text:
    Levester COLE v. Bethel COLE
    5-5412
    462 S. W. 2d 213
    Opinion delivered January 18, 1971
    [Rehearing denied February 15, 1971.]

      Sharpe ir Wilkinson, for appellant.

      Carrold E. Ray and Robert J. Donovan, for ap-pellee.
   John A. Fogleman, Justice.

The administrator of the estate of Joe Cole, Jr. brings this appeal from a judgment of the probate court that appellee Bethel Cole was the lawful widow of appellant’s decedent and entitled to the widow’s statutory interest in his estate. The judgment was based upon the court’s finding that appellant had not overcome the presumption of validity of a second or subsequent marriage. We find that the preponderance of the evidence does not support the judgment.

Joe Cole, Jr., who died May 11, 1968, and Bethel Cole (nee Williams) participated in a marriage ceremony on July 23, 1962, in Lee County, Arkansas, where appellee had resided all her life. She had previously been married to Jesse Ratliff on September 11, 1948, also in Lee County. She bore two children by Ratliff — one born before their marriage and one after. In March, 1949, they were separated. On October 29, 1950, Ratliff married Leona Morry in Lee County.

Appellee testified that she never filed a divorce suit against Ratliff. She thought that she was divorced when she signed a document labeled “Divorce Papers” brought her by Ratliff soon after their separation. Ratliff testified that he never got a divorce from ap-pellee in Missouri, where he resided from the time he left Lee County in 1950 until 1959, and from 1962 until he testified on April 23, 1969, or in California, where he resided during the intervening period. He also testified that he never attempted to get a divorce anywhere except in Lee County, where he took steps to do so shortly after he and appellee were separated. He said that he thought he was divorced from appellee when he entered into the second marriage. He based his supposition on the fact that he had delivered some “divorce papers” signed by appellee and by two witnesses to a lawyer in Marianna, whose name he could not recall. Although he said the lawyer agreed to handle the matter from there on, stating that no further action by Ratliff was necessary, he also testified that the lawyer never advised him that he was divorced. He never saw a divorce decree. He said that he never paid the lawyer anything, but understood that his “foreman” would pay the necessary expense.

The Deputy Circuit Court Clerk having supervision of the records testified that she had searched them and found that no suit for a divorce had been filed by either Jesse or Bethel (Williams) Ratliff and that there was no decree divorcing them. Her method of searching the docket for evidence of the filing of a suit was so meticulous that it included checking the case numbers to determine that none was missing. Appellee admitted that she never received any papers evidencing a divorce. She said that Ratliff told her she was signing a divorce when he brought the papers to her. •

The presumption of validity of a marriage is one of the strongest in our law. See Sims v. Powell, 245 Ark. 493, 432 S. W. 2d 838. Yet, if it is not overcome by evidence that there is no divorce decree of record in the only county in which either party ever made an attempt to institute proceedings, it becomes virtually an ir-rebuttable presumption, a result not indicated by any of our decisions. Appellee suggests two possibilities that she contends are not foreclosed by the evidence. The first is that the suit might have been instituted in the name of a guardian or next friend of Jesse Ratliff since he was only 18 years of age on the date of the marriage to appellee. But the deputy clerk’s testimony was that there was no record of a decree, and her check of the docket sheets for the filing of a suit is certainly very strong evidence that this suit was never filed in any form. The second possibility is based upon the premise that, immediately after the separation, Ratliff was in Cleveland, Ohio, for about three months and that his local attorney might have acted in association with another attorney in obtaining an Ohio divorce. The only testimony suggesting the possibility of Ratliff’s having been in Ohio was that of appellee, who admitted that she did not know that Ratliff went there, but only knew that his father said that he did. Ratliff did not mention Cleveland in relating his movements after the separation. Even if he did go there, his testimony that he never attempted to get a divorce anywhere except in Lee County was unequivocal and eliminates this possibility.

A reversal would, then, be clearly indicated if ap-pellee’s principal reliance to sustain the judgment were not based upon Ark. Stat. Ann. § 55-109 (1947). This issue was raised in the trial court, but apparently was not considered by the probate judge. This statute provides:

In all cases where any husband shall abandon his wife, or wife her husband, and resides beyond the limits of this State for the term of five (5) successive years, without being known to such person to be living during that time, their death shall be presumed, and any subsequent marriage entered into after the end of said five years (5) shall be as valid as if such husband or wife were dead.

There is evidence upon which it might be said that, after Ratliff’s second marriage, he resided beyond the limits of this state for more than five consecutive years, without being known by appellee to be alive. The presumption of validity of the second marriage was overcome by proof that Ratliff was alive and that neither had obtained a divorce. Watson v. Palmer, 219 Ark. 178, 240 S. W. 2d 875. This being so, the burden of proof of the facts necessary to bring appellee within the protection of the statute by a preponderance rested upon her. See Baxter v. Baxter, 232 Ark. 151, 334 S. W. 2d 714. The primary requisite to application of the statute was abandonment of her by Ratliff. She was required to show by a preponderance of the evidence that his separation from her was without consent or justification. Watson v. Palmer, supra. We do not find a preponderance of the evidence to sustain her burden.

Appellee testified that Ratliff just walked off and left her and went to his daddy’s house (in Lee County) where he stayed for at least three months. He never visited the children or contributed to their support. She never sought to obtain any support for herself or her children, or made any inquiries about the granting of the divorce or provisions of the decree. Even though the circumstances might be said to make her failure to inquire of minor significance, the fact remains that she never made any inquiries of relatives of Ratliff, who had lived in the same county, or of anyone else as to his whereabouts, for support purposes or any other, even though Ratliff had lived in Lee County nearly all his life prior to 1950. Appellee testified that her son had gone to St. Louis to visit her sister and called upon his father while there. The time of this visit is not fixed.

Appellee’s conduct in signing the “divorce papers” brought to her by Ratliff was just as consistent with her consent to the separation as with abandonment. It is also consistent with recognition of grounds for divorce in favor of Ratliff. When asked if she knew what grounds for divorce Ratliff was using, she acknowledged that he was getting a divorce from her and that she had no objection. Ratliff’s testimony indicated that the separation was by mutual agreement. Her willingness for Ratliff to obtain a divorce without contest and her failure to ever make any effort to file a suit for divorce or alimony for herself tend to negate her present contention that his “walking off” was without either consent or justification, so that we cannot say that the evidence preponderates in her favor.

The judgment is reversed.

       Although there is a division of authority, some courts hold that one cannot be without knowledge whether a former spouse is living without having made appropriate inquiry. See Alixanian v. Alixanian, 28 Misc. Rep. 638, 59 N. Y. S. 1068 (1899); Day v. Day, 216 S. C. 334, 58 S. E. 2d 83 (1950). Contra, Moody v. T. H. Hays & Sons, 189 Tenn. 666, 227 S. W. 2d 20 (1950)


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    M. V. HATCHETT et ux v. Edward A. CURRIER Jr. et al
    5-5399
    461 S. W. 2d 934
    Opinion delivered January 18, 1971

      Dorothy Dixon Hatchett, for appellants.

      John B. Driver, for appellees.
   Conley Byrd, Justice.

Appellants M. V. Hatchett and Dorothy Dixon Hatchett brought this action to enjoin obstruction of a public road by appellees Edward A. Currier, Jr. and Nell Currier, his wife, through their tenants, appellees Lloyd D. South and Mrs. South. Appellees Andrew J. Galbraith and Reva W. Galbraith, his wife, were made parties because they are the vendors in a contract of sale to the Curriers. The trial court found that the easement on, and the right of appellants and the public to use, the old public road along Archey Creek across the Currier’s land still exist. However, he permitted the Curriers and their tenants to maintain as many as three gates on the road, two to be kept closed at all times but not locked, and enjoined upon the appellants the duty to close the gates and instruct others to do so. The trial court dismissed the cause as to the Galbraiths, assessed the costs incident to them against appellants and denied any damages against the Cur-riers and Souths for obstructing the road. For reversal appellants contend that the trial court erred in allowing appellees to maintain gates on the road without compliance with Ark. Stat. Ann. § 41-2102 (Repl. 1964); in requiring appellants to close two of the gates and to instruct others to do likewise; in failing to grant a mandatory injunction requiring restoration of the road that was plowed up; in denying damages to appellants; and in assessing the costs incident to the Galbraiths against appellants.

The proof here shows that the county court on Oct. 4, 1904, set up road districts according to political townships and designated Hartsuggs Township as district No. 12. On Oct. 31, 1904, J. M. Firestone was approved as overseer of Hartsuggs Township and the road in question was classified as a first class road in district No. 12, Hartsuggs Township. A number of witnesses past 70 years of age testified as to the use of the road as a mail route and by the public from the time of memory until approximately two years before trial. Such evidence certainly supports the chancellor’s findings that the road in question was a public road. See Howard v. State, 47 Ark. 431, 2 S. W. 331 (1886). We point this out because the appellees take the position that the chancellor gave appellants more relief than they were entitled to even though no cross-appeal was taken from the trial court’s finding of the public nature of the road.

Appellants point out that pursuant to Act 662 of 1923 (Ark. Stat. Ann. § 41-2102), it is made unlawful for any person to erect or maintain a gate across a public highway unless provisions be made for the passage of automobiles and trucks without the necessity of opening a gate. In Massee v. Schiller, 243 Ark. 572, 420 S. W. 2d 839 (1967), we made the same requirement with respect to an easement acquired by adverse possession. Insofar as the trial court’s decree did not require construction of cattle guards to permit the passage of automobiles or trucks without opening the gates, we hold that it was in error. Since cattle guards will obviously give appellants the relief they seek, we can find nothing objectional about requiring them to close the gates to the side of the cattle guards and instructing others to close such gates on those occasions when they have reason to by-pass the cattle guards.

The only evidence in the record about the portion of the road that was plowed up is that before it was plowed up it constituted two tracks across an open field. According to the record, that area is planted in an improved pasture such as fescue. Under these circumstances we can find no abuse of discretion in failing to require the appellees to restore the plowed up portion of the road because appellants can still drive over that portion as easily as before.

The record shows that Mr. and Mrs. Andrew J. Galbraith were made parties only because title to the property was still in their names. The Galbraiths had nothing to do with closing the road or obstructing the passage of appellants and the public. Under our long established rule, see Jones v. Graham, 36 Ark. 383 (1880), that in equity the burden of costs is always subject to the discretion of the chancellor and does not necessarily fall upon the prevailing party, we find no error in the trial court’s refusal to assess costs against the Galbraiths.

The issue of damages against the Curriers and the Souths actually gets down to nominal damages, because no monetary damages were shown. The proof does show however that the Curriers, through their tenants, the Souths, denied appellants free access to their property from June 1968 to the date of the trial. Under such circumstances some damages are always presumed to follow from the violations of any right. Therefore the law will in such cases award nominal damages if none greater be proved. Under the circumstances we hold the trial court should award nominal damages in the amount of $50.00.

Reversed and remanded with directions to enter a decree consistent herewith.


author: Frank Holt, Justice.

text:
    Clarence McPEACE and Mattie CARTER v. STATE of Arkansas
    5532
    462 S. W. 2d 212
    Opinion delivered January 18, 1971
    [Rehearing denied February 15, 1971.]

      O. W. (Pete) Wiggins, for appellants.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellants were charged by information with first degree murder. The charge was later reduced to second degree murder. A jury having been waived, the trial court found appellants guilty of manslaughter and imposed on each a two-year sentence in the State Penitentiary. From that judgment comes this appeal which challenges the sufficiency of the evidence to support appellants’ convictions. In deciding this issue, we review the evidence in the light most favorable to the appellee; and if there is any substantial evidence to support the judgment, we must affirm. Houpt v. State, 249 Ark. 485, 459 S. W. 2d 565.

The evidence presented at trial disclosed that prior to the fatal shooting, appellant Mattie Carter was present with the deceased and several other persons at a cafe owned by her son, appellant Clarence McPeace. Earlier that afternoon the deceased and some other patron of the cafe had been in a fight which resulted in the breaking of several dishes and glasses. Appellant McPeace, who was engaged in outside employment, did not arrive at his cafe until later in the afternoon at which time the deceased came up to him, apparently offering to pay for the damaged utensils. An argument erupted between the two which precipitated the shooting.

Eyewitnesses for the State testified that appellant Carter approached the arguing men, drew a pistol from her purse, “stuck” the gun in the deceased’s chest and fired several shots; that the deceased then ran from the cafe and that appellant McPeace followed him and shot at him several times. A sheriff’s deputy testified that his investigation revealed that deceased “had two bullet holes in his chest and one in his back.” The coroner testified that four bullets penetrated the deceased’s body; that he only found and removed two of them; and that the primary cause of death resulted from' a bullet wound in the chest. Apparently this bullet was not recovered. A ballistics expert testified that one of the extracted bullets came from a pistol, Serial No. 34032 (which was taken from appellant Carter), and that the other bullet came from another pistol, Serial No. 98073 (which was found in the possession of appellant McPeace).

Self-defense was asserted by appellants. They adduced evidence that the deceased instigated the argument and then started shooting at appellant McPeace who necessarily returned the fire. There was evidence that appellant Carter, who did not testify, fired “twice into the ground to break it up.” Also, that either one or two pistols were found on the person of deceased where he fell outside the building. However, the State elicited testimony that the deceased neither produced a gun nor made any threats prior to being shot by appellant Carter and that the deceased was retreating from the cafe when he was shot by appellant McPeace.

Viewing the above evidence in the light most favorable to the appellee, we cannot say as a matter of law that the trial court erred in discounting appellants’ claim of self-defense and finding appellants guilty of manslaughter. See Cooley v. State, 213 Ark. 503, 211 S. W. 2d 114 (1948). Indeed, the evidence in the case at bar would have supported a conviction of a higher degree of homicide. Therefore, as we said in Patrick v. State, 245 Ark. 923, 436 S. W. 2d 275 (1969), the appellants here are in no position to complain as to the sufficiency of the evidence.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Gloria Fay SHAW (Morrow) v. Homer Kello SHAW
    5-5426
    462 S. W. 2d 222
    Opinion delivered January 25, 1971

      Omar Greene and Thorp Thomas, for appellant.

      Jack Yates, for appellee.
   Carleton Harris, Chief Justice.

This appeal involves the custody of James Kello Shaw, five year old son of Gloria Fay Shaw (Morrow), appellant herein, and Homer Kello Shaw, appellee. Mr. Shaw was granted a divorce from Mrs. Shaw on January 15, 1968, and the custody of James Kello was awarded to both parents, each to have the custody and control for six months of the year until the child became of school age. Appellee was directed to pay the sum of $15.00 per week as child support during each whole or partial week in which the child was in the custody of Mrs. Shaw. In September, 1969, Mr. Shaw filed a motion to modify the decree, asserting that his ex-wife refused to permit him to talk with his child by telephone or otherwise contact him during the time she had custody; that appellant’s husband, James Morrow, had attacked him at a time when he was trying to see the child; that it would be to the best interest of the child for appellee to be given complete custody. Mrs. Morrow answered, denying the allegation and asking that full time custody be given to her. On trial, after hearing a number of witnesses, the court found that Mr. Shaw had been deprived of freedom of contact with the child; that continued controversy arose between the parties, including personal difficulties of violence with appellant’s present husband, all occurring in the presence of the child. The court further found by the testimony “that the environment, as well as the activities of this defendant, are not conducive to being in the best interest of the minor child. Further, the defendant lives in an apartment complex and is employed, having to leave the minor child in a kindergarten or with other persons. On the other hand, the plaintiff has other minor children in his home which is near to the home of his parents where the minor child of the parties has resided for a portion of his lifetime, and this is in a rural community with an environment of churches, family life, and wholesome farm life, and all of which lends itself for better growth and development of minor child concerned. In addition, the plaintiff’s present wife did not work when the minor child lived with the plaintiff prior to this hearing and would not work if the child were again in their home, so that this child would have a normal home family life at all ümes. ”

Custody was accordingly placed with the father, subject to the right of reasonable visitation to the mother at all reasonable times, including one weekend per month from Friday afternoon at 5:00 p.m. until Sunday afternoon at 5:00 p.m., and for a period of two weeks during the first half of the summer months and two weeks during the second half of the summer months. From the decree entered in accordance with these findings, appellant brings this appeal. Several points are asserted for reversal but all except one relate to the court’s findings, previously set out, which the appellant contends were erroneous. The additional point relates to a purported report of the welfare department, this matter arising because of a statement by the court at the conclusion of the testimony and before the final decision, “I’m going to have the child welfare department investigate the homes of everyone concerned”. Appellant says that this report was not a part of the record, not submitted to the appellant, and that she had no opportunity to refute or introduce testimony, if same should be deemed necessary.

We see no need to detail the evidence offered by the parties. Mr. Shaw, an employee of Arkansas Louisiana Gas Company, stated that his wife and her husband had an unlisted telephone number at their residence, which prevented him from talking with his son over the telephone; that his ex-wife had given him her office telephone number and that at times he talked with the boy there; that apparently James Kello was frequently taken to the office; that on one occasion, when he took the child to appellant’s home to turn him over for the six months she was to have custody, Mr. Morrow accused him of not paying child support, of calling Mrs. Morrow “bad names”, and appellee said that he was given a physical beating by Morrow. Shaw stated that it was necessary that he go to a doctor after the physical altercation. Shaw further testified that his ex-wife used vile language in the presence of the child, and cursed him (appellee) in the boy’s presence. On the other hand, Mrs. Morrow testified that she obtained the unlisted number because her ex-husband, or some member of his family, had been calling the child at all hours of the night, and that Shaw would curse her and call her vile names over the telephone; that after conversations with his father, James Kello would be highly upset. She said that her husband had told Shaw that he was going to have to stop calling her foul names, and that on the occasion of the fight, ap-pellee had “invited” Morrow out into the yard where the fight took place. Appellant complained that on several occasions appellee would not let her visit with the child when she went there to see him, and each parent stated that the child did not want to stay with the other.

Some facts seem to be definitely established. Shaw has also remarried and his present wife has a child by a previous marriage, and the ShaWs also have a child of their own. Mr. Shaw’s parents live about half a mile from their son and his wife, and she (the elderly Mrs. Shaw) has kept the children when the two were working. Mrs. Homer Shaw stated that she had worked during the period when her husband did not have custody of James Kello, as a matter of helping him meet the support payments, but she did not work when he had custody of the boy, and would quit her job if he were given the absolute custody. Reverend John Holt, pastor of the church attended by the Shaws, testified that appellee was very active in his church, and regularly attended with his wife and children.

Mrs. Morrow and her husband have an apartment in Little Rock, where they are employed by Life and Time, Inc., Family Publication Service. Mr. Morrow is sales manager of Arkansas and Mrs. Morrow is employed as secretary and assistant manager. During the time when the Morrows had custody of James Kello, he was left at a nursery while they were at work. Admittedly, appellant fell in love with Morrow while she was still married to Shaw, having met Morrow while in school at Arkansas Vo-Tech, appellant being enrolled for a course in cosmetology at the time. Admittedly, she knew that Morrow was also married and the father of two children. After becoming divorced, appellant lived with Morrow in Little Rock as husband and wife for a month or two before marriage.. Her stated reason was “because I loved him, and at the time he wasn’t able to obtain his divorce and we did move in together and lived together”. In fact, Mr. and Mrs. Roe Neal, the couple who “stood-up” with them when they were married, both testified that previous to the marriage they thought appellant and Mr. Morrow were already married, Mrs. Neal stating that they already lived at the same address, and went by the name of Mr. and Mrs. Morrow at work and “every place”. Appellant used Mrs. Neal’s rings when she was married.

Mr. Neal also testified that on one occasion, Mrs. Morrow (before her marriage) called his wife and said that her husband was leaving to go out to a dub, “he was going drinking that night” and wanted to know if Mrs. Neal could visit with her. He took his wife to the Morrow Home and his wife went upstairs, but returned screaming that appellant was hollering “I’m going to kill myself”; appellant had a “bunch of pills, and she was hollering that if Jim didn’t love her — if she couldn’t have him, nobody else could get him, and she was going to take those pills”. He said that he finally got the pills away from her. Mrs. Morrow denied any intent to commit suicide, stating “Well, during this time I was away from my child and wasn’t getting to see him. When I did call and talk to him I was being harrassed and everything, and my nerves were upset. I was taking a light sedative”.

Be that as it may, we certainly cannot agree that the chancellor’s findings were incorrect. This is not to say that one cannot do wrong, and later change for the better. We do think however that this evidence was pertinent to the custody issue, inasmuch as the events mentioned occurred only about eighteen months before the custody hearing. Entirely aside from that however, it would appear that the child would be in more suitable surroundings with his father. There, according to the evidence, he would be looked after during the day by appellee’s second wife, it being remembered also that his grandparents live in close proximity to the Shaw home. Also, he would be living with the two children heretofore mentioned. Mrs. Morrow herself testified that “Mr. Shaw is a good daddy to his child”. She said that he worked and provided for James Kello and was good to him. Her only criticism was “He didn’t give the child the time that I thought he should have”. It definitely appears from the evidence that the welfare of the child would be best served with the custody in the father.

Nor can we agree that appellant’s second point contains merit. It is true that we will attach no weight to undisclosed information that rests only in the breast of the trial judge, Grumlin v. Gray, 246 Ark., 635, 439 S. W. 2d 290. However, that case is not applicable here. In the first place, there is nothing in the record to indicate that any investigation was ever made, or report submitted to the court, and it may well be that the chancellor did not follow through on his statement mentioned at the outset of this opinion. But there is a more important reason why the point is without merit, the same reason set forth in the case of Nance v. Nance, 226 Ark. 682, 292 S. W. 2d 74. A like objection was made there also, but after reviewing the evidence, this court said:

“But in the case at bar we find it unnecessary to make any ruling concerning Act 184 of 1955 or the reports in this case, because this Court holds that the decree of the Chancery Court is correct in all matters, even entirely excluding the said reports.”

Here too, after reviewing the record, we hold that the order placing custody in appellee was entirely correct.

Affirmed.


author: George Rose Smith, Justice.

text:
    Ernest Neil BOGAN v. ARKANSAS FIRST NATIONAL BANK OF HOT SPRINGS
    5-5429
    462 S. W. 2d 203
    Opinion delivered January 25, 1971

      Hamilton, Kane if Kane and Glover if Sanders, for appellant.

      Kelly if Gambill and Rasmussen if Hogue, for ap-pellee.
   George Rose Smith, Justice.

In February, 1970, J. E. Miller and Marie Wright filed a petition in the Garland probate court, asking that the appellee bank be appointed as guardian of the person and estate of the petitioners’ sister, Ella Carson Bogan, who was asserted to be mentally incompetent. The petition was resisted by the appellant, Mrs. Bogan’s husband. Bogan asserted, first, that his wife was not incompetent, and second, that he rather than the bank should be named guardian if such an appointment were found to be necessary. After a hearing the probate court granted the original petition and appointed the bank as guardian of Mrs. Bogan’s person and estate.

Bogan asserts four points for reversal. The first three are so interlaced that we will discuss them together: (1) The court erred in allowing Dr. Yohe to give privileged testimony; (2) the court erred in failing to give preference to Bogan, the husband, in its selection of a guardian; and (3) the court erred in holding that because Bogan did not testify at the hearing his qualifications were not established.

We need state only the salient facts. Mrs. Bogan was a wealthy resident of Oklahoma when she and the appellant were married in 1964, a few days after they first met one another. She was 84 years old; he was 53. After some six years of marriage, about which few details appear in the record, the couple came to Hot Springs, Arkansas, where Mrs. Bogan was placed in a nursing home, apparently by her husband.

Bogan wanted to effect the sale of a valuable piece of property owned by his wife, but there was a question about her mental capacity to enter into the proposed contract. The administrator of the nursing home, presumably with Bogan’s approval, requested Dr. Yohe to examine Mrs. Bogan to see whether she was mentally competent. At the trial Dr. Yohe, over Bogan’s objection, testified in part as follows:

I would find her highly incompetent. . . . There is a certain apathetic quality about her, a certain perplexity, that I think is born out of a lack of comprehension of what goes on around her. Her memory for remote and recent events seems just about nil. She is always disoriented . . . She never seems to know where she is, not the building, nor the town, nor the state. She does not seem to know whether it’s day or night . . . She does not seem to know the purpose of why she is in the hospital, if she even realizes she is in the hospital. She certainly doesn’t know the date nor the year. Judgment, I’d say, is about nil at this point. ... I’d certainly call her incompetent. . . . [S]uch a profound mental deficiency would have to have been in existence for quite a few years. I think she was certainly incompetent five years ago and almost certainly ten years ago. I think this took a-long time in the building.
“Q. Would you say that there is any hope for improvement?
“A. No.”

“The court was right in holding Dr. Yohe’s testimony to be admissible. Under our statute a physician cannot be compelled to disclose “any information which he may have acquired from his patient while attending in a professional character and which information was necessary to enable him to prescribe as a physician.” Ark. Stat. Ann. § 28-607 (Repl. 1962). We have consistently held that the privilege extends only to information that was necessary to enable the physician to prescribe for his patient. Edwards v. State, 244 Ark. 1145, 429 S. W. 2d 92 (1968); Burris v. State, 168 Ark. 1145, 273 S. W. 19 (1925). Dr. Yohe merely examined Mrs. Bogan for the purpose of determining her competency to enter into a contract. He did not treat the patient nor prescribe for her.

The appellant argues, however, that Dr. Yohe was a licensed psychologist, so that the applicable statute makes the privilege as broad as that between attorney and client. Ark. Stat. Ann. § 72-1516 (Repl. 1957). It does not clearly appear that Dr. Yohe was a psychologist within the purview of the statute, but even if that showing had been made the attorney-client privilege extends only to communications made to the attorney by his client “in that relation.” Ark. Stat. Ann. § 28-601. It seems plain that the legislature, in adopting the earlier statute by reference, intended to confine the privilege to communications made in the. relationship of physician and patient. Thus we see no essential difference between the statute applicable to physicians in general and the one applicable to psychologists. We consider Dr. Yohe’s testimony to have been admissible under either act.

With respect to points (2) and (3), the pertinent statute confers upon the husband no absolute right to the appointment; “rather, the statute leaves it to the Court to select that person as guardian, the appointment of whom would be for the best interests of the incompetent.” McCartney v. Merchants & Planters Bank, 227 Ark. 80, 296 S. W. 2d 407 (1956), construing the governing statute: Ark. Stat. Ann. § 57-608 (Supp. 1969). Bogan did not testify at the hearing, nor is there any other proof about his qualifications to act as guardian. Consequently we find no error in the trial court’s selection of the bank as the guardian of Mrs. Bogan’s estate — a position for which the proof shows the bank to be qualified.

There is merit, however, in the appellant’s remaining point for reversal; that is, that the bank should not have been appointed as guardian of Mrs. Bogan’s person. The two parallel provisions of the Probate Code draw a clear distinction between a natural person and a corporation with reference to a guardianship of the ward’s person:

"a. A natural person, a resident of this state, twenty-one or more years of age, of sound mind, not a convicted and unpardoned felon, is qualified to be appointed guardian of the person and of the estate of an incompetent.
# # #
“d. A corporation authorized to do business in this state and properly empowered by its charter so to do is qualified to serve as guardian of the estate of an incompetent.” Ark. Stat. Ann § 57-607.

Moreover, a corporation is not well suited to the performance of the duties imposed by the Probate Code upon a guardian of the person. Sections 57-624 and 57-625. We accordingly conclude that the trial court was in error in naming the bank as the guardian of Mrs. Bogan’s person.

We affirm that part of the judgment appointing the bank as guardian of Mrs. Bogan’s estate and that part of the judgment rejecting Mr. Bogan’s application to be appointed as guardian in either capacity. We reverse that part of the judgment appointing the bank as guardian of Mrs. Bogan’s person and remand the cause for the selection of a suitable natural person for that position.


text:
    J. A. RILEY v. Thomas F. SHAMEL et al
    5-5432
    462 S. W. 2d 228
    Opinion delivered January 25, 1971

      R. W. Laster, for appellant.

      Smith, Williams, Friday & Bowen, for appellees.
   George Rose Smith, Justice.

The appellant brought this action to recover for personal injuries and property damage sustained by him in a collision between his half-ton truck and an automobile owned by one of the appellees and being driven by the other. The case was submitted to the jury, which returned a $5,000 verdict for the plaintiff. Despite the verdict in his favor Riley filed a motion for a new trial, asserting that the amount of the verdict was unconscionably small and patently insufficient to compensate him for his total damages. This appeal is from an order overruling the motion for a new trial.

In most respects the case is governed by our holding in Smith v. Ark. Power & Light Co., 191 Ark. 389, 86 S. W. 2d 411 (1935). There, as here, the plaintiff appealed from a $5,000 verdict and judgment, asserting that amount to the inadequate. ;We recognized two principles that are pertinent to the case at bar: First, when the undisputed proof shows that the plaintiff is entitled to substantial damages, an award of nominal damages only will be set aside, because such a judgment is in effect a refusal to assess damages. Secondly, when substantial damages are awarded, the judgment will not be reversed because of inadequacy, if there is no error other than that of the jury in measuring the damages.

For reversal Riley first invokes the first of the two rules, contending that an award of $5,000 is nominal in view of the extent of his injuries. That argument is unsound. In the Smith case we held that an award of $5,000 is substantial rather than nominal. We adhere to that view. Nominal means "in name only; not real or actual.” Webster’s New International Dictionary (2d ed., 1934). Of course there has been a great decrease in the value of the dollar during the 35 years since the Smith case was decided, but it still cannot be realistically said that $5,000 — a sum far in excess of the average annual per capita income in Arkansas — is merely nominal.

Alternatively, the appellant seeks to escape the impact of the second rule mentioned above, by contending that the trial court committed error in submitting to the jury the theory of comparative negligence, it being contended that there is no substantial evidence of any negligence on the part of Riley. A complete answer to that argument is that Riley’s attorney at the trial, who was later replaced by his present counsel, requested the instruction on comparative negligence, AMI 2102. Consequently Riley is not in a position to urge that the giving of the instruction was error. Home Co. v. Lammers, 221 Ark. 311, 254 S. W. 2d 65 (1952). True, here the court made a slight modification in the instruction as it was requested, but the change was favorable to Riley and, furthermore, was not objected to.

We need not detail the evidence of the plaintiff’s asserted damages. The proof contained such conflicts and contradictions that, in view of the controlling statute, we find no abuse of discretion in the trial court’s refusal to set aside the verdict. Ark. Stat. Ann. § 27-1902 (Repl. 1962); Webb v. Lacefield, 244 Ark. 492, 426 S. W. 2d 154 (1968).

Affirmed.


author: Lyle Brown, Justice.

text:
    Bernice BAUCOM, individually and as natural Guardian and next friend of Leonard Johnson, a Minor v. THE CITY OF NORTH LITTLE ROCK
    5-5433
    462 S. W. 2d 229
    Opinion delivered January 25, 1971

      Herrod & Cole, for appellant.

      Teague, Bramhall, Davis ér Plegge, for appellee.
   Lyle Brown, Justice.

Bernice Baucom, individually and as natural guardian of her minor son, Leonard Johnson, brought suit against the City of North Little Rock for injuries sustained by the boy while playing upon a piece of city equipment. The case was tried under the theory of attractive nuisance. The jury returned a verdict in favor of the minor. The court promptly set the verdict aside and entered judgment for North Little Rock. Appellant contends that a motion for judgment notwithstanding the verdict was not made, and that the court erred in its application of the law as applied to the case at bar.

On the day in question, the minor, Leonard Johnson, accompanied by a cousin about the same age, decided to go to a large field near Baring Cross Bridge in North Little Rock to play football. The bridge traverses the Arkansas River. The city runs a large pipe to the river, through which pipe flows sanitary and storm sewage. The pipe ends about twenty-five feet short of the usual water line. At the end of the pipe the city installed on a concréte block about eight by ten feet a piece of equipment about eight feet in height. The equipment is used to close the sewage pipe when the river floods, thereby preventing a back flow into the sewer system. The valve can be closed mechanically by turning a wheel, or it can be shut electrically. The switches which control the motor are housed in a metal box set on the concrete block and near the turning wheel. To protect the switches from the weather and from pilferage they are made secure by a metal door which is intended to be kept locked. On that day the door was apparently standing open, which made the switches available to anyone who wanted to activate the motor. When the equipment is activated, either mechanically or by hand, a large cog wheel, setting upright on top of the concrete block, turns. It is made to turn by means of a pipe connected to the manual wheel and the motor. That pipe has cogs on the end and the cogs fit into the large cog wheel.

Leonard Johnson was the only witness who testified to the incident giving rise to the lawsuit, and we summarize his description of the event which caused the injury. Leonard and his playmate decided to stop at the sewer lock to rest before continuing on to the ball field. There they decided to “ride the cogs.” Both boys punched the buttons on the electrical switch box but the motor did not start. Leonard stood on top of the large cog in his tennis shoes and “rode” around the circle as his playmate operated the turning wheel. Suddenly the motor became activated and Leonard’s foot was caught between the large cog wheel and the cogs on the iron pipe. He received injuries to three of his toes, two of which had to be amputated.

The first impression would be that the playmate reached over and pushed the starter button, but the playmate denied to Leonard that he touched the button; nor did Leonard see him do it. It would be speculation to say that the playmate did start the motor; also, it is just as probable that when the two boys first punched the buttons it set in a delayed action that erupted when Leonard’s foot was caught in the mechanism.

Recovery was sought on the basis of attractive nuisance. North Little Rock defended on the ground that Leonard assumed the risk. Those respective theories were submitted to the jury under AMI 304 (Ordinary Care of a Minor) and AMI 612 (Assumption of Risk).

At the close of appellant’s testimony, appellee moved for a directed verdict and the court announced the motion would be held in abeyance. Appellee rested its case after putting on one witness. After the instructions, closing arguments, and deliberation, the jury returned its verdict in favor of the minor appellant. Thereupon the court announced to the jury that “on the basis of what I believe to be the applicable law upon motion of counsel for defendant for a judgment notwithstanding the verdict by the jury, judgment will be entered for the defendant.” The court explained that he “had this thought at the time the motion was made at the close of the plaintiff’s case.” Continuing, the trial judge explained that instead of granting the motion for a directed verdict at that time, he permitted the trial to be fully completed; then “if the supreme court says my interpretation of the law is wrong, that these facts were sufficient to present a jury question,” the appellate court could, without the necessity of ordering a new trial, direct the trial court to enter a judgment for the plaintiff, Leonard Johnson.

Appellant’s first point for reversal is that the trial court erred in entering a judgment n.o.v. without a specific motion therefor by opposing counsel. It is clear to us that the trial court reserved its ruling on the motion for a directed verdict and that, after the jury returned, the motion was treated as a motion for judgment n.o.v. Although the better procedure, for sake of clarity, may have been for the appellee to have specifically moved for a judgment n.o.v., we see no error in the method used by the trial court; in fact that procedure was not objected to at the time. This court has recently, and more than once, approved the rule that the test for granting a motion for a directed verdict and the test for granting a motion for judgment n.o.v. are the same, namely, the substantial evidence test. Moreover, we have held that when a jury verdict has been received, the court may enter a judgment n.o.v. if there is no substantial evidence to support the verdict. Edwards v. Epperson, 246 Ark. 194, 437 S. W. 2d 480; Spink v. Mourton, 235 Ark. 919, 362 S. W. 2d 665 (1962); Stanton v. Arkansas Democrat, 194 Ark. 135, 106 S. W. 2d 584 (1937).

Finally, it is insisted that the court was in error in holding that Leonard Johnson was not entitled to the benefit of the attractive nuisance doctrine. The trial court explained that the doctrine was essentially reserved for children of tender years but that the factors of age, intelligence, and experience should be considered in any given case to determine if that particular minor acted as a reasonably careful child of the same age and intelligence would have acted. The trial court correctly stated the basic tests. Garrison v. St. Louis, 1. M. & S. R. Co., 92 Ark. 437, 123 S. W. 657 (1909); Gates v. Plummer, 173 Ark. 27, 291 S. W. 816 (1927); Garrett v. Ark. P. & L. Co., 218 Ark. 575, 237 S. W. 2d 895 (1951); Williams v. Gilbert, 239 Ark. 935, 395 S. W. 2d 333 (1965). Leonard Johnson’s age at the time of the mishap was fourteen years and nine months. He was in the ninth grade, made average grades, and lettered in football. He passed to the tenth grade notwithstanding he missed some school because of the injury. At the time of the trial he was in. the tenth grade and making good marks. His answers to questions were very responsible, intelligent, and evinced an alertness that is ofttimes not shown by adult witnesses. Viewing the evidence in the light most favorable to the minor, we agree with the trial court that the appellant minor was not entitled to the special consideration commonly given a child of tender years.

Affirmed.

Jones J., dissents.


text:
    Milton NELSON v. STATE of Arkansas
    5539
    462 S. W. 2d 452
    Opinion delivered January 25, 1971
    [Rehearing denied February 15, 1971.]

      Brown, Compton, Prewett & Dickens, for appellant.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant Milton Nelson was convicted of voluntary manslaughter for the fatal shooting of Joe L. Robinson, Sr. Appellant admits the killing but asserts that the evidence clearly establishes a case of self-defense. Appellant also attacks the admissibility of certain testimony, alleges prejudicial remarks by the prosecuting attorney, and contends that the court erred in refusing one of appellant’s instructions.

On the particular Saturday night in question there were three separate fights in quick succession in a settlement in El Dorado known as St. Louis. It appears that appellant interceded in an effort to stop the second fight, warning the participants to “cool it” because he thought it was about time for the police to drive through the area. Joe Robinson, Sr., (who was an onlooker at the fight) was said by several witnesses to have responded to appellant by warning him not to meddle in the fight. Following that remonstrance appellant started in the direction of his car. Most of the eyewitnesses testified that Joe Robinson followed appellant up the street. The two men engaged in a scuffle and Anton Robinson, son of Joe Robinson, attempted to come to the aid of his father. Some witnesses said Anton had a brick in his hand. Appellant shot Anton and he fell unconscious; then appellant shot Joe Robinson at close range, the bullet entering the body at a point just under the left shirt pocket. When the officers found the gun it was under a nearby hedge covered by grass and leaves.

Appellant testified that at the scene of the second fight he made a remark “that we should not be fighting each other, that we should be fighting for the betterment of our community.” Thereupon, he said, Robinson pushed appellant backward; that a friend of appellant suggested that they go home; and that the two headed west up Liberty Street toward appellant’s car. Before reaching his car, appellant said he heard a commotion back of him and turned to find that Joe Robinson was charging him. “He got my left hand. When he caught my hand I tried to break his grip but I couldn’t. I wasn’t successful, and I kept struggling and all the time he was holding he was getting closer, you know, so I fired. I fired in the air because I didn’t really want to shoot him, so I fired in the air. . . . But he didn’t stop. He didn’t turn me loose or anything, so by this time he had gotten me by my elbows, and I was — I guess I was just totally overwhelmed by fear, so the next shot, I just fired and hit him. ... He kept on struggling. And at this time, his son Anton was approaching, coming up behind his father, and just as I looked up, he . . . was about five feet or less, and so he was going to throw the bricks, so I shot again and the bullet struck Anton.” Appellant saw nothing in Joe Robinson’s hands; in fact no witness testified that Robinson was ever seen with a weapon that night.

Several of the State’s witnesses corroborated appellant’s assertion that Robinson was the aggressor. There was also evidence that Robinson was at times a belligerent person and appellant testified he knew that reputation. Those factors weighed in favor of appellant’s plea of self-defense. But they are not sufficient within themselves to sustain the plea. Appellant was required to use all reasonable means within his power and consistent with his safety to avoid the killing. Peters v. State, 245 Ark. 9, 430 S. W. 2d 856 (1968). It must also reasonably appear to an accused that he is in immediate danger of losing his life or receiving great bodily injury. Whether this appellant conformed to those basic requirements was of course a jury question. At least two of appellant’s friends were with him and by their actions showed their willingness to help. Appellant was a well-built young man of the age of twenty-one years. Unquestionably, Robinson was much older because the record shows he had two grown sons. Of all the fightings and scuffling which took place- in St. Louis that night, only those men who were shot by appellant appear to have been hurt. If any person other than appellant wielded a gun that night, it is not shown in the record. Appellant admittedly took the gun from the glove compartment when he parked and concealed it “in the crevice of my back, in my belt.” There was no evidence that Robinson had a weapon of any kind. The recited circumstances are not in harmony with a self-defense plea and were sufficient to justify the jury in rejecting the plea.

One, and possibly two, of the State’s witnesses quoted appellant as saying, at the time he tried to stop the second fight, “what’s the use of all these black people out here fighting black people, while the white man is the one that’s doing us wrong, so why don’t we find a quarrel against them.” Appellant contends that the recited testimony was calculated to inflame the minds of the jury and of course to his prejudice. In the first place, the witnesses had a right to recite their version of what was seen and heard by them. The appellant was privileged to, and did, deny having made the statement. In the second place, no objection was made at the time the testimony was offered.

In the third point for reversal it is charged that the prosecuting attorney, in his closing argument, made numerous references to appellant’s alleged assertion that “you should be fighting the whites instead of each other.” Appellant contends that the remarks were calculated to evoke racial prejudice and thereby make a fair trial an impossibility. No such remarks are found in the record before us and we cannot consider the point.

Finally, we are asked to reverse because of the trial court’s refusal to give appellant’s instruction number eleven. The instruction is so phrased as to hardly be understandable to a jury of laymen; moreover, the subject matter was appropriately covered in the court’s instructions twelve and thirteen.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Victoria SAUNDERS v. Larry ADCOCK et al
    5-5413
    462 S. W. 2d 219
    Opinion delivered January 25, 1971

      Howell, Price, Howell ér Barron, for appellant.

      Langston ir Langston, for appellees.
   John A. Fogleman, Justice.

The circuit court dismissed a garnishment issued against the clerk of the court and directed him to pay certain funds against which the garnishment was directed to the attorney for appellees. Appellant Victoria Saunders asserts that the court erred in not conducting a hearing pursuant to Ark. Stat. Ann. § 31-508 (Repl. 1962) to determine whether an assignment of the funds held by the clerk to the attorney for appellee Larry Adcock was a fraudulent conveyance and asserts that the assignment was invalid as a purchase of the subject matter of litigation by the attorney conducting it.

Appellant sued Larry Adcock for divorce. Adcock was represented by attorney Carl Langston. As a part of a settlement of property rights, Langston delivered Ad-cock's check for $2,750 to appellant or her attorney. Adcock had insufficient funds in the bank on which the check was drawn for its payment. Sometime later Ad-cock asserted a claim against Globe Indemnity Company for a fire loss. Suit was brought in his behalf by Langston. During the pendency of the suit one Robert Tanner and others made some attempt to intervene. An agreement was made that if Adcock was successful in his suit, his share of the proceeds would be held in the registry of the court until this claim against it was settled. As a result of a settlement of Adcock’s claim, a consent judgment for $4,000 was entered against Globe Indemnity Company. That judgment directed that the draft for its payment be made payable to Adcock and delivered to the clerk who was directed to hold it until such time as the intervention was filed. Globe objected to paying the judgment into court, and demanded that the judgment be satisfied.

On January 5, 1970, the consent judgment was modified to permit Langston’s law firm to retain the sum of $2,000 as its fee in the matter and to deposit the remaining $2,00Q with the clerk of the court to be held until further order of the court. Globe then paid the entire $4,000 to Langston & Langston, and the judgment was satisfied. On the date of the modification of the judgment, Adcock executed an assignment of the remaining $2,000 to Carl Langston for a stated consideration of $1 and other valuable considerations. This assignment was placed of record on February 9, 1970.

Tanner and the other parties who had sought to intervene actually filed an independent action in which they took a nonsuit on February 18, 1970. Langston wanted to withdraw the remaining $2,000 in the registry of the court at that time, but the circuit judge thought that the fund should be held for 30 days longer in order that these intervening parties might decide whether they wanted to file a new action, so Langston agreed. On March 11, 1970, their attorneys advised Langston that they would not do so. On March 10, appellant had filed this suit on the check against Adcock. She also filed allegations that the clerk of the court was indebted to Adcock in the sum of $2,000 held by order of the court and purportedly assigned to Langston. She alleged that the assignment was a device to defraud creditors.

The clerk’s answer was a denial that he was indebted to Larry Adcock in any sum for the reason that the sum of $2,000 held by him had been assigned by Ad-cock to Langston. Appellant filed a reply denying the allegations in the clerk’s answer, and asserting that the assignment was void under Ark. Stat. Ann. § 68-1302 (Repl. 1957) and because the assignment attempted to convey the subject matter of litigation to the attorney conducting the litigation. At the hearing, the accuracy of the allegations of the clerk’s answer was admitted by appellant’s counsel, but it was asserted, nevertheless, that the assignment was invalid for the reasons alleged. The court found that the allegations contained in the answer of the garnishee were true and correct, that the writ of garnishment did not reach a debt which the defendant had already assigned to another.

The hearing was conducted in rather an informal manner. Langston appeared on behalf of the garnishee and Adcock. No pleading was ever filed in the case by Langston, nor was any step taken to make him or his law firm parties to the action. Most of the facts stated hereinabove were stipulated through a conversation joined in by the circuit judge, appellant’s attorney and Langston. Langston made an oral, unsworn statement with reference to the circumstances under which the assignment was made. He stated that on the date of the assignment Adcock was indebted to his law firm in the sum of $1,130.60 for services rendered in proceedings on suits pertaining to liens asserted against Adcock. He also said that Adcock disapproved of his agreement to leave his part of the recovery from Globe in the court’s registry and demanded an advance. Langston said that he then satisfied Adcock by giving him a check for $1,000, that his partner John Langston later advanced Adcock another $500, and that Adcock executed notes for the advances in both instances, agreeing that the funds in the hands of the clerk would be security for the advances.

The circuit judge, in announcing that he desired to take the matter under advisement, inquired whether the record should be rested on the premise that Langston had made advances to Larry Adcock in a total sum of $1,-500. Appellant’s counsel responded that he could not dispute that he had made advances but still .contended that the assignment was void. When the judge stated that he wanted all the facts in the record, appellant’s attorney agreed to stipulate with reference to the checks and notes referred to by Langston if the latter wanted to leave them with the court. Langston later dictated a statement into the record with reference to other legal services rendered by his firm and that -they had not been paid for their services in the Tanner suit.

The circuit court held that the fund in the clerk’s hands did not become subject to garnishment because there had been no order to pay to Adcock the $2,000 held. We do not agree with the circuit judge in this respect. Under Ark. Stat. Ann. § 51-118 (Repl. 1962), a fund subject to control and disposition by a court, and not by any of the parties, is subject to garnishment, even though there has been no order to pay the fund to the debtor. The garnishment has priority over the garnishment debtor’s subsequent assignment of his interest in the fund (Green v. Robertson, 80 Ark. 1, 96 S. W. 138), but not over a prior assignment. See Lawrence v. Ford Motor Credit Company, 247 Ark. 1125, 449 S. W. 2d 695.

The circuit court, however, held that Adcock was not asserting any claim to the fund and that there were no circumstances under which it could ever enter a judgment ordering the payment of the funds to him. This holding appears to have been based upon the assignment to Langston. It was on that basis only that the circuit judge ordered the fund paid to Langston & Lang-ston. The order was made without prejudice to appellant’s right to pursue the funds in the hands of Langston & Langston on the ground that they were not the property of the Langstons but were held for the use and benefit of Adcock. The correctness of this holding depends upon appellant’s right to have the court determine the questions raised by it in the pleadings relating to the garnishment.

The question actually turns upon the right of appellant to attack the assignment under Ark. Stat. Ann. § 31-508 (Repl. 1962). We have held that when the action in which the garnishment is issued is in equity, and all claimants to the funds subject to garnishment are before the court, the question of fraudulent transfer by the garnishment debtor may be raised in determining the rights of the garnisher and the respective claimants to the fund. Southern Lumber Co. v. Riley, 224 Ark. 298, 273 S. W. 2d 848. On the other hand, the question may not be tried where the action is at law and all the parties are not before the court, even though the fund might be subjected to the payment of a debt to the garnisher in another proceeding. Himstedt v. German Bank, 46 Ark. 537. The latter rule is applicable here, and the action of the trial court proper unless we find merit in appellant’s contention that the assignment is void because it is in violation of the Code of Professional Responsibility, governing the practice of law, adopted by this court by per curiam order of February 23, 1970.

The code admonishes against the acquisition of a property right by an attorney that would tend to make his judgment less protective of the interests of his client or the acquisition of a proprietary interest in his client’s cause or a financial interest in the outcome of litigation and discourages monetary advances by the lawyer to the client. It even subjects the lawyer to disciplinary action for violation of disciplinary rules in that regard. Still, the code does not purport to protect anyone except the client in these matters and does not even purport to render such transactions void. Canon 5, EC 5-2, 5-3, 5-7, 5-8, DR 5-103, Code of Professional Responsibility. We find no merit in the contention. Even if it be said that there was a violation of the code, this fact, standing alone, would not invalidate the assignment.

The judgment is affirmed.


text:
    Wilburn MURCHISON v. STATE of Arkansas
    5520
    462 S. W. 2d 853
    Opinion delivered January 25, 1971
    [Rehearing denied March 1, 1971.]

      Sexton, Wiggins if Christian, for appellant.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Wilburn Murchison appeals from his conviction of second degree murder. His three points for reversal are:

I. The prosecuting attorney denied to the defendant a fair trial by suppressing the fact that Detective Earl Sharp would testify contrary to testimony offered by Detective Floyd Atwell.
II. The prosecutor wrongfully denied to the defendant a fair trial by misquoting statements claimed to have been made by witnesses out of court.
III. The evidence is not sufficient to support the verdict.

We shall take up those points in the order listed:

I.

Detective Floyd Atwell of the Fort Smith Police Department testified that after appellant was arrested on a charge of having murdered one Randall Williams, he made an oral statement to the detective. This statement was that he (Murchison) might have been involved in a fight, and might have stabbed somebody, but that he didn’t kill anyone. Thereafter, the following proceedings ensued:

BY MR. SEXTON:

Q. Detective Atwell, did you testify in this courtroom in a preliminary proceeding attendant to the charge against Mr. Murchison?
A. In a motion, yes, Sir.
Q. On that occasion were you asked about what Mr. Murchison had said?
A. Yes, Sir.
Q. And on that occasion was your answer that he said, “Put anything before me you want to, I’ll sign it as long as I don’t get more than sixty years, because you’ve already beat my brains out anyway?”
A. Something similar to that.
#.U. TT
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Q. Would you tell me as near as you can what you recall that he said?
A. Yes, Sir.
Q. Tell me as near as you can recall what you testified that he said.
A. In regards to giving a statement with reference to the incident, Mr. Murchison stated to type up anything that we desired and that he would sign it as long as it didn’t carry over sixty years.
Q. Did he say why he would?
A. No, Sir.
Q. Did you tell the Court in the prior proceeding that he said you had already beaten his brains out anyway?
A. Yes, Sir, he did.
Q. He made that accusation at that time, did he not?
A. Yes, Sir, he did.
Q. As a matter of fact, you had had him by the hair of the head down at the Detective Office, banging him around, hadn’t you?
A. No, Sir.
Q. Who was in the room?
A. Mr. Murchison, Earl Sharp and myself.
Q. Was Mr. Sharp always in the room with you and Mr. Murchison?
A. To the best of my knowledge, yes, Sir.
Q. Was there a time when you and Mr. Murchison were in the room by yourselves?
A. Not to my knowledge, no, Sir.
Q. Are you saying that there may have been and you don’t recall it?
A Not to my knowledge.
Q. Who else was present when Mr. Murchison made this oral statement?
A. Myself, Mr. Murchison, Earl Sharp.
Q. Earl Sharp was there?
A. Yes, Sir.
MR. SEXTON: Mr. Prosecutor, may I inquire if you are going to call Detective Sharp?
MR. THOMPSON: We hadn’t anticipated calling him.
MR. SEXTON: Do you have him under subpoena?
MR. THOMPSON: He’s under subpoena, you may call him if you want to.
# # #
Q. I want to ask you again, Detective Atwell, was there ever a time when you and Mr. Murchison were alone in the basement of the Police Station?
A. Not to my knowledge.
Q. Not to your knowledge?
A. No, Sir.

This issue was raised by appellant’s motion for new trial, wherein it was alleged that the prosecuting attorney wrongfully suppressed information in his possession that Detective Earl Sharp had denied that appellant had made any admission as to stabbing any person.

The record reveals that the trial occupied the better part of two days. Detective Atwell testified on the morning of the second day. A morning recess was called by the circuit judge immediately after Atwell left the stand, which was only a very few minutes after appellant’s attorney’s inquiry about Detective Sharp. The state rested its case as soon as Atwell left the witness stand. Appellant then called two witnesses whose testimony was completed before the noon recess was called at 11:35 a.m. The defendant and one other witness testified after the noon recess, after which the jury was instructed, the arguments of counsel made and the jury verdict returned after deliberation.

At the hearing on the motion for new trial Detective Earl Sharp was called as a witness by appellant and testified substantially as follows:

I was present in the detective bureau on the night Wilburn Murchison was arrested and charged with murder. He did not to my knowledge state in my presence that he might have been involved in a fight and that he might have stabbed somebody, but did not kill anyone. Numerous people were in the room while Murchison was there. Detective Atwell was primarily charged with questioning Murchison. I was present when Murchison was removed from the detective bureau and taken upstairs to be put in the jail. I was in his presence almost continuously from the time he was brought in until the time he was taken upstairs. I was subpoenaed as a witness to appear at the prosecution of Murchison and was in attendance during the first day of the trial. The next day was my day off and I didn’t want to come to court unless I had to. I was told to call the next morning. Around 10:30 the next day I called Charles Karr, who told me that the state had rested its case and was not going to use me, but that I would have to stay available in case the defense called me. Karr then asked me if I had heard Murchison make a statement that he might have stabbed someone but didn’t kill anyone. I had never been asked this question prior to this time by anyone. I told Karr that I didn’t hear Murchison make this statement. About 7:00 p.m. on that day, after the trial was over, Murchison’s attorney asked me if I was in the room with Atwell and Murchison continuously. I told him I was not, but that if I was out of the room it was only for a few minutes to go over to the radio room to get the time and complaint number for my reports, and talk to a witness or something to that effect. I also told him that I had told Karr the same thing. No one in the prosecuting attorney’s office knew what my testimony would be in this respect until I talked with Karr after the state had rested its case. While I was in the room with Atwell and Murchison, I was typing statements and completing paper work. It is possible that Murchison could have made a statement that I did not hear, while concentrating on this work or during one of my brief absences from the room. I do not deny that such a statement was made. I do not know whether it was made or not.

It was stipulated that: Karr reported that Sharp had stated that he did not hear the statement attributed to Murchison to another deputy prosecuting attorney who was participating in the trial; that numerous officers, witnesses and persons were about while Atwell and Murchison were in the room; that a former chief of police employed as an investigator by appellant’s attorney sought to contact Sharp following Atwell’s testimony but reported to the attorney in midafternoon that he had been unable to do so.

At this hearing, the prosecuting attorney stated that he told appellant’s counsel that Sharp’s testimony would be cumulative. In the closing argument appellant’s attorney argued to the jury that if Sharp would corroborate Atwell the prosecuting attorney would have had him present. The prosecutor replied that the defense had the same subpoena power as the prosecution and if there was anything anyone would have said favorable to the defendant, he would have had him present. Appellant made no effort to subpoena Sharp, to request a recess or continuance or to request that Detective Sharp be made available. The trial judge found that there was no wilful suppression of evidence by the prosecuting attorney and denied the motion for a new trial.

In many respects there is a rather close analogy between a motion for new trial upon the ground that evidence was suppressed and one upon the ground of newly discovered evidence. In both instances, the primary focus of the inquiry is to determine whether, in light of the circumstances, the defendant has been deprived of a fair trial by the unavailability to him of the particular testimony. See Jackson v. Wainwright, 390 F. 2d 288 (5th Cir. 1968); United States v. Wilkins, 326 F. 2d 135 (2nd Cir. 1964); Kyle v. United States, 297 F. 2d 507 (2nd Cir. 1961); Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); The Duty of the Prosecutor to Disclose Exculpatory Evidence, 60 Columbia Law Review 858, 863 (1960).

In making such inquiries, on a motion based on newly discovered evidence, critical points considered are the nature of the testimony, the diligence of the movant in regard to obtaining the testimony and its probable effect on the outcome of the trial. Whittaker v. State, 175 Ark. 1172, 294 S. W. 397; Freeman v. State, 238 Ark. 804, 385 S. W. 2d 156; Steel v. State, 246 Ark. 75, 436 S. W. 2d 800; Gross v. State, 242 Ark. 142, 412 S. W. 2d 279. Whenever a litigant alleges that his right to a fair trial is prejudiced by his being deprived of particular testimony, as, for example, in motions for continuance, the party’s diligence in the matter, the materiality of the testimony, and its probable effect at the trial are pertinent subjects of inquiry. Striplin v. State, 100 Ark. 132, 139 S. W. 1128.

Testimony which tends only to impeach other testimony is not grounds for a new trial for newly discovered evidence. Freeman v. State, supra; Cooper v. State, 246 Ark. 368, 438 S. W. 2d 681. In Smith v. Urban, 245 Ark. 781, 434 S. W. 2d 283, we clearly recognized that the bearing of the suppressed evidence upon the question of guilt or innocence was an important circumstance for consideration. This holding is consistent with our distinction between cases where the newly discovered evidence merely tends to impeach the credibility of a witness (as was the case in Steel) and where the newly discovered evidence overthrows the essential evidence upon which the conviction rested (as was the case in Smith v. Urban). Whittaker v. State supra; Bussey v. State, 69 Ark. 545, 64 S. W. 268.

Whenever a motion for new trial is based upon a matter which requires evaluation of the fairness and impartiality of the trial or its ultimate result because of that ground, we have uniformly held that a wide latitude of discretion must be accorded the trial judge and that we will not reverse his action unless there has been an abuse of that discretion resulting in a miscarriage of justice. This has been the case where the basis of the motion was misconduct in the courtroom [Pixley v. State, 203 Ark. 42, 155 S. W. 2d 710] or statements of counsel in argument [Peters v. State, 248 Ark. 134, 450 S. W. 2d 276; Holcomb v. State, 203 Ark. 640, 158 S. W. 2d 471]; denial of change of venue [Walker v. State, 241 Ark. 300, 663, 408 S. W. 2d 905, cert. denied, 386 U. S. 682, 87 S. Ct. 1325, 18 L. Ed. 2d 403, reh. denied, 387 U. S. 926, 87 S. Ct. 2027, 18 L. Ed. 2d 987 (1967)]; denial of a continuance [Fisher v. State, 241 Ark. 545, 408 S. W. 2d 894, cert. denied, 389 U. S. 821, 88 S. Ct. 43, 19 L. Ed. 2d 73 (1967)]; as well as newly discovered evidence [Cooper v. State, supra.]

The allowance of this discretion rests upon the superior opportunity of the trial judge to observe the effects of the particular factor to prejudice a defendant’s right to a fair trial in the light of the circumstances, viewing the trial as a whole. Head v. State, 221 Ark. 213, 252 S. W. 2d 617; Peters v. State, supra; Birmingham v. State, 192 Ark. 1095, 96 S. W. 2d 773; see also Striplin v. State, 100 Ark. 132, 139 S. W. 1128; Freels v. State, 130 Ark. 189, 196 S. W. 913.

This case does not involve failure of the prosecution to make disclosure upon request or the use of perjured testimony, or evidence which tended to implicate another as the offender. It is also unlike Smith v. Urban, supra, in most respects. Important factors there considered but absent here were the poverty and ignorance of the defendant and his representation by appointed counsel, who had neither facility nor time for investigation, the nature of the evidence suppressed as bearing directly on defendant’s guilt, and the relative importance of the testimony of a witness whose credibility would have been directly attacked. There the principal witness for the prosecution, an alleged accomplice of the defendant, had originally given officers a confession exculpating the defendant. As indicated in a review of authorities in Smith v. Urban, the determination whether a prosecuting attorney in a criminal case must disclose evidence in his possession favorable to the accused depends upon many factors, and a case by case judgment must be made. See also U. S. v. Wilkins, 326 F. 2d 135 (2nd Cir. 1964) The factors involved here clearly distinguish this case from Smith v. Urban, supra. Since the variable factors weighing upon the necessity for disclosure by the prosecution must be decided upon a case by case basis, it is appropriate that the trial court have some latitude of discretion in determining whether a new trial should be granted on the ground of suppression of evidence.

Appellant assumes that Atwell was referring to Murchison’s statement about having stabbed someone when he stated, in response to his question on cross-examination, that Sharp was present. A review of that cross-examination set out above casts some doubt upon that assumption. When the question is read in context, it would be reasonable to assume that the examiner, in asking who was present when Murchison “made this oral statement,” was inquiring about the remark of Murchison that because of a beating by the officer he would sign any typed statement that didn’t carry over 60 years.

Sharp’s testimony would not have necessarily conflicted with that of Atwell. Sharp does not deny that Murchison made the statement, as appellant alleged in his motion. Atwell qualified his answers as to Sharp’s continuous presence in the room as being limited to his knowledge. Sharp’s explanation of temporary absences from the room and his concentration on typing statements and reports in a room full of officers, witnesses and other people shows clearly, not only that Murchison may well have made statements not heard by Sharp but, that Sharp’s absences from the room might not have been noticed by Atwell.

We cannot say that appellant was sufficiently diligent in his attempts to ascertain whether such a statement was known to Sharp to be able to claim that he was deprived of material evidence by the state’s suppression. He was plainly advised that Sharp was under subpoena and might be called by him. For some reason which appellant has not chosen to disclose, a search for Sharp was abandoned as soon as his attorney’s investigator reported that Sharp was taking his day off. No report or request was addressed to the court, the prosecuting attorney or to Sharp’s superiors after this information was brought to appellant’s attorney’s attention during the course of the trial. Appellant’s at-tomey contented himself with inquiring of the detective after the adverse result of the jury trial and after having elected to seek to exploit the state’s failure to offer Sharp as a witness as indicative of the incredibility of Atwell’s testimony. The failure of this obvious tactical decision apparently produced the pursuit of the present strategy. At any rate, the availability of testimony to a defendant through his own investigation or inquiry is a relevánt consideration. U. S. v. Wilkins, 326 F. 2d 135 (2nd Cir. 1964); People v. Rosenberg, 59 Misc. 2d 1, 297 N. Y. S. 2d 860 (1969), aff’d, 34 A. D. 2d 961, 313 N. Y. S. 2d 651 (1970); State v. Longo, 132 N. J. L. 515, 41 A. 2d 317 (1945), aff’d, 133 N. J. L. 301, 44 A. 2d 349; Jordon v. Bondy, 114 F. 2d 599 (D. C. Ct. App. 1940). See also Boucher v. Warden, 5 Md. App. 51, 245 A. 2d 420 (1968); United States v. Lanza, 329 F. 2d 422 (2nd Cir. 1964).

We agree with appellant that his rights are not determined on the basis of the prosecuting attorney’s good faith or lack of it and that a request for information by a defendant is not indispensable to his assertion that evidence was wrongfully suppressed. We also agree with those courts which have held that the question is one of fundamental fairness depending in large measure upon the facts of the particular case so that a precise rule cannot be laid down. People v. Rosenberg, supra. Failure of the prosecution to disclose every shred of evidence in its possession which an accused construes as favorable is not necessarily reversible error. People v. Rosenberg, supra.

In view of the availability of Sharp’s testimony to appellant, the questions arising as to want of diligence of defendant and his employed counsel, the failure of Sharp’s testimony to actually contradict that of Atwell, the time when, the information became known to the prosecuting attorney, and the sufficiency of the evidence to support a conviction without Atwell’s testimony- as to the alleged incriminating statement by appellant (as will be presently demonstrated), we cannot say that the failure of the prosecuting attorney to disclose his information about Sharp’s failure to hear the incriminating statement was of such serious consequence that the denial of a new trial for that reason constituted an abuse of the trial court’s discretion.

Appellant has premised his argument, in part, upon DR 7-103b of the Code of Professional Responsibility. This section reads:

A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or the defendant, if he has no counsel, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, negate the degree of the offense, or reduce the punishment.

This code has been adopted by this court. Its precepts should be scrupulously regarded by all practitioners. Yet, even if the prosecutor here should be said to have violated this rule, a reversal for that reason alone is not indicated. A new trial should never be granted as a means of discipline of counsel. See Patton v. Minneapolis St. Ry. Co., 247 Minn. 368, 77 N. W. 2d 433, 58 A. L. R. 2d 921 (1956). We must rather view all the circumstances and determine whether a violation of such rules has, alone or in conjunction with other factors, so effectively deprived an accused of a fair trial as to violate the requirements of due process of law. We cannot say that this has occurred in this case. Although appellant contends that the prosecutor’s argument emphasized the alleged suppression and this magnified its prejudicial effect, we view the statement as only responsive to appellant’s argument. This is a circumstance which the trial judge must have considered along with all the others in exercising his discretion.

II.

Appellant’s second point for reversal is based upon the assertion that the prosecutor wrongfully denied appellant a fair trial by misquoting statements claimed to have been made by witnesses out of court. We do not understand the basis for this argument. It is based upon an assertion that the prosecuting attorney on seven occasions misquoted a statement made to the police by Ray Murchison, a brother of appellant, shortly after the incident leading to the charge against appellant.

The statement contained the following:

Something attracted my attention around to Wilburn and the man that got stabbed was — and I saw the man holding his chest and he staggered back. The man fell down and then he got up and then I looked around for Wilburn and I could not find him.

Appellant quotes the following question by the prosecuting attorney on cross-examination of Ray Murchison as typical of the alleged misquotation, to-wit:

* * * standing with your back to the bandstand, your back to Wilburn and Randall — that you didn’t say that, “Something attracted my attention around to Wilburn and the man had got stabbed and I saw the man holding his chest and he staggered back.”

We simply do not understand how it can be said that there was any prejudicial misquotation involved here.

III.

Appellant also contends that the evidence was not sufficient to support the verdict. This argument is based upon the contentions that there are numerous contradictions in the testimony of the state’s witnesses and that the testimony tends to more clearly implicate Ray Murchison than Wilburn Murchison.

The resolution of conflicts and inconsistencies in the testimony was for the jury. Mondier v. State, 210 Ark. 933, 198 S. W. 2d 177; Tiner v. State, 109 Ark. 138, 158 S. W. 1087. It was for the trial court on review on motion for new trial to determine whether the jury’s action was contrary to the evidence. Cameron v. State, 13 Ark. 712; Oliver v. The State, 34 Ark. 632. We can only say that there is substantial evidence to support the verdict when it is viewed in the light most favorable to the state, and this is the extent of the scope of our review. Slinkard v. State, 193 Ark. 765, 103 S. W. 2d 50; Higgins v. State, 204 Ark. 233, 161 S. W. 2d 400; Ashcraft v. State, 208 Ark. 1089, 189 S. W. 2d 374; Wootton v. State, 232 Ark. 300, 337 S. W. 2d 651; Finley v. State, 233 Ark. 232, 343 S. W. 2d 787; Ballew v. State, 246 Ark. 1191, 441 S. W. 2d 453.

It would serve no useful purpose to detail all the testimony of all the witnesses. There was evidence tending to show that:

Randall Williams was sitting in a booth near the bandstand in Harold’s Club with James Irvin, Shirley Ann Horton and Karen Taylor on the evening he was killed. Appellant, his brother Ray, a brother Roy, appellant’s wife, his father and other members of the Murchison family arrived at the night club around 7:00 p.m. A fight took place somewhere inside the club between Williams and Roy Murchison. The fight was broken up by the managers of the place and Williams returned to the booth still occupied by his companions. Wilburn Murchison walked to this booth somewhere between five and thirty minutes after the fight. He was wearing a hat on this evening. Ray Murchison either accompanied or followed appellant to the booth. Wilburn asked Williams either what had happened or if he was the one who had stomped his brother. Ray Murchison was standing behind appellant and either confronted or was talking to James Irvin. Almost immediately thereafter there was a scuffle, and Williams fell toward the bandstand. Appellant’s wife came and got him, and they and other members of the Murchison family left the club and the premises rather hurriedly. Ray Murchison turned when Wilburn’s wife approached and saw that something had happened to Williams. After Williams fell, he was picked up and put on a pool table, where he lay moving and groaning when Officer Curtis Balch arrived at the scene. There was blood on Williams’ coat when he was picked up. No one other than appellant ever touched Williams before he fell. Elmo Griffin, an employee of Harold’s Club, heard appellant say about 15 minutes after the first fight that he’d kill the s_ of_ b_ before the night was over if it would do any good. Afterwards Griffin was almost run over by the Murchisons leaving the premises in a car. Griffin next saw appellant about 12:30 in a “joint” in Moffett, Oklahoma, drinking beer. Appellant said “Elmo, you ain’t seen me.”
W. C. Gilliam, a deputy sheriff of Sequoyah County Oklahoma, who arrested appellant at the Red Tank in Moffett, found an opened knife in his right rear pocket. The officer noticed blood or something red on the blade. He delivered the knife to Atwell.
An autopsy on Williams’ body revealed a stab wound in the left chest PA centimeters in length and about 3 inches deep with gaping edges about 2 inches below the border of the left nipple, which was the cause of death. The substance on the knife appeared to the physician who performed the autopsy to be blood, but its quantity was insufficient for a conclusive test. The knife found on appellant had a blade 1.6 centimeters wide and 3 inches long plus or minus 1/16 of an inch. A slash in Williams’ coat measured 1.5 centimeters in length.

Appellant admitted going to the booth where Williams was seated, but said he merely advised Williams of his intention to see that his brother would not cause Williams further trouble. He claimed to have had the knife open in his back pocket when arrested because he had been using it in an effort to open a can of beer. He admitted having worn the hat exhibited while at Harold’s Club but said that he did not have it on when he went to the Williams booth.

This evidence was perhaps sufficient to have sustained a conviction of first degree murder. It was certainly sufficient to sustain a conviction of second degree murder.

The judgment is affirmed.

       A deputy prosecuting attorney who was not participating in the trial.

       It was introduced in evidence and identified by Ray Murchison and Gordon Fugitt. Other witnesses could not identify it and still others described it as being of different colors.

       Irvin was unable to identify appellant or his hat.


author: J. Fred Jones, Justice.

text:
    John BARGER v. STATE of Arkansas
    5558
    462 S. W. 2d 216
    Opinion delivered January 25, 1971

      Robert L. Blount, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

John Barger was 43 years of age in 1963 when he was charged by information filed in the White County Circuit Court with the crimes of forgery and uttering, in that he forged the name of Charlie Imhoff on a check drawn on the American National Bank of North Little Rock in the amount of $99.73, with his own name inserted as payee; and that he uttered the check to K. B. Pannell, knowing it to be forged and fictitious. He entered pleas of guilty to both counts on September 13, 1963, and was sentenced to the state penitentiary for periods of five years on each count, or a total of ten years on both counts.

On November 3, 1969, Barger filed his handwritten petition designated “Petition to Vacate” in the White County Circuit Court, alleging that his constitutional rights had been violated in that he did not have the benefit of legal counsel when he entered his pleas in 1963; and that he was not advised that he had a right to counsel or that counsel would be appointed for him if he was unable to employ one. On July 8, 1970, a hearing was had on the petition in the White County Circuit Court and Barger appeared and testified. The petition was denied by the trial court and Barger has appealed. He relies on the following points for reversal:

“Appellant was not advised of his right to counsel or of his right to have counsel appointed for him, prior to entering his plea, and appellant did not waive these rights.
Appellant established a prima facie case in his behalf which was not overcome by a preponderance of the evidence. In fact there was no evidence to rebut this. Positive testimony of the witness must govern where other witness or witnesses have no recollection of facts in issue.”

No record was made of the proceedings when Barger entered his pleas of guilty in 1963, only six months after the now familiar decision of the United States Supreme Court in Gideon v. Wainwright, 372 U. S. 335. Many criminal trials and pleas of guilty had intervened during the six years between Barger’s pleas of guilty and his hearing on the petition for post-conviction relief and the trial court judge was forced to rely on his own memory of exactly what was said and done when the guilty pleas were accepted, as opposed to Barger’s memory of only one case in which he was the defendant.

Barger was represented by appointed counsel at the hearing on his motion and Barger testified very positively that he was not advised that he had a right to assistance of counsel, and that one would be appointed for him by the court if he was unable to employ one and desired such appointment. The trial judge was unable to remember the details in Barger’s case but did recall that it has always been his regular procedure to inquire of all defendants in criminal cases whether they are represented by counsel or desire the appointment of counsel before accepting pleas of guilty, and the trial judge assumed that Barger’s case was no exception. The only other persons who could shed any light on the matter were the prosecuting attorney and his assistant, and both of them had died between the dates of Barger’s pleas of guilty and the hearing on his motion.

The duties of a trial judge in accepting pleas of guilty were made perfectly clear even before the United States Supreme Court decision in Boykin v. Alabama, 395 U. S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (June 2, 1969). The court in that case, after pointing out that a plea of guilty is more than a confession which admits that the accused did various acts; and after pointing out that a plea of guilty “is itself a conviction” with nothing remaining but to give judgment and determine punishment, said:

“Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U. S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U. S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444. Third, is the right to confront one’s accusers. Pointer v. Texas, 380 U. S. 400, 13 L. Ed 2d 923, 85 S. Ct. 1065. We cannot presume a waiver of these three important federal rights from a silent record.
What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought (Garner v. Louisiana, 368 U. S. 157, 173, 7 L. Ed. 2d 207, 219, 82 S. Ct. 248; Specht v. Patterson, 386 U. S. 605, 610, 18 L. Ed. 2d 326, 330, 87 S. Ct. 1209), and forestalls the spinoff of collateral proceedings that seek to probe murky memories.”

We might add a fourth right which is the right to be represented by counsel. Gideon v. Wainwright, supra.

It is plain from Barger’s petition, and from his testimony, that he is not an illiterate person who did not know the nature of the charges against him and did not know what he was doing when he entered his pleas of guilty. The charges against him were clear and simple. He was simply charged with the statutory offenses of forgery and uttering. The charges were laid in the language of the statute (Ark. Stat. Ann. § 41-1806 [Repl. 1964]), and only involved physical acts and knowledge of same. Barger knew whether he wrote the check to himself and forged Charlie Imhoff’s name as the maker and if he did so, he was bound to have known whether he cashed it. If he wrote and cashed the check, he was bound to have known that the check was forged when it was cashed.

Mr. Barger testified that he had served previous prison sentences in other state and federal prisons for similar offenses, and had never been advised at any of his trials that he had a right to have counsel appointed. He testified that he had a similar charge pending against him in Pulaski County when he entered his pleas in the White County Circuit Court, and that he was taken from the Pulaski County jail to White County for the purpose of disposing of the White County charge at his own request. Barger also admitted that he was released on parole from the penitentiary while serving the White County sentences and was returned to the penitentiary for an admitted parole violation.

At his post-conviction hearing, in the presence of his counsel and under questioning by the court, Barger admitted that he was guilty of the crimes with which he was charged and for which he was sentenced, but he contends that his conviction should be set aside simply because counsel was not appointed for. him.

“THE COURT: . . . Let me ask you one more question, you came into this Court on the 13th and entered a plea of guilty.
MR. BARGER: Yes, sir.
THE COURT: Were you guilty?
MR. BARGER: Yes, sir.
THE COURT: It doesn’t make any difference whether you are guilty or innocent, it's just that a mistake was made in not providing you with a lawyer, isn’t that it?
MR. BARGER: Yes, sir.”

Barger was also charged with three counts of forgery in Pulaski County in July, 1963. He pleaded not guilty to those charges. For reasons not apparent he was not brought to trial during the September, 1963, or the March, 1964, terms of the Pulaski County Circuit Court, and on February 1, 1965, (a day of the September, 1964 term) he entered pleas of guilty and was sentenced to the pentitentiary. On appeal to this court from an adverse decision on motion for post-conviction relief, we reversed because admittedly Barger was never advised of his right to counsel and none was appointed for him. Barger v. State, 242 Ark. 304, 413 S. W. 2d 54. See also Ark. Stat. Ann. § 43-1708 (Repl. 1964). Likewise in the case of McIntyre v. State, 242 Ark. 229, 412 S. W. 2d 826, cited in Barger, supra, the necessary element of intent in connection with the charge of burglary appeared questionable.

In the case at bar Barger testified that about two years after he was committed to the penitentiary, he first learned of his right to have an attorney. He gives no reason at all for his long delay in filing his petition. There is no longer any question as to the duties of a trial judge in accepting pleas of guilty in criminal cases, but as a common sense proposition it does not always and necessarily follow, that constitutional rights are violated in any and all cases, under any and all circumstances, where a plea of guilty is entered by the accused and accepted by the trial court without the assistance of counsel, and without the accused affirmatively stating in so many words, “I do not desire the assistance of counsel.” Bute v. Illinois, 333 U. S. 640; Carnley v. Cochran, 369 U. S. 506.

We conclude that under the evidence of record, Barger’s constitutional rights were not violated in this case.

The judgment is affirmed.