author: Carleton Harris, Chief Justice. Ed. F. McFaddin, Associate Justice,

text:
    Kasinger v. State.
    5013, 5014, 5015
    354 S. W. 2d 718
    Opinion delivered March 12, 1962.

      Roy E. Danuser, for appellant.

      Frank Holt, Attorney General, by Milas II. Hale, Asst. Attorney General, for appellee.
   Carleton Harris, Chief Justice.

Appellants, David Kasinger, age 18, Dale Kasinger, age 19, and Ray Kasinger, age 18, were charged by Information with the crimes of burglary and grand larceny. The cases were consolidated for trial. On trial, appellants were acquitted on the charge of grand larceny, but were found guilty of burglary, and punishment fixed at confinement in the Arkansas State Penitentiary for a period of two years; the jury recommended, however, a suspended sentence. The Court did not follow the recommendation, but entered its judgment sentencing all appellants to a term of two years. From such judgment, comes this appeal.

On the evening of Saturday, January 30, 1960, the McCabe Tractor and Implement Company, located in Mountain Home, was burglarized, and the following Monday morning, the burglary was discovered by an employee of the company. A safe containing approximately $350 had been removed from the premises. The Sheriff of Baxter County commenced his investigation on the morning of February 1, and appellants were arrested on March 16, 1960, and subsequently charged with the crime. For reversal, appellants assert a number of alleged errors, which we proceed to discuss.

First, appellants argue that the State failed to prove that the crime was committed in Baxter County, Arkansas. We find no merit in this contention. § 43-1426, Ark. Stats., provides:

“It shall be presumed upon trial that the offense charged in the indictment was committed within the jurisdiction of the court and the court may pronounce the proper judgment accordingly, unless the evidence affirmatively shows otherwise.”

The Informations charged that the offenses were committed in Baxter County, but no one directly testified to that effect; however, there are several references in the evidence to the fact that the McCabe Tractor and Implement Company building was located in Mountain Home, county seat of Baxter County. In Henley v. State, 210 Ark. 759, 197 S. W. 2d 468, this Court, in passing upon this question, said:

“The evidence in the case at bar does not affirmatively show that the crime was committed ‘otherwise’ than in the jurisdiction of the court where defendanl was tried. On the contrary, we think the evidence do»» show affirmatively that the offense charged in the information was committed in Lee County. Several witnesses testified that the home of Jessie Day, where the killing occurred, was located on the state highway between Marianna and the village of Aubrey. We judicially know that the village of Aubrey is in Lee County and an inspection of the maps of the county discloses that any point on the public highway between Marianna and Aubrey is well within the territorial limits of Lee County.”

Likewise, we judicially know that Mountain Home is located in Baxter County. Actually, this Court upheld a conviction in Meador v. State, 201 Ark. 1083, 148 S. W. 2d 653, on appeal from the Grant Circuit Court, where the offense had been committed, though the Information erroneously charged that the crime was committed in Hot Spring County.

Appellants contend that error was committed when the Sheriff of Baxter County was asked by the State’s attorney why he moved the appellants to a jail in Yell-ville, Marion County, and he replied, “They’d broke jail here before”; also, error is asserted because of a question asked appellant Bay Kasinger by the State’s attorney, “How many times has Jack Gregory arrested you?” In each instance, the Court instructed the jury not to consider this question and answer. In Davis v. State, 155 Ark. 245, 244 S. W. 750, the prosecuting attorney made certain remarks which the appellant contended to be prejudicial, but this Court said:

“It will be noted that the court instructed the jury to disregard the remarks made by the prosecuting attorney and this, we think, had the effect to cure any prejudice that might have resulted to the defendants from the remarks.”

See also Washington v. State, 227 Ark. 255, 297 S. W. 2d 930. Accordingly, we find no merit in this contention.

Appellants assert that the Court erred in not following the recommendation of the jury that sentence be suspended. This was not error. We have held on several occasions that the Court is not bound to accept the jury’s recommendation to suspend sentence. See Clarkson v. State, 168 Ark. 1122, 273 S. W. 353; Warford and Clift v. State, 214 Ark. 423, 216 S. W. 2d 781.

Appellants question the sufficiency of the evidence to sustain the convictions. We have previously held that the extra-judicial confession of a defendant, accompanied by proof the offense was actually committed by someone, will warrant a conviction. See Monts v. State, 233 Ark. 816, 349 S. W. 2d 830; also, Ezell v. State, 217 Ark. 94, 229 S. W. 2d 32, and cases cited therein. In the case before us, there was ample proof that the McCabe Tractor Company of Mountain Home had been burglarized, and all three defendants confessed their participation in the crime. Accordingly, if the confessions were voluntary, the evidence was sufficient to sustain the conviction. This last statement brings us to a discussion of the confessions, and whether, under the proof in the record, same have been established as having been given voluntarily.

In discussing this point, it is necessary that we review the facts from the time the boys were arrested. Dale Kasinger was arrested soon after the noon hour on Wednesday, March 16th, and was questioned for a brief period by the Sheriff of Baxter County. He was then lodged in jail, and later in the day taken to Yell-ville, county seat of an adjoining county, where he, on the same night, confessed his participation in the burglary. The Sheriff stated that he took Dale to Yellville because he wished to separate the boys, and did not have adequate facilities in the Baxter County jail to do this. Dale was returned to the Baxter County jail on Friday night, March 18th. Bay and David were also arrested on the afternoon of the 16th, and were lodged in the Baxter County jail. They confessed their participation in the burglary on March 19th; this confession was also signed by Dale, and was witnessed by Sheriff Gregory, State Policeman Bill Manes, and Earl Rife, Criminal Investigator for the State Police. These men, who witnessed the statement, also testified that two other officers, Sergeant Bowden of the State Police, and Fred Brunson, Deputy Sheriff, were present when the statement was taken. All of these boys were arrested without warrants, and none were taken before a magistrate. Shortly before the arrest of Dale, a fourth alleged participant, J. W. Studdard, had been arrested and placed in the Baxter County jail. According to the evidence, Dale’s first confession was made at the Marion County jail (Yellville) in the presence of the Baxter County sheriff, the Marion County sheriff, and Claude Wynn, a visitor at the jail. The confession was written out in longhand, partly by the sheriff of Baxter County, and partly by the sheriff of Marion County, and signed by this appellant. The witnesses to the confession stated that it was given voluntarily, though Kasinger stated that he was threatened while the drive was being made to Yell-ville; that the sheriff “pulled my hair”, and that he signed the statement through fear of physical mistreatment. As far as this confession, standing alone, was concerned, the voluntariness of same appears to have been a matter for the jury to determine, but, as previously stated, Kasinger also signed a second confession with his brother and cousin. It is the latter confession which gives us much concern.

The fourth man arrested, Studdard, testified that while in jail, he was beaten by one of the officers, suffering a bloody nose, and bruised face and lips. Studdard stated that he was subsequently taken to the hospital by Deputy Sheriff Brunson, where he was examined and observed by Dr. Guiñee, and that the doctor took x-rays. The witness further testified that the Kasinger boys saw his condition, and each appellant also stated that they observed Studdard’s face, and blood in his cell. Rex Baker, a prisoner in the jail on a drunkenness charge, testified that he saw one of the officers strike Studdard with his fists several times; that later he again saw Studdard, and “His nose was smashed, and he had blood on his handkerchief.” All three of the appellants testified that they were threatened with similar treatment, and because of their fear, signed the confession.

Jess Dover, grandfather of Studdard, Mr. and Mrs. Leonard Kasinger, parents of Bay, and Ben Kasinger, father of Dale and David, visited the boys several days after they had been arrested, and all testified either that they observed evidence of Studdard’s having been beaten, or saw blood on the floor. The officer who was accused by Studdard and Baker of striking the former, denied the charge, and the other officers, previously listed, who were present when the statement was taken, testified that they saw no evidence of any mistreatment of Studdard, and that the three appellants executed the statement voluntarily. All of the defendants stated that they requested the services of an attorney, but this was not allowed. The officers denied that such a request was made. Appellants also testified that the weather was very cold at the time they were arrested, but that inadequate cover was furnished. According to Dale, there was no heat at night, several of the jail’s windowpanes were broken, and snow and ice coated the ground. David testified likewise that some windows were broken; that there was no heat at night; that he was given a blanket, but no mattress, and had nothing else to wrap up in; that all appellants had to sleep on the floor.

To summarize the evidence from the record, as testified to by appellants and their witnesses: They were arrested without a warrant (the information was filed and a warrant was issued on March 18th), and held in jail from the 16th until the 19th before the confessions were obtained (excluding the first confession signed by Dale). During this time, they were without an attorney, did not see their parents, observed the condition of Studdard ’s face and were told by him that he had been beaten by one of the officers, saw blood in his cell, were placed in a cell which was very cold at night, and were without adequate cover, and were threatened with the “same treatment” received by Studdard unless they confessed. From the State’s standpoint, the officers who witnessed the confession stated it was given voluntarily, and the boys were not pressured or threatened. The officer (not one of those present when the statement was signed) who was accused of striking Studdard, denied the charge.

We have reached the conclusion that, under the testimony shown in this record, the jury should not have been permitted to consider this confession. Perhaps none of the facts mentioned, separately, would justify this conclusion. But we particularly scrutinize confessions when there is no corroborating evidence, standing alone, to implicate a defendant. The fact that the arrests were made without a warrant, and further, that appellants were not taken before a magistrate, does not, in itself, render the confession(s) inadmissible. Browning v. State, 206 Ark. 791, 178 S. W. 2d 77. The fact that they were held for several days does not, standing alone, invalidate the confession. Of course, the question of whether the boys requested an attorney was a question of fact, which the jury could properly determine. There are two matters that were mentioned in the testimony which we particularly notice. One relates to the statement of Studdard that he was taken to the hospital to see Dr. Guiñee (apparently the coroner of the county) relative to the beating that he had received, and that Dr. Guiñee took x-rays. We particularly note this testimony, because it was not denied. Nor was it denied that the boys had the opportunity to see Studdard, or his cell, after the alleged beating occurred. Dr. Guiñee’s testimony could have been most enlightening on this question. It may be that Studdard was taken to Guiñee for some other ailment (if at all taken), but this testimony by Studdard should have been easy to refute. Lest it be said that appellants could have brought Dr. Guiñee into court, we point out that the burden is upon the State to establish by a preponderance of the testimony that a confession is voluntary. As the Court told the jury:

“The presumption of law is that any confession made by a defendant, when he is in the custody of officers, whether these officers be sheriff, detectives, State Policemen, Prosecuting Attorney, or any other, a confession given them is involuntary and cannot be considered of value. The effect of that presumption is to cast the burden of proof upon the State and to prove that by a preponderance of testimony the confession was voluntary. The State must overcome that presumption of law to your satisfaction, and the burden is on the State to show that the confession was voluntary.”

Since Studdard made a definite identification of the doctor who treated him, and there was independent evidence (testimony of Baker) that the beating had taken place, we think Guiñee’s testimony would have been particularly important in bearing upon this question. For that matter, Deputy Sheriff Brunson, who, according to Studdard, took him to the hospital, made no comment relative to Studdard’s statement, though he appeared in rebuttal, subsequent to the former’s testimony.

The other fact that has some significance is the testimony relative to the condition of the jail, i.e., broken windows, sleeping on the floor, no heat at night, and inadequate cover. It was established, even by the State’s evidence, that snow was on the ground, but no officer denied these particular facts. Of course, if these statements were true, the conditions testified about could well contribute to breaking down the will of the boys, and, with the hope of obtaining better conditions, influence them in signing the confession. An examination of the testimony reveals that not a single officer denied, or commented upon, this particular testimony by the appellants.

Having mentioned these facts, perhaps it is well to point ont explicitly that we are not saying that the confessions were obtained by duress; we are not saying that they were given involuntarily. We are saying that on the record before us, the voluntariness of the confessions is not established. Of course, the matters heretofore referred to could have had no effect on the first confession signed solely by Dale, since he had had no opportunity to view Studdard, nor had he been in the Baxter County jail overnight at the time this confession was given. However, the jury had to consider the second confession in order to convict Ray and David, and we have no way of knowing whether Dale’s signature on this second confession caused, or contributed to, his conviction. Under these circumstances, our finding, that the voluntariness of this confession is not shown, also calls for a reversal of the conviction of this appellant. In Binns v. State, (Amended opinion, April 24, 1961) 233 Ark. 259, 344 S. W. 2d 841, we reversed the judgment of the trial court because it was not sufficiently shown that the confession was given voluntarily. The case was remanded, with the direction that the voluntariness of the confession might again be considered in a new trial. We follow the same procedure here, and this question may again be considered for further development.

While it follows that the judgment must be reversed, we deem it well to mention a few other contentions which might arise at another trial. The sheriff of Baxter County was permitted to testify orally to the contents of the written confession, and it is contended that this was error. We do not agree (provided statements are voluntary). Statements made to an officer are admissible. In Smith v. State, 230 Ark. 634, 324 S. W. 2d 341, oral statements made to an officer, which were supplemental to a written confession, were held admissible. In the present instance, of course, the sheriff’s statements only related to matters contained in the written confessions, and the written confessions were offered in evidence.

Alleged error is asserted because of the court’s failure to give certain instructions requested by appellant. We find no error in this connection. The matters complained of were covered by prior instructions of the Court, and there was no necessity to instruct on each detail. For instance, appellants desired an instruction that the fact the arrests were made without a warrant, and the further fact that appellants were not taken before a magistrate, were circumstances for the jury to consider in determining whether the confessions were voluntary. This was proper argument to make to the jury, but no instruction was required.

One instruction probably should be commented upon. We have reference to the instruction relating to an accomplice. The Court’s instruction was as follows:

“Now, you are instructed that one who stands by and aids, abets, assists, advises, or encourages another in the commission of a felony is guilty as an accomplice, and is punishable as such. Therefore, if you find from the evidence beyond a reasonable doubt that someone other than the defendants committed the felony or if you further find that these defendants or either of them were at the time present, aiding, abetting, assisting, advising or encouraging such person or persons in the commission of the felony as charged in the information, then it is your duty to find him guilty, and if you so find him guilty, to fix his punishment as provided in these instructions as heretofore given you with reference to burglary.”

We think the italicized portion might possibly be confusing to a jury. Of course, having read the record, we understand that the Court was referring to the fact that Studdard might have been the principal, with appellants as accomplices. “Or” means “as an alternative, choice of alternative things.” The clause following the word “or” and ending with the word “information” is correct, but if this clause be left out, and “or” indicates a choice, then the instruction is left to read, “Therefore, if you find from the evidence beyond a reasonable doubt that someone other than the defendants committed the felony, then it is your duty to find him guilty, * * We realize this is a matter of verbiage, but we suggest a rewording of same.

For the reasons herein set out, the judgment is reversed, and the cause remanded to the Baxter Circuit Court.

McFaddin, J., dissents.

Ed. F. McFaddin, Associate Justice,

dissenting. I respectfully, but most vigorously dissent from the ruling of this Court which reverses the judgment of the Circuit Court. As I understand the Majority Opinion, the sole ground for reversal relates to the admission of the confessions made by the three defendants; because the opinion recites: “We have reached the conclusion that, under the circumstances shown in this record, the jury should not have been permitted to consider this confession.” The quoted language means that the Trial Judge committed fatal error when he held that there was sufficient evidence to submit to the jury the question of whether the confessions were voluntary.

Before considering such evidence, I desire to mention the rule under which the Trial Court proceeded. In Morton v. State, 208 Ark. 492, 187 S. W. 2d 335, we said:

IY. Introduction of the Confession. When the State offered in evidence two confessions by the appellant, the court followed the correct practice of retiring to chambers and considering the admissibility, in the absence of the jury. See Charles v. State, 198 Ark. 1154, 133 S. W. 2d 26; Brown v. State, 198 Ark. 920, 132 S. W. 2d 15; Nolan and Guthrie v. State, 205 Ark. 103, 167 S. W. 2d 503.’ ’

In Ashcraft v. State, 208 Ark. 1089, 189 S. W. 2d 374, we said:

“The proper practice is for the court to hear the testimony in the absence of the jury as to the circumstances under which the confession was given, and if there is a substantial question as to whether it was freely and voluntarily made, to submit that question of fact to the jury, after admonishing the jury to disregard the confession unless it was found to have been voluntarily made. So here, the court in chambers, in the absence of the jury, heard many witnesses, both on the part of the State and of the defendant as to the circumstances under which the confession was made and this testimony being in irreconciliable conflict as to whether the confession was voluntarily made, that question was submitted to the jury under proper instructions directing them to disregard the confession and not to consider it for any reason unless they found that it was freely and voluntarily made. We hold, therefore, that there was no error in admitting appellant’s confession in evidence. See Morton and Ashcraft v. State, supra, and Smith v. State, 205 Ark. 1075, 172 S. W. 2d 248; Hendrix v. State, 200 Ark. 973, 141 S. W. 2d 852; Burton v. State, 204 Ark. 548, 163 S. W. 2d 160; Nelson v. State, 190 Ark. 1078, 83 S. W. 2d 539; and Davis v. State, 182 Ark. 123, 30 S.W. 2d 830.”

Again in Moore v. State, 229 Ark. 335, 315 S. W. 2d 907 (Certiorari denied by the Supreme Court of the United States, 358 U. S. 946), we said:

“When the State sought to introduce the appellant’s confession the hearing was recessed to the Judge’s chambers for the Trial Judge to see if there was sufficient evidence of voluntariness to submit the issue to the jury. Such is in accordance with our frequently stated procedure. Charles v. State, 198 Ark. 1154, 133 S. W. 2d 26; Brown v. State, 198 Ark. 920, 132 S. W. 2d 15; Hendrix v. State, 200 Ark. 103, 167 S. W. 2d 503. The Trial judge correctly ruled that there was sufficient evidence offered to take the case to the jury on the voluntariness of the confession; and thereupon the hearing was resumed before the jury.”

Thus, it is standard procedure to have the Court, in the absence of the jury, first hear the proffered evidence to determine whether there is sufficient evidence of voluntariness to submit the issue to the jury. In the case at bar, the Trial Court followed the standard procedure, and forty-six pages of the transcript contain the testimony so heard by the Court in chambers. A total of seven witnesses were heard by the Court. They were:

1. Dale Kasinger, one of the defendants.

2. Ray Kasinger, one of the defendants.

3. David Kasinger, one of the defendants.

4. Jack Gregory, Sheriff of the County.

5. Earl Rife, Criminal Investigator for the Arkansas State Police.

6. Rex Baker, a fellow jail inmate with the Kasinger s.

7. J. W. Studdard, a fellow jail inmate with the Kasinger s.

These seven were the only witnesses that testified in the hearing before the Court in chambers. Sheriff Jack Gregory is the Sheriff of Baxter County, and was the Sheriff at all times herein involved. He testified that he took the statement from the three defendants on March 19, 1960, and that the statement from the three defendants was taken three days after the previous statement given him by Dale Kasinger. Sheriff Gregory testified that the defendants “voluntarily and of their own free will and accord made this statement and fixed their names to it”; that one or the other of the three defendants dictated the statements contained in the writing, and then they all read it themselves and each of them signed it. Sheriff Gregory testified that there were no threats or physical force used on any of them at any time, and that the statement was voluntarily made by the defendants “of their own free will and without promise of favor or threat of physical harm.”

Earl Rife testified that he was a criminal investigator for the State Police and that he assisted Sheriff Gregory in the investigation of the burglary and was present when the three defendants signed the written confession on March 19, 1960. He testified that there were no threats of harm or any coercion used to make the defendants sign the statements in the confession; that they were advised that the statements could be used against them; that they were advised they were entitled to counsel; and that the statement was freely and voluntarily made by each of the three defendants.

Of course, the defendants denied the voluntariness, and the witnesses who supported them were fellow jail inmates. I maintain that the testimony of the two officers made a fact question amply sufficient to support the ruling of the Trial Court, which was that the question of the voluntariness of the confession should be submitted to the jury. In McClellan v. State, 203 Ark. 386, 156 S. W. 2d 800, we quoted from an earlier case:

“In many instances, where the accused is confronted with a confession which he cannot deny having made, he insists that it was not freely and voluntarily made. But that insistence does not render the confession inadmissible, where there is testimony to the effect that it was in fact, freely and voluntarily made. In such cases the practice approved by us, which was followed in the instant case, is for the court to hear the testimony in the absence of the jury as to the circumstances under which the confession was given, and if there is a substantial question as to whether it was freely and voluntarily made, to submit that question of fact to the jury, after admonishing the jury to disregard the confession unless it was found to have been voluntarily made.”

After the above quotation we further said:

“The court strictly followed the above rule in the trial of the present ease, and practically all the testimony shows that, there were no promises made with reference to this particular case by the prosecuting attorney or anyone else. The trial judge did not pass on the question as to whether the confessions were voluntarily made. He passed on the question of their admissibility alone, and submitted to the jury the question of whether they were voluntarily made.”

I submit that the Majority of this Court is doing violence to all of our previous cases when it holds that the testimony heard by the Trial Judge in chambers in this case was not sufficient to submit the confessions to the jury. The Majority Opinion also shows that it considered testimony that was heard before the jury when the confessions were offered, because the Majority Opinion names such witnesses. If we ever got to the question of whether the verdict of the jury based on the confessions was correct, than I would call attention to what was said in Palmer v. State, 213 Ark. 956, 214 S. W. 2d 372, in which we reviewed the cases of the Supreme Court of the United States up to that time and pointed out that the United States Supreme Court determines the voluntariness of the confession independently of the conclusion reached by any other fact finding agency or judicial tribunal, whereas, in Arkansas we have always said that if there is substantial evidence to support the jury verdict, then it must be affirmed; and it is my view that until the present opinion this Court has not constituted itself an appellate jury to overrule the verdict.

I submit that in considering whether there is sufficient evidence to support the ruling of the Trial Court in submitting the confession to the jury, this Court has no right to examine the testimony heard before the jury on the voluntariness of the confessions.

Finally, we have here the interesting spectacle of one defendant who confessed and implicated the other defendants, and his confession is admitted by the Majority to be voluntary; and yet a subsequent confession by the same defendant is ruled to be involuntary. This certainly puts criminal procedure in hopeless confusion.

For the reasons herein stated, I respectfully dissent.

       David and Dale are brothers, and are cousins to Ray.

       The statement was written in longhand by Manes.

       Studdard did not confess, and apparently has never been brought to trial.

       Baker had been in jail several days before appellants were arrested.

       The sheriff testified there was snow on the ground.

       Emphasis supplied.

       In some instances the singular is used, as “statement” or “confession”, since there was only one instrument signed on March 19, 1960. In other instances the plural “confessions” appears. The intention always is to refer to the pages signed by the defendants on March 19, 1960.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Ark. Motor Coaches v. Taylor, Judge.
    5-2613 and 5-2623
    354 S. W. 2d 731
    Opinion delivered March 12, 1962.

      5-2613 — Warren <& Bullion and Fletcher Long, for petitioner; Harold Sharpe, for respondent.

      5-2623 — Harold Sharpe, for petitioner; Warren & Bullion and Fletcher Long, for respondent.
   Carleton Harris, Chief Justice.

Minnie Warren filed an action against Arkansas Motor Coaches in the Circuit Court of St. Francis County, seeking to recover monetary damages for personal injuries suffered because of the alleged negligence of the bus company’s driver. Sixteen interrogatories were addressed to Arkansas Motor Coaches. The company answered the first five interrogatories, objected to numbers six through twelve, then proceeded to answer the balance. A motion was then filed by counsel for Minnie Warren asking that the company be ordered and directed to answer the interrogatories which they had refused to answer. On hearing, the court sustained the defendant’s objection to interrogatories No. 7, No. 8, No. 9, No. 11 and No. 12, but defendant’s objection to plaintiff’s interrogatory No. 10 was overruled “to the extent that Defendant should be required to furnish to the Plaintiff copies of statements obtained from witnesses, including the parties, now in Defendant’s possession.” Arkansas Motor Coaches has petitioned this Court for a Writ of Prohibition, maintaining that the order of the court directing that statements obtained by petitioner be furnished Minnie Warren exceeds the power and jurisdiction of the Court; that the order will have to be complied with unless this Court intervenes by issuance of Writ of Prohibition, and that to comply with said order will cause irreparable injury and damage to petitioner, which cannot be corrected as a practical matter on appeal.

Minnie Warren likewise seeks a Writ of Prohibition, stating:

“Petitioner alleges that the issuance of a Writ of Prohibition in this case is proper because the Circuit Court has exceeded its authority in failing to require Arkansas Motor Coaches, Defendant in said Circuit Court to respond to Interrogatories No. 7, 8 and 9. There is no other remedy that will afford the Petitioner protection against the wrong.”

The cases have been consolidated for hearing.

Actually, both sides are endeavoring to present to this Court for determination the scope and extent of the discovery statutes, Arkansas Statutes 28-348 et seq. Petitioner, Arkansas Motor Coaches, states that the petition raises three questions.

“1. Is prohibition the appropriate procedure under the facts in this case;

2. May the trial court order the witnesses’ statements on bare interrogatory; and

3. To what extent are witnesses’ statements, obtained for the purpose of assisting counsel in his preparation for a case, protected from the discovery rules?” We recognize that the question of the proper utilization of discovery procedures has not been developed to a great extent in this state; in fact, though our Act was passed in 1953, there are no Arkansas cases bearing on the question of when, or under what circumstances, statements of witnesses are subject to pretrial disclosure, production, or inspection. Nonetheless, though we recognize the exigency of a guidepost for attorneys and courts, we are unable to answer questions two and three, listed above, for question number one is quickly answered in the negative.

Petitioners are contending that the Circuit Court acted in excess of its jurisdiction (rather than lacking jurisdiction), but the Writ of Prohibition cannot be used as a substitute for appeal. In H. B. Deal & Co., Inc. v. Marlin, Judge, 209 Ark. 967, 193 S. W. 2d 315, this Court quoted from 42 Am. Jur. 165, under the topic “Prohibition”, as follows:

“It is the universal rule that mere error, irregularity, or mistake in the proceedings of a court having jurisdiction does not justify a resort to the extraordinary remedy by prohibition, and that a writ of prohibition never issues to restrain a lower tribunal from committing mere error in deciding a question properly before it ; or, as it has sometimes been said, the writ of prohibition cannot be converted into, or made to serve the purpose of an appeal, writ of error, or writ of review to undo what already has.been. done. This is true both because there has been no usurpation or abuse of power and because there exist other adequate remedies. Thus, when jurisdiction is clear, an erroneous decision in ruling on the sufficiency of the petition or complaint or on a motion to dismiss, or on matters of defense, or in rendering judgment, is not ground for a writ of prohibition.”

Also, in Vale, Admr. v. Huff, Judge, 228 Ark. 272, 306 S. W. 2d 861, we held that an order for discovery is interlocutory and not appealable, and a writ of prohibition will not lie.

Writs denied.

       These interrogatories, in general, dealt with such matters as the names, addresses, and telephone numbers of witnesses, and their employment. Similar information was sought relative to agents or private investigators who investigated the casualty; also information relative to the reports of investigations that had been prepared, and photographs, charts, or drawings made on behalf of defendant.


author: Ed. F. McFaddin, Associate Justice.

text:
    Employers' Liability Assurance Corp. v. A. W. Johnson Co.
    5-2537
    354 S. W. 2d 733
    Opinion delivered March 12, 1962.

      Fulk, Lofton, Wood, Lovett £ Parham, for appellant.

      Mehaffy, Smith £ Williams and R. Ben Allen, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question posed is whether the appellee was entitled to judgment on the indemnity bond signed by appellant. In January 1955, Kelly Engineering Company (hereinafter called “Kelly”), entered into a contract with Flake, et al. (hereinafter called “Wallace”), by the terms of which contract Kelly agreed to furnish the materials and labor to completely air-condition the Wallace Building in Little Rock. The contract between Kelly and Wallace contained two paragraphs here germane. They are:

“Art. 21. Bond. The contractor shall, at owner’s expense, provide a bond, in the amount of $100,000.00 with an approved Surety Company as surety, to the approval of the Owner, for the faithful performance of the contract, and also for the use and benefit of all parties who may become entitled to liens, under said contract. This Bond shall remain in force for and until one (1) year after the completion of the work, and acceptance of same by the Engineer and Owner. This bond shall also cover the payment to the Owner of any damage on account of failure of the Contractor to complete the work at the time specified in the agreement. * * *
“Art. 26. Guarantees. Before signing contract owner shall require Contractor to furnish bond satisfactory to Owner and covering the latter’s faithful performance of the contract and the payment of all debts and obligations resting upon Contractor thereunder.”

Kelly tendered to Wallace, who accepted it, the bond hereinafter copied, signed by appellant, Employers ’ Liability Assurance Corporation, Ltd. (hereinafter called “Insurance Company”). Appellee, A. W. Johnson Company (hereinafter called “Johnson”), furnished materials and supplies to Kelly which were used in air-conditioning the Wallace Building; and when Kelly failed to pay in full for such items, Johnson instituted the present action, on the bond, against the Insurance Company, as sole defendant, for the amount due by Kelly to Johnson, The Insurance Company denied liability. Trial to the Circuit Judge without a jury resulted in judgment for Johnson and this appeal ensued in which are presented, inter alia, the matters now discussed.

I. Provisions Of The Bond. The first and vital matter is the wording of the bond which the Insurance Company signed and on which Johnson sought to recover. Omitting only signatures, it reads:

“Know all Men by these Presents:
“That we KELLY ENGINEERING SERVICE, a partnership composed of E. W. Kelly and Bill Kelly, 922 Main Street, Little Rock, Arkansas, of Little Rock, Arkansas (sic) (hereinafter called the Principal), as Principal, and THE EMPLOYERS’ LIABILITY ASSURANCE CORPORATION, LIMITED, with its chief office in the City of Boston, Massachusetts (hereinafter called the Surety), as surety, are held and firmly bound unto LEON FLAKE, OSCAR F. KOCHTITZKY, JR. and MARTHA LOUISE KEATON of Exchange Building, Little Rock, Arkansas (hereinafter called the Obligee) in the penal sum of - One Hundred Thousand and no/100 - Dollars ($100,000.00) (which sum is hereby agreed to be the maximum liability hereunder), lawful money of the United States of America, well and truly to be paid, and for the payment- of which we and each of us hereby bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
“Whereas, said Principal has entered into a certain contract in writing, bearing date January 17, 1955, with the said Obligee for the furnishing and installation of air conditioning system in the Wallace Building, 105 Main Street, Little Rock, Arkansas, in accordance with plans and specifications prepared by Pettit & Pettit, Engineers, Little Rock, Arkansas, a copy of which is or may be attached hereto, and is hereby referred to and made a part hereof.
“Now, Therefore, the condition of this instrument Is such that if the Principal indemnifies the Obligee against loss or damage directly arising by reason of the failure of the Principal faithfully to perform the above mentioned contract, then this instrument shall be null and void; otherwise it shall remain in full force and effect.
“IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and affixed their seals at Little Rock, Arkansas this 18th day of January 1955.”

We point out the great difference between the provisions of the contract and the provisions of the bond. The contract provided in Article 21 that Kelly would make a bond “for the faithful performance of the contract, and also for the use and benefit of all parties who may become entitled to liens, under said contract.” If the Insurance Company had signed a bond with such, provisions in it (i. e., for performance and third party beneficiaries), like the contract stated, then clearly Johnson could have maintained an action on the said bond under such cases as Trinity Universal Ins. Co. v. Willbanks, 201 Ark. 386, 144 S. W. 2d 1092; H. B. Deal & Co. v. Marlin, 209 Ark. 967, 193 S. W. 2d 315; and H. B. Deal & Co. v. Bolding, 225 Ark. 579, 283 S. W. 2d 855.

The bond signed by the Insurance Company in this case is not a performance bond as in the cases last cited above: instead, it is a mere indemnity bond saying that the surety shall indemnify “the Obligee against loss or damage directly arising by reason of the failure of the Principal faithfully to perform the above mentioned contract.” The distinction between a performance bond and an indemnity bond is well recognized. In 9 Am. Jur. 64, “Building and Construction Contracts” § 98, the holdings are summarized in this language:

“No right of action exists in favor of a materialman or laborer against the surety on a private contractor’s bond conditioned merely to indemnify and save harmless the owner from any pecuniary loss resulting from the breach of any of the terms of the contract between; the-contractor and the owner, since such bond is not intended for the benefit or protection of the third parties, but merely to indemnify the owner.”

In Pine Bluff Lodge v. Sanders, 86 Ark. 291, 111 S. W. 255, we recognized this well known distinction between performance bonds and indemnity bonds in this language :

“The bond in the present case- was not given to; secure the payment of material furnished to the contractor to be used in the construction of the building, but was; given to indemnify and save harmless appellant from any breach of the contract on the part of the principal contractor. It was in no wise intended to benefit or to-protect the materialmen, and no right of action thereon exists in their favor.”

Appellee argues that the bond signed by the Insurance Company incorporated the contract by reference-. That contention is true. But such incorporation did not bind the Insurance Company beyond the terms of its signed agreement, because incorporating the contract by reference is one thing and agreeing to guarantee the performance of the contract is quite another; and this bond did not guarantee the performance of the contract. Further, we point out that this was a private bond, as distinguished from a statutory bond. Our cases hold that when a bond is given under the statute, all of the provisions of the statute are incorporated in the bond. New Amsterdam Cas. Co. v. Detroit F. & S. Co., 187 Ark. 97, 58 S. W. 2d 418; Union Indemnity Co. v. Forgey & Hanson, 174 Ark. 1110, 298 S. W. 1032. A private bond of indemnity — as distinguished from a performance bond— however, does not extend beyond its own terms. In 9 Am. Jur. 58, “Building and Construction Contracts” § 89, the holdings are summarized:

'“The bond should be construed in connection with,, and in the light of, the contract in connection with which it was executed or the performance of which it secures. In case of conflict, however, the terms of the bond are controlling over those of the contract in determining the surety’s liability.”

See also 42 C. J. S. 566 and 576 “Indemnity” § 3 and § 8. In this case of a private bond of indemnity, the-surety had a right to give such bond as it pleased and to-limit its liability in any manner it saw fit. Therefore,, under the evidence here presented, Johnson did not have-a cause of action against the Insurance Company on the bond.

II. Estoppel. The evidence here shows that in December, 1955, while Kelly was in default, Johnson had a. meeting with the Claims Superintendent of the Insurance-Company, who advised Johnson (according to his testimony) that there was no need for Johnson to file a lien and that the Insurance Company was liable for labor and materials under the bond and, further, that Johnson would have “a year after the job was completed to file suit.” It was shown that after this assurance Johnson continued to furnish further supplies, some of which are included in the amounts here sued on. The Circuit Court judgment in favor of Johnson might be affirmed on the theory of estoppel, except for the fact that Johnson not only failed to plead estoppel but further expressly waived it in this language: “. . . this is our approach — not estoppel, but on the theory that the terms of the Contract and the Bond are ambiguous and this is oral testimony introduced for the purpose of explaining the terms of the Bond and Contract.” The foregoing-statement was made when A. W. Johnson was testifying and constitutes an express disaffirmance of any theory of estoppel. So the Circuit Court judgment cannot be affirmed on any theory of estoppel.

III. Directions On Remand. Since we have concluded that Johnson does not have a direct cause of action against the Insurance Company on the bond under' the facts here presented, it follows that the judgment of the Circuit Court in favor of Johnson must be reversed.. But there are statements in the record that cause us to remand the case for further proceedings not inconsistent with this opinion. It is stated that Johnson has pending a suit in equity against Wallace, the exact nature of which is not clearly disclosed. The outcome of that suit may have a direct bearing on the. liability, if any, of the Insurance Company. Furthermore, additional matters may arise on a new trial. Therefore, the judgment is reversed and the cause remanded.

Johnson, J., dissents.

       There is an exhaustive annotation in 77 A.B.k. 21 (supplemented in 118 A.L.B. 57), entitled, “Bight of person furnishing material or labor to maintain action on contractor’s bond to owner or public body, or on owner’s bond to mortgagee.” In discussing private bonds conditioned to indemnify the owner (on page 65 of the annotation)- our own case of Pine Bluff Lodge v. Sanders, supra, is cited as the leading case.


author: George Rose Smith, J.

text:
    Neely v. Jones.
    5-2647
    354 S. W. 2d 726
    Opinion delivered March 12, 1962.

      W. B. Howard and Barrett, Wheatley, Smith & Deacon, for appellant.

      Frierson, Walker <fb Snellgrove, for appellee.
   George Rose Smith, J.

This is a boundary dispute that began as an action at law and was later transferred to equity. At the first trial the chancellor sustained the defendants’ demurrer to the plaintiffs’ evidence and dismissed the complaint. We reversed that decree, finding that when the testimony was viewed in the light most favorable to the plaintiffs there was some substantial evidence to support their contention that a fence line had become the boundary by long acquiescence. Neely v. Jones, 232 Ark. 411, 337 S. W. 2d 872.

Upon remand the chancellor considered the case upon the original reported testimony, some slight additional proof, and a personal view of the property. In a written opinion he concluded, and we agree, that the plaintiffs’ contentions had not been established by the weight of the evidence. The court accordingly adjudged the title to the disputed strip to be in the defendants.

The appellants now argue a single point, that the opinion upon the first appeal became the law of the case and, in view of the absence of any additional material proof, obliged the chancellor to decide the issues in favor of the plaintiffs. In the course of their brief counsel state their position in this way: “We would like to know just what is the difference between a chancellor sustaining a demurrer to certain evidence and deciding litigation the same way on the same evidence.”

There is a very important difference. Ever since the decision in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, we have consistently held that a demurrer to the plaintiff’s evidence should be sustained only if that proof, viewed in its most favorable light, would present no question of fact for a jury if the case were being tried at law. In such a situation the chancellor does not exercise fact-finding powers that involve determining questions of credibility or of the preponderance of the evidence. Brock v. Bates, 227 Ark. 173, 297 S. W. 2d 938. Hence our decision on the first appeal meant only that if the case had been heard at law upon the plaintiffs’ evidence it would have been error to direct a verdict for the defendants.

Upon remand the defendants eventually rested their case, and the cause was submitted upon the merits. Then, for the first time, it was proper for the chancellor to weigh the evidence and determine where its preponderance law. He was not obliged to find for the plaintiffs, any more than a jury would have been if the case had been retried at law after having been reversed for the trial court’s error in directing a verdict for the defendants. Thus our decision upon the first appeal did not preclude the chancellor from finding’, even upon the original proof alone, that the plaintiffs had not proved their ease by a preponderance of the evidence.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Talley v. Sanders.
    5-2607
    354 S. W. 2d 736
    Opinion delivered March 12, 1962.

      Lloyd E. Darnell and N. L. Schoenfeld, for appellant.

      Robert D. Ridgeway, City Attorney, for appellee.
   Paul Ward, Associate Justice.

Appellant, Walker Talley, was discharged as a member of the Hot Springs Police force by Milford Sanders who was the Chief of Police. The alleged reason for his discharge was that Talley had been guilty of ‘‘ conduct unbecoming a police officer”. Talley appealed to the Hot Springs Civil Service Commission, a hearing was held on October 20, 1960, and that same day the Commission ruled to uphold the action of the Police Chief.

On November 18, 1960 Talley filed a “Petition for Review” in the Garland Circuit Court. On December 12, 1960 the Hot Springs City Attorney filed in Circuit Court a “Motion to Dismiss” the Petition for Review on the grounds that (a) no service had been perfected upon the City of Hot Springs and no notice given and (b) no transcript of the proceedings before the Civil Service Commission had been filed as required by law.

On June 6, 1961 the trial court, after argument, sustained the Motion to Dismiss the Petition for Review and rendered judgment accordingly. The reasons for the court’s action, as set forth in the judgment, were: (a) the complaint filed by appellant on November 18, 1960 was apparently for obtaining time to perfect his appeal from the decision of the Civil Service Commission, and that the matter was never presented to the court; (b) the service had on the Chief of Police on November 22, 1960 did not constitute service as provided by law on the Civil Service Commission. Appellant excepted to the judgment and prayed on appeal to this Court.

Viewing the entire record before us, we have concluded that the judgment of the trial court must be sustained for the reasons hereafter set forth.

(a) Since we have concluded that the cause must be affirmed for other reasons, we do not consider whether the trial court was justified in dismissing appellant’s petition for the reason first assigned above.

(b) We agree with the trial court that no proper service was had on or notice given to the Civil Service Commission. Appellant’s “Petition for Review” named as defendant only the Chief of Police, who, of course, was not a member of the Commission. So far as the record before us reveals, no member of the Commission knows this action is pending.

Appellant attempts to avoid the consequences of this situation by contending the City Attorney entered an appearance for the Commission when he filed a motion to dismiss. This contention is refuted by our decision in Smith Chickeries v. Cummings, Judge, 224 Ark. 743, 276 S. W. 2d 48.

The transcript of the proceedings before the Commission is in the record before us. However, this can avail appellant nothing, because he has not, in his brief, abstracted the record as required by Rule 9 (d) of this Court. Hence, the judgment of the trial court must be affirmed on the merits.

On the other hand, if we treat this appeal as a petition to have the record corrected, again we can see no way to grant appellant relief. If, as it is apparently contended, appellant is referring to the transcript of the hearing before the Commission, that relief would have to come from the trial court and not from this Court. If appellant seeks to have the record (from the trial court) corrected, then we are confronted with the fact that no specific or definite deletions are pointed out. In fact, appellant’s brief contains this sentence: “The complete record has been made.”

In counsel’s brief for appellant, at page 16, there appears the following statement:

“Reference to the Petition and Affidavit filed simultaneously with this Brief make it perfectly clear that the Transcript is not complete. That such matters are relevant and pertinent need only a reference to the Judgment (Tr. 5 and 6) where the following outrageous language of the Court appears”: (emphasis added).

We find nothing in the Judgment referred to that justifies such comment by counsel. In fact such a comment would not be appropriate under any circumstance and is not to be condoned under Rule 6 of this Court, which reads: “No argument, brief or motion filed or made in this Court, shall contain language showing disrespect for the trial court.”

Affirmed.

McFaddin, J., concurs.


author: Sam Robinson, Associate Justice.

text:
    Ark. State Highway Comm. v. McHaney.
    5-2587
    354 S. W. 2d 738
    Opinion delivered March 12, 1962.

      Dowell Anders and Thomas B. Keys, for appellant.

      Melvin E. Mayfield, for appellees McHaney & wife; J. 8. Brooks, for appellee Ezelle.
   Sam Robinson, Associate Justice.

The issue here is whether the lessee of property, sold to the Highway Department by the fee owner, is entitled to damages by reason of being dispossessed.

In connection with its highway building program, on September 10, 1959, the Arkansas State Highway Commission purchased from W. B. McHaney, property on which was located a filling station. It was agreed that McHaney was to remove the filling station equipment from the property 60 days after he received payment. On June 14, 1960, McHaney had not removed the equipment and on that date the Highway Commission filed this suit asking that a Mandatory Injunction be issued requiring McHaney to remove the equipment from the property purchased by the Highway Department in September, 1959 and praying judgment for rent on the property at the rate of $500.00 per month from September 21, 1959.

S. J. Ezelle filed an intervention in which he alleged that he was a sub-lessee in possession of the property in question under the terms of a lease agreement between McHaney and C. E. Clawson, dated September 1, 1955; that the lease had been assigned to the intervenor by Clawson on April 1, 1959 with the approval of McHaney, the lessor; that the intervenor paid $3,500.00 for the lease which would expire September 1, 1960 but was subject to renewal for an additional five years at the option of the sub-lessee; that the sub-lessee had valuable rights under the lease, and should be compensated by the Highway Department for the loss he sustained by reason of the taking of the property. Upon a trial of the issues involved, the Chancellor found for the intervenor in the sum of $5,140.00. The Highway Department has appealed.

The Highway Department is not an innocent purchaser. Before buying from McHaney the Highway Department was informed of the Clawson lease. The issue is, therefore, the amount of damages sustained by Ezelle, the assignee of the lease, by reason of being dispossessed of the leased property. Arkansas State Highway Commission v. Fox, 230 Ark. 287, 322 S. W. 2d 81.

Ordinarily, the measure of damages in a ease of this kind is the difference between the amount of rent reserved in the lease and the fair rental value of the property at the time of the taking. Orgel on Valuation Under Eminent Domain, Vol. 1, Sec. 121. In Thomas v. Croom, 102 Ark. 108, 143 S. W. 88, the Court said: ‘ ‘ The measure of damages for the breach of this implied covenant for possession is the difference between the rental value of the demised premises and the rental price named in the lease, together with such special damages as have necessarily resulted from such breach.” The Court further said: “The probable profits to a lessee from the cultivation of demised land is not the true measure of his damages resulting from the breach of a covenant for possession, and can not be considered in determining the amount of such damages.” See also Person v. Williams, 125 Ark. 174, 187 S. W. 1063. To the same effect is Reeves v. Romines, 132 Ark. 599, 201 S. W. 822. There, in addition to pointing out that the measure of damages in an implied covenant for possession, the Court said: “By rental value is meant not the probable profits that might accrue to the tenant, but the value, as ascertained by proof of what the premises would rent for or by evidence of other facts from which the fair rental value may be determined.” Special damages are allowed only where such damages were contracted by the parties at the time they made the lease. Morrison v. Weinstein, 151 Ark. 255, 236 S. W. 585.

In the case at bar, the fair rental value of the property is shown by the evidence to be from $150.00 to $175.00 per month, but no amount is mentioned in the lease that the lessee is to pay as rent. In fact, the so-called lease agreement does not provide for the payment of any amount as rent. The so-called lessee was merely selling gasoline for the lessor on a commission basis. Actually, Ezelle was being paid per gallon for selling gasoline at McHaney’s place of business. McHaney furnished the building, the gasoline, and paid the utilities. The appellee, Ezelle, testified: ‘ ‘ Q: What rent do you pay Mr. McHaney? A: I operate on a commission basis.” Mr. McHaney testified: “Q: How much rent is Mr. Ezelle paying you per month for these premises? A: He is not paying me any rent whatever, never has.” For his services Ezelle was to be paid 2>‡ per gallon for gasoline sold, but he had the privilege of selling other things such as motor oil and other articles on which he retained all the profits, if any. The profits of a business is not the proper criterion for the value of property or of a lease. Hot Spring County v. Crawford, 299 Ark. 518, 316 S. W. 2d 834, Arkansas State Highway Commission v. Addy, 229 Ark. 768, 318 S. W. 2d 595.

Ezelle paid to Clawson, the original lessee, $3,500.00, of which $3,000.00 was for the assignment of the lease and $500.00 was for stock in trade. At the time Clawson’s rights were assigned to Ezelle the lease had 17 months to run of the original five-year term, and an additional five years if the option to renew was exercised, making a total of 77 months Ezelle could have the privilege of selling gas for McHaney at 30 per gallon. For this privilege Ezelle paid $3,000.00 or $38.96 per month. He actually used the property 14 months which, at $38.96 per month, would total $545.44. This sum deducted from the $3,000.00 paid by Ezelle leaves the sum of $2,454.56, and this is the amount of Ezelle’s damages and the amount he is entitled to recover.

In view of the fact that the Highway Department had knowledge of Clawson’s rights at the time of the purchase from McHaney and the additional fact that no amount of rent is named in the lease, we do not think the Highway Department is entitled to recover any rent.

The decree is modified and Ezelle is awarded a judgment in the sum of $2,454.56 and, as modified, the judgment is affirmed.

Bohlinger, J., not participating.


author: Jim Johnson, Associate Justice. George Rose Smith, J.,

text:
    Tupy v. State.
    5032
    354 S. W. 2d 728
    Opinion delivered March 12, 1962.

      Garvin Fitton and Arnold M. Adams, for petitioner.

      Franh Holt, Attorney General, by Thorp Thomas, Asst. Attorney General, for respondent.
   Jim Johnson, Associate Justice.

On August 26, 1961, a petition in the matter of the Contempt of J. L. Tupy was filed in the Newton County Circuit Court by the prosecuting attorney. On August 28, 1961, Judge Woody Murray, the Circuit Judge of Newton County, issued a citation to the appellant, J. L. Tupy, to show cause why he should not be found in contemnt of that court for statements published by him in a pamphlet entitled “Inside Information About Wrong Doings of Election Commissioners and County Judge of Newton County, Arkansas.” A hearing was held on the citation September 5, 1961, with the court finding 'Tupy guilty of contempt and fixed his punishment at a fine of $25.00 and ten days in jail. The jail sentence was suspended upon his good behavior. The conviction is here for review by writ of certiorari.

Tupy admitted that he was the individual who took the galley sheets to the printer and picked them up and mailed and distributed more than 2,300 slick copies of the pamphlet in question. The objectionable portions of the pamphlet are as follows: At page seven the following language appears — “Because in our opinion the Grand Jury of March 6, 1961, was a set-up. Read end part of accompanying Affidavit, March 17, 1961, where Judge Murray is alleged to have selected the Grand Jury Commissioners on recommendation of Newton ‘County Courthouse Officials’ in defiance of the rule that creditable electors be consulted for that purpose. County Courthouse Officials’ include persons whom we have asked to be indicted.” The affidavit referred to above appears at page 17 of the pamphlet and reads as follows:

“The undersigned, Hugh Sparks, H. W. McCraw and J. L. Tupy, all members of the Citizens Committee of Newton County, hereby do solemnly affirm the truth of the following: That at 11:45 a.m. of March 10, 1961, they visited the Honorable Woody Murray, Judge 14th Circuit of Arkansas, in his chambers in the Boone County Courthouse, Harrison, Arkansas, where he told them, among other things, that the Resolutions adopted by the Newton County Grand Jury on March 9, 1961, of which a certified copy was supplied the Citizens Committee by Howard Norton, County and Circuit Clerk, was not an Order of the Court, and that they were not enforceable nor valid at law; and that in his selection of the Jury Commissioners for choosing the panel of Grand Jurors, from which 16 were sworn in on March 6, 1961, he made the selection on advice of County Courthouse Officials of Newton County.”

At page 19 of the pamphlet the following appears: “We believe that justice in this matter is being denied the citizenry of Newton County because of:

(a) A Set-up Grand Jury;

(b) The sterile legerity of the Prosecutor (who is supposed to be the Citizens’ attorney);

(c) and a seeming complot to white wash the accused.”

The primary question presented here is whether the pamphlet tended to interfere with the orderly conduct of the judiciary.

In the very early case of State v. Morrill, 16 Ark. 381, this Court said:

“Any citizen has the right to publish the proceedings and decision of this court, and if he deem it necessary for the public good, to comment upon them freely, discuss their correctness, the fitness or unfitness of the judges for their stations, and the fidelity with which they perform the important trust responsed in them, but he has no right to attempt, by defamatory publications, to degrade the tribunal, destroy public confidence in it, and dispose the community to disregard and set at naught its orders, judgments, and decrees. Such publications are an abuse of the liberty of the press, and tend to sap the very foundation of good order and well being in society, by obstructing the course of justice. If a judge is really corrupt, and unworthy of the station which he holds, the constitution has provided an ample remedy, by impeachment or address, where he can meet his accuser face to face, and his conduct may undergo a full investigation. The liberty of the press is one thing, and licentious scandal is another. The constitution guarantees to every man the right to acquire and hold property, by all lawful means but this furnishes no justification to a man to rob his neighbor of his lands or goods.”

The petitioner, in his response, said that he had no design to impugn the Court’s integrity by the distribution of the pamphlet. This same allegation was made and discussed in Lancaster, Ticer and Trevathan v. State, 208 Ark. 412, 186 S. W. 2d 673, as follows:

“It is also inissted that there was a purge of contempt by defendants, when by their sworn responses, they alleged that the language did not, could not, and was not intended to refer to the circuit court of Stone County. Defendants say that they are absolved by this statement under oath, which should have been taken and accepted as true by the court. If the language used in the circular is fairly susceptible of different interpretations, defendants’ contention should be sustained. The rule which this court has followed is laid down in 17 C. J. S., p. 109 as follows: ‘ Thus it is frequently held in cases of indirect criminal contempt where the acts charged are ambiguous and capable of two constructions that a disclaimer of intent under oath is conclusive and entitles defendant to a discharge. However, a defendant is not entitled to a discharge on filing a disclaimer of intent under oath if the contempt relied on as constituting the offense amounts to a contempt regardless of want of intention . . . Further, a sworn disclaimer of intent is unavailing even in cases where intention is an element of the offenses charged, if the alleged contemptuous acts are unambiguous and subject only to the one reasonable construction that a contempt was intended.”

The facts are undisputed that the petitioner, J. L. Tupy, distributed over-2,300 copies of the pamphlet in question in the State of Arkansas. Thus, the question arises whether the statement in the pamphlet “in our opinion the grand jury of March 6, 1961, was a set-up” is susceptible of different interpretations.

As we view the matter, this statement implies some fraudulent act connected with the Circuit Court in choosing jury commissioners and in choosing members of the grand jury.

It is obvious that this is what the petitioner intended when he refers further to the accompanying affidavit of March 17, 1961, “where Judge Murray selected the Grand Jury Commissioners on recommendation of Newton ‘ County Courthouse Officials ’ in defiance of the rule that creditable electors be consulted for that purpose, ‘County Courthouse Officials’ include persons whom we have asked to be indicted.”

The petitioner primarily bases his argument for reversal and dismissal on Bates v. State, 210 Ark. 652, 197 S. W. 2d 45. That case must be and is hereby limited to its own particular facts and the situation there existing. It is not to be considered a precedent in future contempt cases. However, the controlling language even in that case is:

“Essence is that unless the writing precipitates a clear and present danger, in consequence of which justice will be affected, recourse of the aggrieved person is prosecution for libel.”

But when considered in context, the statement made in the pamphlet by petitioner destroys public confidence in the courts and Grand Juries as such because the statement is to the effect that he cannot obtain justice in the court of Newton County for the reason of a rigged Grand Jury engineered by the Circuit Court which is “a seeming complot to white wash the accused”. It follows, therefore, that these statements create a clear and present danger to the administration of justice. This being true, the judgment is affirmed except for the suspended sentence which is quashed. In contempt actions a suspension is within itself a remission. See Stewart, et al, v. State, 221 Ark. 496, 254 S. W. 2d 55.

George Rose Smith, J., concurs.

George Rose Smith, J.,

concurring. I am unable to join in that part of the majority opinion which in effect overrules Bates v. State, 210 Ark. 652, 197 S. W. 2d 45. In that case there had been a newspaper reference to a “hand-picked jury,” but it was not implied, as it is here, that the trial judge had taken part in the matter. The other allegations of contempt in the earlier case are not similar to the statements for which the appellant is being punished in the case at bar. Since there is no essential inconsistency between the Bates decision and today’s holding I would defer any re-examination of the prior case until the issue is squarely presented.