text:
    Willie A. JOHNSON v. HOUSTON GENERAL INSURANCE COMPANY
    75-236
    536 S.W. 2d 121
    Opinion delivered May 10, 1976

      Whetstone & Whetstone, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Willie A. Johnson from a circuit court order dismissing his complaint against the appellee Houston General Insurance Company for failure to state a cause of action against the defendant.

The background facts appear as follows: On March 14, 1974, the appellant sustained an industrial injury in the course of his employment by Western Meat Packers, Inc. He filed a workmen’s compensation claim and on January 22, 1975, the Commission awarded temporary total benefits through October 21, 1974, payable in one lump sum. Apparently the plaintiff experienced some difficulty in collecting the award of the Commission so on March 19,1975, he filed a complaint in the circuit court against the compensation insurance carrier, Houston General Insurance Company, setting out the award by the Commission and alleging that he had made repeated requests for the payment under the award without success. He then alleged and prayed as follows:

The reason and purpose for the delay and withholding of payment by the defendant is for the purpose of harassment, vexation and torment of this plaintiff and is an extension of a pattern of conduct consistently pursued by the defendant since shortly after the time of plaintiff’s injury to hamper, delay, harass and torment him.
The conduct of defendant is also retaliatory and spiteful in relation to the claim which this plaintiff has made against the defendant in the Workmen’s Compensation proceeding heretofore referred to.
Plaintiff has been caused substantial mental anguish, injury, and damages as a result of all this behavior on the part of the defendant to the extent of $1,000.00.
Moreover, plaintiff is entitled to have $5,000.00 punitive damages assessed against the defendant and in his favor on account of the deliberate, spiteful, and wanton disregard to the consequences exhibited by the defendant and its agents and employees as set out.
WHEREFORE, premises considered, plaintiff prays judgment against the defendant, Houston General Insurance Company, for compensatory damages in the amount of $1,000.00; and plaintiff prays judgment against the said defendant for punitive damages in the amount of an additional $5,000.00; and plaintiff prays for his costs herein expended and for all other proper relief whether specifically prayed for herein or not.

On March 26, 1975, the appellee filed motion to dismiss, the pertinent portion of the motion being as follows:

Part of this claim was accepted as compensable and part was controverted by Houston General Insurance Company at a hearing on July 10, 1974. Awards of compensation to the claimant were made by the Arkansas Workmen’s Compensation Commission on January 22, 1975, and March 17, 1975. All sums due and payable under these awards have been paid by the defendant.
The Arkansas Workmen’s Compensation Act is the plaintiff’s exclusive remedy against this defendant and any claim for additional benefits should be made through the Arkansas Workmen’s Compensation Commission.
The Complaint does not state a cause of action against this defendant.

On June 4, 1975, the circuit court granted the appellee’s motion and dismissed the complaint because it failed to state a cause of action against the defendant.

Under the points he relies on for reversal the appellant first contends that the motion to dismiss should have been treated as a demurrer, but he made no request that the motion be so treated and made no effort to amend his complaint. We find no merit to this contention.

The appellant next contends that as against a demurrer, allegations of a complaint should be liberally construed. We find no merit in this contention Even if the motion to dismiss should be treated as a demurrer in this case, under a liberal construction of the allegations in the complaint, it only stated general conclusions of law rather than specific facts constituting elements of actionable damage. See Ark. Stat. Ann. § 27-1113 (Repl. 1962); Wilson v. Overturf, 157 Ark. 385, 248 S.W. 898, and Wood v. Drainage Dist. No. 2, 110 Ark. 416, 161 S.W. 1057.

The appellant next contends that the exclusive remedy under the Workmen’s Compensation Act contemplates that the injury be both accidental and in the course of employment and does not contemplate intentional and malicious mental injuries by an employer-respondent upon an employee. This contention is without merit for the reasons already stated.

Appellant next contends that “retaliatory action on the part of employer-respondent for filing a workmen’s compensation claim is actionable in a court of law.” We do not reach this point in the case at bar for the reasons already stated. The appellant next contends “Arkansas tort law recognizes intentional infliction of severe mental distress without physical injury as a cause of action.” We also consider it unnecessary to discuss this point for the reasons already stated.

The rights and remedies provided in the Workmen’s Compensation Act, Ark. Stat. Ann. §§ 81-1301 — 81-1349 (Repl. 1960), are exclusive of all other rights and remedies as to injury or death suffered by employees under the Act. Ark. Stat. Ann. § 81-1304 (Repl. 1960). In addition to the 20% penalty and interest for late payment provided in § 81-1319 (f) (g), the Commission may require bond from the employer under § 81-1319 (j) to insure prompt payment. Most pertinent, however, to the situation involved in the case at bar, § 81-1325 (c) provides as follows:

(c) If any employer fails to comply with a final compensation order or award, any beneficiary of such order or award, or the Commission, may file a certified copy of the said order or award in the office of the circuit clerk of any county in this State where any property of the employer may be found, whereupon the circuit clerk shall enter the said order or award in the judgment record of said county and the said order or award so recorded shall be a judgment and lien as are judgments of the circuit court, and enforceable as such.

We are of the opinion that the trial court did not err in dismissing the complaint.

The judgment is affirmed.


source: Caselaw Access Project

author:
Elsijane T. Roy, Justice.
      J. Fred Jones, Justice,

license: Public Domain

text:
    MOHAWK TIRE and RUBBER COMPANY and TRAVELERS INSURANCE COMPANY v. E. T. BRIDER
    75-359
    536 S.W. 2d 126
    Opinion delivered May 10, 1976

      Wright, Lindsey <2f Jennings, for appellants.

      Mike J. Etoch Jr., for appellee.
   Elsijane T. Roy, Justice.

This appeal results from a decision of the Workmen’s Compensation Commission, affirmed by the Circuit Court, denying credit for payments made by an employer under a disability insurance plan during a period of temporary total disability following an injury to its employee, E. T. Brider.

In April, 1969, Brider developed a debilitating pulmonary disorder and applied for benefits available from a disability insurance policy furnished by Mohawk Tire and Rubber Company (hereafter Mohawk) to cover all employees. This policy was intended to cover accident or sickness not compensable under workmen’s compensation and provided that the concurrent receipt of workmen’s compensation benefits would result in the deduction of the amount of those benefits from the disability payments. The co-appellant, Travelers Insurance Company, is both the insurer in the disability policy and the compensation carrier for Mohawk. Appellee’s claim for payments under the disability policy was granted by Travelers, and he received weekly payments of $85 for a total period of 66.4 weeks until expiration of eligibility in January, 1972.

In April, 1972, appellee filed for workmen’s compensation benefits contending that his disability was work related. This claim was controverted by appellants based upon their contention that the condition was unrelated to appellee’s employment and, in any event, appellee was barred by the statute of limitations, Ark. Stat. Ann. § 81-1318(b) (Supp. 1973), from proceeding because more than two years had elapsed since the condition occurred. These contentions were rejected by the Workmen’s Compensation Commission, and appellee was awarded $49 per week for the entire period. This Court affirmed in Mohawk Tire & Rubber Co. v. Brider, 257 Ark. 587, 518 S.W. 2d 499 (1975). We specifically found appellee’s condition was work related and the statute of limitations was tolled by payment of either income or medical benefits. The payment of compensation in the form of medical benefits was not controverted by the employer. See Brooks v. Ark. Best Freight System, Inc., 247 Ark. 61, 444 S.W. 2d 246 (1969).

Nevertheless, after this decision appellants tendered only partial payment of the amount awarded by the Workmen’s Compensation Commission, deducting credit for the amount paid during the 66.4 weeks appellee received payments under the disability policy. Appellee refused this tender, and the matter was again set for hearing by the Workmen’s Compensation Commission. After the hearing the Commission, in an order filed on August 13, 1975, stated that in its original opinion dated May 15, 1974, this very same issue seeking credits had been raised and was denied. The Commission correctly concluded that since on appeal to this Court the case was affirmed the matter was res judicata. The full Commission additionally assessed a 20% penalty against appellants pursuant to Ark. Stat. Ann. § 81-1319(1) (Repl. 1960) for failure to pay the award within 15 days after it became due.

Appellants argue for reversal that the denial of a credit for 13,254.68 paid under the “accident and sickness” policy is contrary to the law. This contention is without merit as the right of appellants to a credit was foreclosed in their first appeal and cannot be relitigated here.

The Arkansas Workmen’s Compensation Law covering credit for compensation or wages paid is found in Ark. Stat. Ann. § 81-1319(m) (Repl. 1960), which reads as follows:

Credit for compensation or wages paid. If the employer has made advance payments of compensation he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due. * * * (emphasis supplied)

The Commission held that because the earlier payments were not for work associated accident or illness they were not “advance payments of compensation” and no credit was allowable. Appellants did not appeal to the Supreme Court on the issue of whether a credit should be allowed.

Since this issue was submitted to and decided adversely to appellants by the Commission the bar of res judicata is invoked as effectively as if the issue had been presented to this Court.

In Hollis v. Piggott Junior Chamber of Commerce, 248 Ark. 725, 453 S.W. 2d 410 (1970), quoting from an earlier Arkansas decision, it was stated that:

* * * After judgment on the merits, a party cannot afterwards litigate the same question in another action, although some argument might have been urged on the first trial that would have led to a different result, (emphasis the Court’s)

The rationale behind holding an issue to be res judicata in a subsequent proceeding is to “. . . end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy, . . . . ” Ted Saum & Co. v. Swaffer, 237 Ark. 971, 377 S.W. 2d 606 (1964).

Appellants’ second contention that the 20% penalty should not be imposed upon the entire amount of the award is equally without merit. After the decision by this court in Mohawk, supra, upholding the decision of the Workmen’s Compensation Commission granting benefits to appellee, appellants arbitrarily withheld the sum of $5,645.71 from the amount due under the Commission’s award and also reduced the payment of attorney’s fee accordingly.

Appellee was not required to accept appellants’ tender of approximately 50% of what was due under the mandate of the Arkansas Supreme Court affirming the award of the Commission and expose himself to the peril of appellants’ possible argument that acceptance of the lesser amount constituted accord and satisfaction. Accordingly we find the failure of appellants to comply with the award of the Commission, affirmed by this Court, exposes them to the sanction of § 81-1319(f) and a 20% penalty on the entire amount of the award was properly applied herein.

Affirmed.

Jones and Byrd, JJ., dissent.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion in this case. The facts relative to in» surance coverage are slightly unusual in that the same carrier had both the group and compensation coverage and the coverages overlapped. It is my opinion the group coverage simply supplemented the compensation coverage where compensation covered disability was involved.

The group coverage provided for the payment of $85.00 per week and the coverage included disability “due to accident or occupational illness.” Brider’s disability was not only caused by a series of accidents (inhalation of smoke and chemical fumes) within the meaning of the Workmen’s Compensation Law, it was also caused by “occupational illness” in the sense that the occupation caused the illness which resulted in the disability.

No serious effort was made by anyone to determine whether Brider’s disability was occupational within the workmen’s compensation coverage until the payments under his group policy were exhausted and he filed claim for workmen’s compensation benefits. This is understandable because the weekly benefits were greater under the group policy and Brider had no reason to complain or make inquiry. The employer or its insurance carrier did not question Brider’s disability and his entitlement under the group policy and really had no reason to do so until the benefits under the group coverage expired and Brider filed claim for compensation. The compensation and group carrier was paying greater benefits under the group policy than were payable under the compensation coverage and, until the benefits under the group policy were exhausted, it was all the same in dollars and cents to the appellants because the group policy contained a provision as follows:

2. Deduction for Workmen’s Compensation Benefits In the event that an Employee received weekly compensation under a Workmen’s Compensation Act for any period with respect to which he is also entitled to weekly benefits under Paragraph 1 of this Section C, the amount of such weekly compensation payable under such Act shall be deducted from the amount of the weekly benefit otherwise payable to such Employee under said Paragraph 1.

As it turned out, Brider should have been receiving workmen’s compensation benefits all the time from the beginning of his disability. Instead, he did receive full benefits under the group coverage without deduction for compensation payments. The compensability for his disability under the Workmen’s Compensation Law was not finally determined until we affirmed the circuit court and Commission in our previous decision in this case. Mohawk Tire & Rubber Co., et al. v. Brider, 257 Ark. 587, 518 S.W. 2d 499.

Now, if the appellants had recognized Brider’s disability as compensable under the Act and had made payments accordingly, there is no question that such payments should have been credited against the larger weekly amount payable under the group policy. It is my view that the appellant-carrier is still entitled to such credit. It is clear to me that the group policy did not contemplate double coverage but only supplemental coverage where compensation coverage applied.

It is quite true that the appellant-employer and carrier controverted the appellee’s claim for compensation benefits, except medical, and contended that his disability was not related to his employment but was only covered under the time limited group policy. We did not agree with that contention and in affirming the circuit court judgment which affirmed the Commission’s award, we held in effect that Brider was entitled to compensation benefits which should have been paid from the inception of his disability. It could only follow, as I view this case, that as a matter of right as well as a matter of law, the appellants are entitled to credit for the overpayments they made under the group coverage to the extent of the amounts they should have paid under the compensation coverage.

It is true that in the original request for review of the referee’s findings by the full Commission, the appellants asserted that the referee had failed to allow credit for payment under the group policy but, of course, at that point the appellants were still contending that Brider’s disability was unrelated to his work and was, therefore, not compensable at all under the Workmen’s Compensation Act. The appellants never did question their full liability for medical and compensation benefits under the group policy which covered both occupational and nonoccupationai, illness and injuries and on appeal from the referee’s award to the full Commission on the compensability of the claim as work related, it would have been slightly inconsistent for the appellants to have pursued a claim for credit for compensation it was contending it did not owe. In any event, neither the referee nor the full Commission granted, denied or even mentioned credit for compensation against the amounts paid under the group policy.

It is true, as stated by the referee in the case at bar, we did state in our original opinion “. . . Mohawk contended that the $85 per week paid to Brider was under an entirely separate nonoccupationai insurance policy and did not constitute the payment of workmen’s compensation in any sense of the word. ” This quote was a statement of Mohawk’s contention in support of its piea of the statute of limitations and was not a statement of this court’s opinion. This contention by Mohawk was based upon its primary contention most vigorously advanced, that Brider’s disability was not occupational at all and, being nonoccupationai in nature, could fall only under the group coverage. We did not agree with the appellants on either co ;ntion.

I do not consider our original opinion res judicata as to the question now before us. As I interpret our original opinion, in affirming the circuit court judgment, we affirmed the findings and award the Commission did make and our opinion was in no wise res judicata as to any question that was or may have been presented to the Commission and never passed on or mentioned by the Commission in its opinion.

The appellants never did concede that Brider’s disability was occupational and compensable under the compensation coverage. The appellants controverted the entire claim, except medical, at the risk of paying attorney’s fee in addition to compensation as they had a perfect right to do. The appellants nor the appellee nor anyone else, including the Commission and any one member of this court, knew that Brider’s disability was compensable under the Workmen’s Compensation Law until that question was finally determined by this court. The appellants are bound by the decision of this court whether they agree with that decision or not, but in my opinion the appellants are certainly not bound to their former contentions under their prior ineffective defense which was never adjudicated by the referee, or the Commission, or the circuit court, or this court on appeal.

The only issues before the referee in the original case were whether the claimant had sustained an accidental injury; whether his condition arose out of or in the course of his employment, and whether the claim was barred by the statute of limitations. In his findings of fact the referee found as follows:

2. Claimant’s healing period ended on February 7, 1973.
3. The claimant has sustained a permanent partial disability of 5% to the body as a whole resulting from his lung disease.
4. The respondents are liable for payment of temporary total disability benefits from April 22, 1969, to February 7, 1973. The respondents shall receive credit for wages paid the claimant during this period.
5. The respondents are liable for the reasonable medical services rendered to the claimant as a result of the aforementioned compensable lung disease.
6. The respondents have controverted this claim except for the medical treatment which was paid for by the respondent prior to the date of the hearing.

The referee’s award appeared as follows:

The respondents are ordered and directed to pay the claimant temporary total disability benefits at the rate of $49.00 per week from April 22, 1969, to Feb. 7, 1973, except for the days that the claimant actually worked for the respondent during that period of time. The respondents shall pay the reasonable medical expenses resulting from the claimant’s industrially caused lung disorder. The respondents are further ordered and directed to pay permanent partial disability benefits in the amount of 5% to the claimant beginning February 7, 1973, and all permanent partial disability benefits due and owing are to be paid in one lump sum without discount. Claimant’s attorney herewith is awarded the maximum attorney’s fees provided by law.

In the appellants’ memorandum brief on appeal to the full Commission they stated as follows:

The following points are asserted as grounds for reversing the decision of the Referee and will be discussed in the same order in the brief:
1. The claimant has failed to establish by a preponderance of the evidence that his lung disorder was caused by his employment.
2. The claimant has failed to establish by a preponderance of the evidence that his lung disorder was temporarily or permanently disabling.
3. Respondents were not given credit for health and accident benefits paid to the claimant from January 18, 1970 through January 18, 1972.
4. Part or all of the claim is barred by the statute of limitations.

And, as a part of their argument in support of their contention No. 3, the appellants argued as follows:

It is undisputed that claimant applied for and received disability benefits at the rate of $85.00 per week from January, 1970 through January 18, 1972 and also had paid in his behalf $6,784.66 in medical expense. These benefits were paid on the assumption that Brider’s condition was unrelated to his employment. Such benefits are not payable or, are payable only on a limited basis in the event of a compensable workmen’s compensation claim. The claimant is not entitled to be unjustly enriched by reason of a payment from the health and accident policy and a separate payment for the same period of disability and medical expense as a workmen’s compensation claim. In the event that this claim is held to be compensable in whole or in part, respondents are entitled to credit for those sums paid by the health and accident policy for temporary total disability benefits or medical expense.

In the opinion of the full Commission the Commission recited, in its statement of the case, as follows:

For reversal, the respondent states that the claimant failed to establish by a preponderance of the evidence that his lung disorder was caused by his employment; that the claimant failed to establish by a preponderance of the evidence that his lung disorder was temporarily or permanently disabling; that the respondents were not given credit for health and accidents benefits paid to the claimant from January 18, 1970, through January 18, 1972; and that part or all of the claim was barred by the Statute of Limitations.

The Commission in its opinion then made no further reference whatever to the appellants’ third contention. In its findings of fact the Commission simply found that the claimant sustained an accidental injury arising out of and in the course of his employment; that he was earning sufficient wages to entitle him to the maximum compensation of $49 per week; that his healing period ended on February 7, 1973; that the claim was not barred by the statute of limitations; that the claimant sustained permanent partial disability of 5% to the body as a whole; that the appellants were liable for payment of temporary total disability benefits from April 22, 1969, to February 7, 1973, with a right to receive credit for wages paid the claimant during the period; that the appellants were liable for reasonable medical services incurred as a result of the compensable injury, and that the appellants had controverted the claim in its entirety except for medical treatment which had been paid prior to the date of hearing.

In its conclusions, the Commission stated as follows:

The claimant suffered an injury, notified his supervisor, and the respondents provided medical care and paid him $6,784.66 in weekly compensation benefits under a company health and accident insurance policy.
The claimant’s claim was filed within a year of receiving medical benefits (compensation) and therefore, his claim is not barred by the Statute of Limitations (81-1318 [b]), Reynolds Metals Company v. Brumley, 226 Ark. 388.
It is further the opinion of the Commission that the actions of the respondents have estopped them from pleading the Statute of Limitations.

The Commission then made the following award:

The respondents shall pay to the claimant temporary total disability benefits at the rate of $49.00 per week beginning April 22, 1969, to and including February 7, 1973, except for those days that the claimant received wages.
Beginning February 7, 1973, and continuing for a period of 22 Zz weeks, respondents shall pay the claimant permanent partial disability benefits in the amount of $49.00 per week representing a five per cent permanent partial disability, and all permanent partial disability benefits heretofore not paid, shall be paid in one lump sum without discount.
The respondents shall pay for the reasonable medical expenses resulting from the claimant’s injury and receive credit for amounts heretofore expended.
Claimant’s attorney, Mr. Mike J. Etoch, Jr., shall be paid a maximum attorney’s fee, and the same shall be based on the controverted portion of this award.

On appeal to this court in the original case the appellants designated the points they relied on for reversal as follows:

The court erred in affirming the decision of the Commission because:
I
There is no substantial evidence in the record that appellee sustained an accidental injury arising out of and in the course of his employment.
II
There is no substantial evidence in the record that appellee sustained any temporary or permanent disability.
in
Appellee’s claim is barred by the statute of limitations.

The statute of limitations was tolled in this case by the payment of compensation in the form of medical benefits not even controverted. The medical benefits were also paid under the group policy coverage. Certainly no one would suggest they should be paid again under the compensation coverage.

The appellants very properly paid Mr. Brider the full benefits under the group policy without deducting the compensation benefits they did not know they owed until final determination by this court and it is my view, that as a matter of right and as a matter of law, the appellants are still entitled to deduct the compensation benefits they actually paid even though they made the payments under the erroneous theory that they were for nonoccupational disability.

I would reverse and remand this case for proper credit which, of course, would also eliminate the 20% penalty for late payment.

Byrd, J., joins this dissent.

      This award basically provided for payments of $49 per week from April 22, 1969, to an including February 7, 1973, and an additional period of benefits for 22 1/2 weeks after February 7, 1973, plus reasonable medical expenses.

      After a hearing before the Administrative Law Judge appellants later reduced the amount claimed as a credit to 83,254.68, computed by multiplying the 849 per week award by 66.4 weeks.


author: PER CURIAM Harris, C.J.,

text:
    Jacob VAN MARION et ux v. L. A. MOSELEY et ux
    75-294
    536 S.W. 2d 697
    Petition for Rehearing denied May 10, 1976
   PER CURIAM

Following our affirmance of the chancery court’s decree pursuant to Rule 9 (e) (2), appellants moved for permission for their attorney to reprint a substituted brief, at their attorney’s expense, to now conform to Rule 9 (d) by including in the abstract photographic copies of all exhibits introduced in evidence, pointing out that appellees did not contend that the abstract was deficient.

At the outset, we point out that motions by an appellee to dismiss for insufficiency of appellant’s abstract are no longer recognized. Under Rule 9 (e) (2), this court determines, on its own motion, when the case is submitted on its merits and not thereafter, whether the judgment or decree should be affirmed for non-compliance with the rule or whether appellant’s attorney may be allowed time to reprint his brief. That decision was made in this case and our per curiam order affirming the decree pointed out, in considerable detail, the reasons why many of the omissions were critical. Therefore, we determined that an affirmance rather than a reprinting of the brief was appropriate. We pointed out that appellants had not moved for a waiver of the requirement that maps, plats, and photographs be reproduced as a part of their abstract.

As appellees point out in response to appellants’ motion, appellants moved for an extension of time for filing their brief. The basis of that motion was their attorney’s inability to get the manuscripts to the printer within the time allotted. Extensions totalling 22 days were granted. In spite of the difficulty in preparing the manuscript containing the abstract of the voluminous record, appellants at no time intimated that any impracticability of reproduction or abstracting of exhibits was involved.

We took pains a little more than six years ago to emphasize the importance of that part of Rule 9 (d) relating to the reproduction of exhibits which must be examined for a clear understanding of the testimony and the risk involved when there is a possibility that we may find compliance to have been mandatory. See Williams v. Owen, 247 Ark. 42, 444 S.W. 2d 237.

We had considered appellants’ motion as a petition for rehearing and were prepared to deny it, as such, when appellants filed a petition for rehearing, asserting that they had actually complied with Rule 9 by abstracting only such material parts of the pleadings and exhibits as were necessary for clear understanding of the questions presented for decision, saying that the only plat material to the issues had been photostatted, indexed and inserted in their brief, and that the descriptions contained in the various conveyances exhibited had been superimposed on this reproduction of the plat.

This did not seem adequate to appellants when they briefed this case. We were referred in the brief to exhibits which were not reproduced or abstracted in the following instances:

Brief Page Exhibit Transcript Reference
121 - See Defendant’s Exhibit 4 Tr. 366
- Also Orton & Wingo surveys Tr. 369
122 - Defendant’s Exhibit 4 Tr. 367
- See Defendant’s Exhibit 11 Tr. -374
- Defendant’s Exhibit 2 Tr. 365
123 - Defendant’s Exhibit 14 Tr. 375
128 - See Orton-Bourland plat Tr. 369 & 384
131 - See official plats Tr. 367
136 - “as shown on Orton-Bourland plat’ Tr. 369

These references made for the purpose of enabling us to understand the arguments being made do not include many references to aerial photographs, which may have been difficult to reproduce. If these exhibits were not necessary for this court’s clear understanding of the issues, why were these references made in the brief?

In our Per Curiam opinion affirming the decree, there was not any suggestion that any unnecessary parts of exhibits be reproduced or abstracted. We do not make such a suggestion now. We find no basis for granting a rehearing in this case, so it is denied.

Harris, C.J.,

concurs in the result because he adheres to the position he took when the original per curiam order was issued. He would affirm the decree on the merits.


author: PER CURIAM.

text:
    In the Matter of Abstracting the Record in Indigent Criminal Cases
    May 10, 1976
   PER CURIAM.

This brief order is directed to counsel for indigent appellants in criminal cases. The court has perhaps been too lenient in overlooking clear-cut violations of Rule 9 on the part of such attorneys. Contrary to our practice in other criminal cases and in civil cases, we have condoned deficiencies ranging from the submission of briefs with almost no abstracts of the record to the submission of briefs with abstracts amounting almost to a reprint of the transcript.

In the future, compliance with Rule 9 will be required. Indigent appellants are entitled to effective representation by their attorneys. The court is entitled to abstracts and briefs prepared in compliance with its rules. Hereafter counsel submitting defective abstracts will be required to re-abstract the record without compensation and, in flagrant cases, at their own expense.


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    Floyd Estelle LINDSEY v. CITY OF FORREST CITY
    75-345
    536 S.W. 2d 305
    Opinion delivered May 17, 1976

      Butler, Hickey & Jones, for appellants.

      Knox Kinney, City Atty., for appellee.
   George Rose Smith, Justice.

In 1971 the City of Forrest City, with a population of more than 12,000, made plans for the expansion and improvement of its sewer system. The project included the creation of a 160-acre oxidation pond, in which sewage would be treated with chemicals and by exposure to the air. This eminent domain proceeding was brought by the city to condemn 121.12 acres out of the appellants’ 696-acre farm, to be used as a site for part of the oxidation pond. At the trial the city offered only one valuation witness, James Montgomery, who testified that just compensation to the landowners would be $42,392, which Montgomery arrived at by valuing the 121.12 acres at $350 an acre. That was the precise amount of the jury’s verdict. For reversal the appellants contend that the trial court should have stricken Montgomery’s valuation, because he did not consider the effect of the taking upon the before and after value of the landowners’ entire farm.

We agree with the appellants, that Montgomery did not use a permissible method of fixing just compensation. There is ample proof that the oxidation pond will give off an offensive odor. Moreover, health department regulations prohibit the construction of dwelling houses within 600 feet of such a pond, with the result that 72.72 acres of the landowners’ remaining property will not be available for residential use.

Montgomery candidly and unequivocally admitted, upon his original cross-examination, that he had determined just compensation solely by valuing the tract being taken at $350 an acre. He said that he did not consider the rest of the 696-acre tract, “because I wasn’t appraising the other land.” When asked if he had put a value on the whole farm, he replied: “There’s no way that you could do that. . . I did not appraise highway frontage. I was not asked to appraise highway frontage.” He explained that he had not determined the value of the whole farm before the taking: “I wasn’t interested in that.”

The trial judge took the landowners’ motion to strike under advisement, to allow Montgomery to be questioned further upon redirect examination. Counsel for the city tried to rehabilitate the witness’s testimony, but the effort failed. Montgomery simply had not considered the effect of the taking upon the rest of the 696-acre farm. In saying that he had indeed considered the effect of the oxidation pond he expressed the opinion that the presence of the pond would improve the farm as a whole. He was unaware of the 600-foot restriction. He insisted that the 696-acre tract was worth $350 an acre before the taking and $350 an acre afterwards. Needless to say, his method of valuation was not a proper way to fix just compensation, because the constitutional prohibition against the taking of property without just compensation “extends, not only to the property actually taken, but to the damage, if any, done to the property not taken. ” State Life Ins. Co. of Indianapolis v. Ark. State Highway Commn., 202 Ark. 12, 148 S.W. 2d 671 (1941). Thus Montgomery’s estimate was demonstrably wrong and unfair to the landowners, but it was undeniably the basis for the jury’s verdict.

Although the point was not made in the trial court and is not raised in the briefs here, it was suggested at our conference that the trial judge’s ultimate conclusion was right and should be affirmed, because the landowners asked that the court “strike the testimony of Mr. James Montgomery.” It is said that the motion was properly denied, because part of the testimony was admissible. Young v. Ark. State Highway Commn., 242 Ark. 812, 415 S.W. 2d 575 (1967).

The cited rule is sound in certain circumstances, but it should not control this case. When the bare motion to strike is made, with no elaboration, and the trial court simply denies it, his action should be affirmed if part of the testimony is admissible, as in Ark. Sate Highway Commn. v. Bowers, 248 Ark. 388, 451 S.W. 2d 728 (1970). But here the naked motion did not stand alone. Counsel for the landowners fully explained his objection to Montgomery’s testimony. The trial judge agreed, saying that “the statement which he made, if it stands as such, is not a proper appraisal.” The city’s attorney did not question the wording of the motion; instead, he insisted that the witness should be allowed to clarify his position upon redirect examination. The court afforded counsel that opportunity and, after Montgomery’s ineffective effort to explain his position, denied the motion to strike, on the ground that the witness’s testimony was “substantially in compliance” with the rules of evidence. In the circumstances the attorney’s objection was clearly sufficient, for it met the statutory requirement that he state the grounds for his objection and make known the action which he desired the court to take. Ark. Stat. Ann. § 27-1762 (Repl. 1962); Bell v. Kroger Co., 230 Ark. 384, 323 S.W. 2d 424 (1959).

Reversed.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I would affirm the judgment in this case. I would point out that there was only one point for reversal. It was stated thus:

THE TRIAL COURT ERRED IN DENYING THE MOTION OF APPELLANTS TO STRIKE THE TESTIMONY OF JAMES MONTGOMERY, EXPERT WITNESS FOR THE APPELLEE.

Since this is the case, the question of the sufficiency of the evidence to support the verdict is not for our consideration. We may only consider this one point. I submit that there was no reversible error and that the court has invented both a procedure heretofore unknown, not only in eminent domain cases, but in any other, and a new rule of evidence.

1 think the majority’s error arises from a faulty premise, i.e., that the function of the expert witness is to fix the amount of just compensation. This is not the case. This is what the expert witness cannot do. This is solely the function of the jury, in the exercise of its own fair and independent judgment. Ark. State Hwy. Comm. v. Schanbeck, 240 Ark. 277, 398 S.W. 2d 897. Expert witnesses do not decide disputed questions of fact, but only give opinions upon the matters upon which their opinion is sought, to enable the jury to determine the question. St. Louis I.M. & S. Ry. Co. v. Williams, 108 Ark. 387, 158 S.W. 494.

The place of expert opinion evidence in a trial was articulated clearly in American Bauxite Co. v. Dunn, 120 Ark. 1, 178 S.W. 934, Ann. Gas. 1917 G 625, thus:

Experts are allowed to give testimony by way of opinion because they are presumed to have acquired more skill and knowledge and are more capable of forming a correct opinion as to the subject matter of the question under discussion, and their opinions are admitted in evidence for the purpose of aiding the jury to understand questions which inexperienced persons are not likely to decide correctly without such assistance. But the testimony of experts may receive only such consideration by the jury as the testimony may appear to the jury to deserve.

The market value of real estate is a matter of opinion. The objective in a trial to determine just compensation is to give the jury all possible information bearing upon the question. The opinions of witnesses who are sufficiently well informed on the subject are admitted, as an exception to the general rule, as an aid to the jury. Ark. State Hwy. Comm. v. Schanbeck, supra; Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S.W. 792, 4 Am. St. Rep. 51; Ft. Smith & Van Buten Bridge Dist. v. Scott, 103 Ark. 405, 147 S.W. 440. This sort of testimony is advisory only. Ark. State Hwy. Comm v. Schanbeck, supra. The opinion of such a witness goes to the jury for what it is worth in the jury’s eyes. St. Louis, Ark. & Terns Rr. v. Anderson, 39 Ark. 167. It is to be considered in connection with related facts upon which it is based. Ark. State Hwy. Comm. v. Warnock, 241 Ark. 998, 411 S.W. 2d 283. It is for the jury to determine the weight to be given to the opinions of these witnesses, depending to some extent on the interest, candor, demeanor, experience, intelligence and knowledge of the witness and the reasonableness of his testimony. Ft. Smith & Van Buren Bridge Dist. v. Scott, supra; Bridgman v. Baxter County, 202 Ark. 15, 148 S.W. 2d 673; Ark. State Hwy. Comm. v. Schanbeck, supra.

The rules governing the determination of just compensation in eminent domain cases have been long and firmly established in this state. The elements which enter into estimation of damages to ascertain the amount of compensation due a landowner for the taking of a right of way across his land are the market value of the land actually appropriated and the injury to the remaining land. St. Louis, Ark. & Texas Rr. v. Anderson, supra. Testimony in case? involving the taking of lands for right of way should be directed first to the actual value of the land taken and then to the damage resulting to the remainder of the tract. Springfield & Memphis Ry. v. Rhea, 44 Ark. 258. The measure of damages allowed for the taking of land for right of way is the market value of the land taken and the damage resulting to the owner’s remaining land from the construction of the improvement. Pine Bluff & W. Ry. Co. v. Kelly, 78 Ark. 83, 93 S.W. 562; Texas Illinois Natural Gas Pipeline Co. v. Lawhon, 220 Ark. 932, 251 S.W. 2d 477. Arkansas Power & Light Co. v. Morris, 221 Ark. 576, 254 S.W. 2d 684. It has been said that the correct measure of “damages” in highway partial taking cases is the market value of the land taken plus the damages, if any, to the owner’s remaining land not taken, less the special benefits, if any, by reason of the construction of the highway. Ross v. Clark County, 185 Ark. 1, 45 S.W. 2d 31; Hempstead County v. Huddleston, 182 Ark. 276, 31 S.W. 2d 300. We reiterated this statement of the correct measure of damages in Clark County v. Mitchell, 223 Ark. 404, 266 S.W. 2d 831, saying that in arriving at the damages it is proper to take into consideration the differences in the market value of the property before and after the taking.

We have approved an instruction telling the jury that a landowner was entitled to a verdict for the value of the land taken and damages, if any, to the balance of his tract of land and that, in arriving at the amount of the landowner’s damages, it should allow him the fair market value of the land actually taken for right of way together with the amount of damages to the balance of the tract, if any, owned by the landowners and crossed by the right of way. Ft. Smith Light & Traction Co. v. Schulte, 109 Ark. 575, 160 S.W. 855. We have also approved an instruction in a partial taking case that a jury is to take into consideration the fair market value, if any, of the quantity of land embraced in the right of way, along with elements of damage to the residue. Herndon v. Pulaski County, 196 Ark. 284, 117 S.W. 2d 1051; Texas Illinois Natural Gas Pipeline Co. v. Lawhon, supra.

In a partial taking case, the value of the land taken is a recoverable element. Herndon v. Pulaski County, supra; Texas Illinois Natural Pipeline Co. v. Lawhon, supra. Evidence of the value of the land taken as a separate item of element of compensation has been given and considered in many cases, and held competent in some of them, see, Ft. Smith Light & Traction Co. v. Schulte, supra; Herndon v. Pulaski County, supra; Board of Directors, St. Francis Levee District v. Morledge, 231 Ark. 815, 332 S.W. 2d 822 (where the court measured damages as the value of the land before the construction, less the value of the portion remaining after construction); Black v. Arkanaas Power & Light Co, 236 Ark. 447, 366 S.W. 2d 899. We have also sustained awards of compensation where the value of the land taken was fixed separately from the fixing of damages to the remainder. Board of Directors v. Morledge, supra; Black v. Arkansas Power & Light Co, supra; Miller Levee Dist. No. 2 v. Wright, 195 Ark. 295, 111 S.W. 2d 469.

We did not depart from any of our previous approaches to the matter in Young v. Ark. State Hwy. Comm., 242 Ark. 812, 415 S.W. 2d 575. We said that because the value of the part taken plus damages to the remainder rule and the before and after rule were alternatives, it would not be proper to instruct the jury as to both. But we said: “This does not mean that evidence of the value of the land taken plus damages to the remainder is not admissible. ” And in Arkansas Power & Light Co. v. Mayo, 244 Ark. 435, 425 S.W. 2d 531, we expressed a preference for an instruction based on the fair market value of the lands in a right of way taken together with the difference, if any, in the fair market value of the remainder before and after the taking. The experts agree that this approach is the usual formula or method adopted by the courts in partial taking eases. 1 Orgel on Valuation under Eminent Domain 234, § 50 (1953); Jahr, Eminent Domain, Valuation & Procedure 135, § 98 (1957).

We clearly upheld the jury’s right to consider evidence on the different elements separately in Ark. State Hwy. Comm. v. McAlister, 247 Ark. 757, 447 S.W. 2d 649. There we said:

We have long recognized that one approach to determination of just compensation is a formula consisting basically of two elements, i.e., (1) value of the lands taken and (2) damage resulting to the remainder of the tract, usually referred to as severance damages. Springfield and Memphis Railway Co. v. Rhea, 44 Ark. 258; Young v. Arkansas State Highway Comm., 242 Ark. 812, 415 S.W. 2d 575; Stuttgart and R.B.R. Co. v. Kocourek, 101 Ark. 47, 141 S.W. 511; A.P.&L. Co. v. Mayo, 244 Ark. 435, 425 S.W. 2d 531; Clark County v. Mitchell, 223 Ark. 404, 266 S.W. 2d 831. We have said that in partial taking cases the testimony should be first directed to the value of the lands taken and then to the damage resulting to the remainder of the tract. Springfield and Memphis Railway v. Rhea, supra. We have recognized that evidence of the value of lands taken plus damages to the remainder is not only admissible but that these two elements are appropriately considered by many appraisers as guides for determining “before and after values.” Young v. Arkansas State Highway Commission, supra. In Young, we held that even though the court’s instructions to the jury required a verdict reflecting the difference between “before and after values” rather than value of the lands taken plus severance damages, the landowner might present to the jury a resume of testimony, relating to one of the elements, which, in that case, was severance damages. Certainly, it could only have been anticipated that the jury might take the same approach. In so doing, they are accorded great latitude on the consideration of testimony and are not restricted to values of, or estimates of damage to, real estate fixed by the opinion of one or more witnesses. Griffin v. Searcy County, 150 Ark. 423, 234 S.W. 270. In the case last cited, we sustained a verdict for an amount of total compensation not only less than that which could be arrived at from the testimony of any witness but also less than the lowest estimate of severance damages alone. We said that the jury might well have considered that the only damage in that case was the value of the land actually taken plus the cost of constructing a road crossing. We also said that in testing the evidence supporting a verdict for sufficiency, we would consider it in the light most favorable to the appellee.
When we do this here, we find that according to the testimony of the landowner, the 13.65 acres taken would have had a value of $4,095 or $545 more than Pearce assigned to them. The range of estimated damages to the remaining lands was from $2,900 by Pearce to $1,-450 by one of the appellant’s expert appraisers. Thus, the result reached by the jury was well within the range of testimony offered on the two critical elements of damage, when they are considered separately.
This approach is in harmony with our decisions in partial taking cases such as Arkansas State Highway Commission v. Wilmans, 236 Ark. 945, 370 S.W. 2d 802, and Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S.W. 2d 201. In the former, we held that a motion to strike only the “before values” given by a witness should have been granted because it included an improper element of damages. In the latter we rejected the argument that when a witness’ “after values” are stricken, his “before values” should also be stricken because the two are so closely related that one may be misleading without the other. Of course, “before values” relate to lands taken as much as they do to remaining lands.
We consider here only the particular situation existing in this case, i.e., when there is testimony which could be related separately to values of lands taken and to damages to remaining lands. We do not reach the situation which would be involved if all testimony related to “before and after” values only, and the verdict exceeded the greatest difference in values stated by any witness.

It is quite clear that evidence of the value of the lands physically taken by eminent domain has always, been admissible in partial taking cases separate and apart from evidence of damages to the landowner’s remaining lands. I am totally baffled by the majority’s reliance on State Life Ins. Co. of Indianapolis v. Ark. State Highway Comm., 202 Ark. 12, 148 S.W. 2d 671. There the county judge rejected, out of hand, without any hearing, the possibility of damage to the remaining lands of a landowner through whose property a highway right of way was being taken. The question of admissibility of evidence was not remotely involved.

A closer analysis of Montgomery’s testimony will reveal that it was admissible in evidence. The tract taken consisted of 121.12 acres, which he valued at $350 per acre, or a total of $42,392.00. No objection was made to this testimony. On cross-examination, Montgomery was asked if he put any value on the whole tract. He replied that he did not because he was only appraising the land taken and that, while he did consider the surrounding area, he did not put a value on the whole farm either before or after the taking. During cross-examination, appellants’ attorney, not appellee’s, introduced Montgomery’s written appraisal report which showed clearly that he fixed his value of the 121.12 acres at $350 per acre. No objection was made until the cross-examination was completed. This motion was then made:

We move to strike the testimony of Mr. James Montgomery, who is supposed to be an expert witness for the City of Forrest City in that on the date of his appraisal he did not take into consideration the full value for the entire Lindsey farm just immediately before the taking and an after value for the entire Lindsey farm after the taking to determine just compensation, and that he stated while being examined that he just appraised the 12Í.12 acres and that was all of it. He put a value on that and that is not competent testimony.

After a recess, there was further redirect examination. It was brought out that Montgomery did not think that the 121-acre tract was worth $350 per acre, but that, considering the whole tract of land of which it was a part to have a value of $350 per acre, he valued this portion at that figure. This approach to valuation of the land taken was proper. In a partial taking, the land taken cannot properly be considered as an isolated tract. It must be considered in its relationship to the whole. 4A Nichols on Eminent Domain 14-100, § 14.231; 1 Orgel on Valuation under Eminent Domain 239, § 52. It is fair to say that further cross-examination revealed that Montgomery did not consider damages to the remainder of the tract sufficiently to give him a fair and reasonable basis for an opinion. Be that as it may, Montgomery’s testimony was admissible in evidence, at least in part, and the motion to strike was general, so it was properly overruled. St. Louis I.M. & S. Ry. Co. v. Taylor, 87 Ark. 331, 112 S.W. 745. The point raised by appellee in the trial court is immaterial. The points raised by appellants in the trial court and here are material. Neither have merit.

I have been unable to find any authority for the majority’s bald assertion that determination of error in denying a motion to strike turns upon whether there is an elaboration upon the motion by statement of grounds. The question is whether the testimony was subject to being stricken. The trial court correctly held that it was in substantial compliance with the rules of evidence.

It was permissible for appellee to offer evidence on elements of damage separately. Even when the “before and after” rule is being strictly applied, it is not necessary that each witness give a before and after value of the property. 27 Am. Jur. 2d 321, Eminent Domain, § 425.

It is well established that when any part of a witness’s testimony is competent, it is proper to refuse a motion to ex-elude his entire testimony. Urban Renewal Agency v. Hefley, 237 Ark. 39, 371 S.W. 2d 141. Young v. Ark. State Hwy. Comm., 242 Ark. 812, 415 S.W. 2d 575; Ark. State Hwy. Comm. v. Maus, 245 Ark. 357, 432 S.W. 2d 478 (where Maus’ testimony included some errors made in mental calculations while on the stand); Ark. State Hwy. Comm. v. Darling, 243 Ark. 386, 420 S.W. 2d 94; Ark. State Hwy. Comm. v. Carpenter, 237 Ark. 46, 371 S.W. 2d 535 (wherein a part of the witness’s testimony related to the cost of staying in motel while the home was put back into a livable condition); Ark. State Hwy. Comm. v. Bowman, 237 Ark. 51, 371 S.W. 2d 138 (wherein, in testimony to establish before and after values, the witness mentioned specific items of damages but was not clear as to whether he had simply subtracted them from the total or not); Ark. State Hwy. Comm. v. Jackson County Gin Co., 237 Ark. 761, 376 S.W. 2d 553; Ark. State Hwy. Comm. v. Wilmans, 236 Ark. 945, 370 S.W. 2d 802 (wherein the witness took into consideration business profits in the valuation of one of two tracts).

It must be remembered that even though the landowner is a defendant, to be entitled to more than nominal damages, the burden of proving the amount of just compensation rests on him, not the condemnor, especially where damages to remaining lands are claimed. 5 Nichols on Eminent Domain 18-249, § 18.5; -7 Am. Jur. 2d 308, § 419; Howell v. United States, 442 F. 2d 265 (7 Cir., 1971). See also, Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S. Ct. 1434; 93 L. Ed. 1765 (1949). There is no requirement that the condemnor introduce evidence on all elements of damage or any evidence at all. It could simply rely upon the weakness of the landowner’s evidence and argue that it was incredible or that it was entitled to little or no weight.

Furthermore, evidence may be, and often is, admitted, not as a measure of damages to remaining lands, or even as an element of damages, but as an aid to the jury in determining just compensation. See, e.g., Arkansas State Hwy. Comm. v. Ptak, 236 Ark. 105, 364 S.W. 2d 794; Arkansas State Hwy. Comm. v. Speck, 230 Ark. 712, 324 S.W. 2d 796; Kirk v. Pulaski Road Imp. Dist., 172 Ark. 1031, 291 S.W. 793.

From whatever perspective Montgomery’s testimony is viewed, it was admissible, at least in part, and the trial judge committed no reversible error. As against the only point urged for reversal, the judgment should be affirmed.


author: J. Fred Jones, Justice.

text:
    Bobby J. NORRIS v. STATE of Arkansas
    CR 75-199
    536 S.W. 2d 298
    Opinion delivered May 17, 1976

      Robert L. Shaw, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Bobby J. Norris was convicted at a jury trial in the Polk County Circuit Court for the crime of delivering a controlled substance, marijuana, and was sentenced to the Arkansas Department of Correction for a period of ten years and was fined $4,000.

On appeal to this court he has designated the following points on which he relies for reversal and we shall discuss the points in the order designated:

I

The court erred in allowing the consideration of evidence which was improperly obtained.

This assignment pertains to the introduction into evidence of two marked $20 bills and a marked $10 bill and requires some discussion of the background facts as gathered from the testimony.

One Michael Pharr, who had served a sentence under the Controlled Substances Act and who was a longtime acquaintance of appellant Norris, became an informer in connection with the drug traffic in Polk County. According to his testimony he had previously purchased controlled substances, including marijuana, from Norris and on January 3 Norris advised him he had one-half pound of marijuana he would sell for $75. He said Norris later advised that he only had about 15 ounces of marijuana which he would sell for $50. He said he advised state Trooper Combs of the offer and arrangements were made for him to make the purchase under surveillance of the police officers. He said Officer Combs and Sheriff Hadaway then furnished him with $50 in marked money with which to make the purchase and that the officers explained the procedure he was to follow in indicating to them when the purchase was completed. He said he then went to Norris’s house with the marked money which consisted of two $20 and one $10 bill; that Norris came out in his yard and after talking a few minutes, they walked to Norris’s pickup truck where he handed Norris the marked money and Norris handed him a Buglar tobacco can containing the marijuana which he obtained from his pickup truck. He said he knew the police officers were watching the transaction and after he made the purchase he crossed the street and shrugged his shoulders as a signal by prior arrangement indicating that he had made the purchase.

Mr. Pharr said he looked back as he walked down the street and saw Norris walking toward his doorstep as the officers approached him, but he did not see whether Norris entered his house or not. He said by prearrangement he took the marijuana to Ray’s Market where he delivered it to Rodney Combs, one of the police officers who came to Ray’s Market to pick him up. He said he received no money from the officers for his services but that he made the purchase at their request for “personal reasons.”

State Trooper Rodney Combs testified that he participated in the arrest of Norris. He said the money furnished to Mr. Pharr with which to purchase the marijuana was two $20 bills and a $10 bill marked with the sheriff’s initials in ultraviolet pencil marking not visible to the naked eye, but which would show up under ultraviolet light. He said that after arranging with Mr. Pharr to make the purchase, he and the sheriff stationed themselves at a point near the Norris residence and that he observed the entire transaction through binoculars. He said he saw Mr. Norris and Pharr walk from Norris’s porch to Norris’s pickup truck parked in the yard and saw Norris hand the tobacco can containing the marijuana to Pharr and saw Pharr hand the money to Norris. He said that after this transaction Mr. Pharr crossed the street and shrugged his shoulders as per prearranged signal and that Norris walked back upon his porch and stood there for a moment. He said other police units were stationed in the area so that the transaction could be observed from different directions, and that by prearranged radio signal they went to the Norris residence after the transaction was completed. He said that as they appraoched the Norris residence, Mr. Norris stepped off the north side of the porch into some shrubbery. He said Norris was not arrested at that point but was informed by the sheriff that he had a search warrant for the house. He said that while in Norris’s bedroom they examined the money he had in his possession and they did not find the marked money. He said he then went back outside to the north side of the porch where he had seen Norris step off into the shrubbery and there he found the wadded up bills which proved to be the two $20 bills and one $10 bill originally furnished to Mr. Pharr.

Sheriff Hadaway corroborated the testimony of Trooper Combs except he said he did not have binoculars and could not determine exactly what objects were exchanged between Pharr and Norris. He said he saw Norris walk back up onto his porch after the transaction but was unable to determine from his own point of observation whether Norris went into the house. He said he then gave the radio signal to the other officers and that he went to the front door of Norris’s house. He said Norris’s mother answered the door and upon his inquiry for Norris, told him he was not there, indicating he was not inside the house. He said about that time Mr. Norris stepped out of some shrubbery up onto the porch behind him.

On voir dire examination the sheriff testified he had informed Norris he was under arrest for possession of controlled substances before he searched his person in the bedroom, and that he had formally arrested Norris before the marked money was subsequently found in the yard.

The sheriff had obtained a search warrant for the search of the appellant’s house and apparently had obtained from inside the house other items the state proposed to offer in evidence. The record, as abstracted, is not perfectly clear on the point but apparently the items from inside the house were found during a separate search subsequent to finding the marked money in the shrubbery at the side of the porch. At the in-chambers hearing prior to trial on motion to suppress evidence obtained under the search warrant the record, as abstracted, appears as follows:

THE COURT: Gentlemen, since we are in chambers I am confident the defense is concerned that no evidence should be presented on this charge concerning the subsequent search of the defendant’s premises and the substances found as a result of the search.
MR. BOYD TACKETT, SR.: Right.
THE COURT: Of course, that can’t be used, gentlemen, and the state is admonished not to mention it. I wish you would go into the witness room and tell the state’s witnesses not to mention the subsequent search. Appellant’s argument in this connection is simply that the search of a premises for any purpose was not based upon a lawful search warrant, that warrant having been quashed by the Court. Therefore, it would follow that any arrest of the appellant in connection with things obtained as a result of the unlawful search warrant would be void and insufficient to make further search of the premises as being incidental to that arrest.

The appellant argues under his first point that the trial court erred in failing to grant the appellant’s motion to suppress the three marked bills as exhibits in evidence because they too, were obtained under the invalid search warrant. We are of the opinion that the marked bills were not obtained under the search warrant. The search warrant, exhibit “A” in the record, was for marijuana concealed in the house occupied by Norris and the return enumerated various items found in the house which were excluded from evidence. The three marked bills were found outside the house following Norris’s lawful arrest, and were found where the officers saw Norris go after receiving the marked bills and as the officers approached him just prior to his arrest. It is true that under the testimony of the sheriff he advised Norris that he was under arrest for the possession of marijuana rather than for the sale of it for which he was subsequently charged and convicted. But under the evidence in this case, the sheriff had a right to arrest Norris for possession of the marijuana he saw him sell and deliver to Pharr. When the officers failed to find the marked money on Norris’s person when they searched him incidental to his arrest, they would have been derelict in their duty had they not looked for the marked money at the only place they saw Norris go between the time they saw him receive the money and the time of his arrest. The Fourth Amendment to the Constitution only protects against unreasonable searches and seizures. Bedell v. State, 257 Ark. 895, 521 S.W. 2d 200, and the appellant’s first point actually turns on the reasonableness of the search here involved. See Ker v. California, 374 U.S. 23 (1963), as later limited to some extent in Chimel v. California, 395 U.S. 752 (1969). We conclude, however, that the exigency of the circumstances added to the reasonableness of the search for the marked money under the totality of the evidence in the case at bar. The warrantless search of automobiles to prevent the loss or destruction of incriminating evidence as approved in Chambers v. Maroney, 399 U.S. 42 (1970) and many federal and state cases since then has been extended to other objects where probable cause exists and the opportunity to search is fleeting. Such search was held reasonable as applied to a suitcase in United States v. Mehciz, 437 F. 2d 145 (1971), and as applied to ladies’ handbags in United States v. Hand, 516 F. 2d 472 (1975). The case at bar, however, is more in point with the California case of People v. Martinez, 64 Cal. Rpt. 666, where the police officers saw the appellant glance in the direction of their slowly moving police vehicle in line of traffic and then throw a paper bag out of the automobile window. The officers stopped the appellant; returned to the paper bag and searched it, where they found marijuana which was accepted in evidence over appellant’s objection that it was obtained without a search warrant. It is abundantly clear from the evidence in the case at bar that Norris simply rid himself of the incriminating money as the police officers converged upon him immediately following their observation of the illegal sale of marijuana. We hold that the search for the marked money was reasonable under the contingency of all the circumstances in this case, and that the trial court did not err in admitting the marked money into evidence with the attending testimony in relation thereto.

II

The court erred in refusing to allow a defense witness to testify.

We are forced to the conclusion that the judgment must be reversed under this point. It appears from the evidence in the record that one Vickie Whisenhunt was a disinterested spectator who attended the trial. At a recess in the proceedings on the second day of trial, the appellant’s attorneys received information that Miss Whisenhunt had said that during the trial on the previous day, she was sitting in the courtroom next to the prosecuting witness, Mr. Pharr, and that Pharr told her he thought the appellant had “set him up” and helped send him to prison and that he was setting the appellant up in the trial then in progress. The defense called Miss Whisenhunt as a witness and the state objected to her testifying because the defense had requested sequestration of the witnesses, which request was granted, and Miss Whisenhunt had been sitting in the courtroom throughout the entire trial. This court addressed the question here involved in Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975), and in that case we said:

The rule consistently applied by this court is that a violation by a witness of the rule of sequestration of witnesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness. Harris v. State, 171 Ark. 658, 285 S.W. 367; Hellems v. State, 22 Ark. 207; Golden v. State, 19 Ark. 590; Pleasant v. State, 15 Ark. 624. The power to exclude the testimony of a witness who has violated the rule should be rarely exercised. We have been unable to find any case in which this court has sustained the action of a trial court excluding the testimony of such a witness. While the witness is subject to punishment for contempt and the adverse party is free in argument to the jury, to raise an issue as to his credibility by reason of his conduct, the party, who is innocent of the rule’s violation, should not ordinarily.be deprived of his testimony. Harris v. State, supra; Aden v. State, 237 Ark. 789, 376 S.W. 2d 277; Mobley v. State, 251 Ark. 448, 473 S.W. 2d 176.
Although the trial court has some discretion in the matter, its discretion is very narrow and more readily abused by exclusion of the testimony than by admitting it. Harris v. State, supra. It has even been held that failure to make a formal proffer of the testimony of a witness excluded upon no basis other than his violation of a sequestration order, without the knowledge, procurement or consent of defendant or defense counsel cannot be used to deprive the accused of his constitutional right to compulsory attendance of witnesses in his behalf. See Braswell v. Wainwright, 463 F. 2d 1148 (5 Cir. 1972). See Art. 2, § 10, Constitution of Arkansas.

The facts in Mobley v. State, 251 Ark. 448, 473 S.W. 2d 176 (1971), were very similar to those in the case at bar. The facts in that case were stated as follows:

After the state completed its evidence in chief and rested, the court was recessed for lunch. When the court reconvened, appellant’s attorney called Otis Green to the witness stand, and the circuit judge observed that he had been in the courtroom all morning. Appellant’s attorney replied that he had caused a subpoena to be issued for this witness during the noon recess. When the witness admitted that he had been in the courtroom all morning, and had heard all the testimony in the case, the judge ruled that he could not testify.
* * *
Appellant’s attorney stated that he was not aware of Green’s presence in the courtroom or his identity until the noon recess. His statement went unchallenged.

We held that the trial court erred in refusing to allow Green to testify.

Ill

The court erred in allowing highly prejudicial testimony by a state’s witness in rebuttal concerning unrelated, alleged unlawful conduct remote in time to the offense charged.

The appellant Norris had testified on cross-examination that he had never sold marijuana to Larry Lein. Mr. Lein was called as a witness for the state in rebuttal and his testimony was first objected to for the reason that his name was not endorsed by the information. It appears that Mr. Lein had been subpoenaed the previous day. At a hearing in chambers it appears that Mr. Lein would testify that he had purchased marijuana from the appellant approximately 18 months prior to the trial. His testimony was further objected to by the appellant as being too remote in time. After considerable colloquy between the court and defense attorney as to the remoteness of the transaction to which Lein would testify, the attorney for the appellant stated that the court had made a previous applicable ruling pertaining to the remoteness of some of the activity of the prosecuting witness Pharr and the record then appears as follows:

THE COURT: No, sir, Mr. Tackett, I didn’t rule that.
MR. BOYD TACKETT, SR.: I thought you did. At any rate, Larry Lein has been in the penitentiary himself, and I want to hear him testify.
THE COURT: Well, gentlemen, with that statement, let’s return to the courtroom. (Our emphasis.)

It is apparent that the defendant waived his objection to Mr. Lein’s testimony and we find this assignment without merit. In light of a new trial, however, see Randall v. State, 239 Ark. 312, 389 S.W. 2d 229 (1965); Spence v. State, 184 Ark. 139, 40 S.W. 2d 986 (1931), and Fulwider v. Woods, 249 Ark. 776, 461 S.W. 2d 581 (1971).

IV

The court erred in refusing defendant’s requested instructions Nos. 1 and 2 and refusing to allow defendant to present evidence concerning entrapment.

The proffered instructions referred to under this point had to do with entrapment. We consider it unlikely that the alleged error under this point will arise again in the same context at a new trial so we deem it unnecessary to discuss this point.

V

The court erred in construing the jury verdict and in sentencing the defendant to punishment in excess of the verdict.

The jury verdict as actually returned by the jury fixed the appellant’s punishment as “confinement in the state penitentiary for 10 years and/or by a fine of $4,000.00.” The clerk read the verdict in open court as “confinement in the state penitentiary for 10 years, and by a fine of $4,000.00.” It is obvious that such “and/or” verdict is at least confusing. Apparently the confusion arose here from the “and/or” form of the verdict furnished to the jury. In any event, we shall not pursue the matter further in this opinion for the reason that the question is not likely to arise again at a new trial.

VI

The court erred in denying defendant’s motion for new trial.

This assignment is now moot. The judgment is reversed and this cause remanded for a new trial.

Reversed and remanded.

      It must be remembered that Pharr said he cooperated with the police for “personal reasons.”


author: Conley Byrd, Justice.

text:
    Mrs. Matthew STINE v. Pat SCOTT
    75-317
    536 S.W. 2d 304
    Opinion delivered May 17, 1976

      Brockman, Brockman <3? Gunti, by: E. W. Brockman, Jr., for appellant.

      Owens & Fikes, for appellee.
   Conley Byrd, Justice.

The trial court in ousting appellant Mrs. Matthew Stine from possession of Lots 10-14, Block 13, Eureka Heights Addition No. 4 to the City of Pine Bluff relied upon hearsay testimony to show that the original entry of appellant and her husband was with permission of the then owners of the property.

The record shows that Matthew Stine was a half brother of one Joe Scott, the original owner of the property in question, and that, following the death of Joe Scott in 1945, Matthew Stine lived on and claimed the property until his death some five years ago. Appellant married Stine in 1951, and she and Stine have lived on the property continuously since that time paying the taxes, making improvements and claiming it as their own.

To avoid the obvious showing of adverse possession by appellant, appellee Pat Scott testified that his mother, Elsie Reed, and his father, Joe Scott, got married by dapping their hands. There were three children born of that marriage — i.e., Harriet Scott, Georgie Scott and himself — , and Harriet and Georgie had died without issue. He stated that he was not able to go to his father’s funeral but that Georgie Scott did go. When Georgie Scott returned from the funeral, Georgie stated that permission had been given to Matthew Stine to take possession of the property and to keep up the taxes.

The trial court in a written opinion readily recognized that the foregoing testimony was hearsay but ruled that it was competent evidence to show that Matthew Stine entered into possession of the property with permission, thereby defeating a claim for adverse possession by appellant. In holding that the evidence was competent, the trial court relied upon 31A G.J.S. Evidence § 210 (1964). When the cases cited as authority in G.J.S., supra, are considered, it at once becomes obvious that the author was there concerned with whether the admission of hearsay evidence before a chancellor is reversible error — not whether such hearsay is competent evidence. An example of the authorities relied upon in 31A C.J.S. Evidence § 210 is Carmen, et al v. State, 208 Ind. 297, 196 N.E. 78 (1934), where the court stated:

“. . . The petition for a writ of error coram nobis is heard by the court without a jury, the' same as a motion for a new trial is heard. Counter affidavits may be filed and the strict rule of excluding hearsay evidence is not adhered to so closely as in the trial of a cause. 22 Corpus Juris 185. if it be granted that some of the statements in the affidavits were hearsay, this alone would not be reversible error if such statements were not harmful to the appellants and the finding of the court did not depend on the incompetent evidence for its support.”

From the foregoing it can be readily seen that the authorities do not recognize any greater ability in trial judges to weigh and consider incompetent evidence than that given to a jury.

To sustain the action of the chancellor, appellee relies upon Dial v. Armstrong, 195 Ark. 621, 113 S.W. 2d 503 (1938) and Crawford v. Center, 193 Ark. 287, 100 S.W. 2d 83 (1936). No hearsay was involved in Dial v. Armstrong, supra, as the witnesses there testified to being present and hearing the agreement between Dial and Armstrong. Nor can appellee find any relief in Crawford v. Center, supra, which permits an exception to the hearsay rule in a wrongful death action for the purpose of showing the intent of a deceased child to support a parent for the purpose of proving the parent’s expectation for receiving pecuniary aid from the child.

In the absence of any evidence showing a permissive entry, it follows that the trial court erroneously entered a decree in favor of appellee. This disposition makes it unnecessary for us to consider the other issues raised in the briefs.

Reversed and remanded for entry of a decree not inconsistent herewith.


author: Elsijane T. Roy, Justice.

text:
    BELVEDERE SAND & GRAVEL COMPANY v. Richard HEATH, Director of Department of Finance and Administration of the State of Arkansas
    75-390
    536 S.W. 2d 312
    Opinion delivered May 17, 1976

      House, Holmes & Jewell, by: Paul W. Stanfield, for appellant.

      James R. Cooper, Robert G. Brockman, James R. Eads Jr., Jack East III and Harlin R. Hodnett, for appellee.
   Elsijane T. Roy, Justice.

This case involves the validity of a deficiency gross receipts (sales) tax assessment levied by the Arkansas Department of Finance and Administration against appellant Belvedere Sand & Gravel Company. The alleged deficiency was on charges for hauling of sand and gravel for which appellant did not collect and remit the sales tax to the State.

Following an administrative hearing affirming the deficiency assessment, suit was filed in chancery court praying that the assessment be declared null and void. The chancery court held that the hauling charges involved were part of the total amount of the consideration for the sale of sand and gravel by appellant and such charges constituting a part of the gross receipts or gross proceeds were subject to the tax. From that decree appellant brings this appeal.

Belvedere handles sand and gravel, but owns no trucks. If the customer did not have any means of transportation, then Belvedere would provide independent haulers to deliver its product to the purchaser at the point designated. In the event an independent hauler was used Belvedere would add, as a separate item, the charge of this hauler to the total bill, but would charge no sales tax on this item. The purchaser would remit the total invoice price to Belvedere, who in turn would pay the hauler.

The pertinent statutes are:

Ark. Stat. Ann. § 84-1902 (c) (Supp. 1973) Sale: The term “sale” is hereby declared to mean the transfer of either the title or possession, except in the case of leases or rentals, for a valuable consideration of tangible personal property, regardless of the manner, method, instrumentality, or device by which such transfer is accomplished .... The term “sale” shall not include the furnishing or rendering of service or services, except as herein otherwise provided.
Ark. Stat. Ann. § 84-1902 (d) (Supp. 1973) Gross Receipts - Gross Proceeds, the term “gross receipts” or “gross proceeds” means the total amount of consideration for the sale of tangible personal property and such services as are herein specifically provided for, whether the consideration is in money or otherwise, without any deduction therefrom on account of the cost of the property sold, labor service performed, interest paid, losses or other expenses whatsoever. (Italics supplied.)

In connection with freight charges the following Regulation was promulgated:

Rules and Regulations. Article 15. Freight. No deductions may be taken on charges for freight in the delivery of merchandise to consumers and users and a tax must be collected on the full consideration of delivery price of the property at the point of delivery. (Italics supplied.)
In instances where delivery is made f.o.b. point of origin and the freight charges are billed direct to the purchaser by the carrier, such charges do not constitute gross receipts or gross proceeds.

Appellant contends that Article 15 is void as being an exercise of legislative function which is beyond the powers delegated by the legislature to the Department of Finance and Administration.

Appellant also contends that since the Department of Finance and Administration cannot collect a tax on freight charges, and because furnishing of hauling services is not tangible personal property, this assessment is illegal.

These contentions have no merit since the regulation almost tracks the wording of the statute and carries out the obvious intent of the legislature. Accordingly the promulgation of the regulation was within the scope of delegated authority and it is a valid regulation. Furthermore, appellant seems to ignore the fact that Ark. Stat. Ann. § 84-1902 (d) defines gross receipts or gross proceeds as the total amount of consideration for the sale of tangible personal property without any deduction therefrom on account of the cost of the property sold, labor service performed, interest paid, losses or any expenses whatsoever. Appellee herein is not attempting to assess a sales tax on “hauling charges” as such but upon the total consideration received by appellant for the sale of tangible personal property, that being sand or gravel delivered to a certain point designated by the purchaser.

Appellant next contends that it is in substantial compliance with the regulation and statutes. Appellant urges that since the hauling charge on each invoice is billed separately and since Belvedere at no time has in its possession the amount paid for hauling more than 30 days, it merely serves as a conduit for payment of the charges and accordingly no tax is due. Thus appellant ’s position is that this is the same as a sale made at the point of origin.

Contrary to appellant’s contentions, the testimony adduced at trial revealed that appellant’s contract for delivery was an f.o.b. destination contract — one which required appellant to deliver the crushed rock or sand to a place designated by the purchaser. This was an added service being performed by Belvedere. — a business practice provided to accommodate its customers. Appellant hired the independent haulers, was responsible for paying them for their services and had not completed its agreement with the purchaser until the product was actually delivered at the designated point.

The Uniform Commercial Code, in Ark. Stat. Ann. § 85-2-319 (1) (b) (Add. 1961) states that when the term f.o.b. the place of destination is used the seller must at his own expense and risk transport the goods to the destination and there tender • delivery of them in the manner provided by the statute. The Gross Receipts Tax Act also clearly provides that the amount deemed to be “gross proceeds or gross receipts” means the total amount of consideration derived from the sale of the sand and gravel at the point of delivery without any deduction therefrom on account of expense of transportation. Article 15, supra, specifically states no deduction can be taken for freight and the tax must be collected on the full delivery price, unless the freight charge is billed direct to the purchaser by the carrier. This, of course, was not done in the case at bar.

Furthermore, one claiming an exemption or deduction from taxation bears the burden of proving clearly that he is entitled to it since both are privileges allowed merely as matters of legislative grace. Skelton v. B. C. Land Co, 256 Ark. 961, 513 S.W. 2d 919 (1974), and numerous cases cited therein.

In the case of Select Base Materials, Inc. v. Board of Equalization, 51 Cal. 2d 640, 335 P. 2d 672 (1959), the court held that where the taxpayer delivered granite to places designated by customers, and customers had no control over independent truckers chosen by taxpayer for the hauling, and title to granite did not pass until delivery, transportation charges properly were included as part of taxpayer’s “gross receipts” for computation of the sales tax.

Appellant also contends appellee is estopped from collecting the deficiency because for at least five years prior to the deficiency assessment Belvedere had been noting deduction of the hauling expense on its sales tax returns, and appellee had not advised appellant the procedure was improper.

The record reflects the Commissioner of Revenues did not inform the taxpayer that his procedure was improper because he could not make this determination from the monthly reports alone. It was only after an audit was made of the taxpayer’s books that the erroneous procedure was discovered. We do not find these facts sufficient to support the argument that the Commissioner is estopped from assessing the tax. See Williams v. Davis, 211 Ark. 725, 202 S.W. 2d 205 (1947); Bowlin v. Keifer, 246 Ark. 693, 440 S.W. 2d 232 (1969).

Accordingly the decree of the chancellor is affirmed.


author: John A. Fogleman, Justice.

text:
    Floyd JOHNSON and Bill KEELING v. STATE of Arkansas
    CR 76-6
    536 S.W. 2d 704
    Opinion delivered May 24, 1976

      McMillan, Turner & McCorkle, by: Toney D. McMillan, for appellant Johnson; Travis Mathis, for appellant Keeling.

      Jim Guy Tucker, Atty. Gen., by: B. J. McCoy, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellants Floyd Johnson and Bill Keeling were convicted of killing hogs belonging to Alvin Dwiggins with intent to steal them in violation of Ark. Stat. Ann. § 41-3917 (Repl. 1964). At about 7:15 a.m. on the morning of January 14, 1975, Alvin Dwiggins arrived at his hog barn on his farm some four miles east of Amity, Arkansas. He found a station wagon with a dead sow behind it and found another dead sow in the hallway of the barn. Both had been shot. Defendant Bill Keeling was lying down in the front seat of the station wagon, and another man with a toboggan over his face was hiding behind the vehicle. The second man fired a pistol, and Dwiggins left the scene and called the Clark County Sheriff’s office.

The Sheriff’s officers arrived at the scene at about 7:55 a.m. on January 14, 1975. At that time Keeling was arrested and taken to jail. A Bench Warrant was issued for Floyd Johnson on March 28, 1975, and Floyd Johnson was arrested on March 31, 1975. Both defendants were tried together on July 28, 1975, and the jury found them guilty as charged and fixed their punishment at two years each.

No useful purpose would be served by an elaborate statement of the evidence. We find it sufficient to sustain the jury verdict as to both defendants, unless we find error in other respects. Otherwise, insofar as Johnson is concerned, the question is one of sufficiency of identification. While the testimony of the prosecuting witness was not as convincing as might be desired, it was sufficient if it was given full credit by the jury. See Yelvington v. State, 169 Ark. 359, 275 S.W. 701.

Appellant Johnson raised two points, other than those questioning the sufficiency of the evidence. The first is his contention that the court erred in admitting into evidence a drawing by Arkansas State Police Sergeant Ursery made from a description given him by Dwiggins. Dwiggins had testified and positively identified Keeling as the person he had seen lying in the station wagon. He had related that the other man, wearing a toboggan and a heavy jacket, had been hiding behind the station wagon. Dwiggins said this man fired a pistol, while shielding his face with his left arm. Dwiggins did not see this man in a fully erect position or get a full facial view of him but did describe him as being of average height, over 30 years of age, with a distraught look. He said that he knew at the time that this man was someone he had seen before and that his eyes corresponded with Johnson’s and his lower jaw with Johnson’s lower jaw and facial parts. He had seen Johnson in an automobile with a police officer, Louis Dorsey, about 3:00 p.m. on the day he found these men at his barn. Dwiggins testified on redirect examination, without objection, that he had told Sgt. Ursery of the man’s facial makeup and that Ursery had made a “composite” drawing during the following week. Johnson’s first objection was made when Dwiggins was presented with the actual drawing by the prosecuting attorney.

On cross-examination Dwiggins had said that he and Johnson had gone to school together from the first grade through high school. He admitted that he had told the officers who came to his barn that he could not positively identify this man, that he had not been sure of his identity, and that he did not identify Johnson when he saw him at 3:00 p.m. He denied telling the officers or Joe Lair that this man was larger than Keeling, Officer Dorsey or himself. The “composite” drawing was identified by Dwiggins over appellant’s objection that the state’s counsel had stated that they did not intend to introduce it. It was not then introduced in evidence. A deputy sheriff contradicted Dwiggins by saying that Dwiggins had described the second man as being larger than Keeling.

Later Sgt. Ursery testified that he had prepared the drawing from Dwiggins’ description. The drawing was admitted in evidence over Johnson’s objection. The objection by Johnson’s attorney, both at the time of the identification of the drawing by Dwiggins and its introduction in evidence was a plea of surprise. The following exchange took place when the drawing was offered through Ursery:

Your Honor, I was told by the State this morning that they were not going to introduce that and I would like to plead surprise on it. I have not had an opportunity to investigate this alleged composite, how it was done and under what circumstances or anything.

The State replied:

It was not the intention of the State to introduce this until and unless it was brought out in cross-examination by the defense. This was the only time that it was brought out and the State proceeded with the matter.

After the circuit judge overruled the objection, the drawing was introduced. No motion for continuance was ever made.

There was no reversible error in this respect. It was always held that surprise by evidence introduced was not, standing alone, a ground for new trial, and that the proper remedy when evidence is admitted to the surprise of a party in a criminal case is by application for a postponement or continuance so the party surprised can meet the testimony Nickens v. State, 55 Ark. 567, 18 S.W. 1045; Overton v. State, 57 Ark. 60, 20 S.W. 590. See also, Mode v. Stake, 169 Ark. 356, 275 S.W. 700; Adams v. State, 100 Ark. 203, 139 S.W. 1116. See also,'Sellers Harvey, 220 Ark. 541, 249 S.W. 2d 120. Even though a motion for new trial is no longer essential to the raising of a point on appeal, the rule still applies insofar as it relates to the remedy for surprise. A judgment will not ordinarily be reversed on appeal because of surprise by evidence ruled admissible on trial, in the absence of a request for continuance and a showing of inability to meet the situation. Macumberv. Gillett, 138 Neb. 714, 294 N.W. 854 (1940). We have applied this rule as to reversal even when a motion for new trial was required. Fleming v. State, 72 Ark. 140, 78 S.W. 766. There is all the more reason to apply it when a motion for new trial is not required. Usually the granting of a continuance in these matters lies within the sound ’udicial discretion of the trial judge. Bascom v. State, 114 Tex. Cr. 32, 24 S.W. 2d 437 (1929). Since there was no motion for continuance, the trial judge was not called upon to exercise his discretion in acting upon it. If subsequent developments in the trial had shown material prejudice to appellant, he might have raised the question by a motion for new trial. But in the absence of either motion the trial judge has never been afforded any opportunity to exercise discretion in the matter.

Johnson also complains that the trial court erred in refusing to give his requested instruction relating to the necessity for corroboration of an accomplice by which the jury would have been told that a witness, Damon Daniels, was an accomplice as a matter of law. Instead, the court gave an instruction stating that corroboration of an accomplice is required, but left the status of Daniels as an accomplice for the jury’s determination as a question of fact. Appellant’s argument is based, for the most part, on the fact that Daniels testified on a grant of immunity for prosecution.

Daniels testified that during the night of January 13, he went with Keeling to Johnson’s house in search of Keeling’s billfold, that Johnson got in Keeling’s station wagon with them and they proceeded to the Dwiggins farm, where they got out of the car and saw a hog lying in the hallway of the barn. He said that Johnson was wearing a toboggan. Daniel said that when he asked that he be taken back to town, Johnson told him not to leave, that he would probably be hurt if anything came of the incident and, at one point, threatened to kill him. He stated that, after staying around a few minutes, he left, went to the highway, caught a ride into Amity, and later discussed the situation with an attorney, who was present when he made a statement to the authorities. Daniels testified that he never intended to participate in the crime and that he was afraid of Johnson.

We do not agree that a grant of immunity, in and of itself, makes the beneficiary an accomplice of another person charged with the crime as a matter of law. An accomplice is one who could himself be convicted of the crime charged against the defendant. DuBois v. State, 254 Ark. 543, 494 S.W. 2d 70C, We have pointed out that the burden is on the defendant to show that a witness is an accomplice. Froman v. State, 232 Ark. 697, 339 S.W. 2d 601. Daniels’ testimony casts considerable doubt upon his status as an accomplice. We cannot be ignorant of the fact that a person on whom serious suspicion of guilt of a crime may fall is privileged to claim a constitutional right against self-incrimination and that immunity is often granted to such a person, even though there is serious doubt that he could actually be convicted of the crime.

Even strongly suspicious circumstances attached to one present at the scene of the commission of a crime are not sufficient to make him an accomplice as a matter of law. People v. Howell, 69 Cal. App. 239, 230 P. 991 (1924). At best, a grant of immunity from prosecution is only evidence tending to show that the beneficiary of the grant is an accomplice, which is to be considered with other facts and circumstances in determining whether he is an accomplice as a matter of law. The circumstances here were not sufficient to eliminate a question of fact as to Daniels’ status. See, Austin v. State, 254 Ark. 496, 494 S.W. 2d 472; Odom v. State, 259 Ark. 429, 533 S.W. 2d 514. In Odom, we stated that ordinarily the question whether a witness is an accomplice is a mixed question of law and fact to be submitted to the jury and that the court should not instruct the jury that a certain witness is an accomplice if there is any dispute upon that point.

Keeling’s points for reversal turn upon his contention that he was not guilty, because of drunkenness, which he contends made it impossible for him to form the specific intent to steal. There was considerable evidence from which a jury might have so found. But we cannot say that reasonable minds could draw no other inference. Damon Daniels testified that he went with Keeling to look for Keeling’s billfold, that Keeling drove his own station wagon, even though he was staggering drunk when the officers arrived at Dwiggins’ barn. Dwiggins testified that when Keeling got out of the station wagon after the officers arrived he walked pretty straight for a drunk man.

Voluntary intoxication is not a defense to a crime. Ark. Stat. Ann. § 41-115 (Repl. 1964). The question whether Keeling was so intoxicated at the time of the commission of the crime (which the jury might have believed to have occurred before Daniels rode to the Dwiggins barn with Keeling) as to be incapable of the essential criminal intent was submitted to the jury under proper instructions. There was testimony that there were an opened pint bottle about one-fourth full of whiskey and another unopened in Keeling’s station wagon. The evidence does not disclose when or how much he drank from the open bottle. The degree of his intoxication when the hogs were killed or when the offense was planned was left largely to inferences to be drawn from the testimony. We have said that the determination whether an accused is so intoxicated as to be incapable of forming the required specific intent to commit a crime is solely within the province of the jury. Stevens v. State, 246 Ark. 1200, 441 S.W. 2d 451. Even if we thought that a preponderance of the evidence sustained this defense, we would not be at liberty to set aside this conviction. This was primarily a matter for the jury, it might have been a question for the trial judge on motion for new trial addressed to him on this ground, but there was no such motion.

The judgment is affirmed.