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

text:
    Beaumont v. Faubus, Governor
    5-3718
    394 S. W. 2d 478
    Opinion delivered October 11, 1965.

      Gene Worsham, for appellant.

      Bruce Bennett, Attorney General, Smith, Williams, Friday <& Bowen By: H. Friday and John Echols, for appellee.
   Jim Johnson, Associate Justice.

This case challenges the validity of Act No. 35 of the First Extraordinary Session of the Sixty-Fifth General Assembly of the State of Arkansas, approved June 9, 1965. Appellant, a citizen, resident and taxpayer of Arkansas, and the holder of both serial and term bonds of the State Highway Refunding Bonds dated April 1, 1941, issued under the authority of Act No. 4 of the Acts of Arkansas of 1941, prayed for a decree declaring Act No. 35 unconstitutional and enjoining appellees from taking any action pursuant to Act No. 35 This is a class action on behalf of the citizens, residents and taxpayers of the state and on behalf of the holders of the bonds authorized by Act No. 4. Appellees are the members and’secretary of the State Board of Finance.

There are presently outstanding $43,063,000 in principal amount of Act No. 4 bonds, consisting of serial bonds maturing annually on April 1, 1966 to 1972, inclusive, and term bonds maturing April 1, 1972. The serial bonds are not callable prior to maturity, but the' term bonds are callable prior to maturity to the extent of $1,000,000 on April 1 in each of the years 1966 to 1971, inclusive. The Act 4 bonds bear interest at the rates of 3% and 3%% per annum and are general obligations of the State of Arkansas. There is pledged to these outstanding bonds 70% of the first $10,250,000 of highway revenues collected each year, and there are presently being maintained in the State Treasury a highway bond and interest fund for the purpose of meeting the debt service requirements of the outstanding bonds and a debt service fund consisting of collections in excess of debt service requirements. The debt service reserve fund consisting of collections in excess of debt service requirements. The debt service reserve fund currently contains cash and investments in direct obligations of the United States in an amount in excess of $7,800,000.

Act No. 35 authorizes appellees to issue and sell general obligations bonds of the state to be known as State Highway Refunding Bonds in the amount of $43,-063,000, maturing serially in each of the years 1966 to 1972, inclusive, for the purpose of accomplishing the advance refunding of the outstanding Act 4 bonds. The entire proceeds of the sale of the refunding bonds are to be deposited in the reserve fund.and appellees are required to invest the necessary amount of money in the reserve fund in United States government securities having such maturity dates and bearing interest at rates as will make available sufficient moneys to meet the debt service requirements of the outstanding Act 4 bonds as they become due (including the annual redemption of term bonds to the maximum permissible amount). The United States government securities would then be deposited with a bank or trust company under an irrevocable trust agreement whereby the principal and interest received on the securities would be used solely for paying the outstanding bonds. The remaining balance in the reserve fund (which will be at least $7,800,000) will be used for constructing and reconstructing highways and bridge in the state highway system.

The trial court disposed of the case on the pleadings by sustaining’ appellees’ demurrer to the complaint and after appellant declined to plead further, dismissed the complaint with prejudice. This appeal followed.

For reversal appellant relies on six points.

I. Appellant urges that Act No. 35 impairs the obligation of the contract between the state and the holders of the outstanding bonds.

When the outstanding Act 4 bonds were issued and delivered, a contract was made between the state and the bondholders with the provisions of Act No. 4, the covenants and pledges executed pursuant thereto and the bonds themselves constituting a part of this contract. W. B. Worthen Co. v. Kavanaugh, 295 U. S. 56, 79 L. Ed. 1298, 55 S. Ct. 555; City of Little Rock v. Community Chest of Greater Little Rock, 204 Ark. 562, 163 S. W. 2d 522; Oliver v. Western Clay Drainage Dist., 187 Ark. 539, 61 S. W. 2d 442. If Act No. 35 and the action that will be taken by appellees thereunder do impair the obligation of the contract with the outstanding bondholders, it is in violation of Article I, Section 10 of the Constitution of the United States, Amendment No. 14 thereto, and Article II, Section 17 of the Constitution of the State of Arkansas. Scougale v. Page, 194 Ark. 280, 106 S. W. 2d 1023. Clearly Act No. 35 contemplates a change in the terms of the contract between the state and the Act 4 bondholders. However, not every change that affects a contract constitutes an impairment. Seibert v. United States, 122 U. S. 284, 30 L. Ed. 1161, 7 S. Ct. 1190; Miller Levee Dist. No. 2 v. Evers, Collector 200 Ark. 53, 137 S. W. 2d 915. The contract clauses of both the Federal and Arkansas Constitutions are designed to preserve practical and substantial rights, not to maintain paper rights and abstract theories. Faitoute Iron & Steel Co. v. Asbury Park, 316 U. S. 502, 86 L. Ed. 1629, 62 S. Ct. 1129. Every unilateral change in a contract may amount to a techniacl breach of that contract, but not every breach is an impairment of the contractual obligation. Morgan Construction Co. v. Pitts, 154 Ark. 420, 242 S. W. 2d 812. We are dealing here with constitutional law — a limitation on the exercise of the sovereign power by a state in a matter of vital public concern Veix v. Sixth Ward Bldg. & Loan Asso. of Newark, 310 U. S. 32, 84 L. Ed. 1061, 60 S. Ct. 792) — not just ordinary principles of contract law. “This principle of harmonizing the constitutional prohibition with necessary residuum of State power has had progressive recognition in the decisions of [the Supreme Court of the United States].” El Paso v. Simmons, 379 U. S. 497, 13 L. Ed. 2d 446, 85 S. Ct. 577.

“The inescapable problems of construction have been: What is a contracto What are the obligations of a contract? What constitutes impairment of these obligations? What residuum of power is there still in the States, in relation to the operation of the contracts, to protect the vital interest of the community! Questions of this character, £of not small nicety and intricacy, have vexed the legislative halls, as well as the judicial tribunals, with an uncounted variety and frequency of litigation and speculations.’ Story, Const. § 1375.” Home Building & Loan Asso. v. Blaisdell, 290 U. S. 398, 78 L. Ed. 413.

When there is a change in the method of enforcement of a contractual obligation, the test for determining whether the obligation has been impaired is whether the new procedure is as ££adequate and efficacious” as the old, Louisiana v. Pilsbury, 105 U. S. 278, 26 L. Ed. 1090, or stated differently, whether the contracting party receives a substantial equivalent of what he has been required to give up. Woodruff Electric Corp. Corp. v. Ark. Public Service Commission, 234 Ark. 118, 351 S. W. 2d 136. No mechanical yardstick can be established, but each case must be decided on its own merits. Seibert v. United States, supra; Faitoute Iron & Steel Co. v. Asbury Park, supra; Scougale v. Page, supra. As stated in Scougale v. Page, supra, (194 Ark. 280):

££ 'Impair’ means to make worse, to diminish in quality,' value, excellence or strength; to deteriorate. (Citing-cases).”

The real obligation, from the standpoint of impairment of contractual considerations in the case of bond issues, is the obligation of the issuing authority to pay the bonds, principal and interest, when due. This is a matter that is of vital significance to the bondholders. Faitoute Iron & Steel Co. v. Asbury Park, supra; Tipton v. Smythe, 78 Ark. 392, 94 S. W. 678; Fulkerson v. Refunding Board of Arkansas, 201 Ark. 957, 147 S. W. 2d 980. Bondholders necessarily expect and have a right to be paid, but payment does not always have to be made from a particular fund or source. Metropolitan Water Dist. v. Toll, 1 Cal. App. 2d 421, 35 P. 2d 519; City of Fort Lauderdale v. State, 125 Fla. 89, 169 So. 584; Oliver v. Western Clay Drainage Dist., supra. As was stated by this court in Morgan Construction Co. v. Pitts, supra,

4 4 There is a distinction between the breach of a contract and the impairment of the obligation of a contract, and where the state enacted a statute which had the effect of annulling or breaking the contract, but contained a provision for payment of the obligation, it does not constitute an impairment of the obligation of the Contract. Caldwell v. Donaghey, 108 Ark. 60, [156 S. W. 839]; Morgan Engineering Co. v. Cache River Drainage District, 115 Ark. 437, [172 S. W. 1020].”

It follows, therefore, that any change involving a substitution of security which does not diminish the prospects of, or adversely interfere with, expected payment does not constitute a contractual impairment.

With these principles in mind, we turn to the case at bar. Here, insofar as the basic right of payment is concerned, the bondholders will have obligations of the United States of America in the full amount necessary to pay their bonds, principal and interest, when due, substituted for a limited amount of cash and similar securities (approximately $7,800,000, but far less than the full amount necessary to pay the ouststading bonds) and a claim against the State of Arkansas primarily secured by highway revenues to be received over the years between now and date of payment. This substitution will leave the bondholders with government securities backed by the faith and credit of the United States, which is the foundation of all money values and without which there would be no financial security. Taxpayers and Citizens of Shelly Co. v. Shelby County, 246 Ala. 192, 20 So. 2d 36. The bondholders’ prospects of payment are not diminished. Even though we are here dealing with a general obligation of the State of Arkansas, it is obvious that there is no constitutional impairment.

Appellant on this point further urges that unless the state board of finance does its duty with honesty and accuracy, the payment of principal and interest on the outstanding bonds will be impossible, and that even if the board completely performs its duty there is always the possibility that employees of the trustee will unlawfully dispose of the United States government securities or the proceeds thereof and that the trustee will become insolvent.

The United States government securities, and the proceeds thereof, must be handled under the provisions of a trust agreement executed pursuant to Act No. 35. In order to afford maximum protection, we construe Act No. 35 to call for the type of irrevocable trust that will not be revoked upon the insolvency of the trustee and the corpus of which will not become assets of the trustee in the event of insolvency or in any other event. An Arkansas bank or trust company can enter into such a trust agreement, Ark. Stat. Ann. § 67-610 (Repl. 1957); Grossman v. Taylor, 185 Ark. 64, 46 S. W. 2d 13, as may banks and trust companies throughout the country. See annotation, 82 A. L. R. 46. There is a presumption that officials act in accordance with the law, Jones v. Capers, 231 Ark. 870, 333 S. W. 2d 242; Matthews v. Bailey, 198 Ark. 703, 130 S. W. 1006, do their duty and that their proceedings are regular. Dawson v. State Bank, 3 Ark. (3 Pike) 505; Rice v. Harrell, 24 Ark. 402. This being true, we must assume that the necessary precautions will be taken in the preparation and execution of the trust agreement and in the taking of all other steps requisite to accomplish the purpose of Act No. 35. “We are aware of no principle that requires us to attribute improper motives to public officers as a means of enabling us to declare an act invalid.” Carr v. Young, 231 Ark. 641, 331 S. W. 2d 701. (See City of Albuquerque v. Gott, 73 N. M. 439, 389 P. 2d 207.) Of course, as to the question of whether the trust will be properly administered:

“In the absence of evidence to the contrary, the law will presume that a trustee intends to perform, and not to violate, his duties, and that he faithfully administers the trust. It is presumed that he does not traffic in or misappropriate the trust property or funds, and that he does not deal for his own profit with the property or moneys of a trust, expending and even wasting the same at his pleasure. It is also presumed that a trustee in accepting a trust knows the duties that he undertakes, and that if he transgresses, he must abide the conse quences.” 54 Am. Jur., Trusts, § 605.

It is not our function to look into the wisdom of the legislative action embodied in Act No. 35 or the advisability of the public purpose sought to be accomplished (obtaining now idle funds for highway construction). Our function is to determine whether the Act meets constitutional standards. Having found that the holders of the outstanding Act No. 4 bonds will have at least the substantial equivalent in quality and accessibility of security, it follows therefore that Act No. 35 and the action proposed to be taken thereunder do not violate the impairment of contract clauses of either the Arkansas or the United States Constitutions.

II. and III. Appellant urges that an election pursuant to Amendment No. 20 to the Constitution of the State of Arkansas is necessary before the refunding bonds can be issued, and that Act No. 35 authorizes an increases in the indebtedness of the State and constitutes an illegal exaction in violation of Article XVI, Section 13 of the Constitution of the State of Arkansas.

Amendment No. 20 requires an election before the State of Arkansas shall issue bonds pledging the faith and credit of the state or any of its revenues “except for the purpose of refunding existing outstanding indebtedness of the State.” The indebtedness to be refunded under Act No. 35 was in existence at the time of approval of Amendment No. 20 in 1934, and its refunding is expressly permitted. The same indebtedness was refunded under Act No. 4 of 1941 and appellant argues that this Avas the only refunding permitted. We do not agree. Bonds merely evidence an indebtedness (City of Los Angeles v. Teed, 112 Cal. App. 319, 44 Pac. 580) and we see no reason to limit the number of permissible refundings of an indebtedness in' existence at the time of the adoption of Amendment No. 20. Furthermore, apart from Amendment No. 20, the power to issue the outstanding bonds in the first instance carried with it the power to refund without an election so long as the indebtedness is not increased. Talkington v. Turnbow, 190 Ark. 1138, 83 S. W. 2d 71.

Appellant argues that the bonds authorized by Act No. 35 Avill not be refunding bonds because the outstandiug bonds will not be immediately retired. To properly consider this contention, it is necessary to review the basic concept of refunding. There are two methods of refunding — by exchange and by sale. In the exchange method the issuing agency exchanges the new bonds for the old, bond for bond, with no money changing hands. In the sale method, the new bonds are sold and the proceeds are used to retire the old bonds. The exchange method is subject to obvious difficulties, such as locating the bondholders and persuading them to make the exchange. Although some courts have held that the only permissible method of refunding is by exchange, the great weight of modern authority considers this view to be unrealistic and inconsistent with present day financing requirements. See discussion in City of Albuqiherque v. Gott, supra. This court has approved the concept of refunding by sale. Fulkerson v. Refunding Board of Arkansas, supra. Such refunding has long been authorized in this state (see Section 7 of Act No. 297 of 1937, as ammended; Act No. 12 of 1945) and the realities of modern day financing, obviously recognized by bondholders, are that refunding may be accomplished by sale and the bondholders ’ security changed from the particular pledge involved to the proceeds of the refunding bonds and steps taken to insure their availability when needed for payment. The effect of the refunding is necessarily that, as of the date of the delivery of the refunding bonds and the receipt and depositing of the proceeds thereof in trust as required, the indebtedness evidenced by the outstanding bonds is discharged insofar as the issuing authority is concerned and is no longer outstanding. As was said in City of Albuquerque v. Gott, supra,

“The majority rule, which we feel is more persuasive, and in accordance with the practicalities is supported by decisions from Florida (Fleeman v. City of Jacksonville, 1939, 140 Fla. 478, 191 So. 840; State v. City of Miami, 1944, 155 Fla. 6, 19 So. 2d 410; State v. City of Orlando (Fla. 1955), 82 So. 2d 874; State v. City of Melbourne (Fla. 1957), 93 So. 2d 371); South Carolina (Kalber v. Stokes, 1940, 194 S. C. 339, 9 S. E. 2d 785); Louisiana (State ex rel. Maestri v. Cave, 1939, 193 La. 419, 190 So. 631); Alabama (Taxpayers and Citizens v. Shelby County, [supra], 1944, 246 Ala. 192, 20 So. 2d 36); South Dakota (National Life Ins. Co. v. Mead, 1900, 13 S. D. 37, 82 N. W. 78); Idaho (Veatch v. City of Moscow, 1910, 18 Idaho 313, 109 P. 722); Texas (City of McAllen v. Daniel, 1948, 147 Tex. 62, 211 S. W. 2d 944); and Arizona (Citrus G. D. Assn. v. Water Users’ Assn., 1928, 34 Ariz. 105, 268 P. 773; Allison v. City of Phoenix, 1934, 44 Ariz. 66, 33 P. 2d 927, 93 A. L. R. 354).”

See also annotation, 97 A. L. R. 452 — 457. Thus, there appears to be nothing novel about the advance refund-in concept, since refunding by sale normally is accomplished by delivering the refunding bonds at one time and using the proceeds to actually pay the bonds being-refunded later. Certainly as long as a public purpose is being served and the substituted security is equivalent or better there are no constitutional infringements. It is undisputed in the case at bar that there will be no increase in indebtedness in that the proceeds of the refunding' bonds will be invested in United States government securities simultaneously with the delivery upon such terms that the principal and interest received from the securities will at least equal the principal and interest payments on the outstanding bonds. The bonds issued under Act No. 35 will be refunding- bonds and no election pursuant to the provisions of Amendment No. 20 is required. There will be no increase in indebtedness and there is no illegal exaction.

IV. Appellant urges that Act No. 35 authorizes the lending of thé credit of the state in violation of Article VI, Section 1 of the Constitution of the State of Arkansas, as amended by Amendment No. 13.

The state is using- its credit under Act No. 35, not lending it. There is no violation of Article XVI, Section 1. Hays v. McDaniel, Treasurer, 130 Ark. 52, 196 S. W. 934.

V. Appellant urges that Act No. 35 delegates the legislative power of the state to the board of finance in violation of Article V, Section 1 of the Constitution and Amendment No. 7 thereto.

The distinction between the unpermitted delegation of legislative power and the permitted conferring of authority or discretion as to its execution has been repeatedly recognized by this court. Fulkerson v. Refunding Board of Arkansas, supra. The authority conferred upon appellees is purely ministerial and falls within the permitted category. The appellees have not been given unlimited authority to act, or any authority whatever to legislate.. Act No. 35 is not subject to the objection that it unconstitutionally delegates legislative power. See Miles v. Gordon, 234 Ark. 525, 353 S. W. 2d 157; McArthur v. Smallwood, 225 Ark. 328, 281 S. W. 2d 429.

VI. Appellant finally urges that Act No. 35 violates Amendment No. 7 to the Constitution of the State of Arkansas by declaring an emergency on legislation creating vested rights.

This argument is moot because Act No. 35 became effective on September 6, 1965, in any event. In the situation of an invalid emergency clause, an Act takes effect when it would have become effective without the emergency clause. Barber v. State, 206 Ark. 187, 174 S. W. 2d 545. It appears that no action has yet been taken under Act No. 35.

Finding no error, the decree of the learned Chancellor should be, and hereby is, affirmed.

MoFaddin, George Rose Smith and Ward, JJ, dissent.

George Rose Smith, J.,

(dissenting). Almost twenty-five years ago the State, pursuant to Act 4 of 1941, refunded its bonded highway debt. The State pledged its full faith and credit to the payment- of the refunding bonds.. Some $43,000,000 worth of those bonds are still unpaid. They are secured by a pledge of certain highway revenues and of the Debt Service Reserve Fund, now amounting to more than $7,800,000, which is the cumulative excess of the pledged revenues over the amounts that have been needed to service the bonds.

By Act 35, now before ns, the State is attempting to revoke its pledge of the Debt Service Reserve Fund so that those monies can be used for highway construction. The question here is whether that maneuver can be accomplished without an impairment of the State’s contract with is bondholders. I regret that I cannot agree with the majority’s conclusion that Act 35 is constitutional:

Act 35 is long, but its plan for what the briefs call the “advance refunding” of the 1941 bonds really involves only four essentially simple steps:

First: The State will sell $43,000,000 of new bonds for which it will again pledge its full faith and credit.

Second: The proceeds from this new bond issue will be invested in $43,000,000 worth of United States Government bonds so chosen that their interest and principal payments will be sufficient to pay the interest and principal of the 1941 refunding bonds as they come due.

Third: The Government bonds will be deposited with a bank under a trust agreement by which that bank will promise to use the interest and principal to pay the 1941 State bonds.

Fourth: "When the first three steps have been completed, Act 35 declares that the State’s liability upon the 1941 reñmding bonds will be discharged. Thereafter the holders of those bonds will have no security except whatever rights they may have under the trust agreement. At the same time the State will make the $7,800,000 Debt Service Reserve Fund available for highway construction.

Among the several attacks that are made upon Act 35 I think that at least two should be sustained under the constitutional prohibition against the impairment of contracts.

One: Not the least important element in the security that was given in 1941 to the State’s bondholders was the pledge of the State’s full faith and credit. Thé pledge meant that if the specific liens upon the highway revenúes and upon the Debt Service Reserve Fund should fall short of discharging the bonded debt, the State gave its word that its other available resources would be used to make good the deficiency. By Act 35 the State admittedly repudiated its promise. (No doubt that action was taken to avoid the need for submitting the new bond issue to the voters for their approval in a state-wide election. If the State’s faith and credit had been pledged to both bond issues Amendment 20 to our constitution would have required such an election.) In my judgment the State’s unilateral decision to abrogate its promise to its creditors is on its face an impairment of the obligation of its contract with those creditors.

Two: The majority justify the State’s abrogation of its 1941 agreement upon the theory that Act 35 provides the bondholders with a new form of security that is equally as good as the one they have lost. It seems to me that, to reach this conclusion, one must read a great deal into Act 35 that is actually not there.

Under Act 35 the sole security for the 1941 bonds will be the trust agreement created by Section 11 of the act. What do we know about that trust agreement? At this point, almost nothing, for the act contains but a single vague sentence about the trust agreement. In essence that'sentence reads as follows: “[The following-transaction shall be effected:] The deposit with a bank or trust company that is a member of the Federal Deposit Insurance Corporation (which bank or trust company shall be selected by the [State Board of Finance]) under an irrevocable Trust Agreement by and between the Board and said bank or trust company (called “Trust Agreement”) of all of the direct obligations of the United States of America acquired under (b) above, upon such terms as shall insure that said investments and the proceeds thereof be used solely for the payment of the principal of, interest on and paying agents’ fees in connection with the outstanding- bonds, which Trust Agreement shall contain such terms and provisions as the Board shall determine necessary to insure the sole use of the investments and proceeds for the above specified purpose. ’ ’ That is all. There is no more.

It is impossible for me to understand how the majority can declare that this single sentence, with its cavalier treatment of a trust fund amounting to forty-three million dollars, provides the bondholders with a measure of security equivalent to what has been taken away from them. Neither the majority members of this court nor any one else in the world knows what the trust agreement is going to provide. The Board may select as the trustee the smallest bank in the state that is a member of the FDIC- What provision will there be against the possibility that the Government bonds may be stolen or destroyed by fire? What safeguard will there be against the possibility of embezzlement by those persons in the bank who must unavoidably handle the cash derived from the Government bonds? Why is there no requirement that the trustee bank give a fidelity bond? Is it because the State is unwilling to make an appropriation for the premium upon such a huge bond?

Most important of all, what assurance have the holders of the 1941 refunding bonds that the trust agreement will fairly protect their property rights? This is the one question that can be answered. The answer is: “None.” This is so because the bondholders will have no voice in the preparation of the trust agreement. That .agreement is to be between the trustee bank and the State Board of Finance. The bank, on the one side, will naturally be primarily interested in the paying agent’s fees that it will receive for handling forty-three million dollars, plus additional millions in interest. The Board, on the other side, is composed of five State officers whose loyalty is understandably and properly to their employer, the State. Thus no one concerned with the drafting of the trust agreement will have any really vital reason for seeing that the bondholders are protected as they should be.

It must be remembered that when the trust agreement is finally prepared the new $43,000,000 refunding-issue will already have been sold, the State’s 1941 pledge of its full faith and credit will already have been revoked, and the holders of the 1941 bonds will already have been stripped of all their security except those rights that the trustee hank'’ and the Board may, in their uncontrolled discretion; see fit to give them. In my opinion there is no sound basis upon which this court can declare today, as the majority are doing, that Act 35 does not and cannot adversely affect the rights of the owners of our 1941 highway refunding bonds. Having that conviction, I must dissent.

McFaddin and Ward, JJ., join in this dissent.


source: Caselaw Access Project

author: Frank Holt, Associate Justice.

license: Public Domain

text:
    Gibbons v. Bradley, Chancellor.
    5-3639
    394 S. W. 2d 489
    Opinion delivered October 11, 1965.

      Penix & Penix, By: Bill Penix, for Petitioner.
    No brief filed for Respondent.
   Frank Holt, Associate Justice.

The question presented in this case is whether a temporary order in a pending divorce suit is a contested case within the meaning of Ark. Stat. Ann. § 22-407.1 (Bepl. 1962) [Act 6 of 1951]. This statute empowers the chancellor to “hear, adjudicate, or render any appropriate order with respect to, any cause or matter pending in any chancery court over which he presides,” anywhere within the chancery district upon proper notice. This statute provides, however, that “no contested case can be tried outside the county of the venue of said case, except upon agreement of the parties interested.”

The petitioner’s wife, Nola Gibbons, filed suit against him in the Craighead County Chancery Court, Eastern District. In her complaint she asked for an absolute divorce, child custody, support and possession of their home. The complaint included a prayer for temporary awards. Petitioner was duly served with a summons which included a notice that on a certain date a petition would be presented to the chancery court in chambers at Blytheville, Mississippi County, for a temporary award of maintenance, suit money, and exclusive use of their home. The petitioner filed an answer denying the allegations of his wife’s complaint. Petitioner refused to agree to the hearing on the matters, pendente lite, in the adjoining county, objected to the venue and asked that -the hearing be held in Craighead County, Eastern District. The chancellor entered an order overruling petitioner’s objection and held that a hearing, pendente lite, could properly bé held by him outside the county of venue without agreement of the adverse party.

The petitioner argues that a writ of prohibition should issue because “the pendente lite hearing was a ‘contested case’ which cannot be tried outside the county of venue, except upon agreement of the parties.”

It is true that an order pendente lite is final and suject to appeal. Glenn v. Glenn, 44 Ark. 46. However, Ave cannot agree with the petitioner that a temporary order incidental to a final hearing on the merits of a case, as in the ease at bar, is a “contested case” Avithin the meaning of this recent enactment of our legislature. In construing legislative intent we examine the language of the statute, the subject matter, the object to be accomplished, the desired purpose, the remedy provided, the contemporaneous legislative history or other appropriate matters that enlighten us on the intent of the legislature. Cheney, Commissioner v. Georgia-Pacific Paper Corp., 237 Ark. 161, 371 S. W. 2d 843.

Section 4 of the statute in question reads in part: í í sí * * the nature of litigation in chancery is such that the convenience of the parties and their counsel may frequently be served, expense minimized, and the dispatch of business expedited, by the hearing of causes by the chancellor in chambers, or elsewhere than at the county seat.” The manifest purpose of this statute is to facilitate and expedite matters by authorizing the chancellor, without agreement of the parties, to render appropriate orders with respect to the pending cause. To construe the statute otherwise could result in a great hardship upon the petitioner’s wife if the press of business or other circumstances prevented the chancellor from returning to the county of the venue for days or weeks.

Writ denied.

Johnson, J., dissents.


author: Carleton Harris, Chief Justice.

text:
    Tiner v. State.
    5150
    394 S. W. 2d 608
    Opinion delivered October 18, 1965.

      Milham and Weicl, for appellant.

      Bruce Bennett, Attorney General, By: Fletcher Jackson, Asst. Atty. General, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Milton Tiner, was found guilty of the crime of manslaughter by a Saline County jury, the Information alleging that he feloniously killed the unborn quick child of Mary Mattison by striking Mary Mattison with an automobile in violation of Ark. Stat. Ann. § 41-2223 (Repl. 1964). His punishment was fixed at a fine of $1,000.00, and confinement for three years in the penitentiary. The jury recommended a suspended sentence, but the court only suspended the fine, and entered judgment sentencing Tiner to the prison term. From such judgment, appellant brings this appeal. For reversal, appellant urges a number of errors, which we proceed to discuss.

It is first asserted that there is insufficient competent evidence to sustain the verdict. Proof on the part of the state reflected that Tiner, who formerly lived in Saline County, but presently resides in Dallas, Texas, had returned to Benton with his older brother, who also lived in Dallas, for a visit with his mother. Appellant owned a, 1955 black Ford automobile, which had been left at his mother’s home. On March 15, 1964, in the late afternoon (“around 4, or 5, 6,” according to Tiner), he left the home in Benton in this automobile for the purpose of returning to Dallas. On this same afternoon (between 5:30 and 6:00) Mary Mattison Brown, a resident of Benton, was walking west on the right side of Hazel Street, off the pavement, accompanied by her Mother. Mrs. Brown, who was unmarried at the time, was pregnant, and took a walk every afternoon. She remembered nothing, except that she was walking along at the side of the street: “I blacked out when I got hit.*” Mrs. Weaver, the Mother, testified that the occurrence took place on a Sunday afternoon around supper time, and that there was no traffic from either direction; that suddenly, “I heard a car coming behind us making a great roar.” She stated that she was walking almost in a ditch by the side of the street, and that her daughter was off the pavement. “She was along the frazzled edge.” According to this witness, the driver of the car appeared to intentionally strike her daughter: “He kept hitting her and hitting her with me screaming, ‘Don’t, don’t, stop, stop, stop!’ He kept on hitting her like he was pushing a bulldozer. * * * After he hit her many times he used the automobile like a bulldozer and pushed her over to the telephone pole.” Mrs. Weaver identified the car as a black Ford, and stated that only the driver was present in the car. After knocking Mrs. Brown to the ground, the driver sped away.

Mrs. Elaine Housley testified that on the Sunday afternoon in question, appellant gave her a ride to a store; that he was driving an old model black Ford. The witness testified that she was with him ten to fifteen minutes, and got out of the car around 5:15.

Louis Wright, of Malvern, testified that he was fixing a flat at Tom Grill’s wrecking yard, located about two miles from Malvern, at approximately 6:30, when appellant drove up in a 1955 black Ford, which had a flat. Tiner was looking for a jack, and Wright told him, “He could use mine,” whereupon, Tiner replied “ ‘No, that his brother would be by in a few minutes and he would wait for him.’ ” Wright noticed the bent fender, but paid no further attention until Tuesday morning when he heard on the radio that officers were searching for a black 1955 Ford with the right headlight out.

Bill Dyer, Deputy Sheriff of Saline County, and James Robinson, with the sheriff’s department of Hot Spring County, testified that they found “a ball of hair that was stuck under the chrome piece on the top right front fender.”

Tiner, after leaving his ear at the wrecking yard, was picked up by his brother, who was on his way back to Texas. After being arrested, appellant denied that he had struck any person, but admitted that the automobile in question belonged to him. He was unable to give any reason for the right headlight being broken out, nor did he offer any explanation about the ball of hair that was found on the right side of the car. He stated that he drove from Benton to Malvern at about fifty miles per hour, and, after the tire went flat, stopped at the wrecking yard. Prom the record:

“Q. Did you inquire about a jack?
A. I did.
Q. It was either this man or some other man you inquired about, is that correct?
A. Correct.
Q. Did he tell you you could take the jack out from under the car and use it?
A. I don’t remember about that.
Q. You didn’t take the jack out there and put it under your car?
A. No.
Q. Why did you change your mind?
A. I was wanting to go on to Dallas.”

To summarize, the testimony reflects that an automobile, admittedly owned, and operated, by appellant during the period of time when Mrs. Brown was struck (and conforming to the description of the car involved) was left in a strange town — with the right fender bent— the headlight knocked out — and with hair under the chrome on the right fender — and appellant was unable to explain these facts. In addition, he commenced the trip to Dallas in his own automobile, but only drove as far as Malvern, from Benton, when, simply because he had a flat tire, left his automobile at a wrecking yard, and proceeded to ride on to Dallas with his brother. The transcript does not reflect that Tiner gave any directions to any person for the disposal of the automobile. As far as the record discloses, he simply abandoned the vehicle. This evidence, though circumstantial, was, we think, sufficient to sustain the jury finding that Tiner was the operator of the automobile which struck Mrs. Brown.

Dr. Curtis Jones, Jr., testified that he arrived at the Benton Hospital about 6:30 P.M. for the purpose of making his “evening rounds;” that an ambulance arrived with a patient for the emergency room, and he was called to assist. Dr. Jones stated that Mrs. Brown was unconcious, had no pulse, and no blood pressure, and, in fact, appeared to be dead:

“Of course, our immediate concern was to try to establish a pulse and pressure, so we started plasma, and blood later. After that was started, examination revealed possible skull fracture. She had one pupil slightly dilated which indicates concussion or pressure of some sort. She was apparently 7-7% months pregnant. No fetal heart tones. The baby was dead. She was bleeding vaginally, bright red blood. She was also leaking amniotic fluid. She had fractures of the left leg and ankle, both bones. She had multiple abrasions and lacerations. I had her up here about an hour and finally established pressure for her enough to transfer her to Little Rock.
“Q. Doctor, you say there was a leakage from the amniotic fluids?
A. The membrane apparently ruptured. Amniotic fluid, the membrane that contains the baby, has a very distinct, unmistakable odor to it. Obviously fresh, and of course bright red bleeding vaginally.
Q. What did that indicate to you, doctor?
A. The blow or accident she had been involved in, apparently she had been struck in the abdomen with force enough to cause separation of the placinta or a laceration of the uterus. The force of the blow itself would cause blood amniotic fluid to come through the birth canal and leaking externally. She had internal hemorrhaging, too.”

Dr. James Porter of Little Rock testified that it first appeared as though Mrs. Brown would die; that she was carrying a child, and a hysterectomy was performed. According to his evidence, the uterus, tubes, womb, overies, and the baby were removed during the surgery. Tbe doctor testified that the baby was dead at the time of delivery, but he could not definitely say how long it had been dead, nor could he positively state that the blow received by the Mother had caused the death of the unborn child. However, he did definitely state that the length of time that the baby had been dead was a matter of hours, rather than a matter of days. According to his evidence, the baby was normal, and he testified that the Mother’s injuries were sufficient to have caused the death of the child.

Mrs. Brown testified:

“I felt it move that day. It moved a lot. I felt it move that day.”

We have concluded that the evidence was sufficient to support the conviction.

Appellant’s Points Nos. 2 and 3 relate to the voir dire. It is asserted that the court erred in refusing to permit counsel to question the jurors relative to their qualifications, by asking if they were in any way connected with a civil suit filed on August 7, 1964, by Mrs. Brown, in which she sought damages from appellant in the amount of $125,000.00. Further, it is asserted that the court erred in refusing to permit counsel to ask the members of the jury if any were represented by either of the attorneys in the civil case. The court ruled that appellant was being tried on a criminal charge, and that there was no relationship between the criminal case and any civil litigation.

We find no prejudicial error in this ruling. The record reflects that the court had already asked the members of the jury if they were related to the litigants, and the record further reflects that the attorneys representing the state are not connected with the litigation. We have held that a criminal conviction cannot be given in evidence in a later civil suit to establish the truth of the facts in which it was rendered, Horn v. Cole, Administrator, 203 Ark. 361, 156 S. W. 2d 787, and we fail to see how it was relevant to inquire about a relationship to attorneys in a civil suit, not then before the court, and which, for that matter, might never come to trial. Appellant cites no authority for this argument, and, in fact, only devotes a six-line paragraph in his brief in support of it.

For alleged error No. 5, appellant contends that the court erred in refusing appellant the right to question the prosecuting witness relative to the facts alleged in her complaint against defendant in the civil action filed against him. Again, we find no error. The rule is stated in 22A C. J. S., “Criminal Law,” Section 633, Page 489, as follows:

“Where not a part of the res gestae, * * * the conduct of the person injured, subsequent to the commission of the crime, is irrelevant, and thus the fact that the injured person filed a civil action against accused is generally not admissible in evidence. ’ ’

It is asserted that the court erred in refusing to sustain defendant’s objections to each of the jurors for the reason that they had not registered, and were therefore not qualified as electors, a requirement for jury service. Constitutional Amendment 51 provides for voter registration without poll tax payment, and became effective January 1, 1965. The amendment set out that persons who were qualified electors as of December 31,1964, should be permitted to vote in any election before March 1, 1965. The drafters of the amendment apparently contemplated that voter registration machinery would be in operation by March 1,1965, but this did not occur. When it appeared that pending litigation would prevent registration of voters for some period of time, the General Assembly passed Act 126, which provides that all persons who are otherwise qualified under applicable statutes to be grand or petit jurors, and who have paid a poll tax between October 1,1963, and October 1,1965, are eligible to serve as jurors. We u.pheld this act on September 13,1965, in the case of Richard Coger v. City of Fayetteville. It follows that this point is without merit.

In point No. 7, it is alleged that prejudicial error was committed by the giving of the court’s Instruction No. 1 over defendant’s general objections, the instruction defining murder in the second degree. This did not constitute error. Ark Stat. Ann. § 41-2223 (Repl. 1964) provides as follows:

‘ ‘ The wilful killing of an unborn, quick child, by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be adjudged manslaughter. ’5

It was necessary that murder be defined in order that the jury determine whether appellant was guilty of manslaughter in causing the death of Mrs. Brown’s unborn child. Let it be remembered that the testimony of Mrs. Weaver, Mother of Mrs. Brown, justified this instruction, for certainly the testimony of this witness made a jury question as to whether appellant would have been guilty of murder if Mrs. Brown had died. Actually, subsequent instructions properly defined involuntary manslaughter, though this was not necessary since the Information (charge) was based on Section 41-2223. As stated, the questioned instruction was entirely proper, but were it otherwise, no prejudicial error occurred, for the jury only returned a verdict for manslaughter, and even recommended a suspended sentence.

Appellant complains that the Information charged him with the crime of involuntary manslaughter, but that he was convicted of manslaughter, and the conviction was thus of a higher degree than charged. This was no error. “Manslaughter” includes both voluntary and involuntary degrees. The punishment fixed by the jury was that of involuntary manslaughter, though actually, under Section 41-2223, it would appear that Tiner might have been adjudged guilty of voluntary manslaughter. Be that as it may, appellant cannot complain of any possible error that, if having any effect, inured to his benefit.

Several points can be disposed of together. In Point No. 6, it is contended that the court erred in permitting Sheriff Grant to testify as to statements made to him by the witness, Wilton Tiner. In Carter v. State, 230 Ark. 646, 326 S. W. 2d 791, we said:

“This alleged error was first raised by appellant in his motion for a new trial. It comes too late for this court to consider it. We have consistently adhered to the rule that before an alleged error, in felony cases of a lesser degree than capital, may be considered by this court on appeal, the complaining party must first make an objection, call for a ruling from the trial court, make and preserve an exception from an adverse ruling, and the matter complained of must be assigned as error in a motion for a new trial.”

Here, appellant did not save his exception to the adverse ruling of the court, and we are accordingly unable to consider this point. For his eleventh point, appellant complains that the court erred in giving State’s Instruction No. 4, but this alleged error is not brought forward in the motion for a new trial. Likewise, Points 13 and 14, which relate to the court’s refusal to grant instructions which were asked by appellant, were not mentioned in the motion for new trial; however, it might be stated that he contents of these instructions were covered in other instructions given by the court, except for one phrase, which was incorrect.

For his final point of alleged error, appellant asserts that the court erred in permitting the prosecuting attorney to make certain remarks to the jury. Here too, appellant made no exception to the adverse ruling on his objection, and a discussion of the prosecutor’s statement (which was only a matter of opinion) is unnecessary.

Finding no reversible error, the judgment is affirmed.

It is so ordered.

       Tiner, during his testimony, stated that he did, not know Mrs. Brown. Q. “Did you know the Mattison girl, Brown now, who was struck here?” A. “No, sir. I never saw her before.”

       Appellant’s Point No. 8 refers to the court’s instruction defining malice, and Point No. 9 asserts as error the court’s instruction dealing with killing an unborn child. These instructions were not error for the reason herein given under Point No. 7.


author: Ed. F. McFaddin, Associate Justice.

text:
    Beavers v. Varvil
    5-3651
    394 S. W. 2d 630
    Opinion delivered October 18, 1965.

      M. V. Moocly, for appellant.

      Hubert E. Craves, for appellee.
   Ed. F. McFaddin, Associate Justice.

After a trial on the merits before the Court (a jury having been waived), the appellee, Mrs. Varvil, was awarded a judgment against the appellant, Mr. Beavers, for $800.00; and on this appeal Mr. Beavers urges two points:

“I. The Lower Court Erred in the Construction Placed Upon the Memorandum of the Parties Under Date of October 29,1963.
“II. The Court Erred in Denying Appellant’s Motion for information with Reference to the Title to the Car.”

We will consider these points in the order listed. '

I.

Mrs. Varvil filed action against Mr. Beavers on a written instrument reading as follows:

“10-29-1963
“I, Buford Beavers, hereby agree to make good $800.00 hundred, or pay $800.00 cash, for 1959 Black, 4-door Cheve, owned by Mrs. Jean Varvil pay in cash November 4 or 5th, 1963. If anything happens to destroy car I will still make full payment, /s/ Buford Beavers. 324 School St. NLR. Phone WI 5-1124.”

Mrs. Varvil testified that she had been the owner of the Chevrolet car referred to in the instrument; that Mr. Beavers tested the car twice and agreed to buy it for $800.00 to be paid in one week; that he took possession of the car when he signed the written instrument; that she did not guarantee or warrant the car in any way; that on November 4th or 5th, 1963, she looked from her house and saw that Mr. Beavers had put the Chevrolet car in her yard; that she went out to inquire and he had driven away; that the car was still in her yard where he left it; and that he had not paid any part of the $800.00.

Mr. Beavers admitted his signature on the written instrument, but claimed an entirely different version of the affair. He testified that he never agreed to purchase the car; that he signed the instrument merely to get the car for a few days to test and also to see if he could sell a ear he already owned;.that he.was unable to sell his car; and that he returned Mrs. YirviPs car to her and therefore owed her nothing.

These were the only two witnesses and their testimony presented a sharply disputed issue of fact. The Judge saw the parties; and he believed Mrs. Yarvil’s testimony. We cannot say that he was in error; so we find no merit in appellant’s first point.

n.

After Mrs. Yarvil filed the action in the Circuit Court, Mr. Beavers filed a motion, which read:

“Defendant moves the Court for an Order directing plaintiff to file a more definite statement in his complaint in the following matters:
“ (1) The name of the person who registered the motor vehicle as alleged in the Complaint, and registrations and certificates as shown with the Arkansas State Revenue Department.
"(2) The number of the license plates of the alleged motor vehicle as set out in plaintiff’s complaint.
“(3) The Motor number of the vehicle as alleged in plaintiff’s complaint. ’ ’

The motion was overruled, and Mr. Beavers now claims error. There are several answers to Mr. Beavers ’ point, but we need not state them all. Mr. Beavers filed an answer in which his only defense was a breach of warranty and return of the car. The motor number, the license number, and all the other requested information, had no direct bearing on his defense, either as stated in his answer, or as stated in his testimony at the trial. It is, therefore, clear that Mr. Beavers was not prejudiced in any way by the action of the Court in denying his motion.

Finding no error, the judgment is affirmed.

       This is the wording of the answer: “Comes the defendant, Buford Beavers, and states that at the time the agreement to purchase the automobile alleged in plaintiff’s complaint, the plaintiff warranted such automobile to be in good mechanical condition, and that the defendant relied upon said warranty by the plaintiff. That immediately after accepting delivery of the said automobile, the defendant examined same and discovered that same was not as warranted by the said plaintiff; that thereupon defendant duly notified plaintiff that he refused to accept said automobile in its present condition and offered to return and tendered the same to plaintiff; and that plaintiff did accept same, and that said automobile has been, is now and has been in possession of plaintiff prior to the filing of plaintiff’s complaint herein, and defendant has fully satisfied and discharged any claim against him by delivery and acceptance of said automobile by plaintiff herein.”


author: George Rose Smith, J.

text:
    Russell v. Baumann.
    5-3646
    394 S. W. 2d 619
    Opinion delivered October 18, 1965.
    [Rehearing denied November 29, 1965.]

      M. V. Moody, for appellant.

      House, Holmes <& Jewell, for appellee.
   George Rose Smith, J.

Anna B. Melker died testate on September 30, 1963, leaving her property to a number of charitable organizations. Two of her sisters, the appellees, filed claims against the estate, asking that they be paid for personal services rendered by them to Mrs. Melker during the last eight and a half months of her life. This is an appeal by the executrix from an order allowing Gertrude Baumann’s claim in the amount of $1,885.00 and Cecilia Miller’s claim in the amount of $390.00.

The controlling rules of law are firmly settled. These claims are for services consisting, according to the claimants’ affidavits, of “personal care, shopping, marketing, running errands, cooking, household duties, and other personal services.” When such services are rendered by one member of a family to another it is presumed that they are attributable to the family relationship and are given without any expectation that they will be paid for. Williams v. Walden, 82 Ark. 136, 100 S. W. 898 (1907). A contract for payment will not be implied unless the claimant proves that the services were of such an extraordinary nature that the recipient could not reasonably have expected them to be rendered without compensation. See Lineback v. Smith, 140 Ark. 500, 215 S. W. 662 (1919).

The proof offered to sustain Gertrude Baumann’s claim falls decidedly short of bringing her case within the rules just stated. Miss Baumann moved into her sister’s home on January 10, 1963, and lived with her until Mrs. Melker was taken to a hospital on June 24. During those months Miss Baumann was a full-time employee in a department store. Three days a week she left for work at 8:30 in the moring and got home at about 6:00 in the evening. Two days a week she left at eleven and got home at about nine. In her spare time she did the marketing, helped with the housework, and rendered other services of a kind to be expected in the situation that existed. One of her witnesses, Mrs. Henry Gill, conceded frankly on cross examination that she had not seen any activity on Miss Baumann’s part that, as between sisters, would be considered unusual or extraordinary.

It does not appear that, during the months in question, Mrs. Melker was confined to her bed or was in need of special care. Another sister, Mrs. Kirspel, who is not shown to have had any reason to be prejudiced, testified that Mrs. Melker was up and about, did some of her own housework (a maid came once a week to do the cleaning), cooked for hei’self, and took her own baths. In the absence of proof that Miss Baumann rendered the “personal care” referred to in the affidavit to her claim, her services narrow down, in the words of that affidavit, to “shopping, marketing, running errands, cooking, household duties, and other personal services.” It is hardly necessary to say that activities such as these, on the part of a woman living in the home of her sister, cannot be regarded as being of the extraordinary character that gives rise to an implied contract for payment.

The other claimant, Mrs. Miller, stands in a better position. She and her husband came up from Texas to visit Mrs. Melker soon after she entered the hospital. There is proof that Mrs. Melker asked Mrs. Miller to stay and look after her, adding that she would see that Cecilia was “taken care of.” Mrs. Miller yielded to her sister’s request and let her husband return to Texas alone. She stayed in Arkansas for the remaining thirteen weeks of Mrs. Melker’s life, visiting her at the hospital four times a day and preparing special food for her. We are unable to say that the trial court was wrong in finding an express or implied contract for the modest compensation sought by this claimant.

The judgment in favor of Miss Baumann is reversed; that in favor of Mrs. Miller is affirmed.

Johnson, J. dissents.


author: Paul Ward, Associate Justice.

text:
    Olin Mathieson Chemical Co. v. White.
    5-3659
    394 S. W. 2d 632
    Opinion delivered October 18, 1965.
    [Rehearing denied November 8, 1965.]

      Brotan, Compton & Pretaett, for appellant.

      Spencer & Spencer, for appellee.
   Paul Ward, Associate Justice.

This is a Workmen’s Compensation case. The only question presented to us by this appeal is whether the record contains substantial evidence to support the Commission’s finding that there was a causal connection between John Lee White’s work and his death.

John Lee White was an employee of Olin Mathieson Chemical Company (appellant herein) for some seventeen years before his death on October 30, 1962. During practically all (if not all) of his employment he checked lumber when it was stored or packed in railroad cars for shipping. It is undisputed that such employment called for no great physical effort.

After Mr. White’s death his widow, Irma White (appellee herein), filed a claim for compensation which was disallowed by the Referee. On appeal to the full Commission the claim was allowed, and on appeal to the circuit court the Commission was upheld. On appeal by appellant to this Court a reversal is sought solely on the ground mentioned at the outset of this opinion.

In our opinion the finding of the Commission is supported by substantial evidence. -

On Monday October 8, 1862 White complained about not feeling well. When he quit work that afternoon he told his wife about how he felt and she took him to a doctor. The doctor told White he thought the trouble was merely indigestion, but to come back that week-end for' an electrocardiogram. White went to work on Monday (October 16) but when he complained of being ill at noon he was sent to the hospital with a suspected heart condition, and fifteen days later he died.

It would serve no useful purpose to discuss in detail the conflicting medical testimony relative to the cause of White’s death. There is, however, the testimony of Dr. W. M. Hamilton (not available to the referee at the time of his decision) which, we think, supports the find-, ing of the Commission in favor of appellee.

In substance Dr. Hamilton testified: In my opinion White’s heart attack began on October 8, 1962, and the work he did after that aggravated his condition, lessened his chance to survive, and hastened his death; 85% to 90% of men in White’s age group survive a coronary occlusion, and it is probable that he would be alive today if he had not continued to work.

The conclusion indicated above is supported by and in harmony with numerous decisions of this Court: See: "Harding Glass Company v. Albertson, 208 Ark. 866, 187 S. W. 2d 961; Baker v. Slaughter, 220 Ark. 325, 248 S. W. 2d 106; Farmer v. L. H. Knight Co., 220 Ark. 333, 248 S. W. 2d 111; E. P. Bettendorf and Company v. Kelly, 229 Ark. 672, 317 S. W. 2d 708; Bryant Stave & Heading Co. v. White 227 Ark. 147, 296 S. W. 2d 436;

Safeway Stores, Inc. v. Harrison, 231 Ark. 10, 328 S. W. 2d 131; Reynolds Metal Co. x. Robbins, 231 Ark. 158, 328 S. W. 2d 489; Harper v. Henry J. Kaiser Construction Co., 233 Ark. 398, 344 S. W. 2d 856; McGeorge Construction Co. v. Taylor, 234 Ark. 1, 350 S. W. 313; Arkansas Best Freight System, Inc. v. Shinn, 235 Ark. 314, 357 S.W. 2d 61.”

In the Harding Glass case, supra, this Court, after reviewing cases from other jurisdictions, said:

" ‘The rule supported by the weight of authority, however, is employee’s engaging in the employment, whether due to unusual or extraordinary condition or not, is to be deemed an accidental injury within the meaning of the statute. ’ ’ ’

In the White case, supra, it was stated that ". . . an injury is accidental when either the cause or result is unexpected or accidental, although the work being- done is usual or ordinary. ’ ’

In the Robbins case, supra, this Court, after stating that cases of this nature shall be broadly and liberally construed, and doubtful cases shall be resolved in favor of the claimant, made the following significant' statement:

"But there is even a stronger rule, namely, our oft repeated holding that if there is any substantial evidence to support the findings of the Commission, we will not disturb such findings. This is the strongest rule in compensation cases, and the one carrying the greatest weight. ’ ’

Appellant suggests that heretofore we have been too liberal (in favor of the claimant) in construing the word “accident” in cases of this nature, and urgently insists that hereafter we should modify our opinions accordingly. We have also received similar suggestions in the past by other litigants. We mention this matter at this time to take occasion to make clear that we have carefully considered these suggestions and feel no such change would be justified.

Affirmed.


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

text:
    Miller v. State.
    5126
    394 S. W. 2d 601
    Opinion delivered October 18, 1965.

      W. B. Howard, Jack Segars and John G. Watkms, for appellant.

      Bruce Bennett, Atty. General, By; Russell J. Wools, Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

The appellants were charged by felony information with the crime of grand larceny. Later, the information was amended by making the additional charge that appellant Jesse Miller had previously been convicted of the crime of burglary, and the additional charge that Leland Miller had previously been convicted of the crime of arson. A prior conviction increases the minimum penalty for the crime for which the defendant is then on trial. Ark. Stat. Ann. § 43-2328 (Repl. 1964).

At the beginning of the trial, defendants entered pleas of guilty, out of hearing of the jury, to that part of the information charging previous convictions, and pleaded not guilty to the principal offense charged. Counsel for defendants then filed a motion asking the trial court to instruct the prosecuting attorney not to read to the jury that part of the information charging previous convictions, and not to mention the previous offenses in the presence of the jury. Defendants’ counsel stated that the defendants would not testify in the case. The motion was overruled; the prosecuting attorney called the jury’s attention to that part of the information charging previous convictions, and to the fact that appellants had pleaded guilty to that part of the information. The pleas of guilty to the charge of previous convictions were also mentioned by the court in the instructions to the jury.

The specific question before the court at this time is whether the action of the trial court in permitting the previous convictions to be called to the attention of the jury deprived defendants of a fair trial within the meaning of the TJ. S. Constitution, Amendments 5, 6, and 14.

The court said in Lane v. Warden, Maryland Penitentiary, 320 F. 2d 179 (1963): “It is a rule not now

subject to challenge that constitutional due process of law requires a fair hearing in a fair tribunal. Although the Constitution does not demand the use of jury trials in a state’s criminal procedure, where a jury trial is provided it must be a fair trial.” Citing, Irvin v. Dowd, 366 U. S. 717, Fay v. New York, 332 U. S. 261, Palko v. Connecticut, 302 U. S. 319, Hughes v. Heinze, 268 F. 2d 864, Baker v. Hudspeth, 129 F. 2d 799. The court said in Baker v. Hudspeth, supra;

“The denial of a fair and impartial trial, as guaranteed by the 6th Amendment to the Constitution, is also a denial of due process, demanded by the 5th and 14th Amendments, and the failure to strictly observe these constitutional safeguards renders a trial and conviction for a criminal offense illegal and void and redress therefor is within the ambit of habeas corpus.” Citing many IT. S. Supreme Court cases.

The court said in Michelson v. U. S., 335 U. S. 469: “Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil • character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U. S. 559, but it simply closes the whole matter of character, disposition and reputation on the prosecution’s case-in-chief. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair suprise and undue prejudice.”

Many times we have held that evidence of other crimes committed by a defendant is not admissible to prove his guilt of the crime for which he is then on trial. Williams v. State, 183 Ark. 870, 39 S. W. 2d 295; Ware v. State, 91 Ark. 555, 121 S. W. 927; Alford v. State, 223 Ark. 330, 266 S. W. 2d 804.

In the case at bar, previous convictions of crimes were charged in the information. The burden was on the state to prove previous convictions as charged. It can be argued that it was necessary for the jury to know about the previous convictions in order to fix the punishment as provided by statute where previous convictions are alleged in the indictment. It will be recalled, however, that the defendants had pleaded guilty to that part of the information charging previous convictions.

We have heretofore dealt with the question to some extent. In Rowe v. State, 224 Ark. 671, 275 S. W. 2d 887 (1955), it is pointed out that the information charged a previous conviction, and evidence was, therefore, admissible to prove the charge. The case is distinguishable from the case at bar because in the Bowe case there was no plea of guilty to the previous conviction; in the case at bar there was such a plea.

In Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816, (1959), the defendant filed a motion to strike from the information the charge of a previous conviction. The motion was overruled. In affirming the trial court it was held there was no error in giving the state an opportunity to prove the charges.

Higgins v. State, 235 Ark. 153, 357 S. W. 2d 499 (1962) was reversed because the state was allowed to introduce inadmissible evidence in an effort to prove a previous conviction charged in the information. In that case we indicated disapproval of a procedure whereby the question of whether a defendant had been convicted previously would be determined by a jury at the same time the defendant’s guilt or innocence of the current offense charged was under consideration. But we also said we thought a change in procedure should be adopted by the Legislature, and not by this court. The constitutional aspect of the matter was not discussed.

The Higgins case was decided prior to Lane v. Warden, Maryland Penitentiary, 320 F. 2d 179 (1963). In the State of Maryland, the procedure for proving a previous conviction was similar to the practice heretofore prevailing in Arkansas. The previous conviction was proved during the trial of the current offense for which the defendant was then accused. In Lane v. State, 226 Md. 81, 172 A. 2d 400, in the trial on the merits, the defendant, before the commencement of the trial, demurred to that part of the indictment charging a previous offense. The demurrer was overruled, and the action of the trial court in that regard was affirmed by the Supreme Court of Maryland. Certiorari was denied by the Supreme Court of the United States. 82 Sup. Ct. 611. Later, Lane filed in the U. S. District Court for the District of Maryland, a petition for a writ of habeas corpus alleging that by introducing evidence of a previous conviction the State of Maryland had denied him a fair trial on the principal charge on which he was tried. The petition was denied, and Lane appealed to the U. S. Court of Appeals, 4th Circuit. The Court of Appeals held that in trying the charge of a previous conviction along with the primary charge against Lane he was denied a fair trial within the meaning of the 5th, 6th and 14th Amendments to the Constitution.

The state’s position was much stronger in the Lane ease than is the state’s position in the case at bar. In the Lane case there was no plea of guilty to the charge of having been convicted of a previous offense, whereas in the case at bar there ivas such a plea, and here it was, therefore, unnecessary for the state to prove the charge. In Lane v. Warden, Maryland Penitentiary, supra, the court said: “We reach the conclusion that under the facts of this case the reading to the jury, at the commencement of Lane’s trial, of that portion of the indictments relating to his prior convictions destroyed the impartiality of the jury and denied him due process of law. ’ ’

In the case at bar, the state has cited Breen v. Beto, 341 F. 2d 96 (1951) as holding to the contrary of Lane. True, the Court of Appeals, 5th Circuit, did refuse to follow Lane decided by the 4th Circuit, hut in the Breen case the court quoted from Crocker v. State of Texas, 385 S. W. 2d 392, as follows:

“Though the jury in this State assesses all punishment, except in those cases where the punishment is fixed by law, this Court has in the Salinas, Pitcock and McDonald cases, supra, approved the practice of permitting the accused to stipulate as to the prior convictions and thereby relieve the State of the necessity of reading to the jury that portion of the indictment which charges them and adducing proof before the jury of such prior convictions.” Salinas v. State, 365 S. W. 2d 362; Pitcock v. State, 367 S. W. 2d 864; McDonald v. State, 385 S. W. 2d 253.

As heretofore pointed out, prior to the Lane case, in our own case of Higgins v. State, 235 Ark. 153, 357 S. W. 2d 499, we had expressed the feeling that it was not fair to introduce evidence of previous convictions during the trial for the primary crime then charged. We felt, however, that the change in procedure was a matter that addressed itself to the Legislature. But in the Lane case, the Federal Court has said that such procedure is unconstitutional. We will follow that decision. It follows, therefore, that the trial courts can no longer follow the procedure in that respect which has heretofore been practiced, and it is now the duty of this court to outline an acceptable procedure to follow where a defendant is charged with a previous conviction:

That part of the indictment or information charging a previous conviction should not be read to the jury during the trial of the principal offense charged. If the defendant pleads guilty to the previous conviction charged, as was done in the case at bar, the matter can be handled by the court in charging the jury. The jury can be told that the minimum penalty is the minimum allowed when the previous conviction statute is taken into consideration. In other words, if the minimum penalty for the current offense charged is one year in the penitentiary and the defendant has pleaded guilty to one previous conviction, the court can tell the jury that in the event they find the defendant guilty they shall fix his punishment at not less than two years in the penitentiary, and not more than the maximum specifically provided by the statute for the principal crime charged.

If the defendant pleads not guilty to both the principal offense and the charge of a previous conviction, the question of guilt or innocence of the principal offense can first be submitted to the jury, the jury being informed as to the penalty for a first offense. If there is a verdict of guilty and the punishment fixed is a term in the penitentiary equal to, or exceeding the minimum allowed under the previous conviction statute, the matter is ended. There is nothing else to do insofar as the trial of the defendant is concerned.

If, on the other hand, there is a verdict of guilty and the minimum punishment assessed by the jury is less than that provided by the previous conviction statute, the defendant’s guilt or innocence of the previous conviction charge can be submitted to the jury, and if there is a verdict of guilty on that charge, the punishment assessed by the jury on the principal offense can be increased to comply with the minimum provided by the previous conviction statute.

Of course, if there is a verdict of not guilty of a previous conviction, the punishment remains as fixed by the jury in the first instance. In the event the punishment is left to the court in the first instance, there would be no trouble at arriving at the punishment.

During the course of the trial in the case at bar, the court having recessed on Thursday until the following Monday, a local newspaper published a statement purported to have been made by the trial court criticizing jurors serving at that term of court for assessing minimum prison sentences. We believe it would be a good practice for all courts to refrain from making any statement, other than a judicial ruling, that might have a tendency to influence a jury in arriving at a verdict in a pending case.

The defendants did not testify in this case. Over their objections and exceptions, the court instructed the jury that it was the privilege of the defendants to testify in their own behalf or to decline to so testify. In his argument to the jury, the prosecuting attorney specifically called this instruction to the attention of the jury, repeated it, and said: “You are instructed this is a privilege to them to either testify or not to testify. That is what the court says in that instruction.” Obviously, by arguing this instruction to the jury in that manner, attention was called to the fact that defendants had not taken the stand in their own behalf. This ivas error.

This court said in Evans & Foust v. State, 221 Ark. 793, 255 S. W. 2d 967: “Our law wisely provides that failure of a defendant to testify shall not create any presumption against him. The prosecuting attorney should carefully refrain from using any words or gestures which would be calculated to call a jury’s attention to the fact that a defendant has not testified. ’ ’

Reversed and remanded for new trial.

Harris, O. J. & McFaddin, J., concur in part and dissent in part.

Carleton Harris, Chief Justice,

(concurring in part; dissenting in part). I agree with the majority that the jury should not be informed of a defendant’s prior criminal record during his trial for a current offense. Unquestionably, this could have some effect on the minds of the jurors in determining his guilt or innocence of the immediate offense charged.

However, after the defendant has been found guilty, I strongly feel that the jury should be apprised of the number of prior convictions, and should then fix the amount of punishment. Under the prececlure set out by the majority, if a defendant, who has previously been convicted, pleads guilty to the previous conviction(s), the court, in its charge, will simply add one year to the minimum penalty for the offense charged (or 2 or 3 years, depending on the number of prior convictions), and the jury'will never be aware that the defendant has a previous record. The majority say:

“If, on .the other hand, there is a verdict of guilty and the minimum punishment assessed by the jury is less than that provided by the previous conviction statute, the defendant’s guilt or innocence of the previous conviction charge can be submitted to the jury, and if there is a verdict of guilty on that charge, the punishment assessed by the jury on the principal offense can be increased to comply with the minimum provided by the previous conviction statute. ’ ’

I strongly disagree with this procedure, and do not feel that it complies with thelegislative intent as ex-

I strongly disagree with this procedure, and do not feel that it complies with the legislative intent as expressed in the habitual criminal act. Ark. Stat. Ann. § 43-2328 (Repl. 1964) provides:

(1) If the second offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one [1] year more than the minimum sentence provided by law for a first conviction.

(2) If the third offense is snch that, upon a first conviction, the offender conld be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for a determinate term not less than two [2] years more than the minimum sentence provided by law for a first conviction.

(3) If the fourth or subsequent offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term [not] less than his natural life, then the person shall be sentenced to imprisonment for the fourth or subsequent offense for a determinate term not less than three [3] years more than the minimum sentence provided by law for a first conviction.”

The majority do not permit the jury to consider the accused’s past criminal record in determining whether more than the minimum sentence should be given. 'I consider this holding at variance with the provisions of the act. If the Legislature had intended to provide the procedure set out in the majority opinion, it would only have been necessary in Sub-section (1) to provide, “then the sentence to imprisonment shall be for one year more than the minimum sentence provided.” But the act reads entirely different from such an interpretation, for it provides that for a second offense, [third, fourth or subsequent] the offender shall be imprisoned “for a determinate term not less than one year [two, or three years, respectively] more than the minimum sentence provided.” This language, to me, clearly means that the jury may fix the sentence at any amount within the minimum (added for the prior offense or offenses), and the maximum penalty,provided by law for the crime committed.

The majority offer no authority for reaching the present conclusions. In Volume 7, Arkansas Law Review, Page 334, there appears an article written by Edwin E. Dunaway, a former justice of this court. This article is entitled, “Acts Affecting the Administration of the Criminal Law,” and on Page 335, the author notes:

“Many states have for years had habitual criminal laws in one form or another. Some have provided for doubling the penalties upon second and subsequent convictions. The original act in New York, the famous Baumes Law, provided for a mandatory life sentence upon conviction of a fourth or subsequent felony. Such stringent legislation led in practice to jury nullification, so that the trend in recent years has been toward allowing discretionary increases in penalties, but with higher minimum sentences as a starting point.”

Comparison with procedures in other states is difficult to make, since statutes vary, but I have not been able to find a single state that permits only the adding of a short period of time to the minimum sentence of a convicted habitual criminal. In fact, several states add to the maximum penalty. In Michigan, for a second conviction, the defendant must be sentenced to imprisonment for a term not less than one-half of the longest term, and not more than one and one-half times the longest term prescribed for a first conviction. In New York, the law is similar — and there is no discretion in the trial judge. In Tennessee, one must have three felony convictions to be classed as an habitual criminal, but when this occurs, the defendant receives life with no parole, or reduced sentence for good behavior. In South Carolina, on the fourth conviction, the defendant receives the maximum prescribed for the crime involved. In Bhode Island, a person with prior convictions receives a twenty-five year maximum, in addition to any sentence imposed for the offense for which he was last convicted. Arizona, North Dakota, and Nebraska, likewise, provide substantial increases in the punishment for repeated offenders.

Summarizing, I am persuaded that it is a jury function to determine the punishment meted out to an habitual criminal; further that the Legislature intended that the jury should be informed of the defendant’s past criminal record before setting the penalty, and, in my view, it is contemplated under the act that the punishment should vary between the minimum prescribed (for habitual offenders) and the maximum penalty provided by law.

I truly feel that the majority holding in this case has emasculated the habitual criminal act, and' that the practical value of this act has been completely destroyed.

Mr. Justice McFaddin is also filing a written dissent in this case, and there is only one difference in our views, vis, he would have the jury first fix the punishment for the current case, and then the jury would hear the charges against the defendant as an habitual criminal. If he should be convicted on this count, the jury would (I presume) add additional punishment to the sentence that he had received for the current offense.

Under my theory, the jury would hear the current case, and determine only the man’s guilt or innocence. If they returned a verdict of guilty, the evidence against the defendant as an habitual criminal would be submitted. The jury would then retire to the jury room to consider the punishment to be given the defendant, which procedure would, of course, permit them to take into consideration his prior record, if they found him to be an habitual offender.

For the reasons herein mentioned, I respectfully, but vigorously, dissent to the holding of the majority.

Ed. F. McFaddin, Associate Justice,

(concurring in part; dissenting in part). I agree with what is stated in the Opinion of the Chief Justice. We are “plowing new ground” on this matter of submitting to the jury the situation as regards the habitual criminal act; and for the benefit of future legislation or future decisions I want to give a blueprint of my thinking as to how the situation should be handled:

1. In the trial of guilt or innocence of the offense charged, no mention should be made of previous convictions, whether admitted or denied.

2. The question of guilt or innocence and the fixing of sentence for the offense charged should be submitted to the jury as heretofore.

3. If the jury acquits on the issue of guilt or innocence, then the entire case is ended.

4. If the jury convicts the defendant of the offense charged, then the jury fixes the sentence for the offense.

5. After the jury has convicted and fixed the sentence, if prior convictions are involved, then the same jury is kept without discharge. If the defendant has pleaded guilty of prior convictions, the jury is so informed and told of the habitual criminal act and sent back to the jury room to deliberate on the matter of increase of sentence under the habitual criminal act; and the jury reports its verdict to the court on that issue and fixes additional sentence under the habitual criminal act.

6. After the defendant has been convicted under Paragraph 4 above, and if prior convictions are involved, then the same jury is kept without discharge. . If the defendant has pleaded not guilty to previous convictions, the evidence is introduced to the jury on the previous convictions, with the right of the defendant to deny and offer counter evidence; and the issue is then submitted to the jury on previous convictions and the jury told of the habitual criminal act and sent back to the jury room to deliberate on guilt or innocence of previous convictions and increase of sentence under the habitual criminal act.

I think these steps, as I have outlined them, will take care of the situation in all instances and would be much better than the method contained in the Majority Opinion.

       Emphasis supplied.

       The inclusion of this word is obviously an error in printing.

       Emphasis supplied.

       Emphasis supplied.


author: Jim Johnson, Associate Justice.

text:
    Gaspard v. Whorton.
    5-3629
    394 S. W. 2d 621
    Opinion delivered October 18, 1965.

      Bob Scott, for appellant.
    No brief filed for appellee.
   Jim Johnson, Associate Justice.

This appeal arises from dismissal of a petition for writ of mandamus. Appellant petitioners, Joseph B. Graspard and others, sought to require appellee Charles Whorton, Jr., Madison County Clerk, to allow appellants to copy the list of applications for absentee ballots, the individual applications for absentee ballots and the accompanying absentee voters statements for the November 3,1964, general election in Madison County. After hearing on January 6, 1965, the Madison Chancery Court found that appellants had failed to prove that appellee refused to permit them to photocopy these records and dismissed the petition, from which petitioners have appealed.

The trial court did not reach the question of entitlement — whether appellants were entitled to copy these records. The ruling turned on the fact question of whether proper request was made by appellants to appellee to permit them to copy these records. Our review of the evidence discloses that an unmistakable request was made and permission clearly denied. Thus this court reaches the merits on trial de novo.

Appellants asked to copy (1) the list of applications for absentee ballots, (2) the applications for absentee ballots, and (3) the voters statements which accompanied the absentee ballots (as distinguished from the list of all persons who voted in the election). Ark. Stat. Ann. § 3-1127 and § 3-1133 (Repl. 1956) specify that the list of applications, the applications and the statements of voters “shall be made available for public inspection during regular business hours” and are therefore public records. This being true we find that appellants were entitled to copy these records and should have been given permission to do so. See Whorton v. Gaspard, (opinion delivered September 20, 1965), 239 Ark. 715, 393 S. W. 2d 773. The denial to the public of reasonable access to public records by public officials is not conducive to the perpetuation of our form of government.

The decree of the trial court is accordingly reversed and the cause remanded with directions that the writ of mandamus issue.

PER CURIAM ORDER

OCTOBER 18, 1965

SUPREME COURT OF ARKANSAS

Per curiam, October, IS, 1965.

The following rule of criminal procedure is hereby approved and adopted:

Criminal Procedure Rule No. 1.

(A) A prisoner, in custody under sentence of a circuit court and whose case was not appealed to the Supreme Court, claiming a right to be released, or to have a new trial, or to have the original sentence modified on the ground:

(a) that the sentence was imposed in violation of the Constitution and laws of the United States or this State; or

(b) that the court imposing the sentence was without jurisdiction to do so; or

(c) that the sentence was in excess of the maximum authorized by law; or

(d) that the sentence is otherwise subject to collateral attack;

may file a verified motion at any time in the court which imposed the sentence, praying that the sentence be vacated or corrected.

(B) If the conviction in the original case was appealed to the Supreme Court, then no proceedings under this rule shall be entertained by the circuit court without prior permission of this Court.

(C) If the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.

(D) If the original motion (or a motion to take an appeal from the court’s findings under Paragraph (C) above) should allege that the prisoner is unable to pay the cost of the proceedings, or to employ counsel, and if the court is satisfied that this allegation is true, the circuit court shall appoint counsel for the prisoner for hearing in the circuit and for an appeal to this Court.

(E) When a motion is filed in the circuit court, mentioned in Paragraph (A) above, and the court does not dispose of the motion under Paragraph (C) above, the court shall cause notice of the filing thereof to be served on the prosecuting attorney; and on the motion the court shall grant a prompt hearing with proceedings reported. The court shall determine the issues and make written findings of fact and conclusions of law with respect thereto. If the prisoner desires to be present at the hearing for taking of testimony the court shall order his presence.

(F) If the circuit court finds that for any reason the prisoner is entitled to any relief then the circuit court may set aside the original judgment, discharge the prisoner, resentence him, grant a new trial, or otherwise correct the sentence, as may appear appropriate in the proceedings.

(G) The circuit court may award fees to attorneys representing indigent persons under this rule, as provided by Ark. Stat. Ann. Sec. 43-2415 et seq. (Repl. 1964).

(H) All grounds for relief available to a prisoner under this Rule must be raised in his original or ammended petition. Any grounds not so raised or any grounds finally adjudicated or intelligently and understandingly waived in the proceedings which resulted in the conviction or sentence or in any other proceedings that the prisoner may have taken to secure relief from his conviction or sentence, may not be the basis for a subsequent petition.

(I) This rule shall become effective upon the filing of this order.

Endorsed:

Filed Oct. 18,1965 Philip N. Gowen, Clerk

The foregoing rule adopted pursuant to motion of the Attorney General filed September 22, 1965.


text:
    Turney v. State
    5074
    395 S. W. 2d 1
    Opinion delivered October 25, 1965.
    [Rehearing denied November 22, 1965.]

      James L. Sloan, for petitioner.

      Bruce Bennett, Atty. General, By: Joe Bell, Asst. Atty. General, for respondent.
   Carleton Harris, Chief Justice.

This is a motion by Henry Turney for permission to file a petition for a writ of error coram nobis in the Circuit Court of Lonoke County, Arkansas. Turney was convicted of the crime of burglary and grand larceny on Nevember 10, 1962, and he was sentenced to serve a term in the Arkansas Penitentiary. On January 27, 1964, this court affirmed the conviction, and a petition for reharing was denied on March 9, 1964. Subsequently, on petition of Turney, this court stayed its mandate until the present motion could be briefed and passed upon. In filing this motion, counsel for Turney argues several points, which we proceed to discuss, though not in the order listed in petitioner’s brief.

It is argued that Turney was deprived of his rights under the Fifth Amendment to the Constitution of the United States by virtue of the fact that he was tried and convicted upon an Information filed by the Prosecuting Attorney, rather than upon an Indictment rendered by a grand jury. We do not agree with this contention. The United States Supreme Court, in Hurtado v. California, 110 U. S. 516, and subsequent cases, has held that it is proper for a defendant to be tried in a state court upon an Information. We, likewise, have rejected this argument on several occasions. Moore v. State, 229 Ark. 335, 315 S. W. 2d 907, Boone v. State, 230 Ark. 821, 327 S. W. 2d 87.

It is asserted that Turney’s rights were violated under the Fourth Amendment provision against unlawful search and seizure. This point was raised on direct appeal, and decided by this court adverse to petitioner’s contention. There, after a thorough discussion of the contention, we held that Turney waived any rights (here allegedly violated) by giving his consent to the search, and we see no need to reopen this question.

It is next contended that Turney was not advised of his rights under the Fifth Amendment to the Constitution of the United States, and that he was not permitted to have the advice of counsel pursuant to the Sixth Amendment to the Federal Constitution.

It is also urged that certain admissions, which petitioner construes as a confession were involuntarily made. Since these two contentions are so closely related, we will discuss them together.

Petitioner relies upon the case of Escobedo v. Illinois, 378 U. S. 478. Admittedly, Turney was not represented by counsel at the time of bis arrest, and the evidence reflects he was not advised by the officers that he would not have to make any statement.

We do not think that Escobedo extends to the circumstances in the case at Bar. The facts in Escobedo are far different, and are, we think, distinguishable from the facts in the instant case. In Escobedo, the defendant was arrested by police officers in the evening, along with his sister, and taken to police headquarters. He was handcuffed, and was told that another person, then in custody, (DiGerlando) had named him (Escobedo) as the one who shot the deceased. Uncontradicted testimony from the defendant was to the effect that he was told by detectives that “they had us pretty well, up pretty tight, and we might as well admit to this crime. ’ ’ The defendant responded that he would like to have advice from his lawyer. The lawyer, who subsequently testified, went to police headquarters, and was told by the officer in charge that he could not see the defendant. The attorney requested permission from several other officers, identifying Escobedo as his client, but he was still refused permission to consult with the defendant: “He said I couldn’t see him because they hadn’t completed questioning.” Finally, the attorney left headquarters at 1:00 A.M., still without seeing the defendant. Escobedo testified that, during the course of the interrogation by the officers, he repeatedly asked to speak to his lawyer, but was told that his lawyer “didn’t want to see him.” The testimony of the police officers confirmed these accounts in substantial detail. Other testimony reflected that, the defendant, 22 years old, was handcuffed, and “was nervous, upset, and agitated;” further that one of the officers, acquainted with Escobedo’s family, told the defendant that, if he made a statement against DiGerlando, Escobedo and his sister could go home. Defendant claimed that he made a statement because of this assurance, and it was this statement that was at issue in the case.

We see no resemblance in the facts related and the facts that are presently before us. Here, Officer Caldwell, of the State Police, arrested Turney at his residonee on a Monday at approximately 4:30 A.M., serving a warrant of arrest, which had been issued by a Justice of the Peace. Caldwell testified that he asked Turney “point blank why would a man living in a house like he was, with his job, get involved in something like this, and he said he didn’t know and that he must be out of his mind. He then admitted his part in the theft to me and told me at that time where the property was.” Thereafter, Turney directed the officers to the location of the stolen property. It will be thus observed that Sergeant Caldwell was not carrying out a process of interrogation for the purpose of obtaining incriminating statements. The simple statement, above quoted, was responded to by the spontaneous admission of guilt by Turney. Petitioner was not denied, the service of an attorney, nor was an attorney even requested, as in Escobedo. No promises were used; no nerve-racking interrogation was attempted, nor mistreatment rendered, in order to obtain the statement from Turney; in fact, there is no evidence at all of any sort of coercion or duress.

Surely it cannot be said that, under the facts here enumerated, petitioner was deprived of any constitutional right. We do not think that, under Escobedo, any statement or remark of a defendant, though without counsel, is automatically precluded. Turney does' not appear to have been completely ignorant of legal procedure, for at arraignment he entered a plea of not guilty, and was advised that he should obtain an attorney. He thereupon employed competent counsel, who represented him in the trial of the case.

. Sergeant Caldwell detailed all of the facts heretofore enumerated to the jury, and there was no objection to this testimony. In fact, it does not appear that anyone, including Turney himself, made any contention at the trial that any statements were involuntarily made.

We have concluded that movant was not deprived of any constitutional right, either under the Federal or state constitutions, and it follows that the motion seeking permission to file a petition for a writ of error coram nobis is denied.

       Sergeant Caldwell testified: “It was not necessary to interrogate these men [Turney and Williams], because they voluntarily gave us the information.”