text:
    Alfred D. HARKNESS v. STATE of Arkansas
    CR 80-188
    609 S.W. 2d 35
    Supreme Court of Arkansas
    Opinion delivered December 15, 1980

      E. Alvin Schay, State Appellate Defender, by: Deborah R. Sailings, Deputy State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Alfred D. Harkness’s conviction in February, 1978, of burglary and attempt to commit rape was reversed by us in Harkness v. State, 267 Ark. 274, 590 S.W. 2d 277 (1979). Harkness was retried on the charges of burglary and attempt to commit rape. He was found guilty and sentenced to five years on the burglary charge and twenty years on the charge of attempted rape, with the sentences to run consecutively.

On appeal, Harkness’s only argument of error is that the trial court erred in refusing to allow voir dire of the jurors following a two-day break in their deliberations. We find no merit to the argument and affirm the judgment.

After deliberating, the jury reported it had some difficulty with the verdict. The trial judge said that he would be outside the county for two days and would allow the jury a two-day recess. The defendant made no objection to the impending separation. Prior to the recess, the court admonished the jury not to discuss the case among themselves or with anyone else and “not to read anything in the newspapres about the case, or listen to any radio or television reports concerning the case nor permit anyone to read any news report to you regarding the case.”

When court reconvened, the judge questioned the jurors as a body, making certain that none of them had ready any newspaper accounts or articles concerning the trial of the case and that they had not permitted anyone to read such articles to them. The attorney for Harkness made a motion that he be allowed to question the individual jurors further. He simply argued there might be a possibility of prejudice from publicity or discussion of the case with others. The motion was denied. There was no mention made of specific newspaper articles that, might have been seen by the jurors, and there was no showing of prejudice.

We do not find the court abused its discretion since the jurors had been admonished before the separation not to read newspaper accounts of the trial or case and, after reconven-: ing, the judge asked the jurors twice whether they had read any articles concerning the case. As the Minnesota Supreme Court stated in State v. De Zeler, 230 Minn. 39, 41 N.W. 2d 313 (1950):

When a jury has been clearly admonished not to do a certain act, the mere opportunity to violate the admonition, without a vestige of proof of its violation, provides no basis upon which a court of review can find that the trial court has abused its discretion in refusing to investigate the jury for such possible misconduct. As an essential of a fair and impartial trial, there is no presumption that the jury is likely to take advantage of every opportunity to disregard the cautionary instructions of the court.

The original decision to allow the jury to separate was within the court’s discretion as stated in Ark.' Stat. Ann. § 43-2121 (Repl. 1977). The burden was upon the defendant to show that the jury had been improperly influenced during the time that they were apart. Swagger v. State, 228 Ark. 51, 305 S.W. 2d 682 (1957); Reeves v. State, 84 Ark. 569, 106 S.W. 945 (1907). In his motion for a new trial, Harkness offered two newspaper articles that he claims could have influenced the jury during the separation. These were not presented to the trial court at the time the jury reconvened. The court was justified in assuming that, without a specific showing of misconduct by the jury, no prejudice resulted to the defendant. This is true even though the jury later reached a verdict of guilty. Johnson v. State, 190 Ark. 979, 82 S.W. 2d 521 (1935).

The decision of the trial court is affirmed.

Affirmed.

Purtle, J., dissents.


source: Caselaw Access Project

author: Darrell Hickman, Justice. Richard L. Mays, Justice,

license: Public Domain

text:
    Harold Michael NEWTON and Roger Lynn STRICKER v. STATE of Arkansas
    CR 80-230
    609 S.W. 2d 328
    Supreme Court of Arkansas
    Opinion delivered December 15, 1980
    [Rehearing denied January 19, 1981.]

      Elrod & Lee, by: John R. Elrod, for appellant Stricker.

      Jeff Duty, for appellant Newton.

      Steve Clark, Atty. Gen., by:Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Roger Lynn Stricker and Harold Michael Newton were convicted of theft by receiving and sentenced to two years imprisonment.

They were tried jointly but were defended by separate attorneys. On appeal each raises different arguments of error but both attack the constitutionality of the Theft by Receiving Statute, Ark. Stat. Ann. § 41-2206. Strieker’s other argument is that a livestock auction ticket was improperly admitted as evidence; Newton’s other arguments are that the evidence was insufficient to support his conviction and that an instruction given to the jury amounted to a comment on the evidence in violation of Article 7, § 23, of the Arkansas Constitution. Since we find no merit to any arguments of error, we must affirm their convictions.

Stricker owned a farm near Gentry in Bentori County, Arkansas. Newton is his stepson. According to the record, Stricker was twenty-five years old and Newton was twenty-three at the time these events took place. The evidence showed that they took five head of cattle, which had been stolen the day before in Arkansas, to a sale barn in Oklahoma. The livestock consisted of four Hereford calves and a Charlois heifer weighing about 600 pounds. The calves were only ten days old or less. Neither party disputed that the cattle were stolen — their defense was they did not know it.

They transported the calves to the sale barn in the back of a pickup truck which had a camper on it — an unusual mode of hauling cattíe. As they unloaded the calves at the auction barn, an employee became suspicious because of the type of vehicle, the age of the calves, and the absence of a vehicle tag on the truck. When Stricker was asked if it were not unusual to be selling such young beef calves, he replied that he had traded for them. It is not unusual to see young calves from dairy cows being sold, but it is to see such young beef calves being sold. The calves were listed for sale in the name of R. L. Summers, Route 1, Westville, Oklahoma.

Officers from the sheriffs office came to the barn and sought out Stricker and Newton. There was evidence that the suspects tried to evade the officers.

The Stricker camper-pickup truck was searched and evidence was discovered that it had been used to transport livestock prior to this time. The windows in the camper were covered on the inside with burlap sacks and a half gallon bottle with a nipple on it was found under the front seat. Stricker testified he did not know how the bottle got there. The bottle contained a small amount of fresh milk formula. There was testimony that such a bottle is often used to entice small calves away from their mothers. Also, a set of bolt cutters and Arkansas vehicle tags were found in the truck.

Both appellants gave written statements to the sheriffs office and both testified. Both said that the cattle belonged to R. L. Summers. Stricker said that he had done business several times before with Summers, selling him hay and straw, and that that morning Summers had come to his farm for hay. First Stricker said that Summers had offered to trade for the calves and finally that Summers had asked him to haul the calves to the sale barn for $20.00.

Two witnesses who were familiar with the vicinity of Route 1, Westville, Oklahoma, said they had never heard of R. L. Summers. Stricker said that while he had traded several times with Summers he had never been to Summers’ farm. R. L. Summers were never produced as a witness.

Newton argues that he was a mere bystander, that he knew nothing about cattle, and that the evidence did not warrant his conviction. However, there was sufficient evidence for the jury to find Newton guilty. Newton claimed to know R. L. Summers. Newton’s testimony in several regards was inconsistent with his original written statement. His written statement was “we loaded the cattle . . but his testimony was that he did not go to the barn until they were already loaded. He was with Stricker at the sale barn, helped unload the cattle and according to a sheriffs deputy tried to evade the uniformed officer. Newton contradicted Strieker’s statement that they stopped for gas enroute to the sale barn by saying that they bought no gas. No doubt Newton’s credibility suffered when he conceded a prior conviction for burglary and grand larceny. It was for the jury to determine the weight to be given such evidence, and we find substantial evidence to support their finding.

Both appellants argue that the Arkansas statute concerning theft by receiving is unconstitutional. The statute reads:

41-2206. Theft by receiving. — (1) a person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen, or having good reason to believe it was stolen.

The appellants contend that the phrase “or having good reason to believe it was stolen” is unconstitutional for two reasons: it is vague and it does not describe criminal misconduct, only negligent conduct.

There is no doubt that a penal statute must be in definite language to be constitutional. The test regarding vagueness is whether people of common intelligence have to guess at its meaning. Connally v. General Const. Co., 269 U.S. 385 (1926); Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975). The language of the statute should convey definite warning of the prohibited conduct when measured by common understanding and practices. U.S. v. Petrillo, 332 U.S. 1 (1947); Martin v. State, 261 Ark. 80, 547 S.W. 2d 81 (1977).

The Michigan court described the problem in discussing the words “good repair”:

It would be difficult, if not impossible, to lay down a rule of conduct in more exact terms which would at the same time cover the varying conditions presented in each individual case. . . . [T]here are many crimes on our statute books which must be defined by the use of words of a general and flexible meaning, and the existence or nonexistence of the essential elements of these crimes becomes a question of fact to be determined in each case. ... It is necessary to apply the rule of reason or common understanding to many statutes in order to carry out their purpose. People v. Samoff, 302 Mich. 266, 4 N.W. 2d 544 (1942).

The appellants cite the case of Davis v. Smith, 266 Ark. 112, 583 S.W. 2d 37 (1979) in support of their argument. In Davis we held that the phrase “a proper home,” was too vague. Obviously, what would be proper to one person would not always be proper to another. We do not find the Davis case controlling.

We do not deem the language of the statute in issue to be vague. A person of common intelligence would know what it means to receive stolen property and to have good reason to believe that it was stolen. How could such misconduct be described more clearly? No suggestion is made by the appellants as to how a statute could read more specifically.

The second line of attack on the constitutionality of this statute is that the statute proscribes only negligent conduct and not criminal conduct. That is, that in a criminal statute there must be some criminal intent for the statute to be constitutional; if the statute only describes negligent misconduct then it is not constitutional.

The case oi People v. Johnson, 564 P. 2d 116 (Colo. 1977), is cited as authority for that proposition. The Colorado Supreme Court held that the phrase “reasonable cause to believe,” in a statute similar to Arkansas’s was unconstitutional because it lacked the requirement of criminal intent. In addition to the Colorado case it is argued that there are no guidelines as to what “good cause to believe” means. It could mean one thing to one person and something else to another. Without any guidelines, the statute could mean that one person would be guilty of a crime whereas another would not be. In regard to this argument we adopt the view expressed by the Oregon court in State v. Redeman, 9 Or. App. 329, 496 P. 2d 230 (1972). The Oregon statute contains exactly the same phrase as the Arkansas statute, “having good reason to believe.” The Oregon court pointed out that the question was whether from the circumstances the defendant — not some other person — believed that the goods had been stolen. It is an individual test regarding the intent of the accused and not a test of whether a reasonable person would consider the goods stolen. The Oregon court held that the statute required actual knowledge or belief and was therefore constitutional.

In Hoard v. State, 80 Ark. 87 (1906), we said “. . . when nothing is shown to the contrary, the law presumes the defendant to be a person of ordinary reason, and holds him accountable as such.”

The Arkansas statute was adopted using the Oregon statute as a guide. See Commentary, Ark. Stat. Ann. § 41-2206. There is no doubt that the Arkansas General Assembly did relax the state’s burden of proof by adopting Ark. Stat. Ann. § 41-2206. It did so with the knowledge that convicting a “fence” had been difficult under the old law. A “fence” is a person who buys and sells stolen goods. Webster’s New World Dictionary. The language of the statute clearly describes the conduct of one who is known as a “fence” because such a person does not want to know if the goods are stolen. The same would be true of an individual who closes his mind to the facts, yet receives goods anyway, having good cause to believe the goods are stolen. The language describes conduct of one who has more than a suspicion that the property is stolen; it describes more than just carelessly receiving stolen property; it describes conduct which crosses those boundaries and becomes a wrongful act by a guilty mind.

Strieker’s other argument is that the State was allowed to introduce the receipt made for the cattle at the auction barn, when the document had not been provided to the defense before trial. The prosecuting attorney argued that the omission was an innocent oversight and the judge agreed. Such a matter is discretionary with the-trial court. Rules of Crim. Proc., Rule 19-7. Furthermore, no argument is made as to any prejudice that resulted from the introduction of the ticket. The ticket merely reflected that the cattle were owned by R. L. Summers, Route 1, Westville, Oklahoma, and listed five head of cattle. This evidence had already been offered in other forms to the jury.

Newton’s final argument is that an instruction was given which amounted to a comment on the evidence, a practice prohibited by Article 7, § 23, of the Arkansas Constitution. The section reads: “Judges shall not charge juries with regards to matters of fact . . .”, and it has been enforced consistently. Flynn v. State, 43 Ark. 289 (1884); Burgess v. State, 206 Ark. 157, 174 S.W. 2d 239 (1943).

The instruction given in this case was taken from Arkansas Model Criminal Instructions, Number 2206, and reads:

Harold Michael Newton and Roger Lynn Stricker are charged with the offense of theft by receiving. To sustain this charge the State must prove beyond a reasonable doubt that Harold Michael Newton and Roger Lynn Stricker acquired possession or control of or disposed of stolen property of another person, knowing or having good reason to believe that it was stolen.
Evidence that Harold Michael Newton and Roger Lynn Stricker were in unexplained possession or control of recently stolen property, may be considered by you along with all the other evidence in the case in deciding whether they knew or believed that the property was stolen. However, this evidence does not impose any duty upon you to find that Harold Michael Newton or Roger Lynn Stricker knew or believed that the property was stolen. [Emphasis added.]

Newton points out that the emphasized language in the instruction amounts to a comment on the evidence. There is no doubt that it was a jury question as to whether the defendants were or were not in unexplained possession of recently stolen property. Burgess v. State, supra. However, the question is, did the instruction comment on the facts.

In Petty v. State, 245 Ark. 808, 434 S.W. 2d 602 (1968), we approved an instruction concerning possession of recently stolen property which read:

The possession of property recently stolen without reasonable explanation of the possession is evidence which goes to you for your consideration under all the circumstances of the case to be weighed as tending to show the guilt of one in whose hands such property is found. But such evidence alone does not impose upon you the duty of convicting even though it be not rebutted.

When the instruction in the Petty case is compared to the AMCI instruction, it is noticed that the difference is not great. The AMCI instruction does not say there was evidence the appellants were in unexplained possession; it simply says evidence that they were may be considered by the jury. The only change that might be made to make the AMCI instruction read as the Petty instruction read, would be to add, “any” before the word evidence in the first line of the second paragraph, and “such” evidence rather than “this” evidence in the second sentence of that paragraph. The question to us is not which would be the better draftsmanship but whether the instruction given violáted the constitution. Since the AMCI instruction is not argumentative in form and does not comment upon the weight of evidence, we find it a proper instruction.

Affirmed.

Mays, J., dissents.

Purteje, J., not participating.

Richard L. Mays, Justice,

dissenting. Under our statute, a person commits the offense of theft by receiving if he receives stolen property knowing or having good reason to believe it was stolen. Ark. Stat. Ann. § 41-2206 (Repl. 1977). Contrary to the majority’s view today, I find such a statute to be constitutionally infirm because it criminally punishes innocent as well as culpable conduct. The majority recognizes the problem but holds that the reasonable person standard here is an individual test which is solely controlled by what the defendant actually believed. I cannot draw such a fine distinction. I know of no way to determine what a person has reason to believe except by determining what an ordinary person would believe under the same or similar circumstances. Obviously, the application of such a broad standard will result in criminally punishing persons for failure to exercise the intelligence of an ordinary prudent person. See People v. Johnson, 193 Colo. 199, 564 P. 2d 116 (1977). Since the statute proscribes negligent conduct and sanctions imprisonment for less than criminal intent, I would reverse the judgments below.


author: John I. Purtle, Justice.

text:
    Freddie Jerome WILLIAMS v. STATE of Arkansas
    CR 80-208
    609 S.W. 2d 37
    Supreme Court of Arkansas
    Opinion delivered December 15, 1980

      McArthur & Lassiter, P.A., for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was charged with two counts of possession of a controlled substance, in violation of Ark. Stat. Ann. § 82-2617 (Repl. 1976). The first count charged him with possession of cocaine and the second count with possession of marijuana. The counts were merged at the trial, and he was convicted and sentenced to four years in the Department of Correction, to be served consecutively to a federal sentence he is now serving.

On appeal three grounds are urged for reversal: (1) that he was denied a speedy trial; (2) certain evidence should have been suppressed; and (3) the evidence was insufficient to support the verdict.

We disagree on all three counts which will be discussed separately.

The facts reveal a nighttime search warrant was authorized on May 2, 1978, and was required to be served within ten days. It was served on May 5, 1978, at which time the appellant was arrested. The arresting officers broke down the door to an office occupied by the appellant. There were two or three other persons present at the time. According to testimony appellant was the operator of the C & S Club where the search and arrest were conducted. The officers testified they seized a packet of cocaine out of the commode as it was being flushed and some marijuana on the floor nearby. Appellant was standing next to the commode, and the other people were across the room. Appellant made bond on the date of his arrest. The case was never brought up for a hearing in municipal court for reasons not explained in the record. Both parties seem to believe the charges in question were nolle pressed; however, the record does not reflect any such action.

On June 6, 1978, appellant commenced serving a term in a federal institution outside the State of Arkansas. No detain-er or notice was filed at the federal institution at that time. In March of 1979 the appellant was returned to Pulaski County, Arkansas, on an unrelated charge at which time the unrelated charge was dismissed and appellant returned to federal custody.

On March 13, 1979, the prosecuting attorney filed an information on these two same counts and gave notice to the federal correctional institution where appellant was confined. For some unexplained reason a bench warrant was issued on May 29, 1979, for failure to appear. There is nothing else in the record about this proceeding. On October 26, 1979, appellant filed a motion to suppress the evidence. The motion was overruled, and the appellant was tried and convicted on November 1, 1979.

We first consider the speedy trial issue. Appellant was arrested on May 5, 1978, and posted an appearance bond the same day. No probable cause hearing is shown in the record. The appellant was incarcerated in the federal institution from June 6, 1978, until after the trial. He may still be serving the federal sentence as the record does not reflect he has been returned to Arkansas authorities. The following Arkansas Rules of Criminal Procedure are involved in this matter:

Rule 28.1 (b): Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
Rule 29-1 (b): If the prosecuting attorney has information that a person charged with a crime is imprisoned in a penal institution of a jurisdiction other than the State of Arkansas, he shall promptly cause a detainer to be filed with the official having custody of the prisoner and request such officer to advise the prisoner of the filing of the detainer annd of the prisoner’s right to demand trial.
Rule 30.1 (b): An incarcerated defendant not brought to trial before the running of the time for trial as provided by Rules 28.1 — 28.3 shall not be entitled to absolute discharge pursuant to subsection (a) hereof but shall be recognized or released on order to appear.
Rule 30.1 (c): The time for trial of a defendant released pursuant to subsection (b) hereof shall be computed pursuant to Rules 28.1 (b) and 28.2

The terms of the Pulaski County Circuit Court involved in this case are:

March 6, 1978 to September 24, 1978 (Arrested)
September 25, 1978 to March 4, 1979 (Passed)
March 5, 1979 to September 22, 1979 (Passed)
September 23, 1979 to March 2, 1980 (Tried)

We do not count the term in which appellant was arrested. State v. Messer, 269 Ark. 431, 601 S.W. 2d 857 (1980). He was not tried in the September 1978 term or the March 1979 term. However, he was tried in the September 1979 term which is during the third full term after his arrest.

Although appellant was arrested a second time on September 7, 1979, as a result of the evidence obtained by the search warrant which was served on May 5, 1978, we do not compute the time from the filing of the information on March 13, 1979, because we think Rule 28.2 (a) covers the situation. This rule states that time commences to run from the date the charge is filed, except that if the defendant is held in custody or released on bail to answer for the same offense or other offenses arising from the same episode, then the time commences to run from the date of the arrest. Therefore, the late filing of the information did not start the time running anew from the day of the second arrest.

Appellant was on bail from the State of Arkansas (although incarcerated out of state) from the date of his arrest on May 5, 1978, until he was tried. He did not make demand for a speedy trial. Had he been held in the State of Arkansas during the time from his arrest on May 5, 1978, until the motion was filed, he would only have been entitled to release from custody and then the provisions of Rule 30.1 (b) and (c) would apply, but he would not have been entitled to an acquittal or to have the charges against him dismissed.

We addressed this same situation in the case of State v. Davidson, 254 Ark. 172, 492 S.W. 2d 246 (1973), where we stated:

However, one incarcerated in an institution of the federal government or that of some other jurisdiction must affirmatively request a trial in order to activate the statute and to avail himself of its protection. *** When an accused is incarcerated in a federal institution or in another state, he is not incarcerated or held on bond awaiting a determination of whether he is guilty or innocent but is incarcerated for the commission of another crime for which he has been found guilty. In such situation there is no good reason why the accused should not be required to place himself on record in the attitude of demanding a trial before he would be entitled to discharge. . . .

Since the appellant was on bail for the present charges and was also incarcerated out of state, and made no demand for a speedy trial, the three term requirements of Rule 28.1 (b) apply. He was tried before the expiration of the third full term of court following his original arrest on May 5, 1978.

Secondly, appellant challenges the failure of the court to suppress the evidence which was seized as a result of the search warrant served on May 5, 1978. He argues the authorization of a nighttime search on May 2, 1978, was not valid for the search which occurred three days later. The issuing magistrate allowed ten days for return on the warrant; therefore, the appellant has not valid reason to suppress simply because the warrant was not served for three days after it was issued. No authority is cited by either party on this point; and, frankly, we do not see any reason why the warrant was not still valid. Arkansas Rules of Criminal Procedure, Rule 13.2 (c), allows a search to be conducted within a reasonable time, not to exceed 60 days. We do not find any error relating to the issuance or service of the search warrant.

Finally, appellant argues the evidence was insufficient to support the verdict. Appellant argues the cocaine and marijuana should have been produced. These items were unavailable at the time of trial as they had apparently been destroyed by those having custody of same. However, the officers testified in detail about finding the contraband in the room where appellant was apprehended and the state chemist testified that the result of his analysis proved the substances were, cocaine and marijuana. The failure to present the drugs physically only goes to the weight of the proof presented by the state. Parker v. State, 265 Ark. 315, 578 S.W. 2d 206 (1979).

Appellant also argues he was not in actual possession of the substances. He was in the office of the C & S Club which he operated. The contraband was found in the commode and on the floor near where appellant was standing. Nothing was found to indicate any of the other persons present were in control of the contraband. None of them were involved in running the club so far as the record shows. We have many times held a person may be in constructive possession of such items when he either maintains control or a right to control, if it is immediately and exclusively accessible to the accused and subject to his dominion and control or to joint dominion and control of the accused and another person. Such possession and control may be established by circumstantial evidence. Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976). In Cary we stated:

Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or the joint dominion and control of the accused and another.

Also, see Lee v. State, 270 Ark. 892, 609 S.W. 2d 3 (1980).

Finding no error by the trial court and following our well-established rule that we view the evidence on appeal in the light most favorable to the appellee, we must affirm the trial court.

Affirmed.


author: John F. Stroud, Justice.

text:
    STATE of Arkansas, DEPARTMENT OF FINANCE AND ADMINISTRATION v. OTIS ELEVATOR COMPANY
    80-166
    609 S.W. 2d 41
    Supreme Court of Arkansas
    Opinion delivered December 15, 1980

      James R. Eads, Jr., Joseph V. Svohoda, H. Thomas Clark, Jr., Martha S. Stephenson and Cassandra Wilkins-Slater, by: Timothy J. Leathers, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   John F. Stroud, Justice.

Appellee is a corporation authorized to do business in this state and is engaged, among other things, in the servicing and maintenance of elevators. Appellant is responsible for the enforcement of our Gross Receipts Tax Law, Ark. Stat. Ann. §§ 84-1901 — 84-1904, 84-1906 — 84-1919 (Repl. 1980) and pursuant to that authority assessed a tax in the amount of $61,717.05, plus penalty of $6,171.72 and interest of $4,235.36, upon appellee’s gross receipts from the servicing and maintenance of elevators. Appellee contested the assessment and requested a hearing before the Commissioner of Revenues, who upheld the action of appellant. Appellee then paid the tax under protest and filed suit for refund in Pulaski County Chancery Court. The Chancellor ruled that appellant had failed to prove that the General Assembly expressly intended to impose the tax upon receipts from the maintenance and servicing of elevators. Appellant brings this appeal, contending that the Chancellor erred, and as we agree, the ruling is reversed.

For the purposes of this appeal the operative section of the Gross Receipts Tax Law is Ark. Stat. Ann. § 84-1903(c)(3), which provides, in pertinent part, that the tax is levied on gross receipts derived from:

Service of alteration, addition, cleaning, refinishing, replacement and repair of motor vehicles, aircraft, farm machinery and implements, motors of all kinds, tires and batteries, boats, electrical appliances and devices, furniture, rugs, upholstery, household appliances, television and radio, jewelry, watches and clocks, engineering instruments, medical and surgical instruments, machinery of all kinds, bicycles, office machines and equipment, shoes, tin and sheetmetal, mechanical tools and shop equipment. (Emphasis added.)

The parties have stipulated that the maintenance and repair services upon which the tax was assessed are the kind of services contemplated by § 84-1903(c)(3) and would be taxable if performed upon items included in that section. They have also stipulated that all of these services of appellee were performed on elevators in various buildings and structures on real property. The sole question, then, is whether the fact that the elevators are attached to structures on real property removes appellee’s service and maintenance proceeds from the ambit of the Gross Receipts Tax Lwa.

Both sides agree that, as a general rule, a tax cannot be imposed except by express words indicating that purpose, and any ambiguity or doubt must be resolved in favor of the taxpayer. Wiseman v. Arkansas Utilities Company, 191 Ark. 854 88 S.W. 2d 81 (1935). Appellee contends that it was the intent of the General Assembly in enacting the Gross Receipts Tax Law that it apply solely to the sale of, or service to, tangible personal property, as well as certain enumerated types of intangible property. The Chancellor agreed with this interpretation of the law and overturned the assessment, ruling that there was no showing that the tax was expressly imposed upon the proceeds from services to real property.

We must disagree. It is true that sales of tangible personal property are subjected to the tax in subsection (a) of § 84-1903, but the subsection applicable here also imposes the tax on the sale of the services therein enumerated. It is clear that § 84-1903(c)(3) expressly imposes the tax upon service to motors, electrical devices, and machinery of all kinds, all of which describe in various ways an elevator and its components. Appellee concedes that the proceeds from these services would be taxable were it not for the fact that elevators are affixed to structures upon real property. This argument must fail. We find it significant that the General Assembly in its enumeration of services to be taxed by this subsection included the addition, replacement or repair of tin and sheetmetal, which obviously are primarily utilized in the ■ construction of buildings and other structures upon real property. We think the intent of the General Assembly was made sufficiently clear by their reference to “machinery of all kinds” and that they intended the tax to apply to service to all machinery whether or not it was affixed to realty. Accordingly, we must reverse the finding of the Chancellor and remand this cause for proceedings not inconsistent with this opinion.

Reversed and remanded.


author: Richard L. Mays, Justice. John A. Fogieman, Chief Justice, Darrell Hickman, Justice,

text:
    James FRENCH v. STATE of Arkansas
    CR 79-171
    609 S.W. 2d 42
    Supreme Court of Arkansas
    Opinion delivered December 15, 1980

      Dave Wisdom Harrod, J.D., for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Pewell, Asst. Atty. Gen., for appellee.
   Richard L. Mays, Justice.

The appellant, James French, was charged with two counts of rape and incest of his granddaughter when she was ten and four counts of rape .and incest when she was eleven. After viewing a video cassette film of one of the occasions which was visually recorded by appellant as he committed an offense, the jury convicted appellant and sentenced him to 15 years on one count of rape and five years on each of the other five, as well as six years on one count of incest and two years on the other five. The trial judge directed that the sentences be served consecutively, making a total sentence of 56 years. The appellant now contends that his convictions should be set aside because the trial judge wrongfully denied him a continuance and improperly admitted evidence, including the video cassette film. We disagree and, therefore, affirm.

Appellant, 61 at the time, was arrested on March 7, 1979 after his wife, son and daughter contacted the prosecuting attorney and turned over a video cassette film which appellant had made of himself as he performed cunnilingus on his granddaughter. His granddaughter had further disclosed that appellant had forced her to submit to such acts on six separate occasions over a 14 month period, beginning in January of 1978 and ending in March of 1979.

On March 26, 1979, appellant was psychologically evaluated by the state mental hospital which found him to be without psychosis in early April. On May 4, 1979, appellant’s counsel filed a motion for continuance indicating that he needed time beyond May to prepare for trial, assemble defense witnesses, and evaluate medical evidence. No affidavit accompanied the motion. At a hearing on this motion on May 8, 1979, appellant’s counsel indicated that he had primarily filed the motion because he had other, criminal and civil trials scheduled toward the end of May and that he needed additional time to obtain the results from certain psychological tests which appellant was undergoing from a private psychiatrist. However, when the judge asked whether there would be a defense of mental disease or defect, appellant’s counsel responded, “In essence, Your Honor, no” and then went on to intimate otherwise. The motion was denied.

On May 25, 1979, appellant’s counsel renewed his motion for continuance, attaching a statement from a psychiatrist who was psychologically treating and evaluating appellant. All the statement indicated was that the doctor needed more time to render an evaluation. The record does not reveal that this motion was acted upon before appellant’s counsel announced ready for trial on May 31, 1979. Appellant was subsequently convicted on all counts and sentenced to the penitentiary.

It is well established that a trial court has wide latitude in granting a continuance, and its judgment will not be reversed absent a clear abuse of discretion. Figeroa v. State, 244 Ark. 457, 425 S.W. 2d 516 (1968); Grissom v. State, 254 Ark. 81, 491 S.W. 2d 595 (1973). Among the factors to be considered by the trial court in ruling on a motion for continuance are the diligence of the movant, the probable effect of any evidence which the movant alleges is unavailable, and the filing of an affidavit establishing the legitimacy of the evidence to be produced. Kelley v. State, 261 Ark. 31, 545 S.W. 2d 919 (1977).

Even if it is conceded that appellant was properly diligent, a concession which is probably unnecessary under the facts before us, appellant’s motion was not accompanied by an affidavit and did not state the probable effect of the psychological evidence which appellant alleged was not yet available. Moreover, the psychological evidence which was available indicated that appellant was legally sane, and appellant’s counsel indicated to the court that he was not going to rely on a defense of insanity. These circumstances do not justify a finding that the trial judge abused his discretion in denying appellant’s motion for continuance.

Appellant’s second argument concerning the improper admission of evidence is twofold. First, he contends that the state’s evidence should have been excluded because of a private agreement between the prosecuting attorney and appellant’s relatives not to prosecute appellant for the crimes revealed by their disclosures to the prosecutor. Even if such an agreement were legal, we simply find no factual basis in the record to support its existence. At the very least, the trial court was justified in disregarding any such agreement since the prosecuting attorney disclaimed any knowledge of it. Second, the appellant contends the obscene film depicting appellant’s shocking conduct should have been excluded because its probative value was substantially outweighed by its prejudicial effect. We disagree. The young victim was reluctant to testify against her grandfather and was extremely vague and indefinite in her responses to the prosecutor’s questions. She repeatedly stated that she could not remember what had happened and had to be continually prompted by references to her written statement. Under these circumstances, we think the film’s probative value outweighed any prejudice to appellant.

Affirmed.

Fogieman, C.J., and Hickman, J., concur.

Purtle, J., dissents.

John A. Fogieman, Chief Justice,

concurring. I concur in the majority opinion. The only reason for this concurrence is my feeling that we should recognize that under Rule 27.3, Arkansas Rules of Civil Procedure, an affidavit, formerly required under Ark. Stat. Ann. § 27-1403 (Repl. 1979), is no longer an essential prerequisite for the granting of a continuance. If good cause is shown, it should not matter how it is shown. An affidavit (or affidavits) may provide the most appropriate vehicle for making the showing, as is often the case in motion practice. In my opinion, the defect in this case is not in the failure to file accompanying affidavits. It is in the failure to make the showing of good cause that might have been made by an affidavit.

Section 27-1403 was made applicable to criminal proceedings by § 190 of the Criminal Code of 1869 [Ark. Stat. Ann. § 43-1706 (Repl. 1977)]. Section 27-1403 was a part of the Civil Code of 1869- We have adopted comprehensive new Rules of Criminal Procedure and of Civil Procedure. Although 27-1403 is not mentioned in the supersession order entered when the Rules of Civil Procedure were adopted, those rules include Rule 40 (b) which merely provides that the court may, upon motion and for good cause shown, continue any case previously set for trial. The Reporter’s notes state that the motion for continuance does not have to be in writing. There is no provision in the current Arkansas Rules of Criminal Procedure similar to Ark. Stat. Ann. § 43-1706. I do not see how § 27-1403, at least as applied to criminal cases, can be said to have survived.

I fully recognize the fact that, since the adoption of the Rules of Criminal Procedure, I have written two opinions in which reference was made to Ark. Stat. Ann. § 27-1403. See Venable v. State, 260 Ark. 201, 538 S.W. 2d 286 and Kelley v. State, 261 Ark. 31, 545 S.W. 2d 919. Both of these opinions were written before the adoption of the Rules of Civil Procedure. In Venable, we considered the failure to file an affidavit as only one significant factor in appellate review of the exercise of the trial court’s discretion in denying a motion for continuance. In Kelley, we said that the denial of a motion not in compliance with § 27-1403 was not an abuse of discretion; however, we pointed out that, even if the testimony of the appellant as to the testimony of a witness constituted substantial compliance with the statute, appellant’s lack of diligence would have justified denial of the continuance.

I firmly believe that the filing of an affidavit as to the anticipated testimony of an absent witness is the better practice and that a trial court would be justified in denying a motion for continuance based on the unavailability of a witness when there is no adequate showing of what that witness would testify. I do not believe that the formal affidavit is an absolute requisite for the granting of a continuance or is its absence a ground for denial of a continuance, if an appropriate showing is otherwise made.

I am authorized to state that Mr. Justice Hickman joins in this opinion.

Darrell Hickman, Justice,

concurring. I agree that the case has to be affirmed on the two issues raised on appeal. However, to me the disturbing points are the obvious arguments that were not made during the trial or presented on appeal. The prosecuting attorney filed an amended information ten days before trial alleging five counts of incest in addition to the five counts of rape that had originally been charged. The additional allegations concerned the same five instances involved in the charges of rape. No objection was made to this late amendment. The record reflects that it would be contrary to Arkansas law for French to have been convicted for both rape and incest in several of the instances charged. Ark. Stat. Ann. § 41-105. There was no objection raised regarding this matter during the trial. The evidence was insufficient to support findings of guilty for rape and incest in at least four of the five circumstances considered. The record reflects that there was penetration in only one of those instances. That would mean a conviction could be had for only sexual abuse in the first degree, a less serious crime. There was no objection made regarding this matter at the trial. The Attorney General’s office filed a motion with this court on two occasions to require the appellant to file an adequate brief and we granted that request.

I am not in favor of the so-called “plain error” rule whereby we review errors on our own, but in some instances the errors are so flagrant that they cannot go unnoticed. It may be that it was strategy in this case for French’s counsel not to make any objections but that is difficult for me to conceive. In any event, that strategy or oversight, whichever it may have been, is one that should not go unmentioned by us. It is in the best interest of the state that new trials not be necessary. That can only mean that a prosecuting attorney and a circuit judge have some duty to see that a trial is conducted so that no error is committed. It is a responsibility that cannot be totally borne by the counsel representing a criminal defendant. If any further proceedings are necessary in this case, then in my judgment those proceedings will not be solely the fault of counsel representing French.


author: Richard L. Mays, Justice.

text:
    Freddie NORTON v. STATE of Arkansas
    CR 80-178
    609 S.W. 2d 1
    Supreme Court of Arkansas
    Opinion delivered December 15, 1980

      E. Alvin Schay, State Appellate Defender, by; Jackson Jones, Deputy State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by:Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Richard L. Mays, Justice.

The only question presented by this appeal is whether the evidence is sufficient to sustain a conviction of burglary.

On the evening of July 25, 1979, shortly after the sound of breaking glass was heard, appellant, Freddie Norton, was observed opening from the inside the front door of an office building, which had been secured for the night, and speaking to two acquaintances who were walking by. When later that evening the owner of the building discovered the front door open, a window broken out, glass on the floor, and her window drapes down, a police investigation ensued. It was learned that nothing was taken from the office building, although the only potential valuables located in the building were boxes of undisclosed items belonging to two dentists who were in the process of relocating. The investigation also revealed that on the very same evening a house located near the office building had been illegally entered, apparently through a bedroom window, and several valuables taken.

The appellant was arrested and charged with two counts of burglary and one count of theft of property. The same person who had seen appellant in the doorway of the office building also testified that she saw a man from behind who looked like appellant standing on a bucket beneath the window of the home which had been burglarized. The jury acquited appellant on the charge of burglary of the home and the theft of property but convicted him of burglary of the office building. Since appellant had also been charged under the Habitual Criminal Act, Ark. Stat. Ann. § 41-1001 et seq (Repl. 1977), the jury imposed a sentence of 15 years after finding that he had been convicted of at least two previous felonies.

On appeal of a criminal conviction, we view the evidence in the light most favorable to the state and affirm if there is substantial evidence to support the conviction. Lunon v. State, 264 Ark. 188, 569 S.W. 2d 663 (1978). Evidence is substantial if it is of sufficient force and character to compel a conclusion with reasonable and material certainty. Jones v. State, 269 Ark. 119, 589 S.W. 2d 748 (1980).

A person commits burglary when he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein an offense punishable by imprisonment. Ark. Stat. Ann. § 41-2002 (Repl. 1977). Appellant primarily contends that his burglary conviction 'should be reversed because there is no evidence other than that of his entry which establishes that he intended to commit an offense punishable by imprisonment. Since a specific intent, as well as illegal entry, are both elements of the crime of burglary, appellant argues that independent proof of each is required and that the existence of one cannot be presumed from the existence of the other.

The appellant’s argument is grounded in the United States Supreme Court decision of Mullaney v. Wilbur, 421 U.S. 684 (1975). There, it was held that the Due Process Clause of the 14th Amendment requires that the prosecution prove beyond a reasonable doubt every element of the crime charged. The Court invalidated a Maine homicide statute which implied malice aforethought in any criminal prosecution of an intentional homicide unless the defendant established by the preponderance of the evidence that the homicide was committed in the heat of passion. In commenting on the Mullaney holding in a subsequent case, Patterson v. New York, 432 U.S. 197, 215 (1977), the Supreme Court said:

Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. . . . Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.

The well established principles enumerated by the United States Supreme Court in Patterson and Mullaney are controlling upon us today. Accordingly, we hold a specific criminal intent, which is an essential element of the crime of burglary, cannot be presumed from a mere showing of illegal entry of an occupiable structure. The prosecution must prove each and every element of the offense of burglary beyond a reasonable doubt and cannot shift to the defendant the burden of explaining his illegal entry by merely establishing it. Not only is illegal entry an independent element of burglary, but it also constitutes a separate crime punishable as criminal trespass. Ark. Stat. Ann. § 41-2004 (Repl. 1977). By implying a specific criminal intent from mere evidence of illegal entry, the state not only evades its constitutional evidentiary burden in criminal prosecutions but imposes upon a defendant the responsibility to prove he only committed a criminal trespass or stand in jeopardy of a conviction of burglary.

We are not unmindful that our decision in Grays v. State, 264 Ark. 564, 572 S.W. 2d 847 (1978), may suggest that the specific intent requirement of burglary may be presumed from the unexplained illegal entry of an occupiable structure. In Grays, however, the defendant fled, eluding the police officers, when his presence was discovered in the occupiable structure. We have consistently suggested that the flight of an accused to avoid arrest is evidence of his felonious intent. See, e.g., France v. State, 68 Ark. 529, 60 S.W. 236 (1900), Smith v. State, 218 Ark. 725, 238 S.W. 2d 649 (1951), Russell & Davis v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977). Notwithstanding our holding in Grays, however, we find no evidence here other than appellant’s illegal entry to sustain a conclusion that appellant’s entry was for the purpose of committing an imprisonable offense. Certainly, the evidence of the other neighborhood crimes is immaterial since appellant was acquitted of those charges. At most, the evidence revealed that appellant was standing inside the doorway of an office building which he had illegally entered and from which nothing was taken, speaking to his friends passing by. Although criminal intent is by nature subjective and usually provable only by circumstantial evidence, it remains an independent and indispensable element of the crime of burglary and cannot be presumed from another fact, the establishment of which is also essential to a conviction of burglary.

Reversed.


author: John A. Fogleman, Chief Justice.

text:
    HOUSTON CONTRACTING COMPANY and CONTINENTAL INSURANCE COMPANY v. Jesse T. YOUNG
    80-285
    609 S.W. 2d 895
    Supreme Court of Arkansas
    Opinion delivered December 15, 1980

      Ralph R. Wilson, Norwood Phillips, for petitioners.

      Shackleford, Shackleford & Phillips, P.A., for respondent.
   John A. Fogleman, Chief Justice.

Petitioners Houston Contracting Company and Continental Insurance Company seek review of the decision of the Court of Appeals affirming the decision of the Workmen’s Compensation Commission upon the claim of respondent Jessie T. Young. Houston Contracting Co. v. Young, 270 Ark. 1009 S.W. 2d (1980). Petitioner asserts two grounds as a basis for review. They are: (1) the case involves an issue of significant public interest and major legal importance; and (2) the case is a subsequent appeal following an appeal that had been decided in this court. We find merit in neither ground and deny review.

This court did previously review a decision of the Court of Appeals in this case and held that the case should be remanded to the Workmen’s Compensation Commission for the taking of testimony on the question whether the statute of limitations on respondent’s claim had run and that the question was a question of fact. Houston Contracting Co. v. Young, 267 Ark. 332, 590 S.W. 2d 653. The commission had held that the claim was barred because it was filed more than one year from the date of the last payment of compensation and the Court of Appeals held that the statute had not run. The basis for our reversal of the Court of Appeals was our decision that the statute of limitations is tolled in cases where the recipient of workers’ compenstaion benefits is not aware that he is being paid pursuant to the law of another state (Texas, in this case). After remand, the commission found that the claim was not barred by the statute of limitations because Young did not file a claim for an award in Texas, and was’ unaware that payments voluntarily made by petitioners were made pursuant to the workmen’s compensation laws of Texas. The question was one of fact which was resolved against petitioners by the Arkansas Workers’ Compensation Commission and the Court of Appeals found substantial evidence to support that decision. There was nothing about the second appeal to the Court of Appeals that involved any issue of significant public interest or principle of major legal importance. Any such issue was resolved in our previous review of the first decision of the Court of Appeals.

Petitioners state that if review were granted the only question before this court would be whether the opinion of the Workmen’s Compensation Commission was supported by substantial evidence. We might well have denied this petition without opinion had it not been for the contention of petitioners that the decision of the Court of Appeals should be reviewed by this court because the appeal should have either been filed in this court, or transferred to this court by the Court of Appeals because of Rule 29 (1) (j) of the Rules of the Supreme Court and the Court of Appeals. This subsection of the rule excludes a second or subsequent appeal of a case previously decided in this court from the appellate jurisdiction of the Court of Appeals. That section cannot possibly deprive the Court of Appeals of jurisdiction of an appeal from the Workmen’s Compensation Commission. The jurisdiction of the Court of Appeals of appeals from the Workmen’s Compensation Commission is not a part of the appellate jurisdiction of that court assigned to it by this court pursuant to Amendment 58 to the Constitution of Arkansas. It is original jurisdiction conferred upon that court by Acts 252 and 253 of the General Assembly of 1979 [Ark. Stat. Ann. § 81-1323 (b) (Supp. 1979)]. As we pointed out in Houston Contracting Co. v. Young, 267 Ark. 44, 589 S.W. 2d 9, an appeal from the Workmen’s Compensation Commission cannot be transferred or certified to this court prior to a decision having been made by the Court of Appeals. This is due to the fact that the Constitution of Arkansas limits this court to the exercise of appellate jurisdiction (with exceptions not material here), which requires that a decision be first made by a court. Ward Manufacturing Co. v. Fowler, 261 Ark. 100, 547 S.W. 2d 394. The constitution places no such limitation upon the jurisdiction of the Court of Appeals. Consequently, this case, even though the first appeal taken from the Circuit Court of Union County, before the effective date of Acts 252 and 253 of 1979, could have been decided by this court in the first instance, was properly filed and docketed in the Court of Appeals.


author: Ernie E. Wright, Chief Judge.

text:
    KEMPER INSURANCE COMPANY v. Charles G. BUCHHEIT
    CA 80-352
    609 S.W. 2d 660
    Court of Appeals of Arkansas
    Opinion delivered December 17, 1980
    [Rehearing denied January 21, 1981.]

      Hubbard, Patton, Peek, Haltom & Roberts, by: William G. Bullock, for appellant.

      Dowd, Harrelson & Moore, by: C. Wayne Dowd, for appellee.
   Ernie E. Wright, Chief Judge.

This is an appeal from a decision of the Workers’ Compensation Commission finding appellee sustained a compensable injury in September, 1977, in the course of his work for his insured employer and awarding benefits.

Appellant contends that there is no substantial evidence to support the finding claimant suffered a distinct compensable injury in September, 1977, that it was error for the Commission to find total and permanent disability because the evidence showed claimant recently had rehabilitative surgery, and that if there was a separate injury in September, 1977, the Commission erred in failing to apply Ark. Stat. Ann. § 81-1313 (f) to diminish claimant’s recovery.

From 1971 to September 1977, the date of the injury in question, appellee worked for General Telephone Company of the Southwest. In November, 1975, he suffered a compensable lumbar back injury, described as a strain. Examination by a neurosurgeon did not reveal any herniated disc, but did indicate a mechanically weak back. Appellee was hospitalized for about two weeks and returned to work within a short time after being discharged from the hospital. Medical expenses and other benefits were paid by appellant carrier. In September, 1976, while working for the same employer claimant sustained a second low back injury. The injury was diagnosed as an acute lumbosacral strain. Fie was hospitalized, treated conservatively and soon thereafter returned to his work. A claim for benefits for that injury was filed with the Texas Industrial Accident Board, and the claim was compromised on September 9, 1977, the sum of $2,000 waa paid to the claimant, and it was agreed future medical expenses incident to the injury would be paid by appellant during the following four year period.

On September 28, 1977, while working for the same employer in Northeast Arkansas claimant experienced a sharp pain in his lower back and left leg while attempting to unload a reel of telephone wire from a vehicle. There was evidence claimant promptly by telephone notified his physician in Texarkana of this incident and also his superior. He returned to Texarkana and was immediately hospitalized under the care of Dr. Davis who had treated him for the prior injuries. He was treated conservatively and later examined by an orthopedic surgeon. The examination did not include a myelogram and did not disclose a ruptured disc. He never recovered to the point he could return to work for General Telephone, and was able to do so only some limited part time electronic work from December, 1977 until November, 1978. In his work for the telephone company he earned approximately $278 per week.

Appellee continued to have severe back pain and a myelogram in February, 1979 revealed a ruptured disc. In late March, 1979, he was operated on for the ruptured disc.

In addition to the opinion expressed by the treating physician that appellee is totally and permanently disabled, the evidence shows appellee was examined by the employer’s doctor to see if he could return to work and the result of that examination indicated he was not able to return to any kind of work for the employer. There was strong evidence on the part of appellee and his wife indicating appellee’s total disability and that the disability continued subsequent to the surgery.

Appellant argues appellee’s disability is a result of the 1975 injury, and that as there was a full settlement incident to both of the earlier injuries the present injury is not a separate compensable injury. However,the evidence shows appellee resumed work for his employer early after the 1976 injury and continued his work until the injury occurring on September 28, 1977. There was also medical testimony that the last injury could have aggravated appellee’s weak back condition.

Whether the 1977 injury is regarded as being independent of the prior injuries or an aggravation of a previous back injury the resulting disability is compensable, and there is substantial evidence to support the finding the September, 1977, injury resulted in a ruptured disc and permanent disability. On appeal we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Firemen’s Fund Insurance Co. v. Hill et al, 255 Ark. 73, 498 S.W. 2d 865 (1973). Reynolds Mining Co. v. Raper, 245 Ark. 749, 434 S.W. 2d 304 (1968). Desoto, Inc. v. Parsons, 267 Ark. 665, 590 S.W. 2d 51 (Ark. App. 1979).

Appellee received in settlement of his claim arising out of the 1976 injury $2,000; however, it was not established appellee had a permanent disability as a result of the 1975 or 1976 injury or that any part of the $2,000 settlement was for weekly benefits. There was evidence the $2,000 was for sick leave benefits. Therefore, we are unable to say Ark. Stat. Ann. § 81-1313 (f) is applicable to diminish the award and that the Commission erred in failing to make any allowance for that payment in the present award.

Affirmed.


author: Steele Hays, Judge.

text:
    Roland L. MORGAN v. Charles F. ROBERTSON, Don ROBE, James F. TALL, and Darlene SMITH
    CA 80-308
    609 S.W. 2d 662
    Court of Appeals of Arkansas
    Opinion delivered December 17, 1980

      Ball & Mourton, for appellant.

      Epley, Epley & Castleberry, Ltd., for appellees.
   Steele Hays, Judge.

This is an interlocutory appeal from an order striking the Elna M. Smith Foundation, Inc., as a party plaintiff in a derivative action under Rule 23.1 (ARCP). Appellant filed suit as an officer, director, and member, on behalf of the Foundation and its members, against other directors, alleging a multitude of acts of misfeasance and nonfeasance in violation of the By-Laws and Articles and against the interests of the Foundation, essentially intra vires in character.

The defendants denied the allegations, asserted that appellant was no longer a member, officer and director, and moved to strike the Foundation as a party plaintiff, and directors not having authorized the suit.

The motion to strike the Elna M. Smith Foundation, Inc., as a party plaintiff was granted, pursuant to a letter opinion from the Chancellor finding that the Foundation was not the real party in interest and that under the present pleadings the case was not certifiable as a class action under Rule 23, or as a derivative action by a member of a corporation under Rule 23.1.

Roland L. Morgan has appealed from the order, alleging that the court erred in finding that the Foundation was not the real party in interest, and in finding that the action was not properly brought as a derivative suit under Rule 23.1 (ARCP). We think the court was correct in striking the Foundation as a party plaintiff, but we disagree with the findings.

I

It is settled beyond dispute that in a derivative suit on behalf of a corporation either against third persons or against officers or directors of the corporation, the corporation is a necessary party. It is, in fact, inherent in the nature of the suit itself that it is the corporation whose rights are being redressed rather than those of the individual plaintiff. It follows that the corporation is regarded as the real party in interest. The authority for this conclusion is ample and without dissenting jurisdiction. Arkansas has dealt with the question sparingly, but in Red Bud Realty Company v. South, 153 Ark. 380, 241 S.W. 2d 21 (1922), the Supreme Court recognized the propriety of the corporation being named as a party defendant with the majority stockholders in a suit by a minority stockholder alleging misappropriation of the assets of the corporation and other acts perverting the purposes of the corporation, saying:

The corporation is a necessary party to such an action, and is named and brought in, that appropriate orders may be made not only to protect all the corporate rights, but also that through it the rights and equities of individual shareholders may be worked out and preserved.

The rule is stated in Volume 13, FLETCHER CYCLOPEDIA OF CORPORATIONS, § 5929:

In legal effect, a stockholders’ suit is one by the corporation conducted by the stockholders as its reprsentative. The stockholder is only a nominal plaintiff, the corporation being the real party in interest. (Citing numerous cases.)

In Breswick & Company, et al v. O. Henry Briggs, et al, 135 F. Supp. 397 (1955), it is said that in derivative suits the corporation is the real party in interest, although the real parties in litigation were the stockholders.

Appellants cite the oft-quoted case of Ross v. Bernhard, 396 U.S. 531 (1970) in which Mr. Justice White, speaking for the majority in a derivative suit, said:

The corporation is a necessary party to the action; without it the case cannot proceed. Although named as a defendant, it is the real party in interest, the stockholder being at best the nominal plaintiff.

In Brink v. DaLesio, 453 F. Supp. 272 (D.C., Md. 1978), the corporation was said to be an “indispensable” party. See also Porter v. Sabin, 149 U.S. 473 (1893); Brady v. Meenan, 198 N.Y.S. 177 (1923); Koster v. Lumberman’s Mutual, 330 U.S. 518, 19 L.Ed. 1067 (1947); Kohler v. McClellan, 77 F. Supp. 308 (1948). FLETCHER CYCLOPEDIA OF CORPORATIONS, § 5997, states:

The corporation is a necessary defendant. In other words, the corporation on behalf of which the plaintiffs sue must be made a party defendant so that a decree may appropriately give the corporation the fruit of any recovery.

This alignment of parties is admittedly anomalous, as it places the individual plaintiff, seeking to protect a corporation from threatened acts or to redress those already accomplished, in an adversary position to the corporation he is defending. This incongruity is worthy of concern and it has been the object of some criticism:

. . . generally speaking, the benefits of the (derivative) suit are taken by the corporation and only indirectly by the person who files the bill, although the corporation is not even a co-plaintiff, but is to be found among the defendants. Indeed, a standard text writer regrets this very circumstance, opining that the innocent shareholders are disheartened, and the guilty encouraged, because of the rule that “the results of even a successful suit belong to the corporation, and not to the stockholders who sue.” (Citing Beling v. America Tobacco Company, 12 N.J. Eq. 32, 65 Atl. 725.) YALE LAW JOURNAL, Volume 33, P. 580, “The Stockholders Suit.”

In Cannon v. Acoustics Corporation, 398 F. Supp. 209 (N.D., Ill, 19), the opinion attributes the alignment of the corporation as a defendant in a derivative suit to “historical reasons,” noting that in reality the corporation is the plaintiff, the stockholder being only a nominal plaintiff. See Miller v. American Telephone & Telegraph Company, 394 F. Supp. 58 (1975).

We conclude that the corporation's a necessary party to a derivative suit and, whether logical or not, the settled view is that the corporation is named as a defendant and entitled to service of process as any other defendant. Thus, we believe that the Court was correct in striking the Foundation as a plaintiff but was incorrect in finding that the Foundation was not the real party in interest. However, the correct result was reached and, therefore, we treat the issue as one of affirmance. Mobley v. Scott, 236 Ark. 163, 365 S.W. 2d 122 (1963); Greeson v. Cannon 141 Ark. 540, 217 S.W. 786 (1920).

II

It is also submitted that the Chancellor erred in finding that on the state of the pleadings the case was not certifiable as a derivative action under Rule 23.1. But the import of the finding is not clear, as the other appealed from does not dismiss the complaint. In fact, the memorandum opinion of the Court contemplates a trial on the merits and suggests specific dates for that purpose. Thus, the finding does not appear to affect the litigation at this stage; however, some comment is appropriate in interpreting Rule 23.1.

The appellees defend the finding on the argument that the complaint fails to meet the requirements of the rule in several respects; it fails to allege that Morgan was a member of the Foundation at the time of the acts complained of; it fails to identify the Foundation members; it fails to allege Morgan’s efforts to obtain the action he desires from the directors or to explain his reasons for not making the effort; and that Morgan does not fairly and adequately represent the interests of members similarly situated.

Which, if any, of these the Court relied on is not explained. But we think in two respects the Court would be correct in finding the “present state” of the pleadings to be deficient. The rule does require that a plaintiff in a derivative suit allege that he was a stockholder or a member at the time of the transactions complained of and surely the appellant can be expected to make this allegation or explain why not. Also, the Court noted the lack of any allegation regarding members of the Foundation and we think the requirement of the rule that a plaintiff fairly and adequately represent the interests of the members justifies requiring compliance with the rule to a greater degree than the complaint now provides. In its present form, the complaint fails to supply any information regarding members — who they are, where they are, how they became members, or even whether there are members. If this information is not known to appellant, but is available to the defendants, even that ought to be alleged and pursued by the discovery.

It should be recognized, however, that Morgan’s standing to bring this suit need not rest alone on his status as a member of the Foundation, as he professes to be an officer and a director of the Foundation and assuming that to be so, he has the necessary standing to complain against the sort of acts charged in the complaint. We believe an officer, director and a member of a non-profit corporation is not without standing to question the management and conduct of other officers and directors which are alleged to be in violation of the By-Laws and Articles and against the purposes of the corporation. If such an individual lacks standing, who would have it? We regard the public as having clear interest in nonprofit corporations from the standpoint of the faithful administration of the affairs of the corporation. The standing of one or more directors of non-profit corporations to act derivatively in behalf of the corporation does not seem open to question. Wickes v. Belgian American Educational Foundation, Inc., 266 F. Supp. 38 (D.C., N.Y. 1967); Holt v. College of Osteopathic Physicians and Surgeons, 294 P. 2d 932 (S.C., Cal. 1964).

With respect to the requirement that a plaintiff allege with particularity the efforts made to obtain the action he desires from the directors and the reasons for his failure to obtain the action or for not making the effort we reach a different conclusion.

The cases recognize that there are situations in which the demand requirement should be relaxed and if the demand is in all likelihood a futile gesture, it is not essential. See FLETCHER CYCLOPEDIA OF CORPORATIONS,§ 5964:

No demand on stockholders is necessary where it is apparent that it would be useless, the same rule being applicable as in case of necessity of demand upon the directors or other corporate officers. Conditions are generally such that no demand upon the stockholders as a body is necessary or where a demand on such board is excused.

Moreover, those considerations are made on a case by case basis. § 5965, FLETCHER CYCLOPEDIA OF CORPORATIONS:

Whether any case falls within this principle excusing a demand, or not, must be determined largely by its own particular circumstances, as there is no absolutely certain test.

The case of Red Bud Realty Company v. South, cited previously, dealt with the necessity of demand by a minority stockholder:

The law does not require a futile ceremony. Therefore, whre a majority of the directors are under the control of a majority of the stockholders, and an action is brought against them by an innocent shareholder in his own name, charging wrongdoing on their part in the manner above indicated, it is not necessary for him to allege and prove, as a condition precedent to the maintenance of the action, that, before instituting the same, he protested to the board of directors against their own mismanagement and appealed to them for redress. Such protest would fall upon deaf ears, because a majority of the directors could not be expected to authorize, or to institute, an action against themselves charging themselves with fraud. If they should do such an anomalous thing, in the language of the Supreme Court of Missouri, “the bad faith of their action would be so apparent that no court would entertain the suit.” Hingston v. Montgomery, 97 S.W. 202. We conclude, therefore, that the complaint should not be dismissed because it fails to allege that the plaintiff, before instituting the action, applied to the board of directors for redress of the alleged injuries of which he complained.

Knepper, Liability of Corporate Officers and Directors, § 17.05 recites that the rule requiring demand upon the directors will be excused if it would be useless, as where the directors are participants in the alleged wrongdoing, “or were dominated by the alleged wrongdoers, or profited by the alleged wrongdoing.”

It seems evident that demand upon the directors in the premises of this case would be of no real purpose. Presumably they would deny a request for action by the plaintiff as emphatically as they denied the allegations of the complaint.

The cases invoked by appellees on this point are not persuasive. Kusner v. First Pennsylvania Corp., 395 F.Supp. 276 (E.D. Pa. 1975), Rev’d 531 F.2d 1234 (3d Cir. 1976), supports the principle but the case was reversed on grounds not involving the question of the derivative action, no appeal having been taken on that issue. In Clinton Hudson & Sons v. Lehigh Valley Cooperative Farms, 73 F.R.D. 420 (E.D. Pa. 1977), the defendant’s motion to dismiss the derivative action was based, at least in part, upon the fact that the corporation had already filed suit on its own behalf in state court on the same grounds. The District Court noted the pleadings in the two suits were substantially the same and said: “Thus maintenance of plaintiff s derivative action in this forum could only result in duplicative efforts and results.” Obviously, where the corporation acts in its own behalf, the need for a derivative action abates. Abrams v. Mayflower Investors, Inc., 62 F.R.D. 361 (Dist. Ill. 1974) is in point, however, each case must be judged on its own merits and there are dissimilarities between the two cases. For one thing, in Abrams the plaintiff is a stockholder charging the directors with improper conduct in general terms and the court noted the plaintiffs lack of any firsthand knowledge of the internal affairs of the directors. Such is not the case before us.

For the reasons stated, the order is affirmed and the case is remanded for further proceedings without prejudice to the right of the plaintiff to amend the complaint, naming the Foundation as a party defendant, alleging whatever plaintiff was a director, officer, or member of the Foundation during all or parts of the acts complained of, whether the Foundation has members and such information as plaintiff may reasonably supply.

Affirmed as modified herein and remanded for further proceedings not inconsistent with this opinion.


text:
    McFALL CHEVROLET COMPANY v. Jim COLLINS & Roma COLLINS
    CA 80-334
    609 S.W. 2d 118
    Court of Appeals of Arkansas
    Opinion delivered December 17, 1980

      Burris & Berry, for appellant.

      Wilson & Grider, by: Murrey L. Grider, for appellees.
   Steele Hays, Judge.

This dispute arises from the cancelled purchase of a new Chevrolet Blazer. Appellees purchased the vehicle from appellant on August 15, 1979, for a $2,275 down payment and monthly installments of $248.48. Appellees were dissatisfied and in December they returned the vehicle to appellant and sued to recover the down payment and the installments they had paid.

The case was tried before a jury and resulted in a verdict of $2,275 in favor of appellees. Appellant raises two issues on 'appeal: that there was substantial evidence to support — the" Xerdiepand ’that the court p.rred.~in-insrmcting the jury. We find no efrdr.

We think the evidence is sufficient to support the verdict, but even if it were otherwise there is no need to dwell on the issue in depth, as the appellees pointed out that in order for an appellant to challenge the sufficiency of the evidence in a jury trial, he must either move for a directed verdict at the conclusion of all the evidence, move for a judgment notwithstanding the verdict, or move for a new trial because of insufficiency of the evidence. The failure to do one of these three requirements precludes raising the issue on appeal. Rule 50(e)(ARCP). Here, a motion for a directed verdict was made at the close of the plaintiff s evidence, but was not renewed at the conclusion of all the evidence, as the rule requires. The other designated motions were not made.

Appellant also contends that the court erred in refusing to instruct the jury accordingly:

You are instructed that a buyer must reject goods within a reasonable time after delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.

Appellant relies on Ark. Stat. Ann. § 85-2-601(1) (Repl. 1961) and the decision in Green Chevrolet Company v. Kemp, 241 Ark. 62, 406 S.W. 2d 142 (1966), interpreting this provision of the Code as requiring that a buyer of goods must notify the seller of his rejection of goods within a reasonable time. Appellant insists that the jury should have been told about the right of the buyers to revoke acceptance or reject acceptance of the goods within a reasonable time. But the court did instruct the jury that a buyer must revoke his acceptance within a reasonable time in accordance with § 85-2-608(2). Thus, the jury was instructed that the buyer of goods who revokes his acceptance must do so within a reasonable time after he was discovered or should have discovered a ground for revocation. We think that under the evidence, the jury'was properly instructed on the issue. Appellant has failed to demonstrate how the instruction as given was error, or even worked to appellant’s prejudice.

In Gramlin v. Baltz, 253 Ark. 352, 485 S.W. 2d 183 (1972), the Supreme Court determined that § 85-2-608 was applicable to facts similar to the present case. In Gramlin, the buyer of a vehicle under warranty returned it a number of times to the seller’s shop for corrective repairs. The problems were not corrected and eventually the buyer brought suit for a breach of warranty.

Appellant also argues that the appellees refused to permit appellant to make the necessary repairs on the vehicle, but that issue was disputed and there is testimony in the record that the appellant had a number of opportunities to make repairs on the vehicle. That issue was resolved by the verdict of the jury.

Lastly, appellees have cross-appealed on the issue of damages, arguing that under the evidence the jury should have returned a verdict of $3,020.29, rather than the figure of $2,275 actually awarded by the jury. The difference is the sum of three monthly installments of $248.48 each paid by appellees while the vehicle was in their possession. However, neither the abstract nor the record discloses how the jury was instructed with respect to damages and, hence, we cannot determine whether the court erred in this respect. To sustain their cross-appeal, appellees must show either that they objected to an erroneous instruction, Missouri Pacific Railway Company v. Gilbert, 206 Ark. 683, 178 S.W. 2d 73 (1944), or that the court refused to give a correct instruction. Christenson v. Dady, 238 Ark. 577, 383 S.W. 2d 283 (1964); Clay v. Garrett, 228 Ark. 953, 311 S.W. 2d 22 (1958).

Affirmed.

ERRATA 211 ARKANSAS REPORTS at page 470 Detach at perforation, moisten the back, and paste over the last three lines of the second full paragraph of the majority opinion on page 470 of McFall Chevrolet Co. v. Collins: appeal: that there was not substantial evidence to support the verdict and that the court erred in instructing the jury. We find no error.

      ERRATA 211 ARKANSAS REPORTS at page 470 Detach at perforation, moisten the back, and paste over the last three lines of the second full paragraph of the majority opinion on page 470 of McFall Chevrolet Co. v. Collins: appeal: that there was not substantial evidence to support the verdict and that the court erred in instructing the jury. We find no error.


author: James H. Pilkinton, Judge. Ernie E. Wright, Chief Judge,

text:
    ARKANSAS DEPARTMENT OF CORRECTION v. Aubrey E. CHANCE
    . CA 80-369
    609 S.W. 2d 666
    Court of Appeals of Arkansas
    Opinion delivered December 17, 1980
    [Rehearing denied January 21, 1981.]

      Public Employee Claims Div., Ark. Insurance Dept., by: Jerry G. James, for appellant.

      McMath & Leatherman, P.A., by: Phillip H. McMath, for appellee.
   James H. Pilkinton, Judge.

This is a workers’ compensation case. Aubrey Chance is 56 years of age and was and is employed by the Arkansas Department of Correction. He claims, that as a result of this employment he came into contact with an occupational disease, tuberculosis; that he has been temporarily and totally disabled at varying times as a result of this tubercular condition; that the statute of limitations has been tolled; and that the Tucker Unit of the Arkansas Department of Correction, where claimant worked, is in effect a “sanitorium” within the meaning of the Arkansas Workers’ Compensation Act.

Mr. Chance was first employed by the Arkansas Department of Correction on December 7, 1970. After working a short time as a building security guard, he was assigned to the position of superintendent of maintenance at the Tucker Unit. He was responsible for maintaining the buildings, exterior and interior, on the Tucker prison farm. In February of 1974 Mr. Chance became engaged in remodeling work at the prison.

On one Sunday morning in June, 1976, Mr. Chance went to the Jefferson Hospital in Pine Bluff after he had felt bad all week. He was admitted to the hospital where he remained for approximately ten days under the care of Dr. S. H. Hoover. Following this period of hospitalization he returned to work and on August 2, 1976, while working at the prison rodeo, passed out and was hospitalized for approximately six days. Dr. A. G. Sullenberger was thereafter called in for consultation and, on August 26, 1976, claimant was again hospitalized and underwent surgery immediately. A few days later, Dr. Sullenberger advised claimant for the first time that he had tuberculosis. He later returned to work and in June, 1978, Mr. Chance was transferred from the Tucker Unit to a job site in Pine Bluff where he was still working at the time of the hearing.

On or about February 23, 1979, claimant filed an A-7 with the Arkansas Workers’ Compensation Commission claiming benefits as a result of injuries to his lungs which he stated occurred on October 18, 1972, from “exposure to chlorine gas.” About four months later, on June 26, 1979, claimant filed an amended A-7 which for the first time alleged “contraction of tuberculosis on the job as a result of exposure to contaminated inmates.” The amended A-7 reflected a date of “June 13, 1976” as the date of the accident.

The Arkansas Department of Correction has controverted the claim in its entirety. The hearing below was limited to the issue of temporary total disability benefits, medical benefits, and attorney’s fees, leaving open the issue of permanent disability for a later determination. It is the appellant’s contention that claimant did not sustain an accidental injury arising out of his employment, there being no causal relationship between the tuberculosis condition and his employment; and alternately, appellant contends that if claimant’s condition was causally related, the claim was barred by the statute of limitations, the last injurious exposure having occurred more than two years before the filing of the claim. Appellant further contends that claimant’s condition was not a compensable occupational disease as defined by the workers’ compensation law in effect at that time because the prison did not constitute a hospital or sanitorium as referred to and required by the applicable statute.

In an opinion, which was affirmed by the Arkansas Workers’ Compensation Commission, the administrative law judge found that Mr. Chance had contracted tuberculosis in 1974 while working for appellant and that since the claimant had been receiving medical benefits under the group insurance plan of the State of Arkansas, the statute of limitations had been tolled. There was also a further finding that under the unique circumstances of this case, Tucker Prison Unit was a “sanitorium” within the meaning of the Arkansas Workers’ Compensation Act. The Arkansas Department of Correction has appealed from the Commission’s affirmation of the above findings.

Since this claim is one for benefits as a result of an occupational disease allegedly contracted in 1976 during the course of claimant’s employment with appellant, we must review the provisions of the Workers’ Compensation Act in effect at the time insofar as they relate to occupational diseases. Section 14 of the Act (Ark. Stat. Ann. § 81-1314) in effect in June, 1976, provides in part as follows:

Section 14. Occupational Diseases: (a) General provisions: (I) Where an employee suffers from an occupational disease, as hereinafter defined, and is thereby disabled or dies as a result of such disease, and the disease was due to the nature of the occupation or process in which he was employed within the period previous to his disablement as limited in subdivision (7) of this subsection, the employee, or in case of death, his dependents, shall be entitled to compensation as if such disablement or death were caused by injury, except as hereinafter otherwise provided, (emphasis supplied)

The term “occupational disease” was further defined under that section as follows:

(5) (i) ‘Occupational disease’ as used in this Act means any disease that results in disability or death and arises out of and in the course of the occupation or employment of the employee, or naturally follows or unavoidably results from an injury as the term is defined in this Act. Provided, a causal connection between the occupation or employment and the occupational disease must be established by clear and convincing evidence, (emphasis supplied)

Other provisions of the Act which are of significance are found in Sections 15 (5) (ii) and (iii) which provide:

(ii) No compensation shall be payable for any contagious or infectious disease, unless contracted in the course of employment in, or immediate connection with, a hospital or sanitorium in which persons suffering from such diseases are cared for or treated, (emphasis supplied)
(iii) No compensation shall be payable for any ordinary disease of life to which the general public is exposed.

As to the amount of compensation payable in the case of a compensable occupational disease, the law in effect in 1976 under Section 14 provided:

(6) . .. the amount of compensation shall be based upon the average weekly wage of the employee when last injuriously exposed under such employer; and the notice of injury and claim for compensation, as hereinafter required, shall be given and made to such employer, (emphasis supplied)

One last section of the Act in effect in 1976 is found in Section 14 (7) and provides in part:

(7) An employer shall not be liable for any compensation for an occupational disease unless such disease shall be due to the nature of an employment in which the hazards of such disease actually exist, and are characteristic thereof and peculiar to the trade, occupation, process or employment, and is actually incurred in his employment. . . . (emphasis supplied)

Initially it should be observed that in a claim for occupational disease, claimant cannot prevail on a mere “preponderance of the evidence.” The law very explicitly requires that the causal connection between the occupation or employment and the occupational disease “must be established by clear and convincing evidence.” (emphasis suplied). “Clear and convincing evidence” is defined in Kelly v. Kelly, 264 Ark. 865, 575 S.W. 2d 672 (1979).

There is not doubt that claimant now has tuberculosis. However, after a careful study of the evidence, we have concluded that there is no substantial evidence in this record clearly and convincingly showing a casual connection between Mr. Chance’s employment and his tubercular condition. Therefore we must reverse.

Some of the testimony apparently was intended to prove that claimant contracted tuberculosis from either inmate Gene McGahan in 1972 or from inmate Dale Pennington in 1974. Mr. Chance himself testified that he could not say how many months he worked with Gene McGahan but as far as he recalled it was all in 1972. As to inmate Pennington, claimant testified that this inmate was transferred to Tucker from Cummins in February, 1974, and that he worked in close contact with him eight or nine months during 1974 until Pennington was transferred inside to the tool room because he couldn’t work outside. Mr. Chance further said during the period Pennington worked under his supervision, he at times drank from the same container after this inmate. The record shows that McGahan and Pennington were the only two active tuberculars with which Mr. Chance came in direct contact at the prison. After Pennington was assigned to the tool room, the exact date of which Mr. Chance could not remember, the only contact he had with him was when claimant was “in and out” of the tool room checking out tools from Pennington. This theory cannot be reconciled with the only medical proof in the record as to where or when the claimant contracted tuberculosis. In his report dated March 26, 1979, Dr. S. H. Hoover, claimant’s treating physician, stated that Mr. Chance apparently contracted the disease some time in 1976.

George Allen Antonio, the infirmary supervisor for the Tucker Unit, testified that the last active case of tuberculosis at Tucker was Roger Dale Pennington in 1974 who was discovered on September 6, 1974 to have active tuberculosis. Pennington apparently was placed in the state hospital from which he escaped on October 30, 1974. He was returned to Tucker only one day on October 5, 1975, during which time he was kept in the isolation unit. There is absolutely no proof that Mr. Chance came in contact with Pennington after September 6, 1974.

The record does show that there were other inmates at Tucker who received treatment for inactive tuberculosis. Mr. Antonio said a pill called “I.N.H.” was distributed to those inmates at “pill call” every day. He stated the prison would average having 40 or 50 inmates a year on what he termed “preventive medication” but “they were not contagious.” He later said that he “believed” that about three per cent of persons with negative x-rays could pass the disease to others even though they were classified as having inactive tuberculosis. At the most, if this opinion is to be accepted, not over two out of the fifty at Tucker would likely fall within this three per cent. The record is completely devoid of any proof that Mr. Chance came into contact with any specific inmate under this treatment, and certainly there is no proof of any contact by him with any of the so-called three per cent of those who were receiving I.N.H.

On the state of this record the Commission would necesarily have to speculate as to if and when the “last injurious exposure” occurred. Even when the testimony is given its strongest weight in favor of the appellee, as we must do on appeal, the facts fall short of constituting substantial evidence necessary to prove by “clear and convincing evidence” when and where the disease was contracted. There is some conflict in the claimant’s own proof on this point.

Having reached the conclusion that this case must be reversed and -dismissed for lack of substantial evidence showing a causal connection between Mr. Chance’s employment and his tubercular condition, we do not reach the other points raised by appellant.

Reversed and dismissed.

Wright, C.J., concurs.

Ernie E. Wright, Chief Judge,

concurring. I agree with the majority opinion in the reversal and dismissal of this case. However, in my view there is additional reason for reversal. Appellee seeks Workers’ Compensation benefits for an alleged occupational disease. Benefits are provided by statute only for contagious or infectious disease contracted in the course of employment in, or immediate connection with a hospital or sanitorium. I am unwilling to say the Tucker Unit of Arkansas Prison System, where appellee was employed, is a hospital or sanitorium.