorce, notwithstanding they agree in their statements. Where there is a conflict in their testimony that of the defendant is deemed of greater weight.
    4. Same : Pleading. Allegations must be specific.

    Where the causes alleged for divorce are not sufficiently specific, the court should, on motion of the defendant, compel the plaintiff to make them so.
    APPEAL from Mississippi Circuit Court in Chancery.
    Hon. L. L. Mack, Circuit Judge.

      Lyle, for appellant.
   Enslish, C. J.

This was a bill for divorce commenced in the circuit court of Mississippi county, on the twenty-second of September, 1877, by W. C. Rie against Polly Ann Rie.

Upon the bill, answer and depositions, the court below refused a divorce and dismissed the bill.

The causes of divorce, and the primary facts constituting them, are not separately and distinctly stated in the bill, as they should have been to make an orderly pleading, convenient to be answered.

Taking all of the allegations of the bill together, however, we presume appellant intended to rely upon three of the statutory causes of divorce:

1. That appellee willfully deserted and absented herself from appellant for the space of one year, without reasonable cause.

2. That she was guilty of such cruel and barbarous treatment of him as to endanger his life.

3. That she offered such indignities to his person as to render his condition intolerable. .

The onus of proving these charges, or some one of them, was upon appellant, who alleged them as causes for divorce, which he sought.

A divorce will not be granted on a demurrer to a bill, or upon a failure to answer, or upon admission in an answer, or alone upon declarations or admissions of the defendant, proven by depositions or btherwise, because the public, and not the parties only, are interested in such suits. Jocob v. Bob, 18 Ark.,410; Gantt’s Dig., secs. 2200, 2201; Jordan v. Jordan, 17 Ala., 466.

I. The bill alleges that, about the first of March, 1876, appellee willfully deserted appellant, without any reasonable cause, and persistently refused to return to him.

Appellee, in her answer, admits that she did leave his house about the first of March, 1876, but denies that she . then, or at any other time, willfully deserted him without any reasonable cause; but, on the contrary, alleges the truth to be that she left him at the time above mentioned, under the influence of well grounded fear that he would inflict upon her some enorrpous bodily harm, he having, a ■short tim'e prior thereto, raised a chair over her head, saying he would “dash her infernal old brains out;” and that, at another time, he advanced upon her with a drawn butcher-knife, threatening her life; and that she had, •often, during the past year, been at his house and engaged in her usual avocation, as his wife, and the mother of her children, and had not then, nor has she now [the time of answering], any thought or intention of desertion.

The depositions conduce to prove that appellee left the house of appellant about the time stated in the bill, and ■did not, after that, live with him as a wife. Most of the time she was absent, and stayed with a married daughter and at other houses in the neighborhood. She occasionally returned to the house of appellant and remained for ■some days, aiding her daughter in domestic matters. When there, but little was said between her and her husband, and they occupied different rooms at night.

There was doubtless, an actual cessation of the matrimonial cohabitation between the parties for the period alleged in the bill, which appears to have been intentional on the part of the wife, and this was cause of divorce, notwithstanding she made occasional visits to the house of her husband, to look after her children, and while there •engaged in domestic duties, unless she had reasonable cause for such abandonment of the matrimonial cohabitation. Bishop on Marriage and Divorce, secs. 506-7, etc.

Before the final separation, though they had occasional quarrels, the general treatment of the husband appears to have been good, and, when she was not in a tantrum, her conduct, it seems, was lady-like and affectionate. But when her temper was aroused, she gave the old man [to use the language of one of the witnesses] Bail Columbia.”

The witnesses are not all in harmony as to whether the husband or the wife usually commenced such quarrels, or occasioned them; a majority of them, however, were disposed to lay the blame on the wife. But it is not material to decide which was more at fault in these family jars. The real question is, was it proven that the desertion of the wife was willful and without reasonable cause.

The practice now in this state is to admit the depositions of the parties in suits for divorce for what they are worth, but not to grant a divorce upon the uncorroborated testimony of the parties. 1 Wharton Evidence, 433.

In this ease the depostions of the parties were taken, and read without objections, as to competency.

The wife testified as follows: “In 1876, when I was very ill, he (appellant) never came about me to ask after and provide for iny wants — would not even send after a doctor for me. On one occasion, he drew a chair on me and threatened to dash out my infernal old brains; on another, he threatened to pitch me out the door and break my neck; on another, he threatened to come in and beat me to death; on another, he came towards me_ with a butcher knife in his hand, threatening me some bodily harm — I do not remember what, for I was so badly frightened at the time.”

These are the causes stated by her for the desertion, or for refusing to live with him as a wife.

It has been held, subject to some qualifications, that reasonable cause, which, within the divorce statutes, will justify one of the married parties in abandoning the other, must be such conduct as could be made the foundation of a judicial proceeding for divorce. Bishop on Mar. and Div., sec. 526, and cases cited.

If the chancellor believed the above statement of the wife, her desertion was justifiable, and the husband was rightly refused a divorce.

Appellant, in his deposition, states, in general terms, that he always treated appellee well, and gave her no just cause for desertion. He admits raising a chair over her head, with intention to strike her, but denies advancing upon her in a threatening manner, with a drawn butcher-knife, as stated by her, and is silent as to the other specific charges made, as above, by her against him.

In conflicts between the two depositions, hers must be deemed of greater weight, because he seeks to obtain a divorce by his own testimony, and she attempts to defeat it by hers. He must establish alleged causes of divorce by corroborating evidence. In getting at the truth in relation to private scenes, quarrels and injuries between husband and wife, unwitnessed by others, it may be well to admit the testimony of the parties in divorce cases; but because of the rule, founded on public policy, that a divorce will not be granted upon the unsupported testimony of the party seeking it, it necessarily follows that the greater weight must be given to the party opposing it, where, their depositions are in conflict. Nor in order to prevent collusion will a divorce be granted where parties agree in their statement, unless the cause or causes alleged for divorce are proven aliunde: in other words, unless the testimony of the complaining party is supported by other evidence satisfactory to the court, because of the public interest in marriage and divorce.

II. The second cause of divorce is not well alleged in the bill. It is not alleged in the language of the statute, nor in words of like purport, nor are the primary facts alleged to make out the statutory cause for divorce, that defendant was guilty of such cruel and barbarous treatment of complainant as to endanger his life.

The only portions of the hill that may be supposed to have been intended to make a second charge and specifications, are as follows:

“ That she often threatened his life, and at one time extracted from his medicine chest a bottle of strychnine, she knowing the same to be a deadly poison, for the purpose of taking his life; that she treated him with great harshness and almost uniform unkindness.”

There was a motion by appelleé to require the appellant to make the charges and specifications of the bill more specific, which was overruled, but should have been sustained by the court.

Appellee denies that she was ever at any time harsh or unkind in her treatment of appellant, or that she ever threatened his life, or attempted to poison him with strychnine or any other poison, and avers all such charges to be false.

As to the strychnine appellant testifies as follows:

“ Some time since the war I had bought a lot of strychnine ; the defendant got mad with me; she took a bottle from my chest, and hid it in a lot'of cotton seed. She afterwards denied taking it, until l afterwards found it. She afterwards acknowledged it, but said she did not intend to poison me, but did it for devilment.” /

As to the same matter appellee testified as follows:

“I never attempted, intended, or thought of poisoning anybody in my life. Mr. Dickson sent by Mr. Sanders’ daughter for some strychnine, on one occasion, and Mr. Rie (appellant) accused me of wanting to get it to poison him.”

Eor want of corroborating evidence appellant must be regarded as having failed to prove the charge that appellee attempted or intended to'poison him with strychnine.

Nor did he prove any such cruel or barbarous treatment of him by her as to endanger his life.

III. The third charge, that appellee offered such indignities to the person of plaintiff as to render his condition intolerable, was like the other charges, in the opinion of the chancellor, not sustained, and we find in the transcript nothing upon which we would overrule his judgment, and reverse the decree. As to indignities, see Rose v. Rose, 9 Ark., 575.

Counsel for appellant have particularly called the attention of the court to a statement made by witness ~W. M. Holt, in his deposition. He was a witness for appellant, and on cross-examination stated that he had heard him say that he had on one occasion raised a chair to strike his wife, but he did not strike her, because she implored and begged him with uplifted hands not to do so.

On re-direct examination witness stated that the reason appellant assigned for drawing a chair on his wife was that she had accused him in the presence of their children with bestiality, which was false.

It was not alleged in the bill that she had ever made any such accusation against him, nor did appellant or any witness swear that she had. Holt did not swear it, but merely repeated a declaration made to him by appellant.

The bill charge? as an indignity to the person of appellant that appellee often, upon her bended knees, would pray to the God of the universe to send a thunderbolt from heaven upon the devoted head of appellant to crush him to atoms.

This, appellee, in her answer, denies, but admits that she has often prayed to the God of the helpless to avert from her devoted head and person the wrath of the plaintiff, when threatening to descend, in the shape of uplifted chairs, butcher-knives, and other fearful and deadly missiles, to crush her to atoms.

Here, again, the pleadings and depositions of the parties are in conflict, and appellant is at disadvantage for want of supporting evidence.

Upon the whole record, we must affirm the decree, and leave the parties to reconcile their unhappy quarrels, as they should, or continue to lodge apart, if they will.