text:
    Billy MEYERS v. STATE of Arkansas
    5677
    479 S.W. 2d 238
    Opinion delivered April 24, 1972

      Thomas D. Ledbetter, for appellant.

      Ray Thornton, Atty. Gen., by Henry Ginger, Deputy. A tty. Gen., for appellee.
   George Rose Smith, Justice.

Upon a negotiated plea of guilty to separate charges of having forged an endorsement upon a check for $942.80 and of having uttered that check, the appellant was sentenced to ten years imprisonment upon each charge, the sentences to run concurrently. Thereafter the appellant filed the present petition for postconviction relief under Criminal Procedure Rule 1. After a hearing at which the appellant testified, the trial court denied the petition. In this court the appellant, by his court-appointed counsel, urges three points for reversal.

The facts which preceded the present petition are not essentially in dipute. In November, 1970, Meyers, an electrician, was performing work as a subcontractor upon a construction job in Carroll county. He owed AMO Electric Supply Company about $900 for materials purchased by him from that company. Meyers received a check for $942.80 payable jointly to his own company and to AMO. Meyers forged AMO’s endorsement upon the check and converted the money to his own use by depositing it in his bank account. That conduct resulted in the charges of forgery and uttering. Meyers does not now contend, and apparently has never contended, that he was innocent of the charges against him. There is nothing in the record to indicate that the State would have had any difficulty in proving its case.

In the original proceeding Meyers was also charged under the habitual criminal statute, as having been convicted of three previous felonies. Those convictions, all of which he admits, were for burglary in Texas, breaking and entering in Missouri, and false pretense in Kansas. Under the habitual criminal statute the penalty for a fourth offense is not less than the maximum punishment for a first conviction for the offense nor more than one and a half times that maximum. Ark. Stat. Ann. § 43-2328 (Supp. 1971). The maximum punishment for forgery and uttering is ten years imprisonment. Ark. Stat. Ann. § 41-1805 (Repl. 1964). Hence Meyers was subject to a term of from ten to fifteen years upon each of the charges.

In the original proceeding Meyers was successively rp resented by three retained attorneys of his own choice. He discharged his first attorney and then tentatively employed John O. Maberry as his second attorney. Meyers now insists that his constitutional rights were violated by Maberry, in that Maberry wrote a letter to Meyers, sending a copy thereof to the prosecuting attorney and to the trial judge, in which the following statements were made:

“I believe your best judgment should compel you to negotiate a guilty plea with the prosecuting Attorney, try to get a recommended 5 to 7 year sentence, have the Missouri and Arkansas charges run concurrently, then take advantage of the State prison’s psychiatric treatment. If, after a year and one-half to two years the prison Doctors consider you improved, it is likely you will be eligible for parole or pardon.
“I have studied your rap-sheet and it is very apparent you, for some reason, can’t refrain from hot checking anyone whose confidence you gain.
“Your personality compels people to like you and want to help you and you seem to have an uncontrolled desire to take advantage of these persons. You are still young enough to overcome your problems and make a fine citizen, if you will open your mind to assist those who would try to help you.”

Thereafter Meyers engaged a third attorney, Paul Jackson, who engaged in plea discussions with the prosecuting attorney. Jackson had hoped to obtain, in return for a plea of guilty, a sentence of from five to seven years and a dismissal of the habitual criminal charges. On the morning of the hearing, however, Jackson explained to Meyers that he had been able to obtain only an agreed recommendation for concurrent ten-year sentences upon each of the two charges, with a dismissal of the habitual criminal charges. Meyers agreed to enter pleas of guilty in accordance with the arrangement negotiated by his attorney.

The matter was submitted to the trial judge as a negotiated plea — subject, of course, to the court’s approval. Meyers’ rights were fully explainable to him by the trial court before the plea was accepted. In the course of the discussion Meyers’ attorney mentioned that there was also a charge (of an undisclosed nature) pending against Meyers in Missouri, the attorney expressing the hope that Meyers might enter a plea to that charge also and let all the sentences run concurrently. The trial judge accepted the negotiated plea and pronounced sentence in accordance with the parties’ recommendation, the habitual criminal charges being dismissed.

Meyers first contends that his second attorney violated his constitutional rights by sending to the trial judge a copy of the letter from which we have quoted and that his third attorney also violated his constitutional rights by mentioning to the judge the pendency of an unspecified charge in Missouri. These contentions are without merit. To begin with, when a criminal case reaches the point at which the accused is to be sentenced, defense counsel is not under any constitutional duty to the accused to conceal facts unfavorable to him. With respect to counsel’s duties at that point the American Bar Association’s Standards for Criminal Justice make this statement: “He [defense counsel] may not, for example, present facts concerning the defendant’s character which would suggest to the judge that the defendant does not have a prior record of crime if he knows that the defendant has such a record and that fact has not been disclosed to the court.” Standards Relating to the Prosecution Function and the Defense Function, § 8.1 b, Commentary (1971). That statement is in harmony with the basic premise that the trial judge, in imposing sentence, should have the benefit of all available information about the defendant, both favorable and adverse. Moreover, even if the communications in question had been improper, no prejudice is shown to have resulted from them. The trial judge simply accepted the sentence recommended by the parties. There is nothing whatever to suggest that his decision would have been different if he had not received the communications now complained of.

Secondly, the appellant contends that the trial court erred in imposing the maximum sentence of ten years upon each charge. The court’s action, however, must be considered in context. Meyers consistently disregards the vulnerability of his position during the plea negotiations. He was guilty of the offenses charged. The State could be expected to obtain without difficulty a verdict of guilty. Meyers’ record included three previous felony convictions. The minimum sentence that a jury could lawfully impose was ten years upon each charge, with the sentences running concurrently. The maximum was fifteen years upon each charge, with the sentences rtmning consecutively. Obviously Meyers and his counsel were not in a favorable position to bargain for leniency. We have no basis for saying that the court abused its discretion in approving a recommendation under which Meyers received the bedrock minimum penalty that could have been imposed by a jury upon a finding of guilty.

Plea bargaining is an accepted procedure in the administration of the criminal law. Cross v. State, 248 Ark. 553, 452 S.W. 2d 854 (1970). In the language of the Standards cited above: "It is appropriate, therefore, to view plea discussions or negotiations as an essential, indeed indispensable, part of the administration of justice. . . Recent studies make it clear. . .that the plea discussions are the norm, not the exception, in the sound administration of criminal law.” Standards, supra, Part IV, Introductory Note. We have no inclination to set aside the trial judge’s action in accepting a plea recommended by the parties when, as here, the negotiations appear to have been fairly conducted.

Thirdly, the appellant argues that his constitutional rights were violated because the postconviction proceeding was presided over by the same judge who imposed the original sentence. Counsel cite no authority for this contention. The point is duscussed in § 1.4 of the Standards Relating to Post-Conviction Remedies (1968). That discussion first points out that the most desirable venue for a postconviction proceeding is in the court in which the challenged conviction and sentence were rendered. The discussion then continues: “Where jurisdiction is vested in the trial courts and venue is determined as in (b) above, neither a general rule favoring nor one disfavoring submission of post-conviction applications to the same trial judge who originally presided is clearly preferable.” The Commentary goes on to state: “The same judge brings to the post-conviction proceeding familiarity with the case or the applicant that may make for more efficient handling. The same judge may be more free in fact to consider or reconsider matters affecting his prior rulings than would a colleague on the bench. On the other hand, there are obvious disadvantages and risks in such a practice. There is a value in seeking determination from a mind not predisposed by prior incidents, and a significant related value that .the arbiter appear not to be predisposed.”

We have recognized the need for a different presiding judge when the one who originally heard the case is biased or, for want of a record of the first hearing, must appear as a witness. Elser v. State, 243 Ark. 34, 418 S.W. 2d 389 (1967); Orman v. Bishop, 243 Ark. 609, 420 S. W. 2d 908 (1967). In the case at hand, however, the petitioner asserts no factual basis for his insistence that the assignment of a new judge is constitutionally mandatory. We find nothing in the record to suggest that Judge Enfield was disqualified from acting upon the postconviction petition. To the contrary, he appears to have treated the petitioner with courtesy and fairness in every particular. The present contention is therefore without merit.

Affirmed:


source: Caselaw Access Project

author: Lyle Brown, Justice. Lyle Brown, Justice.

license: Public Domain

text:
    Gertrude McBROOM et al v. Russell W. CLARK et ux
    5-5791
    480 S.W. 2d 947
    Substitute Opinion delivered April 24, 1972
    Original opinion delivered Fedruary 28, 1972
    [As Amended on Rehearing June 12, 1972.]
    [Rehearing Denied July 17, 1972.]

      W. Gary Kerman and Eugene Coffelt, for appellants.

      Davis Duty, for appellees.
   Lyle Brown, Justice.

The real parties in interest are appellants (plaintiffs below) Gertude McBroom and Henry J. Lauless, Jr.; and Russell Clark and wife, appellees. Appellants brought the action to establish their claim to an interest in their deceased father’s land, as as against a third child and his assigns, the Clarks.

In 1964, Henry J. Lauless, Sr., died intestate owning a four-acre tract of land in Benton County. The estate was administered by the sheriff at the instance of a son, Walter E. Lauless. In 1965 an order was entered in the probate court finding that decedent was survived by only one child, Walter E. Lauless. It was recited that the only other possible living heir was Henry J. Lauless, Jr., but that he was presumed to be dead. The estate was shortly thereafter closed. In August 1966 Walter E. Lauless conveyed the land by warranty deed to appellees, the Clarks.

In September 1970, Gertrude McBroom and Henry J. Lauless, Jr., filed this suit alleging they were daughter and son respectively of Henry J. Lauless, Sr. Bv their petition they sought partition and to have a one-third interest in the lands allocated to each of them. The trial court made extensive findings, which may be summarized as follows:

1. That Russell Clark and wife relied on the orders of the probate court in their purchase of the land;

2. That Ark. Stat. Ann. § 62-2914 (Rtpl. 1971), authorizing the determination of heirship in the probate of estates, contains a self-governing three-year statute of limitations and appellants did not attack the order within the prescribed time;

3. That the claim of the Clarks to fee simple title is deraigned from and depends upon the orders entered by the probate court, and if the orders of the court were not protected by the three-year statute, they were rendered immune from attack by the general five-year statute of limitations. (Ark. Stat. Ann. § 37-213 [Repl. 1962]);

4. That appellants were guilty of laches; and,

5. That appellees, the Clarks, and their predecessors in title have by their occupancy and actions incident to the land, established title by adverse possession.

At the time of the trial Gertrude McBroom was sixty years'of age. She said she had never seen Henry Lauless, Jr., until the trial; that she knew of her other brother, Walter, but had never seen him; and that she had been living in the State of Washington since 1940. She testified that she had not seen her father since 1929 and last corresponded with him in 1957; and that she heard of his death for the first time in 1970.

The husband of Gertrude McBroom testified he learned in 1970 that Henry Lauless, Sr., was living around Rogers, Arkansas, and that since he was on a trip near that área, he made investigation and learned Lauless was deceased. He said he relayed that information to his wife in Washington.

The only other witness to testify was Henry J. Lauless Jr., 36 years of age. He said he learned of his father’s death in July 1968; that at that time he came to Rogers and inspected the court records because he knew his father owned the tract of land; that for the first time he learned that he had been presumed dead and that the land had been deeded to appellees; and that it was two years before he could find a lawyer who would handle his claim to the land. From 1961 until 1968 he said he lived in the area of Cassville, Missouri; that during those years he stepped in the Rogers area several times and visited in the neighborhood of his father. He said the last time he visited his father was in June of 1963. He testified that the last time he had seen his brother, Walter, was some eighteen years prior to the trial. He expressed no cpinion as to whether Walter knew of his whereabouts.

The Clarks offered no evidence.

Appellan ts’ attack on the order of the probate court determining heirship was made more than three years after that determination. The statute authorizing the determination of heirship in the probate of estates is Ark. Stat. Ann. § 62-2914 (Repl. 1971). The probate court order declaring Walter E. Lauless the sole surviving heir was entered in 1965. Appellants’ suit was tiled m September 1970. As to limitation for attack on the proceedings it is provided:

d. The order [determining heirship] shall be conclusive upon all parties to the proceeding having or claiming an interest in said property., subject to the right of appeal, and may be set aside only upon such grounds and under such circumstances and in the manner provided by law for setting aside the final judgment or decree of a court of general jurisdiction; provided that the court rendering said order may, upon the petition of any person not personally served with notice having or claiming an interest in the property involved, filed within three years after the date of the rendition of the order (or in the case of a person under disability or incompetency or being beyond the seas, filed within three years after such disability is removed), for good cause stated in the petition and proved to the satisfaction of the court, vacate or modify the order in so far as it affects the interests of such person.”

We hold that the built-in limitation of three years served to cut off appellants’ attack on the determination of heirship.

This suit was filed more than five years after the vesting: of title bv the court in Walter E. Lauless. So, additionally, the suit was barred by Ark. Stat. Ann. § 37-213 (Repl. 1962). In Hill v. Wade, 155 Ark. 490, 244 S.W. 743 (1922) an order of the probate court erroneously precluded an heir from participation in the estate. We held that the five year statute began to run when the distribution was made. To the same effect see James v. Helmich, 186 Ark. 1053, 57 S. W. 2d 829 (1933). Also, see Negovanov v. Wensko, 248 Ark. 1109, 455 S.W. 2d 929 (1970).

Affirmed.

Byrd, J., dissents.

Amendment to substitute opinion on rehearing delivered June 12, 1972

Appeal from Benton Chancery Court, Ted P. Coxsey, Chancellor.

Lyle Brown, Justice.

In our supplemental opinion on rehearing we held that appellants’ action was barred by both the three-year and the five-year statute of limitations. Upon reconsideration we are of the opinion that the daim of Gertrude McBroom is not so barred. She was not a party to the determination of heirship proceedings and the undisputed testimony showed that she was not aware of her father’s death until 1970. Not being a party to those proceedings, her limitation for filing an action is governed by the statute covering a limitation of action (seven years) for recovery of an interest in land, Ark. Stat. Ann. § 37-101 (Repl. 1962). Gertrude McBroom is therefore entitled to her one-third interest in the land. To that extent the opinion is amended.


author: Lyle Brown, Justice.

text:
    Francis Maxine THOMPSON v. Estate of George W. ORR, DECEASED
    5-5862
    479 S.W. 2d 229
    Opinion delivered April 24, 1972

      Cambiano ér Cree, for appellant.

      Haley, Young, Bogará, & Gitchell, for appellee.
   Lyle Brown, Justice.

This is an appeal from the allowance of the probate of the last will and testament of George W. Orr. The single point for reversal is that the will was executed through mistake, incompetency, and undue influence.

Mr. Orr executed a will dated February 8, 1968. In that will he named as beneficiaries his "beloved friend,” Ruth L. Aday, and Frances Maxine Thompson, the testator’s daughter. With the exception of a small amount of stock in an oar company, the legatees were to share the estate equally. We shall refer to it as the first will. One week later Mr. Orr executed another will, dated February 15. We shall refer to it as the second will. Ruth L. Aday was named to serve as executrix without bond. Mr. Orr’s estate was estimated as being worth $50,000. In the second will the testator bequeathed savings bonds with a face value of $2,750 to his daughter and the balance of the estate to Mrs. Aday.

Mrs. Aday’s first petition for probate referred to the will of February 15 (second will) but she actually filed, through inadvertence, the first will of February 8. When the error was discovered the court permitted her to file the second will and proceed thereunder. Mrs. Thompson took no exception to the first will; her attack was made on the second will. After considerable testimony the attack on the second will was rejected, the court finding that testator had the mental capacity to execute the same and that it was executed free of undue influence. We hold that the findings of the probate court are not against the preponderance of the evidence.

Mrs. Aday, a widow, and Mr. Orr, a widower, resided in North Little Rock. An association between them began some twenty-three years ago and lasted except for a brief interlude of one month, until his death in January 1970. They were constant companions and the undisputed evidence is that they had great affection for each other. They lived as close neighbors. He would eat one or two meals most every day with Mrs. Aday and would spend most every evening with her. Each had a married daughter, one living in Oklahoma City, and the other in Memphis. The couple made many trips to those cities on visits. The families of the two daughters were very devoted to the unmarried couple. It is uncertain why Mrs. Aday and Mr. Orr did not marry. Mr. Orr retired from the railroad but kept somewhat active in business affairs. He owned some grazing land, some stock in an oar factory at Conway, and he invested in first mortgages through Block Realty Company.

In 1965 Mr. Orr suffered a stroke which partially incapacitated him physically. It appears that at that time Mrs. Aday began assisting him in business matters. In early 1968 he suffered another stroke and rented a room at Mrs. Aday’s home so she could look after him. There he remained until his death.

Six witnesses testified in behalf of appellant, Mr. Orr’s only child. The competent testimony by which appellant sought to establish undue influence, incompetency and mistake, is scant. Appellant testified that as a result of the first stroke her father’s ability to write and to walk was affected; that her father gave Mrs. Aday power of attorney; that after the stroke Mr. Orr’s mind “would slip, come and go”; that he would repeat a sentence over and over and would not seem to know what he was doing; that this was in 1965. that she knew of no logical reason why her father would leave the bulk of his estate to Mrs. Aday. It was her conclusion that Mrs. Aday had considerable control over her father and used undue influence.

Clell Stobaugh testified for appellant. He said he visited Mr. Orr in 1968 when he had a light stroke. During that visit he noted that at times Mr. Orr’s mind would be clear but at times “it would not seem to be all right.” Martha Ann Evans, Mr. Orr’s granddaughter, said it was her conclusion, from talking with her grandfather after his second stroke, that he was not capable of making a will. “He would call me by my mother’s name and would call my daughter by my name. . .1 cannot tell you why I thought he was incompetent, but in talking to him it was all sorts of little things.” Witness Bessie Linscott was a close friend of Mrs. Aday and Mr. Orr. She related that after the first stroke Mrs. Aday looked after Mr. Orr’s business affairs. She could not say that Mrs. Aday ever attempted to influence Mr. Orr in the making of a will; however, she testified that on one occasion Mrs. Aday related to the witness that Mr. Orr had made a will and had divided his estate equally between his daughter, granddaughter, and Mrs. Aday. Witness Maudie Thompson said she knew Mr. Orr was in bad physical condition in early 1968 following his second stroke. Witness M. H. Mullins testified that he declined to witness the February 15 will because he thought that Mr. Orr was incompetent and under pressure from Mrs. Aday.

Eight witnesses testified on behalf of appellee. Witness Roy Carmack is Mrs. Aday’s son-in-law. He related a visit with Mr. Orr in March 1968, a few weeks after the wills were executed. He described Mr. Orr as having a slight impairment of his left side but said he was mobile. He said there was no impairment of speech. He described Mr. Orr as being mentally alert and entirely coherent. Mrs. Carmack testified that in the summer of 1968 she took Mr. Orr to Hot Springs on a vacation. She described his mental condition as excellent. Witness Carroll Holland rented an apartment from Mrs. Aday for seven years. He was aware of Mr. Orr’s two strokes and said during those periods he visited with Mr. Orr quite often. It was his conclusion that Mr. Orr was in control of his mentah facilities. Witness Sam Block testified that he visited with Mr. Orr after his last stroke and obtained his signature on a release deed. “He seemed to talk intelligently. I did not notice anything abnormal about Mr. Orr’s mind.” Witness Ray Stell is employed at the oar factory in Conway in which Mr. Orr owned an interest. He said Mr. Orr visited the plant in the summer of 1968. “At this time there was nothing to lead me to believe that Mr. Orr was not in complete control of his mental faculties.” R. D. Andrews, Jr., was one of the witnesses to the will. Mr. Orr was walking with the aid of a crutch. To him, Mr. Orr appeared mentally normal “and knew what he was doing.” (The other witness to the will is deceased.) Witness James Foster of the Foster Oar Company visited Mr. Orr after his 1968 stroke. He said he found Mr. Orr to be mentally alert.

Witness Byron Bogard, who drafted both wills testified for appellee. He explained Mr. Orr’s reason for executing the second will. Mr. Orr said that subsequent to the execution of the first will he discovered that the total value of all bonds which he owned and which were in the names of Mr. Orr and his daughter had a value of around $10,000. It was for that reason, according to Mr. Bogard, that Mr. Orr wanted to “realign” his will. (As best we can tell from the record the value of the recited bonds totalled only $4,000.) Mr. Bogard stated that “in my opinion Mr. Orr was competent to execute a will and did so of his own free will.” Finally, Mr. Bogard related that he never discussed the contents of the will with Mrs. Aday.

The general rule is that the burden of proving mental incompetency, undue influence, or fraud which will defeat a will is on the party contesting it. Sullivant v. Sullivant, 236 Ark. 95, 364 S.W. 2d 665 (1963). We also pointed out in Sullivant that undue influence is not the kind of influence “which springs from natural affection, or is acquired by kind offices, but it is such as results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property.” Under the evidence in the case at bar the probate court was warranted in finding that the bequest to Mrs. Aday did not develop from that sinister influence described in Sullivant as constituting undue influence; to the contrary it is just as likely to have resulted from some twenty-three years of happy companionship and devotion to each other. We can easily understand why an only daughter, devoted as she was to her father, is unable to comprehend the reasonableness of her taking a secondary role to that of Mrs. Aday. But as we said in Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405 (1908): “Testators are not required by law to mete out equal and exact justice to all expectant relations in the disposition of their estates by will, and the motives of partiality, affection, or resentment, by which they naturally may be influenced, are not subject to examination and review by the courts.” To the same effect see Abel v. Dickinson, 250 Ark. 648, 467 S.W. 2d 154 (1971).

Finally, appellant contends that Mr. Orr relied on the mistaken belief that the sum total of his savings certificates amounted to some $10,000; and that the second will should be cancelled because of that mistaken belief. “The general rule is that a will is valid even though made by reason of a mistake of fact.” 1 Bowe-Parker; Page on Wills, § 13.11. The authors then state the principal reason for the rule: “To inquire into what testator would have wished to do if he had known the material facts, and to determine just to what extent his will is affected by the mistake is a task of intolerable difficulty. No one probably ever made a will with absolute and perfect knowledge of every fact which might affect his disposition by will; and to determine the exact effect of each mistake is a task upon which no court could enter.”

This court has twice refused to modify a will where the testator was allegedly mistaken in the law. Taylor v. McClintock, supra, and Hollingsworth v. Hollingsworth, 240 Ark. 582, 401 S.W. 2d 555 (1966).

Affirmed.


author: John A. Fogleman, Justice.

text:
    ARKANSAS STATE HIGHWAY DEPARTMENT v. James BUSBY et ux
    5-5816
    479 S.W. 2d 242
    Opinion delivered April 24, 1972

      Thomas B. Keys and Hubert Graves, for appellant.

      James Robertson and Sharpe <& Wilkinson, for appellee.
   John A. Fogleman, Justice.

Appellant contends that the trial court erred in refusing to strike the testimony of James Montgomery, the only witness who testified on behalf of appellees as to the value of appellees’ lands before and after the taking of 1.56 acres by appellant through the exercise of the power of eminent domain. Appellant’s motion, made at the conclusion of Montgomery’s testimony, was based upon the fact that he had determined the value of appellees’ lands by considering the depreciated value of a dwelling house on the basis of the reporduction costs of that building, even though he was not an architect, engineer or builder and had no knowledge or experience which would qualify him to estimate the reproduction cost of such a structure. The trial court overruled the motion, and instructed the jury to disregard the statements of the witness if it found them to be without factual basis. Although the witness protested that he had not based his testimony upon an estimate of the cost of the replacement of the Busby house made by Bake Parker of Vaccaro-Grobmyer Lumber Co., he admitted that he had seen the estimate before he testified and that it had confirmed his own estimated replacement cost of $17,500. He also admitted that he had been unable to find any sales involving a like house similarly located.

We find no reversible error in the court’s action. An expert witness as to value must often rely upon hearsay to some extent. His testimony is not thereby rendered inadmissible. Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S.W. 2d 201. But any possible prejudice which might have been attributable to a failure to strike this testimony was eliminated when Bake Parker, who had been an estimator and contractor for the lumber company for 13 years, testified that he estimated the replacement cost of the house on the date of taking at $17,485.23

In this respect this case is unlike Arkansas State Highway Commission v. Mahan, 249 Ark. 1022, 463 S.W. 2d 98, where the value expert, who was not an engineer, architect or builder, admitted that he had no knowledge of the cost of construction materials. He had determined reproduction costs of a building simply by relying upon information gleaned from publications not shown to be patterned upon such costs in the community where the property was located. The witness admitted that there was a variation in these costs in different localities. Montgomery’s estimate was shown to be sound, if credit is given to Parker’s testimony.

Montgomery’s testimony was not vulnerable for the reason the landowner’s testimony was found improper in Arkansas State Highway Commission v. Carruthers, 246 Ark 549, 439 S.W. 2d 40. There, we held that it was error to permit the landowner, a nonexpert, to base his testimony as to damage to the access to his remaining lands by stating the amount of a contractor’s estimate of cost of building a bridge. Not only did the witness there not have the knowledge necessary to permit a statement of his opinion, but the qualifications of the estimator were not shown, and he was not subject to cross-examination to determine whether he had any basis for his estimate.

Since there was competent evidence to support the inadequately based testimony of Montgomery, we affirm the judgment.


author: J. Fred Jones, Justice.

text:
    Fred PANNELL v. Cecil L. EARLS et al
    5-5638
    483 S.W. 2d 440
    Opinion delivered April 24, 1972

      Gerland P. Patten and Charles B. Roscopf, for appellant.

      Joe C. Barrett, Walter P. Armstrong, Jr., and .Randy W. Ishmael, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Fred Pannell from an adverse decree of the Phillips County Chancery Court in a suit- brought by Pannell to have title confirmed and quieted in him, as against Cecil L. Earls, E. M. Regenold, et al. The land involved consists of approximately 2,000 acres lying east of the Mississippi River and attached to the state of Mississippi on the river’s eastern shore. The appellant contends that the land has always been in Phillips County, Arkansas, and that by avulsive action in 1858 the river changed its course severing the land from the rest of Arkansas and by subsequent accretions attaching it to the state of Mississippi. The appellees content that the land was never a part of the state of Arkansas but became a part of the state of Mississippi by gradual accretion to the east bank of the river throughout the years since 1830.

The chancellor found the lands to be in the state of Mississippi and the Phillips County Chancery Court without jurisdiction of the subject matter. The chancellor dismissed Pannell’s petition for want of equity and on appeal to this court Pannell relies on the following point for reversal:

“The court erred in holding that the land is in the state of Mississippi and that it was without jurisdiction to try title thereto.”

The facts appear as follows: In February, 1967, Mrs. Doris B. Pannell, the wife of the appellant, obtained an Arkansas State Land Commissioner’s deed to land in Phillips County described as follows:

“SVz Frl SE Sec 8-5S-3E-40.41 acres S5* Frl SW Sec 8-5S-3E-27.40 acres.”

This deed indicates that these lands were forfeited to the state under the above descriptions for the nonpayment of taxes in 1904 and 1906 respectively. On February 20, 1967, Mrs. Pannell also obtained an Arkansas State Land Commissioner’s deed to land in Phillips County described as follows:

“Fral. all Sec. 17-Twp. 55-R3E-302.32 acres.”

This deed indicates that the land was forfeited to the state under the above description for the nonpayment of taxes in 1927. On January 15, 1969, Mrs. Pannell deeded this property to Beverly Kathleen Schaffhauser by special warranty deed reciting the description as follows:

“All of Fractional Section 17; SIS Frl. SEM of Section 8; and the SH Frl. SWM of Section 8; all in 5S-3E, Phillips County, Arkansas, and all accretions thereunto belonging, which said original lands and accretions would be described if the Township, Range and Section lines be extended Eastward as all of Sections 7, 8, 9, 16, 17, 18, 19 & 20, 5S-3E, which lie East of the present main channel of the Mississippi River and West and North of the abandon channel of the Mississippi River marking the state line between the states of Arkansas and Mississippi and referred to on maps and charts as ‘Old River.’ ”

On January 22, 1969, Schaffhauser deeded the property back to Mrs. Pannell and Sam J. Howe under the same description and on January 27, 1969, the appellant Fred Pannell obtained a special warranty deed from his wife and Mr. Howe to land under the same description as above. It appears from the pleadings and evidence that the above lands are also claimed as lands in the state of Mississippi by the appellees.

This case was tried for two weeks in the chancery court and both sides submitted numerous exhibits as well as voluminous expert and lay testimony in support of their respective contentions. The determining factor before the chancellor actually boiled down to the fact question of whether this land became a part of the state of Mississippi by accretion or whether it was cut off from the rest of Arkansas by avulsive action of the Mississippi River. The question before us on appeal is whether the chancellor’s decree is clearly against the preponderance of the evidence.

The division line between Arkansas and the state of Mississippi is fixed as the middle of the main channel of navigation of the Mississippi River. Article 1, Arkansas Constitution 1874; Arkansas v. Mississippi, 250 U. S. 39, 63 L. ed. 832, 39 S. Ct. 422. The appellant argues he clearly proved by the preponderance of the evidence, that prior to 1858 the land involved was on the west and Arkansas side of the main channel of the Mississippi River and that by avulsive action occuring in 1858, the river changed its course to its present position leaving the land involved as an island on the east side of the main channel of the river and by subsequent accretions it became attached to the east shore.

The appellees argue that the appellant has failed to prove such avulsion occurred in 1858 or at any other time. They argue that the river gradually changed its course to its present position by eroding away the Arkansas shore, and that the land involved was added to the state of Mississippi by gradual accretion and not by avulsion.

A riparian owner of land in Arkansas who undertakes to prove Arkansas title to land on the east shore of the Mississippi River, has a considerable burden in proving that the land was severed from Arkansas by sudden avulsion. This is true because there is a strong presumption in favor of the permanency of land boundary lines. See Wyckoff v. Mayfield, 280 P. 340 (1929), 9 C. J. § 300. Furthermore, when land lines are altered by the movement of a stream, the weight of authority, both state and federal, appears to recognize a strong presumption, founded on long experience and observation, that the movement occurs by gradual erosion and accretion rather than avulsion. United States Gypsum Co. v. Reynolds, 18 So. 2d 448 (1944); Dartmouth College v. Rose, 133 N. W. 2d 687 (1965); Kitteridge v. Ritter, 151 N. W. 1097; Bone v. May, 225 N. W. 367.

It would serve no useful purpose to set out in detail the evidence in this case. Suffice it to say, both sides presented conflicting expert testimony as to the hydraulics of the changing thalweg of the Mississippi River as related to its erosive effects on both banks of the river. Both sides presented conflicting evidence as to the significance of forestry and vegetation found on and in the area involved. The appellant offered maps from the United States General Land Office Survey of 1830 showing the land involved to be partially on “Island 64” with the main channel of the Mississippi River running east of the island and an “island chute” running west of the island between Island 64 and the remainder of Phillips County, Arkansas. Later maps offered by both sides show the area involved to be on the east side of the main channel of the river and firmly attached to the general land mass forming the state of Mississippi.

The appellant relies heavily on probate court records, and most heavily on a map or plat in connection with the administration of the estate of Jehoida Halsey under his will made and probated in Coahoma County, Mississippi, in 1866. For the purpose of our discussion here we may assume that Halsey owned land in Phillips County by deed of conveyance dated 1857 with description as follows:

“SW Frl Vi (West of East Island Chute and west Frl of the NW Frl M of Frl Section 17-5S-3E, in the District lands subject to sale at Helena, Arkansas, containing 118.26 acres.”

An abstract of title was submitted in evidence and according to the abstract, on August 15, 1866, this land was sold to William I. Robson under the residuary clause of Halsey’s will. The description in the executor’s deed is as follows:

“Island 64 being all of Section 17 and all of Section 18 South of the dividing line between Jones Halsey’s heirs except Henry’s interest, according to recent Survey 393,34 acres and 127.50 acres of Batture, in Township Five South, Range Three East in Phillips County, Arkansas.”

It is in connection with the “recent survey” recited in this deed that the map or plat designated “Fontaine Survey” was introduced. For a clearer understanding of its significance we are reproducing it here.

It will be noted that in the executor’s deed to William I. Robson the deed recites the conveyance of “Island 64 being all of Section 17 and all of Section 18 South of the dividing line,” etc. (Emphasis added). It will also be noted from the map or plat, that what appears to be the main channel of the Mississippi River is designated “Mississippi River Cutthru 1858” and the land lying in Section 18 west of the river is designated “Old Island 64,” (emphasis added), and the land lying east of the main channel is designated “East Island 64 or Robson Island.” (Emphasis added). Also on a part of “Old Island 64” and west of the main channel of the river is shown a dead end appearing area designated as “Old Chute,” and east of “East Island 64 or Robson Island” is designated a dead end appearing area labeled “Old Bed Mississippi River.” It would appear therefore, if the designations on this exhibit represent the result of an avulsion occuring in 1858, the river channel did not change to the original “East Island Chute” as would have appeared logical, but it took a less logical course through the middle of Island 64 and did not bother to fill its original bed or the East Island Chute. According to this exhibit, on July 2, 1866, “Old Island 64” was attached to the state of Arkansas and “East Island 64 or Robson Island” was attached to the state of Mississippi, with the exception of the dead end area designated as “Old Bed Mississippi River.”

It is also noted from the abstract of title, when William I. Robson transferred this land to Merlin Perry, three days after he purchased it, no reference is made to “Old Island 64” and “East Island 64 or Robson Island,” but the land is simply described as:

“Island 64, being all of Section 17 and all of Section 18 South of the dividing line between Jones and Halsey’s heirs except Henry’s interest, according to recent Survey 393.34 acres and 127.50 acres of Bottom in Township 5 South, Range 3 East.”

According to the abstract of title, in 1868 Sarah A. Perry deeded this land to Dewitt C. Hughey and John R. McGuire, under description as follows:

“The NW frl. M of Section 17,
SW frl Vi of Section 17,
NE frl Vi of Section 17, et al lands, all in 5S-3E, containing about 400 acres all on Island No. 64.”

Other trust deeds of record through 1877 refer to the land as being 400 acres on Island 64. On February 8, 1879, Hughey and McGuire executed a deed to Prince Malloy describing the land as follows:

“NW Frl Vi Section 17, 152.72 acres;
SW Frl Vi Section 17, 61.23 acres, all in 5S-3E et al land.”

Except for forfeitures for nonpayment of state taxes and levee district assessments, no further reference is made to the acreage in the land until in 1926 when the state Land Commissioner of Arkansas made a deed to C. W. Hunter reciting conveyance of:

“All Fractional Section 17, Twp 5S, Rge 3E, containing 302.13 acres, more or less.”

This deed, however, was based on a 1904 forfeiture. In 1928 C. W. Hunter made a warranty deed to “C. W. Hunter Company” describing the land as:

“All Frl Section 17, Twp 5S, R3E — 302.13 acres, et al lands, Phillips County, Arkansas.”

No additional transfers of this land appear of record until the 1967 deed from the state Land Commissioner to Doris B. Pannell.

This so-called Fontaine survey map with its designated “Mississippi River Cutthru 1858” is the primary evidence upon which appellant relies to sustain his theory that the land involved was separated from the Arkansas mainland by avulsion in 1858. This instrument was vigorously attacked by the appellees who offered expert testimony that the paper on which the instrument was drawn contanined the element titanium which was not used in the manufacture of paper prior to 1932. The appellees also produced a handwriting expert who testified that the spencerian handwriting in which this instrument is drawn was accomplished, not in a bold freehand style, but by small separate strokes of the pen. It does not require an expert to detect the last above observation for it is obvious, even from the photographic copy in the abstract of title, that the flourishes to the handwritten letters were done in small short strokes of the pen. If it was the intention of the scrivener to pass the document off as the original of an ancient map or plat, his efforts were crudely performed and his purpose poorly accomplished.

Even though the integrity of this instrument was severely impeached as an original map or plat prepared by Surveyor Fontaine in 1866, that does not necessarily mean it was fraudulently prepared and secretly inserted in the probate record books pertaining to the probate of the estate of Jehoida Halsey and where, theoretically, it had lain loose and without observation for over 100 years. It is entirely possible that this instrument was copied from one previously prepared and the scrivener doing the copy work attempted to simulate the spencerian style of penmanship used in the original and in doing so, simply had more time on his hands than fraud on his mind. Aside from the conflicting evidence as to how this instrument was found loose in one of the probate record books in Phillips County, there is no authenticity whatever attached to it as a surveyor’s map or plat of the area indicated. There is ample evidence to indicate that this plat referred to as “Fontaine survey” is at most, a freehand copy drawing of some other instrument which could have been as easily prepared for the purpose of demonstrating contentions as recording or demonstrating facts. This land was involved in court litigation on previous occasions and the instrument could have been prepared by a witness for use in testifying in previous and related litigation as well as in the case at bar. This instrument on its face would indicate that it was prepared for some purpose other than to accurately set out and record events in the vicinity in 1858, and certainly the notation “Mississippi River Cutthru 1858” could have been self-serving as well as strictly hearsay.

We agree with the chancellor that the appellant failed to sustain his burden of proving the alleged effects of an avulsion on the Mississippi River occuring in 1858. In any event, we are unable to say that the chancellor’s decree is against the preponderance of the evidence.

The decree is affirmed.

Fogleman, J., not participating.


author: Conley Byrd, Justice.

text:
    Raymond DONALDSON v. D. L. McKIEVER
    5-5827
    479 S.W. 2d 246
    Opinion delivered April 24, 1972

      John F. Gibson, for appellant.

      James A. Ross and James A. Ross, Jr., for appellee.
   Conley Byrd, Justice.

Raymond Donaldson brought this action upon an account stated against D. L. McKiever praying judgment for $28,977.87. Upon a trial the jury returned a verdict for $3,066.00 for which judgment was entered. For reversal Donaldson contends:

“I. The court erred in permitting appellee to introduce immaterial and irrelevant evidence.
II. The court erred in failing to rule on appellant’s motion for judgment non obstante veredicto.
HI. The evidence was legally insufficient to support the verdict.”-

The record shows that Donaldson is what is known in the cattle business as an “auto-buyer”. As such, it is necessary for him to maintain a bond in accordance with the Stockyard Dealers Act, 7 USCA § 204. Over the last four or five years he had purchased cattle and hogs for McKiever, who dealt in processing, butchering and selling. Donaldson testified that his formal education did not go beyond the third grade. He knew that McKiever was getting behind in his remittances and that he carried him as long as he could. When the account got so large that he could no longer carry it, Donaldson instructed his bookkeeper to contact McKiever and see what could be done about the account.

Following Donaldson’s instructions, his bookkeeper, Audrey Withers, contacted McKiever. On January 22, 1970, after going over the account which included two previous uncashed checks, McKiever and Mrs. Withers arrived at a balance due of $28,165.65. In that balance was a credit given for a check dated 12-30-69, in the amount of $812.22. Two of the items included in the balance were unendorsed checks dated July 22, 1969, for $18,885.89 and $5,831.22. McKiever in the presence of Mrs. Withers signed a note for $28,121.73. The December 30, 1969, check for $812.22 was returned for insufficient funds. Mrs. Withers testified that McKiever, at the time he signed the note, made some promise of future installment payments.

McKiever admitted that he signed the note but insisted that he did it with a private understanding between him and Donaldson that he was signing the note only for the purpose of helping Donaldson make his bond required by the Stockyard Dealers Act. He testified that he paid for the cattle and hogs as they were delivered or within a few days thereafter. To corroborate that testimony he introduced a number of checks issued from time to time throughout the period of their business dealings. McKiever also stated that the unendorsed checks dated July 22, 1969, were only given to help Donaldson make his Stockyard Dealers bond and that he did not owe any such amount at the time. Mclüever admitted that the State Meat Inspectors had forced him out of business in December 1969, and that he did owe to Donaldson the sum of $3,066.08 for December purchases.

The trial court did not err in permitting McKiever to introduce the checks to corroborate his testimony that he kept his account current until December 1969.

They all appear to have been endorsed by Donaldson and marked paid by McKiever’s bank, so they are not self-serving declarations of McKiever. They were admitted upon the court’s admonition to the jury that they were not to be considered as a set-off or credit against the account on which appellant sued, unless there was testimony by McKiever that they were. With this limitation, we cannot say that the admission of the checks was erroneous. The appellant’s only objection to the checks was that they did not constitute a set-off to the account. No other objection was made then or now.

Donaldson’s argument that the evidence was legally insufficient to support the verdict revolves around his contention that the balance owed had been reduced to an account stated. As we view the record a fact issue was made for the jury and although McKiever’s version may be as strange as fiction, we cannot say there is no substantial evidence to support the jury’s verdict. This is particularly so when one remembers that the alleged “account stated” began with the total of the two July 22, 1969, unendorsed checks that McKiever states were given only to help Donaldson on his Stockyard Dealers bond and not for payment of an account owed. See Godfrey v. Hughes & Hall, 114 Ark. 312, 169 S. W. 958 (1914).

It is true that McKiever admitted to owing $3,066.08 and that the jury, in returning its verdict, rounded the figure off to $3,066. We do not find error in refusing a motion for judgment notwithstanding the verdict because of such slight variance which amounts to nothing more than a rounding off to the nearest dollar.

Affirmed.


text:
    Carthel Dee WILLIFORD v. STATE of Arkansas
    5706
    479 S.W. 2d 244
    Opinion delivered April 24, 1972

      Carpenter, Finch ir McArthur, for appellant.

      Ray Thornton, Atty. Gen., by John D. Bridgforth, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Carthel Dee Williford was found guilty of incest and sentenced to 10 years in the Penitentiary. For reversal he contends the trial court erred:

“1. In overruling the demurrer to the information;
2. In allowing appellant to be interrogated about an alleged intercourse with another person;
3. In refusing a continuance to secure a rebuttal witness; and
4. In allowing the prosecutrix to testify to previous acts of intercourse.”

I. The information here charged appellant with incest committed as follows:

“The said defendant in Pulaski County, Arkansas, on or about the 24th day of July, 1970, did unlawfully and feloniously engage in sexual intercourse with his fourteen year old daughter, Rhonda Williford, against the peace and dignity of the State of Arkansas.”

The statute, Ark. Stat. Ann. § 41-811 (Repl. 1964), under which appellant was charged provided:

“Persons marrying, who are within the degrees of consanguinity within which marriages are declared by law to be incestuous, or void absolutely, or who shall committ adultery or fornication with each other, shall be deemed guilty of incest.”

To sustain his demurrer appellant points out that the information is totally lacking in allegations of his marital status and fails to allege either adultery or fornication. In Martin v. State, 58 Ark. 3, 22 S.W. 840 (1893), a similar demurrer was held good but in so doing, this court recognized that the ruling was somewhat technical. Other courts hold to the contrary and indicate that the rule in Martin v. State is a minority view. See Wood v. State, Okla. Cr. App., 116 P. 2d 734 (1941). The technical views set forth in Martin v. State, supra, have been overruled by Init. Meas. 1936, No. 3, §22, now codified as Ark. Stat. Ann. § 43-1006 (Repl. 1964). In Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304 (1943), it was pointed out that this section was adopted for the purpose of simplyfing procedure in criminal cases and eliminating superfluous technical defenses. It follows that the trial court properly overruled appellant’s demurrer.

II. The trial court did not err in allowing appellant to be asked on cross-examination if he was guilty of also molesting his step-daughter Janet Williford and in allowing the State to inquire if he had joined in a wife swapping incident. See Black v. State, 250 Ark. 604, 466 S.W. 2d 463 (1971). While in Adams v. State, 229 Ark. 777, 318 S.W. 2d 599 (1958), we held similar questions to be improper and highly prejudicial when they were asked without any basis whatever, it cannot be said that the prosecution here had no basis for asking the question relative to Janet Williford and the appellant made no objection to the wife swapping question.

III. Joe Poe, a State witness, testified that he had known appellant fro some time and that in August of 1970, the prosecutrix and her two sisters talked to him about the charge and he advised them to go to the police. On cross-examination appellant’s attorney asked him if he had been kicked out of the ministry as a Missionary Baptist preacher because of adultery. Mr. Poe testified that he had not. After the State had rested, appellant moved for a continuance to subpoena certain records of a church at Benton, Arkansas. The trial court- refused the continuance and we cannot say under the record here that he abused his discretion in refusing the continuance. See Eddy v. State, 165 Ark. 289, 264 S.W. 832 (1924).

The prosecutrix testified that appellant had had intercourse with her once or twice a month since she was eleven years of age and that she was fourteen at the time of the occurrence on July 24, 1970. This testimony was properly admitted, see Wood v. State, 248 Ark. 109, 450 S.W. 2d 537 (1970) and Adams v. State, 78 Ark. 16, 92 S.W. 1123 (1906).

Affirmed.


author: Frank Holt, Justice.

text:
    SOUTHWESTERN BELL TEL. CO. v. TRAVELERS INDEMNITY CO.
    5-5869
    479 S.W. 2d 232
    Opinion delivered April 24, 1972

      Donald K. King and Charles G. Hollis, for appellant.

      Wright, Lindsey & Jennings, by: William R. Overton, for appellee.
   Frank Holt, Justice.

Appellant-insured initiated a declaratory judgment action seeking to establish that appellee-insurer was obligated to defend, under the provision of an insurance policy issued by appellee, a personal injury suit brought against appellant. The trial court agreed with the appellee that the policy’s exclusionary language exempted appellee from defending appellant. For reversal of that judgment, the appellant contends that the trial court’s decision and judgment in favor of appellee and against appellant contradicts the law and the undisputed evidence.

In March, 1969, the appellant entered into a written contract with an independent contractor to perform certain plowing, trenching work, and lay appellant’s telephone ground cables and wires. This construction work was covered by an “Owners’ and Contractors’ Protective Liability Policy” issued by appellee. This policy specifically designated coverage for the work operation to be performed by the appellant’s contractor. The contractor proceeded to dig the required trenches and lay the cables and wires. After the telephone wires and cables were laid, including service wires to a Mr. Thompson’s residence, the trenches were then backfilled by the contractor and the machinery removed from the construction site. The appellant’s construction supervisor inspected its contractor’s work the latter part of August, 1969, and wrote on their contract, “WORK PERSONALLY INSPECTED AND FOUND TO BE COMPLETED IN A SATISFACTORY MANNER.” A few days later, about September 1, appellant paid its contractor in full for the completed work under the contract. About two months later, the Thompsons’ grandson was injured when he tripped and fell on the Thompson premises because of a depression in the trench which had resulted from the settling of the' backfill due to rainfall. The contractor, shortly thereafter at appellant’s request, shoveled sufficient dirt in the trench to correct the depression. Subsequently, a court action was instituted against the appellant to recover damages for the child’s injuries.

In support of its contention that appellee should defend appellant in this action, the appellant focuses its appeal upon that portion of the insurance policy which reads:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage A. bodily injury***
to which this policy applies, caused by an occurrence and arising out of (1) operations performed for the named insured by the contractor designated in the declarations at the location designated therein***. (2) ***and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury

The appellant also adduced undisputed evidence from its supervisor and its contractor that based upon an oral understanding between appellant and its contractor the contractor would, following approval and payment of this work project and upon notification by appellant, return to the construction site and refill any sunken trenches without any additional pay. This was an established procedure between the parties for many years and occurred in the case at bar:

The appellee, in denying the asserted coverage, relies on that portion of the policy which reads:

“This policy does not apply: (b) to bodily injury or property damage occurring after (1) all work on the project (other than service, maintenance or repairs) to be performed by or on behalf of the named insured at the site of the covered operations has been completed or ***.”

It is appellant’s position that the contract was not completed and even if the main work project was completed, the parathentical words in the above quoted clause provide a continuous coverage following completion of the project. It is the appellee’s contention that appellant’s interpretation ignores the phraseology which denies any coverage for bodily injuries “occurring after” completion of the project and further that the parenthetical words are a limitation on the insurance coverage and not an exception to the exclusionary clause.

We think the trial court was correct in construing the contract as not providing the asserted coverage. Certainly, the appellant had accepted the main work project as being satisfactorily completed; however, the appellant would construe the parenthetical clause, “other than service, maintenance, or repairs,” to include these items or restoration work as an extension of the time element provided for in the policy. We cannot agree. In our view, there is no ambiguity in the exclusionary clause. The exclusionary clause clearly defines the extent of the work project or the time element and does not include the asserted coverage for restoration work following completion of the project. See King v. United States F. & G. Co., 264 F. Supp. 703 (1967); Clauss v. American Ins. Co., 214 F. Supp. 442 (1963). Also, we recognize the general rule that where there is a practical acceptance by a proprietor upon completion of its contractor’s work thereupon the liability of the contractor as to third persons ceases and the responsibility “for maintaining or using [it] in its defective condition [is] shifted to the proprietor.” Chesser v. King, 244 Ark. 1211, 428 S.W. 2d 633 (1968). This is in accord with the contention of the appellee in the case at bar.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Larry GRAY v. STATE of Arkansas
    5711
    479 S.W. 2d 560
    Opinion delivered May 1, 1972

      Nance, Nance, Fleming & Hatfield, for appellant.

      Ray Thornton, Atty. Gen., by James A. Neal, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Larry Gray was charged with five counts of robbery, three of the charges relating to alleged robberies of the same company. On motion of appellant, the cases were consolidated, and on trial, Gray was convicted on all counts. Gray was also charged with being a habitual criminal and the jury again retired and reached a verdict setting his punishment at 28 years in the State Department of Correction. From the judgment so entered in accordance with the verdict, appellant brings this appeal. For reversal, two points are asserted, the principal one being that the evidence was insufficient to sustain the conviction.

Gerald Poll, who was employed at the Liberty Petroleum Station in West Memphis, testified that at about 10:50 p.m. on January 7, 1970, a black man came to the station, held a pistol on him, and directed him to give the robber “all of the money that I had on me”. $190.00 was taken, and Poll was then locked in the restroom. Poll testified that on the night of March 17, 1970, between 10:30 and 11:00, the same person again robbed him of something over $80.00, and again on the night of March 27, about 11:15, the same individual again robbed him of something over $40.00. Poll said that the January robbery took place inside the office, that lights were on inside and outside the office, and he talked with the robber for two or three minutes. He reported the occurrence to the West Memphis Police Department, giving a description of the individual who had robbed him. On the occasion of the March 17 robbery, two individuals participated, but Poll said that he did not see one of them clearly. Poll initially identified Gray in early April from six or seven photographs that were shown him by the police; he also identified appellant in a police line-up involving five black males, and likewise identified Gray during the trial as the robber.

Benny Roberts testified that on March 25, 1970, an individual came to Benny’s Auto Parts, a store in' West Memphis, purportedly to look at some wheels; this person then left and returned about five minutes later with a small revolver and made a demand for money from Roberts and his brother, Noel Roberts, who was also present. The witness stated that $250.00 was taken from the cash register and $125.00 taken from the witness and his brother. Roberts said that misting rain was falling at the time of the robbery, which occurred about dusk but that the inside store lights were burning; that the robber was in the store about fifteen minutes, making no attempt to hide his identity. Roberts said that he stood within a few feet of the individual for something like five minutes, and subsequently gave the police a description of the robber. He identified Gray as the individual who had taken the money.

Mary L. Lewis, employed at the Bil-Roy Motel in West Memphis, testified that on the night of March 28, she was working in the office when appellant and another man walked in to request work; Gray then held a pistol on her while the other man tood the owner’s pistol, which was under the counter, and about $135.00 in cash, together with trading stamps. This robbery occurred between 7:30 and 8:00 p.m. As to the lighting of the office, Mrs. Lewis said “Well, it’s lit up good; they’ve got them kind of lights in there, you know, and they was all on.” Mrs. Lewis identified Gray as one of the participants in the police line-up and during the trial.

Appellant argues that this testimony cannot be relied upon for several reasons. It is first asserted that all had “poor vision”. It is true that all wore glasses but there is no showing, that with this aid, there was anything wrong with their vision. It is mentioned that they only saw the robber for a short period of time but we must remember that Poll saw him on three occasions, and Roberts stated that the robber was present in the office for fifteen minutes. Mrs. Lewis said “I was standing looking straight at him and that pistol too” and she observed him closely enough to notice that he, in opening the cash register, “pushed the ‘gas’ button on the register to open it”. Of course, as pointed out by appellant, all were somewhat frightened, but his certainly does not mearj that no identification could be made; very likely, all persons who are victims of robberies are somewhat nervous, but this fact does not preclude their testimony as to identity. It certainly appears that the lighting was adequate to permit identification.

Appellant’s strongest point is that varying descriptions were given to the police, but these variances, in the main, are of no significance. All three witnesses used the same age range, Poll stating 19 to 20, Roberts stating 20, and Mrs. Lewis stating 18 to 21. Actually, Gray was 20. In weight, Poll described the robber in the January robbery as 150 to 160 pounds and in the March 27 robbery as 140 pounds; Roberts said his weight was 145 to 150 pounds and Mrs. Lewis stated 150 to 160. Gray said that he weighed 135 at the time. On height, Poll estimated the January robber as 5’10” and the March robber 5’9”; Roberts said 5’9” to 5’11 ”, and Mrs. Lewis said 5’6”. According to Gray, his height was something over 5’11”. It will be noted that only Mrs. Lewis was several inches away from the description given by the others. This witness, while being interrogated, was asked if she could “guess as to how tall he was” to which Mrs. Lewis responded “Oh that’s something I’m the worst in the world at”. She then stated “I guess he was about 5-feet-6. It could be more or less when it comes to my guessing”. Of course, determining weight and height is difficult for many persons, even when their observations are made at normal times, and almost invariably, when several people are called upon to look at the same individual, they will, in some respect, describe him differently. The fact remains that the jury heard all of these people testify, and were well aware that they did not coincide one hundred percent in their descriptions. The matter of determining the accuracy of the identification of appellant was entirely a matter for the jury to decide. In addition, appellant wrote out a statement in long hand admitting the perpetration of the robberies. Certainly, the evidence was sufficient to sustain the conviction.

It is also contended that the confession, just mentioned, was involuntarily made, being coerced by the officers. This same allegation, involving the same confession, was made in an earlier case against Gray, and we upheld the finding of the trial judge that the confession was voluntarily given. No evidence strengthening the contention so as to invalidate the confession was given in the instant case, and in fact, only one paragraph is devoted to this argument.

Affirmed.

Fogleman, J., not participating.

      The record does not reflect the identification given the police on the March 17 robbery.

      See Gray v. State, 250 Ark. 842, 469 S.W. 2d 123, which was reversed on other grounds.

      At the hearing in chambers on the question of voluntariness of the confession, the record reveals the following questions by the attorney for appellant, and the answers given by Gray, as follows:
      “Q. Have you reviewed the transcript in the matter? Have you reviewed the transcript of record, the prior record, in this matter?

        A. Yes sir.
      Q. Have you reviewed the testimony concerning that in the hearing outside of the jury in Chambers, concerning the voluntariness of the confession?
      A. Yes, sir, I did.
      Q. Do you have anything at this time that you know of that you can add to what you stated at that time, any further evidence?
      A. No, I don’t.”


author: George Rose Smith, Justice.

text:
    Mollie REYNOLDS v. Johnny HAVENS et al
    5-5871
    479 S. W. 2d 528
    Opinion delivered May 1, 1972

      Guy H. Jones, Phil Stratton and Guy Jones Jr., for appellant.

      Henry ér Henry, for appellee.
   George Rose Smith, Justice.

The ultimate question in this case is whether the two plaintiff-appellees, Johnny Havens and Orby Woodruff, established by clear and convincing evidence the terms of an oral contract by which Woodruff is assertedly entitled to purchase an improved 80-acre tract from the appellant, Mrs. Reynolds, for $21,000. The chancellor, in an opinion holding at least by implication that the clear and convincing rule is inapplicable, upheld the contract of sale and ordered specific performance. In the view we take, the clear and convincing rule is controlling, and the appellees failed to sustain their heavy burden of proof.

The controversy arises from an option to purchase, contained in a two-year lease by which Mrs. Reynolds rented the property to Havens for a term beginning February 1, 1969, and ending January 31, 1971. That lease provided that at any time during the second year of the term the lessee would have the right to purchase the property for $21,000. He was required to give written notice of his intention to purchase, whereupon it became the lessor’s duty to furnish an abstract of title and to do any curative work necessary to render the title marketable. When the title had. been cleared Mrs. Reynolds was to execute a warranty deed to the property, and Havens was to make payment as follows: He was to pay $4,000 in cash and execute a promissory note for the remaining $17,000 (less the amount of any rents paid during the second year of the term), payable in annual installments of $1,000, at 6% interest.

Havens, admittedly unable to raise the money for the $4,000 down payment, decided to sell his interest in the property to someone else. To that end he listed the property with United Farm Agency, a real estate company. In the latter part of August, 1971, Jim Hicks, a United salesman, interested the appellee Woodruff in buying the property for $26,000. There was a complication, however, in that Havens, the lessee, had only an option to buy the property.

Oh September 11, 1971, Woodruff, Hicks, and another United salesman, Joe Castleberry, called on Mrs. Reynolds to arrange for the purchase of the property from her at the option price of $21,000. At the moment it suffices to say that Mrs. Reynolds orally agreed to accept Woodruff as the buyer, in place of the lessee Havens.

It is quite apparent that Mrs. Reynolds, upon learning that Woodruff had agreed to pay Havens $26,000 for the land, decided (upon the advice of her brother and her attorneys) to avoid if possible her obligation to sell the property for $21,000. She accordingly evaded her responsibility to furnish an abstract of title and managed to keep from accepting the September rent from Havens until the agreed 30-day grace period for its payment had expired. She then contended that the lease and the option to purchase were no longer in effect.

Havens and Woodruff at first joined forces, as plaintiffs, in seeking specific performance of the purchase contract. The complaint contained two counts. The plaintiffs asserted in Count 1 that Havens, Woodruff, and Mrs. Reynolds had agreed at the September 11 meeting for Havens to exercise the option and assign it to Wood-ruff, who was to give his own note for the balance of the purchase price. The complaint tendered the $4,000 down payment and attached as an exhibit a note for the balance, executed by Woodruff and his wife. The plaintiffs averred in Count 2 that if the proof failed to sustain the allegations of Count 1, then Havens’ agents (Hicks and Castleberry) had exercised the option on Havens’ behalf at the September 11 meeting. In Count 2 the complaint repeated the tender of the $4,000 down payment and attached as an exhibit an alternative note for the balance, signed by Havens and his wife. Mrs. Reynolds pleaded the statute of frauds and other defenses.

Before the trial Havens and Woodruff abandoned their unity of position as plaintiffs, employed separate attorneys, and filed counterclaims against each other. In the circumstances it is not surprising that their proof failed to establish either asserted cause of action against the defendant by the required standard of clear and convincing evidence.

The chancellor, who was understandably reluctant to let Mrs. Reynolds evade her moral obligation to sell the land for $21,000, gave an opinion holding that Wood-ruff was entitled to purchase the property and give his note for the unpaid balance of the purchase price. The chancellor reasoned that at the September 11 meeting the parties had not modified the contract but had merely agreed to a substituted method of performance, such as was permitted in Valley Planning Mill Co. v. Lena. Lbr. Co., 168 Ark. 1135, 272 S,W. 860 (1925). The chancellor added that Woodruff’s acts in taking possession of the property, making a payment on the purchase price, and changing his position, were sufficient to take the agreement out of the statute of frauds. In that view of the case the chancellor did not find it necessary to say whether the proof was to be tested by the clear and convincing rule.

We are unable to sustain the chancellor’s decision. To begin with, we do not regard the September 11 negotiations as involving only a substituted method of performance with respect to details not falling within the statute of frauds. The controlling rule was stated as follows in the Valley Planing Mill case, supra:

The general rule is that a material modification of a contract within the statute of frauds must be in writing in order to be valid and binding. Such a contract cannot be modified in essential parts by parol agreement so as to be valid against a plea of invalidity under the statute of frauds. Arkmo Lumber Co. v. Cantrell, 159 Ark. 445. There is a marked difference, however, between a modification of a written contract in the essentials required to meet the statute of frauds and an agreement for a substituted method of performance not within the statute. The former is required to be in writing in order to be enforceable as against a plea of the statute of frauds, whereas the latter is valid if in parol.

In the case at bar the modifications recognized by the trial court’s decree of specific performance went beyond mere substituted methods of performance not within the statute. For instance, Mrs. Reynolds was compelled to convey the property to Woodruff and to accept his promissory note for the unpaid balance of $16,300 (the agreed amount less a $700 credit for rents paid). A memorandum, to satisfy the statute, must state all the essential terms of the agreement. Lindsey v. Hornady, 215 Ark. 797, 223 S.W. 2d 768 (1949; Wyatt v. Yingling, 213 Ark. 160, 210 S.W. 2d 122 (1948). Certainly the identity of the purchaser and of the person whose note must be accepted for 80% of the total purchase price, can only be regarded as essential terms of the agreement. Inasmuch as Mrs. Reynolds signed no writing containing either of those terms, the statute was not complied with.

There remains the chancellor’s finding that Wood-ruff’s acts of part performance took the contract out of the statute. The trouble is that both the making of the contract and its part performance must be proved by clear and convincing evidence. Hudspeth v. Thomas, 214 Ark. 347, 216 S.W. 2d 389 (1949). We need discuss only the first aspect of the rule, for the record does not contain clear and convincing proof of the terms of the oral contract relied upon by Woodruff.

The complaint, as we have said, contained two inconsistent counts, one asserting that Woodruff was to buy the property from Mrs. Reynolds and the other that Havens was to buy it from her. Similar contradictions appear in the various versions of the September 11 discussion. Castleberry testified that the three men did not offer to exercise the option. Hicks testified that he told Mrs. Reynolds that Havens would exercise the option. Woodruff testified that no one mentioned the option. Hicks said he told Mrs. Reynolds that they would need the abstract. Castleberry was not sure they talked about the abstract. Woodruff said no one mentioned it.

On the day after the September 11 discussion Hicks wrote up an agreement of sale, to be signed by the Havenses and by Woodruff. That instrument, as rewritten a week later to correct an error in the description, adds to the confusion. It designates the Havenses as the sellers and Woodruff as the buyer. It fixes the amount of the note to Mrs. Reynolds at $17,000, though the other proof indicates that it should have been $16,300. The contract makes the note payable in monthly installments of $133.13, which conforms to Hicks’ testimony about the September 11 discussion; but the complaint and the lease both provide for annual installments of $1,000. The decree amends the lessee’s option to purchase to conform to the terms and conditions agreed to by the parties on September 11, and then orders specific performance of both the op don as so modified and the sales agreement between the Havenses and Woodruff, to which Mrs. Reynolds was not a party.

To sum up, the pleadings and proof are directed to two different theories of the case: One, that Mrs. Reynolds orally agreed to sell the land directly to Woodruff; two, that Havens in fact exercised the option and became entitled to specific performance. We might experience some difficulty in deciding whether either theory is supported by a preponderance of the evidence, but we have no hesitancy in saying that neither theory is supported by dear and convincing proof. That being the test applicable to Woodruff’s cause of action, the decree must be reversed and the cause dismissed. We need not consider whether Havens’ right to enforce the option to purchase for his own benefit is supported by the weight of the evidence, for in the absence of a cross appeal we cannot afford affirmative relief to an appellee.

Reversed.


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    Diane a/k/a Veda Mae SLITTER v. Andrew J. PONDER
    5-5854
    479 S.W. 2d 567
    Opinion delivered May 1, 1972

      Jackson County Legal Services, Inc. and Monroe L. Bethea, for petitioner.

      Ray Thornton, Atty. Gen., by: David Hodges, Pros. Atty., and Gene O’Daniel, Asst. Atty. Gen., for respondent.
   Lyle Brown, Justice.

Petitioner was charged in the Newport Municipal Court with the offense of disturbing the peace. She filed a motion to quash the affidavit for warrant of arrest and the warrant itself. The motions were overruled and she was convicted. She appealed to the Jackson County Circuit Court where she renewed her motions to quash. When they were overruled she filed in this court her petition for a writ of prohibition. Prohibition does not lie unless the court is wholly without jurisdiction of the subject matter, or where there is no adequate remedy by appeal or otherwise. State ex rel Purcell v. Nelson, 246 Ark. 210, 438 S.W. 2d 33 (1969).

The jurisdiction of the respondent to try the accused was not affected by any deficiency in the affidavit for warrant or the warrant itself. Cassady v. State, 249 Ark. 1040, 463 S.W. 2d 96 (1971); Estes v. State, 246 Ark. 1145, 442 S.W. 2d 221 (1969); Perkins v. City of Little Rock, 232 Ark. 739, 339 S.W. 2d 859 (1960). Finally, it cannot be questioned that petitioner, had she been convicted in circuit court, would have had a right to appeal.

We have not overlooked the citations of authority from federal jurisdictions. They deal mostly with search warrants. Others interpret the federal rules of. criminal procedure. We are convinced that our cited holdings are not repugnant to any decision of the United States Supreme Court.

Petition denied.


text:
    Esther O’HALLORAN v. John F. DAWSON et ux
    5-5874
    479 S.W. 2d 532
    Opinion delivered May 1, 1972

      Pollard, Bethune & Cavaneau, for appellant.

      Reed & Blackburn, for appellees.
   Lyle Brown, Justice.

This suit to quiet title was initiated by appellant, Esther O’Halloran, as against the claims of appellees, John F. Dawson and wife, to forty acres of land in Cleburne County. The chancellor held that appellant had lost her title to the property under the doctrine of laches. The single allegation for reversal is that the chancellor erred in applying the doctrine of laches to the facts in the case.

Appellant and her now-deceased husband obtained title to the lands in question in 1936. They never lived in Arkansas and bought the tract for possible future use, paying $250 for it. In 1949 appellant wrote a letter to Mrs. B. C. Morton, mother of appellee Alice Dawson. Mrs. Morton was the wife of the real estate dealer who handled the sale of the property to appellant and her husband. The two women met when the O’Hallorans made a trip to Arkansas to view the lands. In the 1949 letter appellant stated that “we have decided not to pay taxes on the forty acres any longer. If you folks would like to keep/redeem it for your daughter we’d be so glad to have her or you have it.” Mrs. Morton redeemed the land from the 1948 forfeiture and had the ownership name changed on the tax books to John F. and Alice M. Dawson (Mrs. Morton’s daughter). Taxes have been paid in the name of the Dawsons continuously since that time. The appellees plan to build a retirement home on the land. Dawson is a career navy commander and the Dawsons have never occupied the property, moving from one navy post to another.

Mr. and Mrs. O’Halloran were divorced in 1959. There was no mention of the property in the decree. Four years after the divorce Mr. O’Halloran executed a quitclaim deed in favor of appellees. Mrs. O’Halloran was also requested to sign a quitclaim deed and in 1965 she replied that irrespective of her 1949 offer, she felt that she should not deed the land away.

Mr. O’Halloran died in 1968 and appellant claims, since the deed to the O’Hallorans created an estate by the entirety, she is now the sole owner of the subject property. She filed the present suit in 1969.

When the tract was purchased by the O’Hallorans in 1936 it had only a nominal value. With the construction of Greers Ferry Dam, which placed this property near the lake, the land values have increased considerably. That fact is of common knowledge; it is recited in a letter in evidence that the Heber Springs area had grown since the building of the dam. The chancellor took cognizance of the general increase in land values, as he had a right to do. Tomlinson v. Williams, 210 Ark. 66, 194 S.W. 2d 197 (1946); Mitchell v. Powell, 194 Ark. 638, 109 S.W. 2d 155 (1937). None of the parties to this suit have ever occupied the lands. At the time of the purchase in 1936 the then owners resided on the property and were cultivating it. Subsequently the improvements fell into disuse and have disappeared except for a partial fence on one side.

It can hardly be questioned that in 1949 the O’Hallorans decided to abandon the lands and that they wanted Mrs. Morton or her daughter (Mrs. Dawson) to take title thereto. That fact is attested by Mrs. O’Halloran’s letter of that year and by the quitclaim deed which Mr. O’Halloran later executed in favor of the Dawsons. We think this case comes under our holding in McGill v. Adams, 120 Ark. 249, 179 S.W. 489 (1915): “We have uniformly held that the failure to pay taxes on unimproved lands for a long period of time, together with great enhancement in values, constitute an abandonment, and that an action seeking equitable relief against one who has paid taxes under those circumstances for more than seven years is barred by laches.” It is also significant in the case at bar that the O’Hallorans, by overt acts, abandoned the land in favor of appellees, inducing them to accept the burden of paying the taxes. In the interim the lands have increased substantially in value, as we have heretofore mentioned.

Affirmed.


text:
    In the Matter of Rules of Criminal Procedure
    5-5888
    Opinion delivered May 1, 1972

      William S. Arnold, for Arkansas Bar Association, petitioner.

      Spitzberg, Mitchell br Hays, by: Jerry D. Jackson, for intervenors, Arkansas Press Association and Sigma Delta Chi
   Lyle Brown, Justice.

The Arkansas Bar Association filed with this court a petition seeking the addition of five rules to the existing rules of criminal procedure. The proposed rules would fix guidelines governing the release and publication of information in connection with criminal proceedings. The rules would primarily affect the trial courts, attorneys, law officers, and newspapers. The Arkansas Press Association, a leading journalism society (Sigma Delta Chi), and many individual newspaper reporters have made known to this court their opposition to the proposed rules, either by briefs or letter petitions.

It is our conclusion that the petition should be denied. We are not convinced that we have a problem with court news dissemination that requires the adoption of rather rigid rules covering all facets of the subject. We might have a different situation if we had large cities, such as Los Angeles, Chicago, or New York, where there are great volumes of criminal trials and a multitude of various types of newspapers. Judging from the records in the many criminal appeals coming to our court we can safely say that points for reversal based on alleged prejudices created by procedures covered in the proposed rules are indeed rare.

It is also persuasive to us that trial courts have the inherent power to adopt and enforce reasoniable rules covering the subject matter before us. If there now exists, or later develops, a problem in any particular judicial circuit, the affected judge can just as easily correct the situation under his inherent powers by the promulgation of a simple and constitutional rule that would correct the particular problem. Such rules would be more successful if they were in the nature of voluntary rules of fair practice acceptable to both the bar and the press in the affected jurisdiction. Voluntary rules are now in effect in many jurisdictions and they are commended by the American Bar Association.

The Constitution of the United States guarantees freedom of the press. It also guarantees the right to trial by an impartial jury. When rules such as those submitted to this court are drafted the problem of balancing those two guarantees so that neither may be infringed upon confronts the drafters. We are not here required to pass upon the constitutionality of each of the proposed rules now before us; however, we do have some doubt that all the provisions would pass a constitutionality test. We make that statement because, if at some time in the future the rules are submitted to a particular trial court jurisdiction, the guidelines as now written, should be carefully evaluated with the constitutional issue in mind.

The fact that we do not see fit to adopt the proposed rules is meant as no reflection on the drafting committee of the Arkansas Bar Association. In fact we commend their efforts which we know were in all sincerity. Their only desire was to afford what they thought were appropriate guidelines for fair trial and free press.

Petition denied.