text:
    Gary Don BEASLEY v. STATE of Arkansas
    CR 74-175
    522 S.W. 2d 365
    Opinion delivered May 12, 1975

      Alfred J. Holland, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, Gary Don Beasley, was charged with the crime of rape, and on trial, was convicted by a jury, and his punishment set at three years confinement in the Department of Correction. From the judgment so entered, appellant brings this appeal. For reversal, three points are asserted, which we proceed to discuss.

It is first contended that the court erred in refusing to consider appellant’s motion to quash the petit jury panel.

On May 23, 1974, counsel for Beasley filed a motion to quash the jury panel, on the basis that Ark. Stat. Ann. § 39-209 (Supp. 1973) had not been complied with. That section, dealing with the procedure in drawing for petit jurors, provides inter alia:

“As the names are drawn they shall be recorded in the same order by the circuit clerk in a book to be provided for that purpose. If the name of any person known to have died, or to be disqualified under Section 2 (§39-102) of this Act, shall be drawn, said name shall be put aside and not used and a notation of the discarding of the name and the reason therefor shall be made in the jury book.”

The motion sets out that, contrary to the statute, the circuit clerk recorded the names on a yellow legal pad, such names never being recorded in a book provided for that purpose as required by the aforementioned statute. A copy of the pad was offered in evidence. Apparently, this motion was not presented to the trial court until the day of the trial (May 28), at which time the record reflects the following:

“(PRIOR TO VOIR DIRE EXAMINATION OF JURORS):
MR. HOLLAND: We have a motion to present, to quash the jury panel.
COURT: Mr. Holland, this is Case 9855, which was lodged in this Court the 16th day of August, 1973, and on the 10th day of December, 1973, you appeared in this Court with your client and waived formal arraignment and entered a plea of Not Guilty. Subsequent to that, on the 12th of December, 1973, you petitioned the Court for a continuance, and the Court granted that continuance to you at that time.
MR. HOLLAND: When?
COURT: On the 12th day of December, 1973.
MR. HOLLAND: A motion for continuance?
COURT: You made an oral motion for continuance before this Court which the Court granted on your motion.
On the 20th day of May, 1974, this Court appeared here for the purpose of arraignment, for the purpose of hearing motions and other matters preliminary to trial, and the Court was advised at that time this matter was'ready for trial and would be tried at this particular term of Court.
This morning the Court is presented with a motion to quash the petit jury panel, and the Court finds, you being familiar with the fact the Court does pass upon matters of this nature on the first day of the Court, defense has not timely filed this motion, and the Court is going to deny it.
What says the State?
MR. PEARSON: State is ready.
COURT: And the defendant?
MR. HOLLAND: Defendant is ready.”

In support of his contention that error was committed, appellant cites Ware v. State. 146 Ark. 321, 225 S.W. 626, where this court, citing an earlier case, said that a challenge to the panel of the petit jury could be made and filed on the day the case was called for trial. Ware was decided in 1920. Appellant also cites Shelton v. State. 254 Ark. 815, 496 S.W. 2d 419, where we cited an earlier case, stating:

“In Horne v. State, 253 Ark. 1096, 490 S.W. 2d 806 (1973), we held that, due to the many successful attacks that were being made upon our jury selections in post conviction proceedings prior to Acts 1969, No. 568, we could not construe the Act as directory - i.e., the procedure therein outlined is mandatory -'when . the challenge is made at the proper time." [Our emphasis].

Here, it is well to state that Act 138 of 1911 (Ark. Stat. Ann. § 22-322 - 322.8 [Repl. 1962]) provided an additional circuit judge for the second judicial circuit (of which Greene County is a part). Section 2 (§ 22-322.1) sets out that the circuit courts in the counties of said circuit shall be divided into two divisions, to be known as the first and second divisions. Section 4 (§ 22-322.3) provided that the clerk shall assign all civil cases to the first division, and all criminal cases to the second division, and also provided that by written order of the judges the business might be divided in any manner that said judges deemed proper and expedient. In 1953, the General Assembly passed Act 102, Section 1 of that Act (Ark. Stat. Ann. § 22-319.1 [Repl. 1962]) providing:

“Whereas the trial dockets of the first and second divisions of the second judicial circuit are so burdened as to make it impossible to dispose of current business in the regular terms thereof as provided by law, the judges of said division are hereby directed to relieve said conditions by means of pre-trial conferences, adjourned days and adjourned terms when same can be held without conflicting with the holding of the regularly scheduled terms.”

The act made no distinction in the first division (which handled civil cases) and the second division (which handled criminal cases), i.e., the provision requiring the judges of those courts to hold pretrial conferences, applying to both civil and criminal cases.

In 1965, the General Assembly passed Act 505 (Ark. Stat. Ann. § 22-322.9 - 322.13 [Supp. 1973]). § 22-322.9 provides that there shall be three judges of the circuit court for the second judicial circuit. § 22-322.10 provides that the circuit courts in the counties and districts thereof shall be divided into three divisions, known as the first, second, and third divisions. § 22-322.11 sets out that the three judges shall hold court in the respective divisions at times and places provided in the act; that they shall be nominated and elected to a specific numbered division of the court “but this shall not be deemed an enlargement nor a diminution of their powers as Circuit Judges to try and dispose of any litigation or matter which falls within the jurisdiction of the Circuit Court,” § 22-322.12 provides:

“The Circuit Court Clerks of each of the courts in the several counties shall keep and maintain two (2) separate dockets, one (1) for criminal cases and one (1) for civil cases, and each case filed shall be entered in the proper docket. The Judge of the First Division shall preside over cases assigned to the Criminal Docket and the Judges of the Second and Third Divisions shall preside over cases assigned to the Civil Docket. During each term of either division of the Circuit Court, the presiding Judge, by appropriate orders, may assign in the first instance, or reassign any case, Criminal or Civil, from one docket to the other as may be found best for the dispatch of business. The Judges of the three (3) Divisions will alternate in the holding of courts in the three (3) divisions so that each judge will hold approximately one-third (1/3) of the first division (criminal) terms in each county of the district, and two-thirds (2/3) of the second and third division (civil) terms in each, county of the district.”

This section makes the judge of the first division the presiding judge over the criminal docket (contrary to Act 138 of 1911 which provided that criminal cases should be tried in the second division), but that fact is not pertinent in reaching conclusions in this case, for again there is no distinction between the three divisions, as far as the holding of pre-trial conferences is concerned.

As has already been pointed out from the record, the trial court denied the motion to quash the panel because of the fact that this motion was not presented at the pre-trial conference held on May 20. The statute providing for pretrial conferences was.passed 33 years after Ware v. State, supra, and is, except for extraordinary reasons, controlling. There is no showing why appellant could not have presented this motion as well at the pre-trial conference, held on May 20, as to have waited until May 23 to file it and present it on the day of trial. The purpose of pre-trial hearings, of course, is to determine all issues in advance, and dispose of all preliminary matters so that the case will be ready for trial at the time it is set, and can be tried at that time. We agree with the trial court that appellant’s motion was not timely filed.

It is next asserted that the court erred in giving its Instruction No.9. Appellant says that “The instruction given by the court gives undue emphasis to the jury to the appellant’s witnesses and causes the jury to scrutinize their testimony more severely than it scrutinizes the testimony of the prosecution witnesses.”

The young girl, allegedly raped, testified that the act occurred on the night of July 1, shortly after 10:00 P.M., when she got off from work, and she positively testified that Beasley was the person who raped her; further, that he was operating an “orangy-red” motorcycle with a white band on it. Appellant presented two witnesses who testified that they were coon hunting with appellant on July 1 from 8:00 P.M. until midnight or 1:0Q A.M. Another witness for appellant testified that Beasley’s motorcycle was in his dad’s shop for repairs on July 1. The whole question, of course, as far as the alibi is concerned, relates to the whereabouts of Beasley at the time that the alleged rape occurred. Appellant’s argument is without merit for the almost identical instruction here under attack was approved in the 1894 case of Ware v. State, 59 Ark. 379, and approval has been reiterated at various times in subsequent years. See Wright v. State, 177 Ark. 1039, 9 S.W. 2d 233. Appellant’s contention is without merit.

It is contended that the court erred in refusing appellant’s requested Instruction No. 2, a cautionary instruction relative to the charge of rape. While this instruction could have been given, the refusal is not grounds for reversal. We have held that a trial court’s refusal to give a cautionary instruction is not reversible error, this being discretionary, unless an abuse of discretion is shown. Bradshaw v. State, 211 Ark. 189, 199 S.W. 2d 747. No such abuse here appears. It might be added that the court’s other instructions thoroughly explained to the jury the elements constituting the crime of rape.

Finding no reversible error, the judgment is affirmed.

It is so ordered.

         Franklin v. State, 85 Ark. 534, 109 S.W. 298.

      “The defendant in this case says that he was not at the place where the first degree rape took place at the time the same occurred, but was at another place, and that, therefore, he was not connected with or implicated in such crime.
      “The burden of showing an alibi is on the defendant, but if on the whole case the-ttstimony raises a reasonable doubt that the defendant was present when the crime was committed, he should be acquitted. But the jury should scrutinize the testimony of witnesses to see if some of them may not be mistaken as to dates and time when they saw the defendant, and it is proper,for the jury to consider the lapse of time since such occurrence happened, and whether witnesses are likely, after such lapse of time, to.be accurate as to the precise time or hour that they saw the defendant on the night that the crime occurred. In other words, in arriving at your conclusion on this point, the jury should consider whether it may not be true that the defendant was present at the time of the alleged First Degree Rape, and that some Pf the witnesses are honestly mistaken as to the exact time they saw the defendant on that night.”

      “You are instructed that the crime of rape, of which Gary Don Beasley is charged, is a serious one, and such a charge is easily made and hard to contradict or disprove; that it is a character of crime that tends to create a prejudice against the person charged; and, for these reasons, it is your duty to weigh the testimony carefully, and then determine the truth with deliberative judgment, uninfluenced by the nature of the charge.”


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    BOARD OF ADJUSTMENT OF FAYETTEVILLE v. OSAGE OIL & TRANSPORTATION, INC.
    75-25
    522 S.W. 2d 836
    Opinion delivered May 12, 1975
    [Rehearing denied June 16, 1975J

      James U. McCord, for appellant.

      Esther M. White, for appellee.
   George Rose Smith, Justice.

This zoning case presents a question of constitutional law. The appellee, as the owner of a gasoline service station in Fayetteville, applied to the appellant Board of Adjustment for a variance that would permit the appellee to erect at its service station an advertising sign exceding in size the limit of 75 square feet fixed by the zoning ordinance. The Board unanimously denied the request. On appeal the circuit court reversed the Board’s decision, holding that the 75<-foot limitation is invalid on its face, in view of other provisions in the ordinance. Whether that holding is correct is the only question before us.

The ordinance contains ejxtensive and detailed provisions governing a wide variety of signs that are permitted or prohibited in differing zoning districts. We need not set forth the numerous restrictions imposed by the ordinance, but we do stress the fact that the appellee is challenging a single provision in a very comprehensive zoning ordinance.

This controversy centers upon the city’s distinction between a “business sign,” which relates to goods or services available on the premises where the sign is situated, and an “outdoor-advertising sign,” which relates to goods or services available elsewhere. Business signs are not to exceed 75 square feet in size, though there may be one on each face of a building. Outdoor-advertising signs cannot be more than 25 feet long or 12 feet high, so that a maximum area of 300 square feet is possible.

The basic power of a municipality to regulate the size and location of billboards and other commercial signs has been sustained in so many jurisdictions that it would be a waste of time and effort to cite the cases. Such regulations have been upheld upon many grounds* including^the promotion of traffic safety, the control of potentially hazardous structures, and the fundamental considerations of city planning and city beautification that underlie the zoning concept itself. We have sustained simple regulations'affecting signs. Seiz v. City of Hot Springs, 194 Ark. 544, 108 S.W. 2d 897 (1937); Berkau v. City of Little Rock, 174 Ark. 1145, 298 S.W. 514 (1927).

Moreover, the particular distinction now before us, between on-site and off-site advertising signs, has almost invariably been held to be constitutional. In a recent case, Cromwell v. Ferrier, 19 N.Y. 2d 263, 279 N.Y.S. 2d 22 (1967), the Court of Appeals had this to say: “. . . petioner argues that the legislative distinction between identification signs [on-site] and nonaccessory signs [off-site] is unreasonable and discriminatory. Neither Bond [a prior N.Y. case] nor any other decision of this court has dealt specifically with this point but numerous cases from other jurisdictions have had occasion to do so. In nearly all, zoning ordinances which have distinguished between accessory and nonaccessory signs have been upheld, providing that the distinctions were applied in a reasonable manner.”

Perhaps the leading opinion upon the point is that of Justice Brennan in United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 93 A. 2d 362 (1952). There the controlling legislative measure prohibited all off-site signs and enacted many restrictions upon the size and location of on-site signs. The court upheld the law, pointing out that a business sign is in actuality part of the business itself, but an outdoor advertising sign lacks that characteristic and is therefore subject to different treatment.

It goes without saying that in the case at bar the ordinance is presumed to be constitutional and the burden of showing its invalidity is upon the appellee. Rebsamen Motor Co. v. Phillips, 226 Ark. 146, 289 S.W. 2d 170, 57 A.L.R. 2d 1256 (1956). The appellee offered no proof whatever to support its contention that the ordinance is unreasonably discriminatory. Our inquiry is thus limited to the face of the ordinance, with every presumption being in its favor.

It is argued that since the appellee’s proposed sign would advertise the service station, the appellee is therefore an advertiser and must be treated precisely the same as outdoor advertisers (who are permitted to erect signs as large as 300 square feet). This argument illustrates the fallacy in the appellee’s position. The on-site business sign and the off-site outdoor billboard fall into different categories, are erected for different purposes, and are subject to different regulations. As Justice Brennan pointed out: “The business sign is in actuality a part of the business itself, just as the structure housing the business is a part of it, and the authority to conduct the business in a district carries with it the right to maintain a business sign on the premises subject to reasonable regulations in that regard as in the case of this ordinance.” United Advertising, supra.

The outdoor advertising sign, on the other hand, is not maintainable as a matter of right; such signs have been prohibited altogether. See the extended discussion in General Outdoor Adv. Co. v. Department of Public Works, 289 Mass. 149, 193 N.E. 799 (1935). The controlling issue is not that of comparing the city’s regulation of on-site signs with its regulation of off-site signs. Instead, the question is whether the 75-foot limitation upon business signs is unreasonable and arbitrary. The question is plainly one of fact, upon which the record is wholly and fatally devoid of proof.

A related argument is that since the appellee could buy a lot across the street from its service station and erect a 300-foot billboard there, it has a right to erect a similar sign upon the service station site. That argument was rejected injustice Brennan’s opinion and, inferentially, in the Cromwell case, where it was urged by the dissenting judges. The flaw in the argument lies in its disregard of the fundamental differences between on-site signs and off-site signs.

The trial court, in holding the restriction to be void on its face, declared that “the harm done by large signs is the same, regardless of who puts them up.” The appellee makes a similar contention. We cannot agree with such a generalization, which would ultimately invalidate all billboard regulation. The purpose of the Fayetteville ordinance and similar legislation is obviously to reduce the number and size of billboards and other signs, else there would be no point in the enactment. In case after case large signs have been excluded from residential districts, parks, recreation areas, highway frontages, and the like, without regard to “who put them up.” As we have seen, the proprietor of an on-site business is subject to restrictions reasonably appropriate to his situation. Here there is no proof that the Fayetteville ordinance is an unreasonable or arbitrary measure. By contrast, the ordinance which was invalidated in Sunad, Inc. v. City of Sarasota. 122 So. 2d 611 (Fla., 1960), cited by the appellee, placed no limit whatever upon the size of on-site signs. The court rested its decision on esthetic considerations and on that basis found no reason to distinguish one large sign from another. That is not our basis for upholding the Fayetteville zoning restrictions.

Reversed.

Byrd, J., dissents.


text:
    Velma Jean WEBB v. STATE of Arkansas
    CR 75-25
    522 S.W. 2d 406
    Opinion delivered May 12, 1975

      Ilarkness, Friedman & Kusan, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, after the fatal shooting of Carvin Cooper, was charged with voluntary manslaughter, was found guilty by a jury, and was sentenced to seven years’ imprisonment. For reversal the appellant contends that the trial court erred in allowing the State to prove by Officer Furlow the substance of an oral confession made by Mrs. Webb a short while after the homicide. We have concluded that the contention must be sustained.

As will be seen, the facts are somewhat similar to those in Davis v. State, 243 Ark. 157, 419 S.W. 2d 125 (1967). There the accused, after having been warned of his right to remain silent, at first said that he did not want to tell what had happened. The officers nevertheless continued the interrogation and soon elicited an oral confession. In finding reversible error we said:

Under the ruling in Miranda v. Arizona, 384 U.S. 436 (1966), the alleged confession was plainly inadmissible. There the court, after detailing the officers’ duty to warn a suspected person of his constitutional rights, went on to say: “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.” Here the State’s own proof shows that the rule just quoted was violated by the offleers who interrogated Davis. His asserted confession was therefore inadmissible.

In the case at bar Mrs. Webb was arrested at her home, where the homicide took place, and was taken to police headquarters in Magnolia. At the Denno hearing Officer Furlow testified that he warned Mrs. Webb of her rights though he did not ask her tp sign a waiver. Officer Furlow noted in his written report that Mrs. Webb said she would rather see a lawyer before answering any questions, but the officer did not offer to allow her to call an attorney. Mrs. Webb testified that the officer, without informing her of her right to an attorney, first asked her what had happened. Although she indicated her desire to have her attorney present while she made a statement, the officer did not offer to call a lawyer, did not tell her that she could use the telephone for that purpose, and started asking questions. According to Mrs. Webb she was not informed of her rights until after she had told Officer Furlow what had happened.

At the Denno hearing Officer Furlow yvent on to testify that after Mrs. Webb told him that she didn’t wish to answer any questions until she had talked to an attorney, she said that she would go ahead and tell him about it. She then “talked at length on what happened,” but the officer’s summary of her statements takes only a few sentences. The officer did not tape her statement or have it stenographically recorded, as he sometimes did.

Officer Furlow stated that he did not ask Mrs. Webb any questions about the occurrence, but his own testimony hardly supports that assertion. For instance, a disputed point of fact at the trial was whether Mrs. Webb had fired two shots or three. Yet this was the officer’s testimony at Denno:

Q. Did she say anything about firing of a third shot?
A. She did not. She didn’t deny the third shot, but she said two was all she knew about.

Obviously Mrs. Webb was questioned about the third shot, else why would the officer say that she did not deny it? Again, the officer testified that he did not think the interrogation took over thirty minutes. We are not persuaded that Mrs. Webb talked voluntarily about the occurrence for half an hour without being questioned.

In Miranda and Davis, supra, it was pointed out that if the accused indicates in any manner that he wishes to remain silent, the interrogation must cease. There is no reason why the same principle should not apply to the situation here. The State’s own proof shows that Mrs. Webb announced her desire not to be questioned in the absence of her attorney. The issue is whether the interrogation was pressed in spite of that announcement. In reviewing such an issue we make our own determination upon the totality of the circumstances and set aside the trial court’s finding if it appears to be clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). Upon the record as a whole we are unable to sustain the trial judge’s conclusion that the in-custody confession was voluntary.

Reversed and remanded.


author:
Lyle Brown, Justice.
      John A. Fogleman, Justice,

text:
    AMERICAN CAN COMPANY v. Lila D. PETTYJOHN, Widow of John R. Pettyjohn
    75-20
    522 S.W. 2d 358
    Opinion delivered May 12, 1975

      Bethell, Callaway & Robertson, for appellant.

      Jones, Gilbreath & Jones, for appellee.
   Lyle Brown, Justice.

This is a workmen’s compensation death claim which grew out of a heart attack to John R. Pettyjohn, claimant’s husband. The commission allowed the claim and the circuit court affirmed. Appellant contends that the award is not supported by sufficient, competent, corroborative evidence. The basis of the point for reversal is that claimant did not meet her burden of corroborating declarations of the deceased employee. Ark. Stat. Ann. § 81-1327 (a) (Repl. 1960) reads in part: “Declarations of a deceased employee concerning the injury in respect of which the investigation or inquiry is being made, or the hearing conducted, may be received in evidence, and may, if corroborated by other evidence, be sufficient to establish the injury”. We find there was sufficient corroboration and we affirm the circuit court.

Employees of appellant testified as to the work activities of Pettyjohn on his last trip as the operator of a tractor-trailer rig. On May 1, and 2, 1972, he drove a large tractor-trailer rig from Fort Smith, Arkansas to St. Louis, Missouri. There he assisted in the unloading of 13,367 pounds at his first destination, and then unloaded 6,968 pounds represented by 447 cartons at his second destination. He drove 829 miles on this last trip. He drove back to Fort Smith on May 2, and parked his truck at approximately 10:30 p.m. He entered the hospital on May 3, 1972, at approximately 5:00 3.m. suffering severe chest and arm pains. He died on May 6.

A fellow employee made the same trip in another truck and helped in the first unloading. That employee said Pettyjohn became ill while the unloading was being performed and suspended work for five to eight minutes. Then at a truck stop on the way back, Pettyjohn emerged from a rest room and told his co-worker he had diarrhea. Pettyjohn related to his wife and doctor that he experienced severe pain in the arms and chest on his trip to and from St. Louis and stated that the pain was such that he thought he would not make it back to Fort Smith.

Appellant’s traffic manager testified that during the last three weeks of Pettyjohn’s employment he unloaded 49,707 pounds of merchandise and drove the tractor-trailer about 2,-500 miles.

Dr. McMinimy testified that the extent of exertion attributed to Pettyjohn “definitely aggravated his heart condition”. “The unloading of the material would aggravate or precipitate the myocardial infarction. *** “The classic description of angina pectoris is exertional pain; pain comes on with exertion. This man was exerting himself driving that truck. He undoubtedly, in driving the truck from Fort Smith to St. Louis and from St. Louis back to Fort Smith, probably had a certain amount of tension and so on, and if he was having pretty severe chest pain, where he wasn’t sure he was going to get home, he probably was pretty anxious and pretty frightened. Which, I’m sure, also had its bad effect on his angina pectoris. There is no question that this amount of exertion aggravated the man’s heart problem. *** My opinion is that his work definitely aggravated his heart condition.” Dr. McMinimy had within his knowledge, not gained by hearsay from the patient, the pressurizing labors exerted by Pettyjohn, a man with a medical record of heart condition. It was his medical opinion that the strain of the labor brought on the fatal attack. We think it cannot be argued with rationality that the cause of death was established solely by the statements of Pettyjohn.

Affirmed.

Harris, C.J., and Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. There is only one rule of evidence which the Workmen’s Compensation Act [Ark. Stat. Ann. § 81-1301 — 1349 (Repl. 1960, Supp. 1973)] imposes upon the Workmen’s Compensation Commission. It is that involved here. It might be called an offshoot of the dead man’s statute.

There is no indication in the statute that a declaration may, by “bootstrapping,” be its own corroboration. But that is the effect of the court’s decision in this case.

There is no room for doubt about what the commission found to be the compensable injury in this case. It was a fatal heart attack caused, aggravated or contributed to by Pettyjohn’s employment with American Can Company, in that the stress, strain and physical exertion of his employment aggravated his preexisting heart condition. This finding was based upon statements allegedly made by Pettyjohn. This conclusion seems inescapable to me. The commission said:

. . . The crucial issue, upon which compensation depends, is a typical issue in cardiac cases. It is, of course, the issue of causation. While this seems to be entirely a question of fact and of degree, it must be determined within the legal framework of “a preponderance of evidence” including within it the concept of “reasonable medical certainty.”
... By history, Mr. Pettyjohn had symptoms of cardiac involvement, probably ischemic-myocardial necrosis, as early as April 29, two days prior to his departure on his last run. Respondents suggest this fact leads to a conclusion of no causation.
The Commission is persuaded that Mr. Pettyjohn did in fact have severe chest pains while driving on his return trip from St. Louis on May 2. The only evidence on the point other than the decedent’s history as given to his treating physician is the testimony of Mr. Herbert Pat Robertson. Mr. Robertson attributed the complaints which Mr. Pettyjohn made of being afraid he would not make it home, to an episode of diarrhea which Mr. Pettyjohn apparently had. While Mr. Pettyjohn had no compelling need to explain to Mr. Robertson his fear, the need to be honest and straightforward with his treating physicians in the history given is obvious. As indicated by the Referee in his letter of January 11, 1974, the “hearsay” statement by the decedent to Dr. Stewart and Dr. Klopfanstein is admissible because it was made by a patient to his physician while seeking diagnosis and treatment. Dr. McMinimy, as associate of Dr. Klopfenstein, of necessity relied upon this “history” in his treatment of the decedent and there is no logical reason he should not be allowed to rely upon it in giving his opinion of causation. Thus, the medical opinions differing and both being given within a reasonable degree of medical certainty, the Commission, considering the sequence of events, the time element, and giving the benefit of reasonable doubts to the claimant, accepts the opinion of Dr. McMinimy with reference to the issue of causation.
With reference to the need for corroboration as suggested by respondents, the Commission is of the opinion the decedent made no declarations “concerning the injury” within the meaning of Section 27 (a) requiring corroboration. In any event, the Commission believes there is sufficient otheb evidence, albeit circumstantial, to support this finding of causation.

Of course, the majority does not support (I do not see how it could) the Commission’s holding that somehow the fact that. Pettyjohn’s statements were made to a treating physician made the statute inapplicable. But this is the basis upon which the Commission found it admissible. And there is no escaping the fact that the severe chest pains were the foundation of the finding upon which the award was made in this case, as the opinion clearly shows.

It could not have been otherwise. Three physicians testified. All were a.ssociates in the Holt-Krock Clinic. Dr. John Ben Stewart did not feel qualified to express any opinion about the relationship between Pettyjohn’s operation of the company truck and his myocardial infarction. Dr. Keith Klopfenstein expressed the opinion that there was no connection. Inevitably and understandably the award depends entirely upon the opinion expressed by Dr. McMinimy. Take away the claimant’s statement and the opinion falls completely and is totally without probative value

Dr. McMinimy first saw Pettyjohn on May 5, 1972. He was seeing the patient in conjunction with Dr. Klopfenstein. The medical history taken by Drs. Stewart and Klopfenstein reflected that Pettyjohn stated that on April 29 he had started having severe chest pains, which lasted about 1 V2 to 2 hours, and on May 2, while driving to St. Louis, he had several attacks of chest pain which became so severe while driving back to Ft. Smith from St. Louis that he thought he would not make it back. Pettyjohn had related to Dr. Klopfenstein a history of exertional chest pain dating back several years, compatible with angina pectoris, and, over the preceding four or five days, numerous severe episodes of chest pain at rest, a couple of which were associated with cold sweat. No one else ever said that Pettyjohn had suffered chest pains. Nobody ever said that the sickness of which he complained to Robinson while unloading in St. Louis, or his illness in Lebanon, or his insomnia at Sullivan consisted of, in whole or in part, chest pains. Mrs. Pettyjohn did not mention chest pains, except to say that after his return from St. Louis, her husband had told her that he had suffered chest pains. Surely no one is contending that a repetition of a declaration is corroborative of it.

When Dr. McMinimy was asked to point out anything in the death summary written by Dr. John Ben Stewart that would indicate that the claimant’s work aggravated or precipitated his heart attack, he responded:

. . . According to this record, this man started having pain on April 29. On the night of April 29, he had chest pain radiating into his left arm, profuse diaphoresis or profuse sweating that lasted about an hour and a half to two hours.
. . . On Monday, May — the 29th would be what? It would be Saturday, wouldn’t it? May 1, which would have been two days after the onset of this chest pain, he drove his truck to St. Louis, and then he drove the truck back the following night and had several attacks of substernal angina type pain, and was then brought to the emergency room.

When the referee asked Dr. McMinimy what facts he was relying on in expressing his opinion, the doctor’s answer, insofar as material, was:

Well, the fact that the man drove the truck ■— he had the pain on April 29, he obviously had angina. He drove the truck on May 1 and May 2 and had his severe chest pain, and apparently had sever? chest pains while he was driving his truck home, almost to the point that in his history he states that he didn’t think he was going to make it home. Then the next morning early he had severe chest pain which brings him to the hospital, and at that time had probably started the process of myocardial infarction. Now, in my opinion, the fact that the man had pain while he was driving the truck, that he had angina occurring on the 29th, meaning that he was already having pretty severe chest problems, that those arteries were already narrowed and were not carrying an adequate amount of blood to the heart. The heart was having to work — driving that truck you know. Imagine a big truck — driving it from Fort Smith to St. Louis and from St. Louis back to Fort Smith. His heart was beating faster and there were more demands on the heart for blood, because it had to pump more blood to keep blood going to his brain, to his muscles and so on — all of the obvious things that the heart does. He was putting excess strain on that heart and on those blood vessels to do this amount of work. And in my opinion, that definitely is not very conducive to treating a heart problem . . . There is no question about the fact that anxiety, tension, pressures aggravate the heart. . . So there was no question or has been no question since that time that tension, anxiety and so on, aggravate chest-pain. The classic description of angina pectoris is exertional pain; pain comes on with exertion. This man was exerting himself driving that truck. He undoubtedly, in driving the truck from Fort Smith to St. Louis and from St. Louis back to Fort Smith, probably had a certain amount of tension and so on, and you can imagine — if he was having pretty severe chest pain, where he wasn’t sure he was going to get home, he probably was pretty anxious and pretty frightened. Which, I’m sure, also had its bad effect on his angina pectoris. So, in my opinion, there is just no question — in all of the experience I’ve had in taking care of heart patients all these years, there is no question that this amount of exertion aggravated this man’s heart problem. If this man, on April 29, had stayed home, gone to bed and seen Dr. Ben Stewart at that time, taken his medicine, gotten in the hospital, he might have been alive today. But he didn’t do that, but he did things that were very foolish for a patient with severe heart problems. And that, probably, is a causative factor, I think, or one of the factors that probably put this man in his grave. It’s just that simple . . . after his pain started on April 29, he just added fuel to the fire.

Upon cross-examination, the following was included:

A. . . . [T]his is a classic story of most patients with angina — that if they have angina pectoris and they engage in activity but stop and rest their pain goes away, we assume that most of these people, at least for a long period of time, do not go ahead and develop a coronary occlusion.
Q,. Do we not have some reason to believe that that is what happened to Mr. Pettyjohn over an extended period of time?
A. No. I don’t really think we could say that, because this man had chest pain — pretty severe pain — back on April 29 .... I don’t know what happened to him on April 29 to cause him to start having chest pain, but he apparently had something happen to cause him to have pretty severe chest pain with profuse diaphoresis. And incidentally, most patients with angina pectoris will not have profuse diaphoresis, they have just the chest pain and they stop and rest and so on. So we can kind of assume that this man was having some pretty bad changes occur to his arteries on April 29. That’s not definite, but it’s possible. Now, the fact that he started having pain at that time, and that he did all of the exertion, he perhaps could have aggravated his artery condition by making more demands — making more blood try to go through this artery, and maybe doing more damage to that ulcerating plaque, if this is the case, and eventually causing it to be irritated enough that it completely occluded the artery, or the thrombosis occurred at that point. I can’t tell you, and I don’t think that anybody can actually tell you what happened to this man.
»fc s(e j|t ‡ $
A. ... I would agree that he had the disease prior to the time he drove the truck, but there would be no question in my mind that driving the truck with that amount of exertion, and having that amount of pain while he was driving the truck, aggravated his heart condition. It put his heart under more strain, more stress. He could have even had some arrhythemia during that time. It’s possible that while he had that pain and was driving the truck — he could have had ventricular tachycardia. He expressed the feeling that he thought he wasn’t going to make it. He could have had an episode of ventricular tachycardia, a drop in blood pressure and a number of things that may have actually precipated his actual occlusion at that point, you see.
* »fe sjc * *
Q. Now, Dr. McMinimy, aren’t you essentially engaging in speculation as to how severe the April 29 angina pectoris attack was?
A. Oh, yes. I’m basing my opinion, since I didn’t see the man, and I didn’t know how much his pain was — I’m basing my opinion on what history these men have. And as a matter of fact, they were basing their opinion on what the man told them.
Q. So it would be true that to the extent that you have purported to state any relationship at all between the man’s employment and his death, you are relying entirely on a chart entry made by other physicians, with respect to the history given them by the patient?
A. Right.
*****
A. It’s very possible that this man could have had — back on the 29th — that he could have had a bad attack and had his coronary occlusion and have died April 29 before he ever drove his truck, but he didn’t have that bad an attack that night. He did drive his truck and he had pretty severe pain, according to the history, enough so that he said he didn’t think that he was going to make it while he was driving his truck. So on the basis of the history I would assume that the man had definite pain and had definite aggravation of his problem by driving his truck.
*****
Q. Now, let’s return to the concept of anginal pain. You are assuming that he had an episode of anginal pain or angina pectoris while driving his truck; is that correct?
A. Yes.
A.. . . [I]t’s possible that he could have gotten home, felt fine, got over his attack, next day on May 3 felt fine and gone back to work. But in his case he didn’t feel fine, he had pain — bad pain on May 3. And I think driving that truck from Fort Smith to St. Louis and from St. Louis back, and having that bad pain when he thought he wasn’t going to make it — I think this definitely aggravated his heart condition.
A. . . . And I think it’s possible, and very probable, that this man — with his coronary artery disease, his preinfarction angina, arteries that were just pretty darned narrow and not carrying enough blood with the amount of exertion that he had, and having this pretty bad pain, where he felt he wasn’t going to make it, just overtaxed his heart. Particularly if he had episodes of ventricular tachycardia, he may have stretched his heart muscles to produce some degree of mild heart failure.
#*$$$
Q,. Now, you would not have been able to express any opinions such as you have just expressed, without relying on the hospital chart entries regarding the history; is that true?
A. Oh, yes.
Q. In other words, if you had just seen the man after he was already in the acute state, you could not have expressed any of the opinions that you have just stated?
A. Well, without some history, yes; I would have to know some history.
Q. And you are necessarily relying on history that was taken by another physician?
A. Right.
Q. . . . you are relying entirely on the history that.was in the hospital chart; is that correct?
A. Yes, sir, I stated that.
MR. GILBREATH: ... he is fixing to go to England for a year and a half, and I will not have an opportunity to retake his deposition. So if there is any sustaining to this objection I want to know it right now, so as to shore up his testimony, to have the matter covered several different ways.
THE REFEREE: I fail to see how you can “shore up” his testimony on the fact that he is relying upon history.

And finally when asked to state his opinion as to whether or not the driving of the truck and Pettyjohn’s unloading it could have “aggravated or precipitated his myocardial infarction,” the doctor was asked to assume, among other things, that the hypothetical individual, during a May 1 to May 3 trip from Fort Smith to St. Louis experienced severe chest pain.

I simply say that Dr. McMinimy had no opinion which was not based on Pettyjohn’s uncorroborated declarations and he certainly stated none. I would reverse the judgment.

I am authorized to state that the Chief Justice and Mr. Justice Jones join in this opinion.


author: Lyle Brown, Justice.

text:
    Travis L. B. WILSON v. STATE of Arkansas
    CR 74-170
    522 S.W. 2d 413
    Opinion delivered May 12, 1975

      Laser, Sharp, Haley, Young & Bosicell, for appellant.

      7ini Guy Tucker, Atty. Gen., by: Gary Isbell, Asst., for appellee.
   Lyle Brown, Justice.

This is an appeal from a conviction of first degree murder in which appellant received a life sentence. Appellant, Travis L. B. Wilson, lists six points of asserted error in the trial of his case. After a brief statement of background facts, we shall list those six points and discuss them separately. The evidence will be treated more particularly under the points for reversal. Suffice it to say that the body of Jewel McKown was found in close proximity to a trailer court where she lived, apparently slashed to death. Her body was discovered on the morning of July 5, 1974, near the mobile home which she rented, and which had been the scene of a gathering of two couples including Jewel and appellant, beginning late in the afternoon of July 4. Some intoxicants were consumed. It is apparent that around midnight one of the couples left while Miss McKown and Wilson remained inside the trailer. Appellant is said to have gone to the home of his parents in Redfield during the early morning hours and confided to his parents that he was in trouble and wanted to go to California. The parents took him to the bus station in Little Rock. The local officers called ahead and appellant was found at the bus station in Amarillo, Texas. He waived extradition and was returned to Grant County and charged with murder in the first degree.

Point I. The trial court erred in refusing to comply with the Mc.Xabh-Mailory rule. We are again urged to adopt the McNabb-Mallory rule as it exists in federal practice, holding that failure to promptly arraign an accused will render a confession made by him during a confinement inadmissible. We decline to adopt the rule and recently so held in Mitchell v. Bishop. 248 Ark. 427, 452 S.W. 2d 340 (1970), holding Ark. Stat. Ann. § 43-601 (Repl. 1964) to be directory only.

Point II. The purported confession does not meet the test of voluntariness. Appellant insisted that he was under the influence of intoxicants to a heavy degree on the night in question. When appellant was apprehended in Amarillo, the arresting officer testified that he went over the Miranda warnings with appellant, explaining'them in considerably more detail than the form language, and that appellant signed the waiver. Three statements were given to the officer - first, without recordation, just oral; second, oral only again because the tape recording machine was not properly operated; and, third, on a tape recorder and transcribed. The appellant signed the transcribed statement. Appellant said he understood the Miranda rights save an idea of his own about the time for appointment for an attorney. The appellant testified to the voluntariness and to the cooperativeness of the arresting officer. Appellant’s main attack on the statement is his alleged intoxication, lack of sleep and food, and because of his lack of intelligence. We point out that the issue of intoxication was presented by conflicting testimony. David Smith and Melba Stone testified that in their opinion he was not drunk on the night of the alleged offense. The appellant’s brother testified that when the appellant sobered up, he remembered the events that transpired while he was drunk.

Appellant also makes much of a lack of intellectual capacity chiefly through the introduction of letters written while in the State Hospital. The appellant, however, had a tenth grade education, and his writing and spelling prowess do not comport with his insistence on being intellectually backward.

Appellant also alludes to the nature of the custodial investigation as extremely lengthy, however, the interrogating officer testified that the total time of the interrogation was a maximum of one and one-half hours and that it was of such length only because the tape recorder was not in operating condition the second time the statement was taken. Also, appellant testified to the cooperative nature of the interrogating officer. In short, the trial court’s finding of voluntariness was proper when viewed in the total circumstances and the confession was therefore properly admitted in evidence.

Point III. The verdict is not supported by substantial evidence as regards the elements of murder in the first degree. The elements of malice and premeditation are very much in evidence and are certainly sufficient to support the verdict. Malice can be implied from the circumstances of the killing. Malice is certainly in evidence in this case by the use of a barbecue fork or other similar object used to stab the deceased repeatedly in the chest and neck areas, even to the point of puncturing the heart eight or nine times, and by the use of a butcher knife to slash the throat of the deceased. The nature of the wounds and the weapons used are certainly sufficient to show the manifestation of “an abandoned and wicked disposition” on the part of assailant, and concurrently is evidence of a “deliberate intention of mind unlawfully to take away the life of a human being”. Ark. Stat. Ann. § 41-2203, 2204 (Repl. 1964). Appellant states that the requisite element of first degree murder, premeditation, cannot be presumed but must be proven beyond a reasonable doubt. Of course we have many times held that the element of premeditation can be inferred from the circumstances of the case. Kagebein v. State, 254 Ark. 904, 496 S.W. 2d 435 (1973). The circumstances of this case are certainly ample for such an inference to have been drawn by the jury. The appellant’s confession admitted a noticeable gap between an act of intercourse between him and the victim, and his choking the girl. There was the binding of the deceased’s hands and the gagging with a towel around the head, the dragging of the body to the fence line, the cleaning up of the porch, presumably with a wet mop with blood stains thereon. There was also evidence that there may have been a struggle as evidenced by scratches on appellant’s chest and stomach.

Under this point appellant challenges the proof of the corpus delicti on the part of the state’s evidence. The point is hardly worth comment because the evidence of the corpus delicti is overwhelming from all the proof in the case. Hays v. State, 230 Ark. 731, 324 S.W. 2d 520 (1959).

Point IV. The trial court failed to timely convene a pretrial evidentiary hearing to determine the admissibility of a purported confession made by the appellant. To support this point appellant says: “The record shows that more than three weeks prior to trial, appellant filed a written motion praying that the court convene a pre-trial Denno hearing to determine the admissibility of certain incriminating statements that were allegedly made by appellant, and specifically whether any confession was voluntarily made by him”. We are cited no authority for the asserted requirement that the Denno hearing must be convened well in advance of the date set for trial. In Sheppard v. State, 239 Ark. 785, 394 S.W. 2d 624 (1965) we apparently approved the procedure of the court calling a Denno hearing in chambers when the purported confession is presented for admission. Then in Hall v. Stale, 242 Ark. 201, 412 S.W. 2d 603 (1967) it is perfectly clear that the Denno hearing was convened after the trial was under way but before the confession was placed in evidence.

POINT V. The trial court should have granted a mistrial when the State produced the testimony of a cellmate to the effect that appellant confessed the crime without first ordering a Denno hearing. After careful consideration we are of the conclusion that the admission of the testimony constituted harmless error beyond a reasonable doubt. The United States Supreme Court reached the same conclusion in Milton v. Wainwright, 407 U.S. 371 (1972). In Milton the prosecution clothed a detective as a prisoner and placed him in the cell with Milton. The accused made severe incriminating statements amounting to a confession. The trial court admitted the testimony of the detective. The Court said in Milton:

On the basis of the argument in the case and our examination of the extensive record of petitioner’s 1958 trial, we have concluded that thejudgment under review must be affirmed without reaching the merits of petitioner’s present claim. Assuming, arguendo, that the challenged testimony should have been excluded, the record clearly reveals that any error in its admission was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250 (1969); Chapman v. California, 386 U.S. 18 (1967). The jury, in addition to hearing the challenged testimony, was presented with overwhelming evidence of petitioner’s guilt, including no less than three full confessions that were made by petitioner prior to his indictment. Those confessions have been found admissible in the course of previous post-conviction proceedings brought by petitioner in his attempts to have this conviction set aside, and they are not challenged here.

In the case at bar a confession which was found to be voluntary was before the jury. The physical facts which were entirely undisputed, corroborated many important facts revealed by the confession. They revealed overwhelming evidence of appellant’s guilt. The prisoner who was produced as a witness was cross-examined in great detail and there was no intimation that appellant was trapped or coerced in any manner.

Point VI. The court should have granted a mistrial because in his closing argument the Slate's attorney referred to appellant's attorney as "appointedcounsel". While we do not find the statement in itself to be prejudicial we think the better practice would be to abstain from such designation.

Affirmed.


author: Frank Holt, Justice.

text:
    Earl Clifton COTTRELL v. Trenda Louise Rucker COTTRELL
    74-360
    522 S.W. 2d 433
    Opinion delivered May 12, 1975
    (¿. Byrum Hunt, Jr., for appellant.

      Wood, Smith & Schnipper, for appellee.
   Frank Holt, Justice.

Appellant petitioned the probate court to vacate a final order of adoption in which he adopted appellee’s natural child. The court denied and dismissed appellant’s petition. We first consider and find no merit in appellant’s contention for reversal that the action of the court was not supported by the evidence.

In 1966 the appellant and the appellee were married. At the time of this marriage, appellee had a four year old daughter. A final order was rendered in 1969 approving appellant’s adoption of this child. The parties were divorced in 1973 and appellant was ordered to pay child support. Appellant then sought to set aside the adoption order contending he neither consented to nor signed the petition and his signature was a forgery.

Appellant testified that he never discussed with appellee the adoption of her child and the first that he knew about the adoption order was in 1973 during the divorce action. He denied that he ever signed the verified petition or in any manner consented to it. He admitted that his signature on the petition and verification “looks a great deal like my signature.” His explanation of the similarity to his real signature was that “[I]t could have been traced on a clear piece of paper.” His wife had access to his proper signature. He admitted that since their marriage in 1966, the child had used his name. It is undisputed that a birth certificate was issued showing him as the father following the adoption. He admitted that two exhibits introduced into evidence, other than the adoption papers, contained his genuine signatures. Another exhibit (a yellow sheet of paper) contained a series of his signatures which were made for the benefit of the court. Appellant admitted that he was trying to set aside the adoption of the child because he didn’t think he should pay child support.

The appellee testified that she and the appellant had discussed his adopting her daughter before their marriage and it was his desire to do so. Subsequent to the marriage, he directed her to have the necessary legal papers drafted which she did. Appellee testified that she “definitely” saw appellant sign the petition in their home and he never questioned the adoption until the divorce proceeding which required him to pay child support. She paid for the adoption proceeding because “whichever bill was due we paid it.” Neither party accepted the cqurt’s offer to submit the various signatures to a handwriting expert.

The appellant had the burden of proof to sustain his allegation that his signature in the adoption proceeding was a forgery or fraudulent. As we have so often said, the trial court is in a much better position to resolve conflicting evidence since it observes and hears the witnesses. We only have before us the printed record. Appellant has neither discharged his burden of proof by showing fraud by clear, cogent and convincing evidence nor by a preponderance of the evidence. Clay V. Brand, 236 Ark. 236, 365 S.W.2d 256 (1963).

Appellant’s next two contentions for reversal are to the effect that the adoption proceeding is null and void because the appellant admittedly did not sign the notarized petition in the presence of a notary public. Appellant and the appellee did not separate for approximately four years after the rendition of the final order of adoption during which time the child resided with them. Ark. Stat. Ann. § 56-112 (Repl. 1971), in pertinent part, provides:

No action shall be brought to set aside an Adoption Decree for any procedural or jurisdictional defect except within two (2) years after its rendition, if the adopted person has, in fact, lived with the adopting parents that length of time ....

Since the appellant’s adopted child resided with them for longer than two years following the final adoption order, we find no merit in appellant’s contentions as to the procedural defect.

Affirmed.


text:
    GLOBE LIFE INSURANCE CO. v. Kenneth A. HUMPHRIES
    75-33
    522 S.W. 2d 669
    Opinion delivered May 19, 1975

      Davidson, Plastiras & Horne, Lid., by: Michael O. Parker, for appellant.

      H. David Blair, Murphy & Blair, for appellee.
   Lyle Brown, Justice.

This is an appeal by Globe Life Insurance Company from a default judgment entered against it on the ground that its answer to the complaint was not timely filed. The complaint was filed in the Independence Circuit Court on August 27, 1974, and summons was issued on that date. The summons was served by the Pulaski County Sheriff on the Insurance Commissioner of the State of Arkansas as statutory agent for service of process, on appellant, a foreign corporation, on August 30, 1974. Pursuant to Ark. Stat. Ann. § 66-2219 (Repl. 1966) the summons was mailed by the Commissioner to the appellant on September 3, 1974. Appellant filed its answer in the Independence Circuit Court on September 24, 1974. Subsequently, a motion to strike appellant’s answer as not being timely filed, was entered by appellee and a response filed by appellant. A hearing was held on October 28, 1974, at which time the motion to strike appellant’s answer was granted and a default judgment was entered against appellant in the amount of $2,184.00 plus costs and attorney’s fees. This appeal is taken from the court’s judgment of October 28, 1974, entered on December 2, 1974.

Appellant raises two points for reversal. Appellant first contends that the circuit court erred in ruling that appellant’s answer had not been timely filed. The parties stipulated that the Commissioner’s notice to appellant was mailed on September 3, 1974. It was further stipulated that the answer was filed on September 24, 1974, in the Independence Circuit Court. Ark. Stat. Ann. § 66-3235 (Repl. 1966) governs service of process on insurers and provides in pertinent part as follows:

(1) In any suit brought in this State against an Insurer process may be served upon the insurer as follows:
(b) As to foreign insurers service may be had upon the Commissioner, as provided in sections 60 and 61 [§§ 66-2218, 66-2219] of this code.

As indicated by subsection (b) of § 66-3235, service upon foreign insurers may be had upon the Commissioner as provided in Ark. Stat. Ann. § 66-2218 and 66-2219. Section 66-2218 provides in pertinent part that the Insurance Commissioner is the agent for the service of process for foreign insurers and § 66-2219 provides as follows:

(1) Service of process upon the Commissioner as process agent of an insurer (under section 60 [§ 66-2218]) shall be made by serving copies in duplicate of the process upon the Commissioner or upon his assistant, deputy, or other person in charge of his office. Upon being served with such process the Commissioner shall promptly forward a copy thereof by certified or registered mail to the person last designated by the insurer to receive the same, as provided by section 60 (2) [§§ 66-2218 (2)], and send a copy of his letter of transmittal of the process to the Clerk of the issuing court and the same shall be entered in the file of the cause.
(2) Where process is served upon the Commissioner as an insurer's process agent, the insurer must answer or plead within twenty (20) days after the date upon which the Commissioner mailed a copy of the process served upon him as required by subsection ( l), above, (our emphasis)
(3) Service shall not be deemed completed until the Commissioner has mailed a copy of the process, as provided in subsection (1), above.

This is the first time this court has been called on to construe Ark. Stat. Ann. § 66-2219 (2) (Repl. 1966). Accordingly, appellant contends that Ark. Stat. Ann. § 27-1135 (Repl. 1962), which is our general civil procedure statute relating to time for appearance or pleading to complaint, and our cases construing this statute, should serve as a guide to our inter - pretation. Section 27-1135 in pertinent part provides: “A defendant to any complaint or cross-complaint must appear or plead either generally or specially the first day after expiration of the periods of time set forth below, as the case may be: First. Where the summons has been served twenty (20) days in any county in the state; * * *”

Appellant relies on our cases which have construed the above mentioned language to mean that the defendant has twenty-one days in which to answer. That is, excluding the first day [according to Ark. Stat. Ann. § 27-130 (Repl. 1962)] twenty days can lapse, and the defendant can answer on the first day after the expiration. Hence, the defendant has twenty-one days in which to answer. Widmer v. J. I. Case Credit Corp., 239 Ark. 12, 386 S.W. 2d 702 (1965); DeSoto Hotel & Baths, Inc. v. Luth, 239 Ark. 424, 389 S.W. 2d 897 (1965). In the case at bar, the Commissioner’s notice to appellant was mailed on September 3, 1974, and appellant’s answer was filed on September 24, 1974. Excluding the day of mailing, the answer was filed on the twenty-first day. Arguing that § 27-1135 has language similar to § 66-2219, appellant contends, that our case law interpreting the former statute should control in the present action. The short answer to appellant’s contention is that the language of the two statutes is not similar. Ark. Stat. Ann. § 66-2219 (2) (Repl. 1966) requires that the insurer answer or plead “within twenty (20) days after the date upon which the Commissioner mailed a copy of the process served upon him . . .”. The language in § 27-1135 which allows appearance or pleading on “. . . the first day after expiration of the period of time set forth . . .” appears nowhere in § 66-2219.

We hold that “within twenty days” means exactly what it says and since appellant filed its answer on the twenty-first day, the circuit court was correct in granting the appellee’s motion to strike appellant’s answer as being untimely.

Appellant’s second point for reversal is that the notice given to appellant by its statutory agent was incorrect, misleading and not consistent with the language of the applicable statute, and hence, should not be considered proper notice. The transmittal letter from the State Insurance Commissioner, (to which the complaint and summons were attached), erroneously designated Pulaski County, rather than Independence County, as the venue of this cause. Moreover, the transmittal letter had this notation: “You must file a response therein within 20 days of the date this notice is mailed to you from this office as shown below.” It is contended that inserting the wrong county within the transmittal letter, and including language differing from that in § 66-2219 (2), served to mislead and misinform the appellant.

This argument is without merit for several reasons. The appellant has not demonstrated any prejudice. Although the record shows that the appellant was given a hearing on appellee’s motion to strike, the record is devoid of any testimony or other proof that the transmittal letter accounted in any way for the late answer. We will not reverse merely for matters of a formal nature or for technical errors unless prejudice has been demonstrated. Lea v. Bradshaw, 192 Ark. 135, 90 S.W. 2d 487 (1936). It should be noted that the transmittal letter which incorrectly put venue in Pulaski County was accompanied by both the complaint and summons indicating Independence County as the correct court for venue. Undoubtedly, the insertion was a clerical or typographical error. See Edwards v. Brimm, Ex 'x., 236 Ark. 588, 367 S.W. 2d 433 (1963).

After a fair reading of the reference to the twenty day period in the Commissioner’s transmittal letter, we cannot say that the plain meaning of the language differs from that of § 66-2219 (2). See Widmer v. Wood, 244 Ark. 307, 425 S.W. 2d 514 (1968).

Affirmed.


author: John A. Fogleman, Justice.

text:
    Joseph B. BLUNDELL Jr. v. CITY OF WEST HELENA, ARKANSAS
    75-22
    522 S.W. 2d 661
    Opinion delivered May 19, 1975

      David Solomon, for appellant.

      Ralph C. Murray, for appellee.
   John A. Fogleman, Justice.

This appeal brings into sharp focus the conflict between private property rights and the right of municipal government to control the owner’s use of property. The particular question is the extent to which an owner has freedom to the use of his property after the adoption of a zoning ordinance which results in the use not being in conformity with uses permitted in the area in which it is located. The particular question is without precedent in this state and it presents the usual difficulties experienced in achieving the appropriate balance between right of an individual to free use and enjoyment of his property and equally important rights of society in the interest of the public welfare.

On August 3, 1965, appellant purchased a five-acre tract of land lying along Springdale Road between the city limits of Helena and those of West Helena. In 1966, he began developing the tract as a mobile home park. The topography of the tract was such that development was started on the east side, where 12 mobile home spaces were first laid out, after which a 20-foot road to serve these lots and 13 others was constructed and the 13 additional spaces were laid out on the west side of this road. The ground level was much lower west of these spaces and a septic tank to serve these 25 spaces was placed in this area.

Sometime in October, 1966, the first mobile home was placed on one of the first 12 lots. Water was available to these lots by a connection to the Helena water system. Electricity was also available. Problems developed with reference to the sewer system and the state health authorities restricted occupancy to no more than four mobile homes with the existing sewer system and recommended connection to a city sewer system. Appellant found the cost of connection to the Helena sewer system prohibitive and no West Helena sewer lines were available.

Sometime in 1968, appellant employed Cline-Frazier Consulting Engineers, who completed detailed plans in June, 1968, for further development of appellant’s property, which was then named Springdale Village Trailer Park, and was to consist eventually of a total of 44 lots. These plans were submitted to the Arkansas State Board of Health on June 13, 1968, and approved by its Bureau of Environmental Engineering on June 17, 1968.

On February 17, 1969, the County Court annexed appellant’s property, with other lands, to the City of West Helena and the order of annexation was finally affirmed here on February 22, 1971. See Kalb v. City of West Helena, 249 Ark. 1123, 463 S.W. 368. On December 8, 1971, the City of West Helena adopted Ordinance 1020 to govern zoning in the annexed area. By this ordinance, this property of appellant Blundell was classified as “Residential R-A” making its use as a mobile home park non-conforming because such parks are permitted only in commercial zones in West Helena. West Helena sewer lines had been extended to the property in September 1971, and appellant granted the city a 20-foot easement for these lines. He then disconnected his septic tank system and made connection with the city sewer line. After continued development of the property, Blundell’s application to the City of West Helena for a permit for an electrical connection, i.e., for the placing of a meter and furnishing of electricity on one of the first 25 lots laid out, but not one of the first 12, was rejected in January 1974, on the ground that this would be an extension of a non-conforming use. Blundell then brought this suit to require the issuance of the permit and to establish his right to continue his development of his entire tract of land, or in the alternative, the first 25 lots, as a mobile home park.

The chancery court resolved the conflict in favor of the community’s interest in public welfare and development and against Blundell’s interest in the use of his property, denying him any relief and holding that the extension of the use of the facilities beyond the first 12 lots would be an impermissible extension of a non-conforming use. We disagree with the learned chancellor as to the particular space involved and as to all the first 25 lots but not as to any contemplated use of the remainder of the property for mobile home spaces.

The chancellor is to be commended for his exhaustive study of legal authorities and of the record. As a result the issues are brought into sharp focus. Portions of his opinion set out pertinent facts and issues. Among other things, he said:

....it is apparent that the plaintiff purchased this five-acre tract with the intention of utilizing all of it as a trailer park to accommodate some forty-four trailers. All his actions in employing engineers to plan and advise and prepare a plat for that development confirm this. At the time his land was annexed and zoned by the City of West Helena. . . he had only four or five lots actually in use for the intended purpose. His delay in extending further by that time was due in part to difficulty encountered with septic tank systems and financial inability to connect with existing sewer lines. Whatever the reason, the fact remains that at the time of the enactment in question his actual use was thus limited and he has extended that use since that date to include 12 such lots, all located on a line extending north and south along his east line. . .
It is plaintiff’s position that his purpose at the time of purchase coupled with investment of funds in his contemplated expansion extends his use to the full limit of the tract. It is the position of the city that he is limited to the area actually appropriated for that use at the time of the enactment.
*****
These basic concepts are not seriously questioned here. What plaintiff does question here is the power of the City to restrict his prior use to the area of actual use prior to the enactment. It is his position that the City cannot so restrict him but must under the ordinance and the circumstances permit him to enlarge his use to the full limits of his tract; that his actual appropriation of a part of the tract for this use prior to the enactment, coupled with his contemplated full use and expenditures give him that right.
. . .[T]he vast weight of authority supports the sounder view that the purpose of all such legislation is to channel the growth and development of the community for the best interest of all its citizens, and that prohibited uses, though permitted to remain, should be diminished, restricted and discouraged rather than nurtured and expanded.
The courts appear to be in agreement that this intention and purpose must be found within the particular enactment and if clearly stated therein should be given effect in accomplishing that purpose to the extent therein expressly provided.
The courts appear to be in universal agreement that such legislation, being in derogation of common law, must be construed most strictly in favor of the landowner in every respect, including the determination of the restriction and its extent.

We differ with the chancellor very little as to the principles he stated. The real basis of our difference is in the application of these principles to the facts in the case. The chancellor’s opinion is bottomed to a great extent upon language of the West Helena zoning ordinance relating to non-conforming uses. Pertinent provisions are as follows:

Section 2. Definitions. M — Non-conforming. A building or a use of land existing at the time of enactment of this Ordinance, and which does not conform to the regulations of the District or the Zone in which it is situated.
*****
Section 18. Non-conforming Use and Structures.
1. Alterations, repairs, restoration:
A. Any non-conforming structure or portion thereof declared unsafe by proper authorities may be restored to a safe condition after being recommended by the Planning Commission and approved by the City Council.
B. Any non-conforming structure may not be reconstructed or structurally altered during its life to an extent exceeding an aggregate cost 66% of the appraised value at the time of the construction of the building, unless said building is changed to a conforming use.
C. No structure damaged by fire or other causes to the extent of more than 66% of its fair sales value immediately prior to damage shall be repaired or rebuilt excepting to conform to the regulation of this Ordinance.
2. Extension of Non-conforming Use:
A. A non-conforming use shall not be extended, but the extension of a lawful use to any portion of a non-conforming structure which existed prior to the enactment of this Ordinance shall not be deemed an extension of such non-conforming use.
3. Discontinuance and Change
A. Whenever a non-conforming use has been discontinued for a period of six (6) months, such use shall not thereafter be reestablished, and any future use shall be in conformity with the provisions of this Ordinance.

The chancellor emphasized the language in the ordinance relating to non-conforming structures, but we place emphasis upon the title of Section 18 designating use and structures separately and the fact that only an extension of non-conforming use is prohibited. Likewise, we do not attach the significance the chancellor did to the provisions relating to discontinuance of a non-conforming use, because the facts, as we see them, do not disclose any such discontinuance of use in this case.

Let it be clearly understood that we do not consider that either the intention of the landlord to use the property for a mobile home park or the development of plans for doing so is sufficient to establish a permissible non-conforming use.

The first 25 spaces were actually levelled and laid out and the road between them constructed and gravelled in 1966. Gravel for driveways, sewer lines and water lines were then provided and connected to the first 12 spaces. Water was provided by the Helena system. Blundell testified that the water and sewer were available to the other 13 lots and that the only things that would have prevented occupancy of these lots by mobile homes were the sewer problem and the absence of an electrical connection. It was useless to provide this until the sewer problem was solved. Grading and levelling of all the first 25 lots by bulldozer was done at the same time. The septic tank was also constructed at this time. It was after all this was done that the State Health Department limited actual use to three or four spaces, because of soil conditions and advised Blundell that he should connect to the city sewer line. After the sewer connection was made in September 1971, the road on which the 25 lots were located was paved with concrete and concrete driveways and patios were poured for the first 12. Lots had not been previously paved because of uncertainty about ultimate location of sewer lines and manholes to effect the connection to the city system.

Blundell said that some fill had been necessary on lots 13 through 25 due to the rugged terrain and to the fact that he had experienced some difficulty with soil washing there, due in part to the fact that they were unoccupied. He said that the weight of house trailers would pack the soil. He also testified that when the connection with the city sewer system was made, the existing sewer line did not have to be moved or repaired except in one spot. He also testified that he had worked continuously to improve the looks of the park by growing grass and planting shrubs. Blundell testified that he had a total investment of $50,000 in the whole five-acre tract and that he had obtained financing for development by borrowing from a bank. He said that the present value of the property represented one-third to one-half of his investment and that the actual money invested amounted to $30,000, about $25,000 of which was for improvements. Of this about $8,000 to $10,000 was spent for concrete after the passage of the ordinance.

The lower lands on the west side had been merely cleaned out and a road used only for ingress and egress placed there in 1966. Nothing further had been done to develop the property at the time of the trial.

In construing the city ordinances and their effect, we must remember that zoning ordinances, being in derogation of the common law, must be strictly construed in favor of the property owner and that, under our constitution, the right of private property is regarded as before and higher than constitutional sanction. See City of Little Rock v. Williams, 206 Ark. 861, 177 S.W. 2d 924; Poole v. State, 244 Ark. 1222, 428 S.W. 2d 628; Art. 2, § 22, Constitution of Arkansas. Attempts to deprive the owner of a preexisting use have been regarded as unconstitutional as a taking of property without compensation or in violation of due process of law. Silver v. Zoning Board of Adjustment, 435 Pa. 99, 255 A. 2d 506; Hoffmann v. Kinealy, 389 S.W. 2d 745 (Mo., 1965); McCaslin v. City of Monterey Park, 163 Cal. App. 2d 339, 329 P. 2d 522 (1958); City of Corpus Christi v. Allen, 152 Tex 137, 254 S.W. 2d 759 (1953); O'Connor v. City of Moscow, 69 Idaho 37, 202 P. 2d 401, 9 ALR 2d 103 (1949). See City of Little Rock v. Sun Building & Development Co., 199 Ark. 333, 134 S.W. 2d 582. See also, Amereihn v. Kotras, 194 Md. 591, 71 A. 2d 865 (1950); People v. Miller, 304 N.Y. 105, 106 N.E. 2d 34 (1952).

When we consider this ordinance, in this light, we prefer what has been referred to as the “substantial use” test for determining whether the use of property is an existing use at the time of adoption of a zoning ordinance to the extent that the use may be continued thereafter.

At the time of the adoption of the zoning ordinance, the street on which spaces 13 to 25 were located had been paved. Water and sewer service were available to them. The problem about sewage disposal which had prevented occupancy of the property had been solved. Although it is true that none of these spaces had ever been occupied by a mobile home, the first 25 spaces, considering their state of development at that time, constituted a use of the property for a mobile home park under this test.

It is widely recognized that a property owner has vested rights in a non-conforming use of his property. An apt articulation of the rule governing the vesting of such rights, as we apply it to the facts of this case, is found in the following language of the Kentucky Court of Appeals in Darlington v. Board of Councilman, 282 Ky. 778, 140 S.W. 2d 392 (1940);

. . . The mere ownership of property which could be utilized for the conduct of a lawful business does not constitute a right to so utilize it (Cayce v. City of Hopkinsville, 217 Ky. 135, 289 S.W. 223) which cannot be terminated by the enactment of a valid zoning ordinance, as such a concept involves an irreconcilable contradiction of terms. It would seem, therefore, that the right to utilize one’s property for the conduct of a lawful business not inimicable to the health, safety, or morals of the community, becomes entitled to constitutional protection against otherwise valid legislative restrictions as to locality, or, in other words, becomes “vested” within the full meaning of that term, when, prior to the enactment of such restrictions, the owner has in good faith substantially entered upon the performance of the series of acts necessary to the accomplishment of the end intended.

The substantial use test requires that the steps taken toward implementation be of a substantial nature or involve substantial investment or substantial obligations on the part of the owner. See cases cited infra.

Particular applications of the constitutional principles governing vested rights in non-conforming uses have been applied in cases involving mobile home or trailer parks. Vested rights entitled to constitutional protection have been held to exist when there has been a substantial establishment and development of land for use as such a park. Kessler v. Smith v. Village of Glenwillow, 104 Ohio App. 213, 142 N.E. 2d 231 (1957) aff’d. sub. nom; Smith v. Village of Glenwillow, 146 N.E. 2d 308 (Ohio 1957). The vested property right has been recognized in such developments where the utilization of the premises is such that they may be known in the neighborhood as being employed for the conduct of that business, and where a trailer court project is partially completed when zoning regulations become effective and evidence as to the extent of the project is clear, the completed project will determine the scope of the non-conforming use. Board of County Commissioners v. Petsch, 172 Neb. 263, 109 N.W. 2d 388 (1961).

We consider the steps taken by Blundell on the first 25 spaces' prior to the passage of the ordinance to have been substantial and to have involved substantial investment to the extent that he is entitled to use them as a mobile home park as a non-conforming use under the ordinance.

We are unable, however, to classify any of the lots other than the first 25 spaces as a part of the mobile home park in actual use sufficiently to vest any right in Blundell to develop it for occupancy by mobile homes or house trailers. There is no evidence to indicate that such a use of the property was not properly categorized as a long-range future plan. Blundell testified that the land was much lower than the first 25 lots, that there was a serious drainage problem to be solved and that,as a contemplated use, spaces would be laid out here as a third phase of development. Blundell referred to the area as the Valley. He proposes to fill the area in solving the drainage problem. The only attempt to make it usable was an unsuccessful effort to establish a nursery, which lasted only through one spring and summer.

The burden of proof is upon a property owner who claims rights by virture of a non-conforming use. County of Saunders v. Moore, 182 Neb. 377, 155 N.W. 2d 317 (1967). A mere contemplated use without active steps beyond preliminary work or planning or substantial investment to effectuate it is not sufficient to invest a property owner with property rights in a non-conforming use, or with a right to extend a non-conforming use. Ohio State Students Trailer Park Cooperative v. Franklin County, 123 N.E. 2d 286 (1953) affd., 123 N.E. 2d 542 (Ohio App., 1953); Lutz v. New Albany City Plan Commission, 230 Ind. 74, 101 N.E. 2d 187 (1951); Board of County Commissioners v. Petsch, 172 Neb. 263, 109 N.W. 2d 388 (1961); New York Trap Rock Corp. v. The Town of Clarkstown, 1 A.D. 2d 890, 149 N.Y.S. 2d 290 (1956) affd., 3 NYS 2d 844, 144 N.E. 2d 725 (1957); Smith v. Juillerat, 161 Ohio St. 424, 119 N.E. 2d 611 (1954). Preliminary contracts or work which is not of a substantial nature is not sufficient to establish a vested right. County of Saunders v. Moore, supra. The mere purchase of property with intention to devote it to a use is not sufficient in spite of preliminary work, such as clearing, grading and excavating, if that work is not of a substantial nature, or if the owner has not incurred substantial obligations relating directly to the use of the property. City of Omaha v. Glissman, 151 Neb. 895, 39 N.W. 2d 828. Appellant has failed to meet his burden of proof to establish á permissible nonconforming use for trailer spaces in Lots 26 through 44. That use would constitute an extension prohibited by the zoning ordinance.

Appellee argues that since appellant waited as long as he did to extend the actual use of spaces 13 through 25, he abandoned and discontinued any non-conforming use for more than six months, and that the placing of mobile homes on these spaces constitutes a prohibited reestablishment of that use under the ordinance. To embrace this theory would be inconsistent with, the underlying theory of our holding on the question of existence of a non-conforming use. Blundell continued with his development of these spaces after the passage of the ordinance. His occupancy, prior to that time, had never exceeded eight units. The mere fact that his development of these spaces extended from September 1971 to January 1974 was not such an abandonment. Neither was the fact that there was apparently no demand for these spaces. To sustain the city’s argument Would require that we hold that in order to constitute use of the property in the sense of the ordinance, the use must be actual in the sense that the spaces must have been physically occupied by mobile homes. Such a construction would be unduly narrow and a strict construction favoring the city. We decline to give it this construction.

The decree is affirmed as to spaces 26 through 44 but reversed as to spaces 1 through 25. The cause is remanded for entry of a decree consistent with this opinion.

Harris, C.J., dissents as to the reversal.

       Some of the cases cited supra involve the principle here stated but relate to buildings. There is no sound reason why any distinction, insofar as legal principles are concerned, should be made between non-conforming use of land and non-conforming use of buildings, as the property rights of use and enjoyment are the same and are entitled to the same constitutional protection. Hoffmann v. Kinealy, 389 S.W. 2d 745 (Mo., 1965). Mobile home parks, used car lots, automobile parking lots, lots for open storage of building materials, construction equipment and airplane landing strips are all examples of uses and enjoyment of property which may prove more valuable to the owner when there are no buildings on them than when there are.

       In Kessler, the owner had expended substantial sums of money and considerable effort in the purchase and development of an eight-acre tract for trailer park purposes. When he purchased the property and commenced development the area was not subject to any building ordinance or zoning law. He had obtained approval of plans for sewage treatment and had employed a firm of architects to prepare a complete set of plans for construction. He had purchased a well digger and concrete pipe for water supply and sewer facilities and brought in a bulldozer to fill a ditch and grade the land, and purchased concrete blocks for construction of a utility building, a septic tank and filter bed. At the time of the passage of the ordinance, the utility building had been completed and the foundation constructed for the filter bed and the foundation and part of the walls of the septic tank had been built. The plans provided for 200 trailer spaces, but the operation was to start with only 28, which had been laid out and approaches for use completed with a road between 1600 and 1700 feet in length.

      In Petsch, 29 trailer spaces had been put to use on a three-acre tract on which 59 spaces had been staked out. Water and sewer mains had been laid. Septic tanks had been installed consistent with use of the entire tract and power and telephone service were available to all 59 spaces. Eight trailers were installed on a north strip, five of which had been connected with power, telephone, water and sewer facilities, one with power and two without any services. In the northwest strip, five trailers had been installed with telephone, power, water and sewer connections. Sewer and water taps had been provided for 29 spaces in these two strips.

      In Moore, there was one electric pole on the northeast corner of the property, and a well on a tract on which the owner had planned 110 lots. Preliminary work laying out roads had been done with a grader. There were no trenches, water or sewer pipes or poured concrete, no trailer houses were present and only one had ever been there. No trailer stalls had been completed and no water, electrical, telephone or sewage connections were available.


author: John A. Fogleman, Justice. John A. Fogleman, Justice.

text:
    David H. TATE v. STATE of Arkansas
    CR 75-8
    524 S.W. 2d 624
    Opinion delivered May 19, 1975

      R. W. Raster, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant asks us to reverse his conviction of three violations of Act 590 of 1971 [Ark. Stat. Ann. § 82-2601 - 2638 (Supp. 1973)], as amended, upon three grounds:

I
That the defendant was denied a fair trial and due process of law as contemplated by the Fourteenth Amendment of the United States Constitution.
II
The court erred in consolidating three separate offenses for trial.
Ill
The court erred in sentencing the defendant contrary to Ark. Stat. Ann. § 43-2301, et seq.

We shall treat them in the order stated.

I

Appellant states that a cursory reading of the transcript reveals no glaring errors, but begs that we examine the entire record, saying that the accumulated errors apparent in the record show that there is a serious question of due process of law as contemplated by the Fourteenth Amendment to the United States Constitution. Yet they are not apparent enough for appellant’s experienced, employed counsel to point out any of them to us, unless we should find error in the two remaining points. It is not the function of this court to conduct any such search for error as that suggested here. Not only would such a review be wasteful of judicial resources, but it would deprive the state of any means of advocating its position on discovered error. There is no merit in this point.

II

This ground is asserted as one of the accumulated errors to which appellant makes reference in his argument under Point I. Yet, he admits that no objection was made by the public defender, who was appellant’s trial counsel. The three charges were made in three separate informations. Each information charged appellant with delivery of a controlled substance, heroin, but on different dates, i.e., on the 22nd, 23rd and 24th days of January, 1974. Jury trial was waived, and the three cases were consolidated for trial by specific agreement. This was obviously a tactical decision, which might have redounded to the benefit of appellant. All three cases had been set for trial before the circuit judge on the same day. The same witness testified that he had purchased heroin from appellant on the three different days. It does not seem to us that appellant had much to lose by the consolidation. It does seem that the public defender, an experienced lawyer in defending criminal cases, tried to gain some advantage from the consolidation by pointing out that the narcotics officer who testified he had made the three separate purchases from appellant, could remember the names of the officers who had him under surveillance at the time two of the purchases were allegedly made, but could not remember who was the surveillance officer on the third occasion. We are unwilling to find error on this record.

III

Appellant argues here that his sentencing was not in conformity with the provisions of Ark. Stat. Ann. § 43-2301 (Supp. 1973) and § 43-2303 (Repl. 1964). Specifically, he contends that the circuit judge did not advise appellant of his right to appeal and failed to fix or deny bond on appeal. Timely appeal was taken, so appellant has not been prejudiced by the failure of the court to advise him of that right. The court did remand appellant into the custody of the sheriff at the conclusion of the trial, which is one of the options available under § 43-2301. Furthermore, after notice of appeal had been given, the court admitted appellant to bail, as soon as a motion to fix bail was presented. We find no prejudice here, if indeed, the court’s ordering appellant into the custody of the sheriff without expressly stating that he was denied bond was not a strict compliance with the statute.

The record does disclose that appellant was not accorded the right of allocution and that the public defender had been appointed to represent him upon a showing of indigency. Nothing in the record discloses that appellant remained incarcerated from the time of his initial arrest until his trial, or that, if he did so, it was solely on account of his indigency. He simply complains that § 43-2303 was not followed, but does not suggest what he could or would have advanced as a cause for the sentence not being imposed if he had been accorded that right, until his reply brief in which he says that he was incarcerated from April 4, 1974, when he was arrested, until trial.

The record discloses that when bench warrants were ordered on the informations filed, bail was fixed at $5,000 on each charge. An appeal bond with personal sureties in the penal sum of $15,000 was made. We cannot assume that indigency was the sole reason for these or other sureties being unwilling to serve as bail for appellant at an earlier date. Neither can we confirm the statement as to the period of incarceration. There was testimony that appellant was originally arrested April 4, 1974. Bench warrants were dated May 20, 1974. The returns on them show that appellant was arrested on May 23. We cannot say that the failure to follow the statute was prejudicial on the record before us.

Appellant also argues that the trial court should have asked him at the conclusion of the trial if he was satisfied with the services of his appointed counsel, because this court once remarked that, on a plea of guilty, the record on a post-conviction proceeding would have been much clearer in support of the denial of an evidentiary hearing, if this had been done. See Cullens v. State, 252 Ark. 995, 482 S.W. 2d 95. However advisable this procedure may be under the circumstances prevailing there, it has not been made mandatory in any case. A failure to follow this procedure is not reversible error.

The judgment is affirmed.

Supplemental Opinion Delivered June 30, 1975

Criminal law — rehearing — modification of judgment. — Upon rehearing where the only inference to be drawn from the record was that appellant was held in pretrial incarceration from April 3 until July 17, 1974, and the trial court’s failure to accord the right of allocution was found erroneous, the judgment was modified to allow credit for 3 Vz months pretrial incarceration reducing the punishment to 14 years, 8 Vz months in each case.

John A. Fogleman, Justice.

In his petition for rehearing appellant has called our attention to matters in the record which were not made known in the abstract of the record in this case and could only have been detected by an examination of the entire record, a practice in which we do not engage, and will not initiate, in ordinary felony cases. The facts pointed out by appellant, however, move us, in the interest of justice, to modify our original opinion in one respect.

We said that we could not say the failure of the trial court to follow Ark. Stat. Ann. § 43-2303 (Repl. 1964) was prejudicial on the record before us. This was because we could not say that appellant was in pretrial incarceration from the time of his original arrest until he was sentenced or, if so, that this was solely because of his indigency. We now feel that the only reasonable inference to be drawn from the record is that appellant was held in pretrial incarceration from April 3 until July 17, 1974. Officer Randall testified that warrants in all three cases were issued on April 3 and served on Tate, who was already in jail. There is nothing in the record to indicate that Tate had been placed in jail on any charge other than these. Endorsements appearing under Tate’s name on the informations in these cases recite “in Pulaski County jail.” The court’s order appointing the public defender on June 3, 1974, recites that the defendant “is currently residing in the Pulaski County jail”. The judgments recite that Tate appeared by the public defender and that he was in custody of the sheriff on July 17, 1974, when he was sentenced.

We have previously held that the failure of the court to accord the right of allocution is error and that where he record on direct appeal discloses that this was not done and does not disclose that the court’s denial of credit to an indigent defendant for pretrial “jail time” was the exercise of its judicial discretion, the error is reversible. Smith v. State, 257 Ark. 781, 520 S.W. 2d 301 (1975).

It is not necessary that we reverse the judgment in this case in order to correct this error. This can be done by modification of the sentence on appellate review. It is accordingly ordered that the sentence of appellant be modified to allow credit for 3 '/: months’ pretrial incarceration so that the punishment shall be 14 years, 8V2 months in each case.

Otherwise, the petition for rehearing is denied, and the judgments, as modified, are affirmed.