text:
    Willie ROSS v. STATE of Arkansas
    CA CR 79-70
    593 S.W. 2d 475
    Opinion delivered January 16, 1980
    Released for publication February 6, 1980

      James E. Davis, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   M. Steele Hays, Judge.

This is an appeal.from an order revoking a suspended sentence. On December 3, 1976, appellant was convicted of burglary- and sentenced to five years, the sentence to be suspended during good behavior, upon payment of a fine of $500 and costs within 120 days and upon non-use. of alcohol..

On April 20, 1979, the.State of Arkansas filed a petition to revoke the suspended sentence upon the grounds that appellant had been found guilty of third degree battery, had not reported to his probation officers, had not notified them of his present employment, had not reported a change of address and had not paid the fine and costs.

On May 11 a hearing was begun on the petition to revoke. Counsel for appellant moved for a continuance, referring to the appellant’s limited education and to the fact that the allegation that appellant was convicted of third degree battery was found to be in error. The motion for continuance was denied by the court at the outset, but during the hearing was later continued to May 15. On May 11, after the continuance, an amended petition to revoke appellant’s suspended sentence was filed alleging that appellant was convicted of gambling on May 2, 1978, public intoxication on August 8, 1978, third degree battery on September 8, 1978; public intoxication on September 8, Í978, and drunk in public on April 13, 1978, in addition to the previous grounds. During the proceedings on May 11, counsel for appellant asked the court to recuse itself, which motion was overruled. The hearing was reconvened on May 15 at the completion of which appellants suspended sentence was set aside and a sentence of five years was imposed.

The appellant brings this appeal, alleging as a single point for reversal, that appellant was denied due process under the Fourteenth Amendment by the trial judge’s refusal to recuse himself for consideration of the petition to revoke.

In view of the type of error asserted, i.e., a refusal to recuse, we deem it necessary to set forth pertinent portions of the proceedings in some detail:

BY THE COURT: Arid didn’t you tell him that every time you had gotten, into trouble it was because of iiquor, that you had been drinking?
BY THE DEFENDANT: Yes, sir.
BY THE COURT: And do you remember what that judge told you about liquor?
BY THE DEFENDANT: He told me to leave it alone.
BY THE COURT: That’s exactly right. Now, do you know who that judge was?
BY THE DEFENDANT: No, sir, but I think it was you,though.
BY THE COURT: I know it was me, and there is my writing and that’s right there on the book, (showing)
BY THE DEFENDANT: Yes, sir.
BY THE COURT: Where I told you to leave alcohol alone.
BY THE DEFENDANT: Yes, sir.
BY THE COURT: Just pure and simple. Leave it alone.
BY THE DEFENDANT: Yes, sir.
BY THE COURT: Mr. Davis, you can call what witnesses you want, but I cannot sanction this type of conduct and try to maintain a probation department and provisions with the hope of rehabilitation when one of the things that has come up is public drunkenness. If this gentleman has a problem with liquor — I don’t remember all these cases until I come back with this one.

During cross-examination of appellant’s mother by the ¡prosecutor, Mr. Johnson, the following occurred:

Q: Have you seen Willie drinking at your house, Mrs. Ross?
A: It’s quite natural if his momma drink a little beer, he might drink a little, too.
THE COURT: Ma’am, he didn’t ask you what he might do. Now, you answer his question, whether he has come in there drunk.
THE WITNESS: No, sir, he don’t come in there drunk.
THE COURT: Have you seen him drinking?
THE WITNESS: I’ve seen him drink one can of beer.
THE COURT: Now —
THE WITNESS: One can of beer at the time. And that’s all I can remember, and can tell you the truth on that. He drank one can of beer.
THE COURT: We are fixing to have a witness that’s fixing to go upstairs.
THE WITNESS: No, sir, don’t put me up, please.
MR. DAVIS: Now, your Honor —
THE COURT: Now, she’s trying to play games with this court.
THE WITNESS: No, sir, I’m not —
THE COURT: Now, and this court’s not going to — just a minute, and you can instruct her if you want to, but I’m not — just a minute. But I’m not fixing to put up with this for one minute.
MR. DAVIS: Your Honor, I would like for the record to reflect that I object to the court. •
THE COURT: You make the record; you put in there whatever you want to, but when a witness gets on the stand, “I ain’t saying whether I’ve been seeing drinking or not,” and works around to one beer, this court is not putting up with that. Put in there anything you want to Mr. . Davis.
THE WITNESS: I want to —
THE COURT: You just be quiet and sit down.
THE WITNESS: Okay.
THE COURT: Go ahead and make your record.
THE WITNESS: Please don’t —
MR. DAVIS: Your Honor, my objection is that I feel that the court is trying to intimidate the witness and to take over cross examining her concerning her testimony, and in doing so is becoming more of an advocate rather than a judicial officer in the proceedings.
I feel that it is improper for the court to take this attitude towards the witness and threatening her with going to jail concerning some remarks she made in her testimony.
THE WITNESS: I’m sorry.
MR. DAVIS: I would ask the court if perhaps I might suggest, obviously the witness has caused the court to become angry; maybe that anger is justifiable. I’m not saying that it’s not. I simply suggest that the court perhaps it recuse itself from further consideration of this case.
THE COURT: That motion will be overruled right now.
THE WITNESS: Please don’t lock me up. I didn’t mean no harm.
THE COURT: Go ahead. Finish.
MR. DAVIS: That’s all I believe I care to say at this time.
THE COURT: Mr. Davis, let me make a statement, and I want the record to reflect on this. This is not my first day in court. This is not the first day I know anything about the facts of law. This is not the first day T ve had any experience in trial work. The court feels a strong obligation to maintain order, decorum, and to require a witness when testifying not to be evasive, and not to commit, in a sense, perjury.
Now, the questions which the deputy prosecuting attorney asked this witness, and the witness’ s manner and demeanor on the stand, “I ain’t said how many times he’s been drunk. I ain’t said how many times he’s been drinking. He drinks beer with me when I want to,” and then come back and tell me she has seen him drink one beer, is in the opinion of this court an affront to this court. And if I’m to sit here and hold any type of dignity of this court, then I will not permit a witness to try to Aim flam an attorney who is asking questions, nor the record in this court.
I am not angry, but I am firm in my beliefs in this regard.

We conclude that appellant is correct in urging that the trial court took an overly active part in these proceedings from the side of the prosecution and when that occurs the trial judge loses at least the appearance of impartiality which is essential under our system. Clearly, the trial judge became impatient and irritated with the somewhat equivocal answers of appellant’s mother, but to suggest on such, slender grounds that she was just about to be put in jail resulted in an intimidation of the witness to no discernible purpose. We think she could have been admonished to answer truthfully and responsively without the unveiled threat of being taken “upstairs.” Still, this interchange in the record might not be enough on its own to lead us to the result reached, but when the other segment is examined, there is enough to sway the balance. That portion of the quoted section reflects that even though the State’s petition for revocation (prior to the amendments) said nothing about use of alcohol, the court on its own interrogation went into the matter in depth. But the telling point is the comment by the court:

BY THE COURT: Mr. Davis, you can call all the witnesses you want, but I cannot sanction this type of conduct and try to maintain a probation department and provisions with the hope of rehabilitation when one of the things that has come up is public drunkenness. (T. p. 8)

It seems clear that when a trial judge, at the outset of a hearing for any purpose, states to either side words to the effect — “you may call all the witnesses you want, but— ”, that a set of mind is present which cannot be reconciled with the proposition that the trial court is committed to hear all relevant, credible evidence weighing it and arriving at a judicious result.

We find this observation to be very closely related to the comment in Burrows v. Forrest City, 260 Ark. 712, 543 S.W. 2d 488 (1976) cited by the appellant. In Burrows, the appellant filed a motion for the trial judge to recuse himself from hearing on the motion for revocation on the ground that the judge had told an attorney that appellant should “bring his toothbrush with him,” implying that he would go to jail if found guilty. The trial court denied the motion. In reversing the denial of the motion, the Arkansas Supreme Court quoted language from an earlier case, Farley v. Jester, 257 Ark. 686, 520 S.W. 2d 200 (1975):

However, court proceedings must not only be fair and impartial — they must also appear to be fair and impartial.

We think this language is clearly applicable to the case at bar. Although we do not make any retrospective judgments on the impartiality of the trial court itself and keeping in mind the rule of law that suspended sentences and also their revocation are within the sound judicial discretion of the trial court [Ark. Stat. Ann. §§ 43-2314 and 43-2326 (Repl. 1977); Gross v. State, 240 Ark. 926, 403 S.W. 2d 75 (1966)], we think that the trial court’s own cross-examination of the witness and its demonstrated impatience and irritation in response to the witness’ statements gave the “appearance” ofbias. Thus, where the trial judge sits as a finder of fact, the appearance of fairness in trial proceedings becomes even more important. Burrows, supra.

We are troubled too, with the matter of fact way that the appellant’s drinking problem was treated as if it were easily controllable. Certainly, the trial judge was striving to relieve the community as well as the appellant of the problems resulting from the appellant’s use of alcohol, a commendable objective, but he seems to have ignored the fact that chronic alcoholism is compulsive or even disease-based, according to respectable authority, and thus to simply say to an individual under a suspended sentence, if alcoholism is the problem, ‘ ‘if you drink you may be sent to the penitentiary’ ’ is an over simplification of cause and effect; a better method, we believe, where facilities are available, is to direct the defendant to attend an alcohol abuse program with reasonable consequences if he disobeys the conditions.

We have reached the conclusion that the trial judge should have recused himself, in part in the belief that the reinstatement of the entire five year original sentence under the totality of the facts and circumstances of this case was severe. Understandably, the trial court may have felt personally affronted by the appellant’s failure to comply with the conditions of his suspension, but the end result is that the record suggests that the appearance of fairness is lacking.

Reversed and remanded with instructions to recuse.


source: Caselaw Access Project

author: James H. Pilkinton, Judge.

license: Public Domain

text:
    Dorothy Deloris PARSONS v. Raymond Carpenter PARSONS
    CA 79-97
    593 S.W. 2d 483
    Opinion delivered January 16, 1980
    Released for publication February 6, 1980

      Faber D. Jenkins, for appellant.
    No brief for appellee.
   James H. Pilkinton, Judge.

This appeal is from an order of the Chancery court overruling a motion to dismiss a petition against an out-of-state defendant for lack of personal jurisdiction, and questioning the validity of certain modifications made thereafter in a divorce decree.

On December 31,1977, a decree of divorce was entered in favor of appellee ágaiñst appellant based on constructive service. The appellant was a resident of Texas at that time. There were two children of the marriage. The son was in the custody of the father-appellee, and the daughter was in the custody of the mother-appellant. Each was found to be a proper person to retain such custody, and the father was ordered to pay child support for the minor daughter in the sum of $150 per month, plus usual medical expenses.

On April 7, 1978, the father filed a petition to modify the original divorce decree seeking definite periods of visitation with his daughter. The mother responded by filing an answer pro se. She also asked for affirmative relief and sought to have the original decree modified to increase the amount of monthly support for the daughter. On May 17, 1978, a hearing was held on the respective pleadings then before the court and, with both parties present, an order was entered fixing the visitation rights of the father, and increasing the child support to $170 per month.

On January 26, 1979, appellee filed what he called “An Amended Petition to Modify Decree of Divorce’ ’, and had a summons issued for appellant directed to the Sheriff of Harris County, Texas. This summons was served on February 7, 1979 and return filed. On January 26, 1979, a second summons was issued to William Lee Fergus, attorney at law, Osceola, Arkansas, (counsel for appellee) directing him to summon appellant to.answer within 20 days. This document is not dated, and was not signed by the clerk. However, the record shows that counsel for appellee wrote a letter, dated January 24, 1979, addressed to appellant at her address in Houston, Texas, and sent it to her by certified mail, return receipt requested. This letter contained a copy of the amended petition. On February 23, 1979, appellant filed a special'appearance, and moved the Chancery Court to set aside and quash the two purported summonses. Appellee filed a response to this pleading; and, on February 26, 1979, without notice to appellant or her counsel, the Honorable Henry Wilson, Chancellor, issued an order denying the motion to quash, and allowing appellant to file a response within ten days.

On March 8, 1979, appellant filed a response to appellee’s petition to modify, denying the continuing jurisdiction of the court over her person and seeking dismissal of the petition to modify for want of jurisdiction. On March 13, 1979, the Chancery court with Honorable Howard Temple-ton, Chancellor, presiding, declined to rule further on the jurisdictional question. It was the view of the court that the prior order, made by Judge Wilson on February 26 and filed February 28, settled that issue. Judge Templeton ruled that such order gave his court jurisdiction over both the cause of action and of the parties. The Chancery court on March 13, 1979, modified the decree further, as requested by appellee. Appellant has appealed from the order dated March 13,1979 which was signed by the judge on May 25, 1979, but not entered until June 7, 1979.

For reversal, appellant has asserted four points which she contends require a reversal of the trial court’s order of March 13, 1979.

I.

Appellant first says the Chancery court erred in finding that the court had jurisdiction of her person, although admitting that the Mississippi Chancery Court had jurisdiction of the subject matter. Appellant overlooks the fact that she had entered her appearance in this case generally on April 20, 1978, when she filed an answer to appellee’s first petition to modify the decree, and asked for affirmative relief. She was also present in person, and by counsel, at the first hearing to modify, held on May 17, 1978, and she received an increase in support for the daughter from $150 to $170 per month. She submitted herself to the jurisdiction of the Mississippi County Chancery Court at that time as to the matters pertaining to visitation of the daughter and of the daughter’s proper support. The court has continuing jurisdiction in these matters; and, at any later time, on proper motion and due notice to the other parent, may make such order as the circumstances require.

II.

Appellant argues that a new or original personal service or process on her was required. We find no merit in this argument under the circumstances here.

Where modification is considered a continuation of an original matter before the court, the issuance of a new or original process, or new personal service, is not required. 27B C.J.S. Divorce § 317 (4). However, proper notice of the application for modification, and an opportunity to be heard should be given whether or not required by statute. Seaton v. Seaton, 221 Ark. 778, 255 S.W. 2d 954 (1953); Schley v. Dodge, Chancellor, 206 Ark. 1151, at 1154, 178 S.W. 2d 851 (1944).

It is conceded by appellant that she did receive actual notice of the filing of the petition that is in question. She received notice in several ways, one of which was by being mailed a copy of the amended petition by certified mail, return receipt requested, as required by Ark. Stat. Ann. § 27-362(b) (Repl. 1979). Appellant claims that section of the statute did not apply. She would be correct if appellant had not previously entered her appearance in this case, and if an original personal service or summons had been required. However, as already noted, only notice was necessary. The argument of appellant fails to take into consideration the difference between the service required in an original action, and notice required in a matter where the court already has personal jurisdiction of the parties.

III.

Appellant also complains that on February 26, 1979, the Chancery Court, without notice to appellant, issued an order denying the motion to quash, and allowed appellant ten days in which to file a response. Appellant did not file any motion or pleading on her part seeking to have this particular order vacated, but instead filed an answer or response. The error, if any, was harmless under the circumstances. Appellant made her argument at the March 13,. 1979, hearing and it was rejected by the trial court.

IV.

As her fourth point, appellant claims the court erred in refusing to rule further concerning personal jurisdiction over the defendant. As stated above, she renewed her objection to the jurisdiction of the court at the March 13,1979 hearing. However, the import of her argument was that new or personal service of process on her was required. The Chancellor was correct in rejecting this argument. Appellant has argued on appeal that the court was wrong in its reasoning that the personal jurisdiction question was not still before the court at the time of the hearing on March 13, 1979. Be that as it may, and regardless of the reason given for its action, the opinion of the court was correct. Appellant had previously entered her appearance, and the court had continuing jurisdiction to deal with the matters of child custody and visitation under the circumstances.

As a side matter appellant complains of repeated efforts of appellee for modification of the original decree. She claims this places an undue burden on her to resist his various petitions. It is true that repeated efforts for modification of a decree are looked on with disfavor by the courts; and there should be an end to the constant changes and modifications of orders having to do with the custody or visitation of a child. Saltonstall v. Saltonstall, 148 Cal. App. 2d 109, 306 P. 2d 492 (1957). However, this is a matter which n\ust be first dealt with on the trial court level. It is not properly before us in this appeal.

Finding no error, the order of the Chancery Court is affirmed.


text:
    Fletcher WASHINGTON, Zachery WARD, Herman HAMPTON v. STATE of Arkansas
    CA CR 79-58
    594 S.W. 2d 29
    Opinion delivered January 16, 1980
    Released for publication February 6, 1980

      Jimmy R. Burton, for appellants.

      Steve Clark, Atty. Gen., by: Robert J. DeGostin, Jr., Asst. Atty. Gen., for appellee.
   James H. Pilkinton, Judge.

Appellants are charged with the crime of rape of Sheila McKinney, a 14 year old girl, on the grounds of the Jonesboro High School.

On September 29, 1978, Sheila went to a football game in Jonesboro. During the half-time intermission, appellant Zachery Ward approached Sheila. She sáys he told her that her brother had come to take her home. In any event, the two left the stadium, walked out the front gate, went toward the front of the gym and other buildings on the campus to a point, according to the girl, where her brother was supposed to be waiting. Fletcher (Pete) Washington and Herman Hampton followed them. Washington and Hampton caught up with the girl and Ward and joined them. Then, according to Sheila, the three young men grabbed her and forced her under a stair well of a building. The state’s claim is that Washington, Ward and Hampton forcibly raped Sheila McKinney under the stair well.

On the morning of October 9, 1978, and before any charges had been filed or arrests made, the three young men accompanied by their parents, went to the office of Robert Nelms, a juvenile officer, in the Craighead County Courthouse. They asked Nelms to assist them in having a polygraph examination administered. In the presence of Deputy Sheriff George Stewart, Mr. Nelms says he .read the Miranda warning to the young men and to their parents. According to Nelms, after receiving assurances that appellants and their parents fully understood their constitutional rights, Nelms allowed each appellant, along with a parent of each, to sign the consent forms for the polygraph examination.

Each young man then individually went upstairs, in the same building, to the office of Deputy Sheriff George Stewart. There they made statements incriminating themselves in the rape of Sheila McKinney.

On October 17, 1978, an Information was filed charging each appellant with Rape in violation of Ark. Stat. Ann. § 41-1803 (Repl. 1977). Prior to the trial, preliminary motions were heard and the court ruled that the results of the polygraph examination, or any reference thereto, would not be admissible. Motions for severance were denied.

On February 8, 1979, appellants were tried before a jury in Craighead County Circuit Court. The state produced evidence that Fletcher (Pete) Washington, Zachery Ward and Herman Hampton forcibly raped Sheila McKinney. The defendants introduced evidence that they tried to have sexual intercourse with the girl, but not by force.

After instructions, argument and jury deliberations, the jury returned a verdict finding defendants guilty as charged and fixing a punishment of 15 years for each. Judgment was entered on the verdict and the trial court sentenced each appellant to 15 years in the Department of Corrections.

On appeal from their convictions, appellants have raised four issues seeking reversal. Each defendant had a separate attorney. Some of the points are raised by all appellants, and we have carefully considered each argument. However, in order to prevent repetition, we will discuss each point only once in this opinion.

I.

Appellants Washington, Ward and Hampton each claim on appeal that the trial court committed error by failing to suppress incriminating statements made by them to Deputy Sheriff George Stewart in preparation for and during a polygraph examination. We find no merit in this argument. Appellants all voluntarily requested the examination. It was only the result of the test that was inadmissible. Statements made prior to, and in preparation for, a polygraph test, which the accused has voluntarily agreed to take, would not be involuntary for that reason, if otherwise voluntary. The fact that the statements were so made would only be one factor to be considered on the question of voluntariness. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978).

In each case we make an independent determination based upon the totality of the circumstances, and the trial court’s finding of voluntariness will not be set aside unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1975). Appellants say that the statements they gave were confessions and, under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the state bears the burden of showing that the confessions were made after a voluntary, knowing and intelligent waiver of the right to remain silent, before they can be admitted into evidence. Even so, after an examination of all the circumstances surrounding the appellants’ statements in this case, we cannot say that the trial court’s finding of voluntariness is clearly against the preponderance of the evidence.

The interrogation in this case was not custodial. Here the appellants voluntarily appeared to make the statements. Prior to that time, no charge had been filed against them, and they were free to come and go as they pleased. Their parents were present with them at the courthouse. Statements which do not result from in-custody interrogation are not barred. Johnson v. State, 252 Ark. 1113, 482 S.W. 2d 600 (1972), In any event, appellants and their parents were adequately placed on notice when the Miranda rights were explained to them. The evidence reflects no coercive interrogation of the appellants. The record shows that Washington and Hampton were sixteen, and Ward was fifteen. Although the youth of the maker is an important factor to be considered, our courts have never held that youth alone is a sufficient basis for exclusion of an incriminating statement, even when given without the advice of parent or counsel. Little v. State, 261 Ark. 859, 554 S.W. 2d 312 (1977). In the case before us all appellants and their parents were given an explanation of constitutional rights; and appellants had ample opportunity to confer with parents concerning their constitutional rights and concerning the decision to waive those rights. Only then did the appellants and their parents sign the rights waiver forms, and the consent to polygraph forms.,

The Arkansas Supreme Court has held that neither limited education, nor diminished mental capacity will negate a voluntary confession. Callaway v. State, 258 Ark. 352, 524 S.W. 2d 617 (1975), Sheppard v. State, 239 Ark. 785, 394 S. W. 2d 624 (1965), cert. denied 387 U.S. 923. In the case before us, the evidence reflects that appellants were tenth grade students of average intelligence who were capable of knowing, understanding and appreciating their rights. At the close of the Denno hearing, the trial court made the following specific findings:

I very carefully observed each of these defendants throughout the course of this two-day hearing, both on the stand and off the stand. They appear, each of them, to be normally intelligent; reasonably informed for minors of théir age.

II.

Appellant Washington, in his point II, alleges reversible error in the trial courfs questioning of witness Stewart. Appellants Ward and Hampton, in their point II, claim error in the court’s questioning of witnesses McKinney, Turnage and Stewart. However, appellants, in their brief, merely show that the trial court questioned some of these witnesses. There is no showing of how or in what manner that questioning acted as a comment on the evidence.

It is well established that a trial court may, in the interest of justice, direct questions to a witness calculated to elicit the truth about subject matter being investigated, provided they are carefully framed in a manner not indicating any opinion on the merits of the controversy. The trial court has some discretion in examining witnesses to clarify their testimony, and when no prejudice appears there is no abuse of that discretion. Miller v. State, 250 Ark. 199, 464 S.W. 2d 594; Clubb v. State, 230 Ark. 688, 326 S.W. 2d 816; New v. State, 99 Ark. 142, 137 S.W. 2d 564.

The record before us does not indicate that the trial court abused its discretion in questioning the witnesses. It appears to have been done in order to clarify, their testimony. The questioning by the trial court here did not constitute a comment on the evidence, and did not reflect on the credibility of the witnesses concerned. We fail to see how appellants could have been prejudiced in any way by the action of the court in this regard. Therefore, we find no merit in this argument.

III.

Appellants Washington and Hampton, in their point III, contend the trial court committed reversible error in denying their motions for mistrial. Appellant Ward did not move for mistrial and his attorney does not raise this issue on appeal. The court had carefully ordered the. state’s attorneys, and all the three defense attorneys, to admonish all witnesses and clients not to make any reference to the fact that a polygraph test was given to Sheila McKinney, Fletcher Washington, Zachery Ward or Herman Hampton, or to mention in any way the results of any polygraph test: The defendant Zachary Ward, having been called to testify in his own behalf, was asked on cross-examination, “You did talk to Mr. George Stewart, make a statement to Mr. George Stewart?” The witness responded that he didn’t know, “Who was George Stewart?” The prosecutor replied in essence that Stewart was the witness who testified this morning in this matter, to which Ward then responded, “Yes, that is the man that gave the polygraph test.” Washington and Hampton then moved for a mistrial. They claimed below, and renew their contention on appeal, that they had .nothing to do with appellant Ward’s voluntary statement concerning the polygraph examination and that they, therefore, were entitled to a mistrial because of co-defendant’s remark. The results of the polygraph examination were not mentioned. The one remark by Ward was the only time anything was said about the polygraph examination before the jury. Following that incident, and in the absence of the jury, Ward’s attorney requested and obtained permission to again admonish his client to make no further reference, and did so. After the court denied the motion for mistrial, the attorney for Ward made a Motion in Limine which was granted. All counsel, both for the state and defense were instructed by the court not to make any reference by way of argument, statements, questions, side remarks, or in any other way make reference to the statement made by witness Zachary Ward referring to a polygraph.

Zachary Ward did not indicate that appellants Washington and Hampton had in fact taken a polygraph test or the results of any such examination. Washington and Hampton were not prejudiced by Ward’s remark. The trial court offered to admonish the jury which offer was refused. An admonition would certainly have removed any prejudice which may have existed. Limber v. State, 264 Ark. 479, 572 S.W. 2d 402 (1978); Scott v. State, 263 Ark. 669, 566 S.W. 2d 737 (1978). Declaring a mistrial is an extreme and drastic remedy which should be resorted to only where there has been an error so prejudicial that justice could not be served by continuing the trial. Chaviers v. State, 267 Ark. 6, at 11, 588 S.W. 2d 434 (1979). The circumstances in the case before us do not-afford any basis for our saying that the trial judge abused his discretion in denying this motion for mistrial.

IV.

Appellant Washington contends he was entitled to a separate trial, and that the trial court erred in failing to sever his trial from that of his co-defendants.

Although conceding that the trial court complied with Rule 22.3(a)(ii) of the Arkansas Rules of Criminal Procedure, Washington argues that the nature of the evidence presented at the trial was such as to preclude any inference other than that one of the unidentified persons in the confession of Ward and Hampton was in fact Washington.

A matter of severance is one within the sound discretion of the trial judge to grant or deny. We will not reverse such a decision unless that discretion is abused. Hallman & Martin v. State, 264 Ark. 900, 575 S.W. 2d 688 (1979). Legg v. State, 262 Ark. 583, 559 S.W. 2d 22 (1977). We find no such abuse. The trial court denied appellant Washington’s motion for severance, ruling that each confession would be allowed into evidence only against the defendant giving the statement and that any reference to the other defendants by name would be excluded. The trial court also warned that failure to exclude those references would result in “an almost automatic mistrial.” The instructions of the court were followed.

The defense of these appellants was not antagonistic. All of the defendants testified and cross-examination was permitted the appellant Washington to refute any adverse testimony to his cause. Bell and Walker v. State, 258 Ark. 976, 530 S.W. 2d 662 (1975).

It should be noted also that Washington did not renew his pretrial motion for severance at the trial.

Affirmed.


author:
Marian F. Penix, Judge.
      David Newbern, Judge,

text:
    Greta E. FOSHEE v. James S. MURPHY and Grethe S. MURPHY et al
    CA 79-178
    593 S.W. 2d 486
    Opinion delivered January 16, 1980
    Released for publication February 6, 1980

      Dan Me Craw, for appellant.

      Wootton, Land & Matthews, for appellees.
   Marian F. Penix, Judge.

This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals pursuant to Rule 29(3).

The appellees, Murphys, brought an action for specific performance of a contract to purchase certain real property. The Court decreed specific performance and held the appellant Ms. Foshee was bound by the terms contained in the mortgage and note prepared by her attorney, delivered to Murphys for execution and tender at closing. Ms. Foshee appeals.

On March 22, 1978, the Murphys made an offer to Foshees to buy real estate for $100,000 with $20,000 in cash and $80,000 payable over 25 years at seven and one-half percent. The Foshees rejected the offer and extended a counter-offer of $110,000 with $25,000 in cash and $85,000 payable over 25 years at eight and one-half percent interest and incorporated by reference all other terms of the Murphys’ original offer. The Murphys accepted the counteroffer. The Foshees’ listing agent prepared a “clean-up” offer and acceptance which the Murphys signed. On March 23, the Foshees refused to sign because of dissatisfaction with the size of the monthly payment which a 25 year amortization would generate. The Murphys agreed to amortize the note over a 20 year period rather than a 25 year period and initialed such provision which was inserted into the “cleanup” offer and acceptance document. Ms. Foshee readily signed. Mr. Foshee refused to sign, saying the monthly payments were still too small. On March 27, Mr. Foshee related to his son, Wayne, they had sold the property. On April 16, Mr. Foshee died. Ms. Foshee delivered the abstract of the property to her agent for recertification and her attorney-prepared a note, mortgage and deed and set the closing date for May 18, 1978. Ms. Foshee refused to consummate the transaction because she discovered certain lots contained in the description which she contends she did not intend to sell. On June 7, the Murphys filed suit'asking for specific performance, and for correction of a mutual, mistake within the contract. In her July 6 answer,. Ms. Foshee alleged she was not bound to the contract because of the.death of Mr. Foshee.

I

Ms. Foshee contends there is error in the court’s finding a contract existed between the parties. The property was held as an Estate by the Entirety by the Foshees. Ms. Foshee contends the March 23rd Offer and Acceptance with the amendment changing the time of amortization which was initialed by the Murphys constituted a new offer which effectively set aside thé counter-offer of March 22. She contends this is a substantial change in the terms of the March 22nd counter-offer, especially to elderly persons who must depend upon the monthly payment for living expenses. She also contends the initialed offer and acceptance required it be accepted by the Foshees within one day. Mr. Foshee did not accept the offer within the required one day. She contends only one party owning the estate by the entirety signed the offer and acceptance and cites the general rule found in 91 C.J.S., Vendor and Purchaser, § 29(b)(2) pp. 879-880.

Where a conveyance of certain property can be made only by the concurrence of two or more persons an offer to purchase must be accepted by each of them.

Ms. Foshee contends the offer lapsed March 25, 1978 and could not have been enforced against Mr. Foshee had he lived.

The Murphys contend Mr. Foshee would have been bound to his contract had he not died. They contend the Foshees’ counter-offer was accepted by the Murphys arid Mr. Foshee was obliged to sign the “clean-up” document which was drawn up to accommodate the Foshees. The Murphys also contend an owner of less than complete or good title to land may enforce his contract for sale if he is able to give good title on performance date.. The case on which the Murphys rely is Hood v. Hunt, 232 Ark. 591, 339 S.W. 2d 97 (1960). In that case, Mr. Hunt, the seller, signed the offer and acceptance, but Ms. Hunt did not. Later the Hunts both signed the deed which was tendered to the buyers, but refused to go through with the transaction. The court, in granting specific performance, held:

Based upon these facts, we are bound by our rule it was sufficient that Hunt was able to make a good conveyance any time before the decree for specific performance was rendered.

Even if Mr. Foshee could not have been bound by the contract, Ms. Foshee can be bound. She signed the contract and was the sole owner of the property at his death. She was able to make a good conveyance before the court decreed specific performance. Either spouse owning property by the entirety may transfer his or her interest, although it cannot thus affect the interest of the other. At the closing date, Ms. Foshee was obliged to convey all of her interest as she had agreed. This would have been the case whether Mr. Foshee was then living or not. Since Mr. Foshee died April 18,1978, Ms. Foshee was the sole owner as survivor of an estate by the entirety and had complete ownership to convey.

We find a contract did exist between the parties.

II

Ms. Foshee contends the court erred in refusing to rescind the contract for a unilateral mistake.

The initial offer and acceptance, the counter-offer, and the “clean-up” offer all listed unimproved lots which Ms. Foshee now claims she and her husband were unaware of being included in the contract to sell. A unilateral mistake is a subjective matter and the rule in Arkansas is a court will not reform or rescind a contract involving a unilateral mistake except where fraud is involved. Gall v. Union National Bank of Little Rock, 203 Ark. 1000, 159 S.W. 2d 757 (1942). The Murphys were shown the unimproved lots by the Foshees’ listing agent and it was represented to them that they were included with the improved lots being offered for sale. The lots were listed in all of the documents which passed between the Murphys and the Foshees. Ms. Foshee’s own attorney caused them to be listed in the mortgage and deed which he prepared. Ms. Foshee admits not having read the documents she signed, although she admits having the opportunity to do so. Ms. Foshee would have us apply the exception to the Unilateral Mistake Rule. Such exception being in the instance when an agreement is oppressive or unconscionable. We do not find elements of unconscionableness in the particular circumstances of this case.

We find no error in the court’s refusing to rescind the contract for a unilateral mistake.

Ill

Ms. Foshee alleges the court erred in expanding the contract to include the terms of the proposed mortgage and note.

Ms. Foshee’s attorney prepared a mortgage and promissory note and caused them to be mailed to the Murphys for their execution. The Murphys executed them and they were tendered at the May 18 closing. Mr. Murphy had some questions concerning these documents and Ms. Foshee’s attorney called him to discuss the matter. After the telephone call, Mr. Murphy was satisfied and proceeded to execute the mortgage and note. Ms. Foshee’s son insisted the closing be held immediately.

Quite obviously the Chancery Court had the necessity and the power to require Ms. Foshee to accept the terms of the note and mortgage which were prepared by her own attorney. Without this provision, there would not be a complete settlement of the transaction. This would invite circuity of actions and multiplicity of litigation which equity abhors. Fidelity Deposit Co. of Maryland v. Cowan, 184 Ark. 75, 41 S.W. 2d 748 (1931).

Affirmed.

Newbern, J., concurs.

David Newbern, Judge,

concurring. I agree Arkansas law permits a tenant by the entireties to convey her share of the estate. Franks v. Wood, 217 Ark. 10, 228 S.W. 2d 480 (1950). That does not mean that in every case in which a tenant by the entireties signs an agreement to sell the agreement is subject to specific .performance. It must be clear, as in the case before us, that it was her intent to agree to convey the property regardless whether her spouse agreed or not. The acts of Greta Foshee subsequent to the signing of the contract indicate that was her intent. Had it, on the other hand, been clear that she intended to sell only in the event .her husband joined in the contract, specific performance would not have been appropriate. Although I find no Arkansas case squarely addressing that point, see Annot., 154 A.L.R. 767, 777-778 (1945). See also, Roulston v. Hall, 66 Ark. 305, 50 S.W. 690 (1899), where the court stated the “doctrine of inurement” as follows:

Neither tenant by entirety can convey his or her interest so as to affect the right of survivorship in the other. The alienation by the husband of a moiety will not defeat the wife’s title to that moiety if she survive him; .but, if he survives the conveyance becomes as effective to pass the whole estate as it would had he been sole seized at the time of the conveyance.

That doctrine does not strictly apply here, as there has been no “conveyance,” at least in the sense of execution of a deed, by Greta Foshee.

For that reason I would also distinguish Hood v. Hunt, 232 Ark. 591, 339 S.W. 2d 97 (1960), which is cited by the majority. Unlike this case, there both husband and wife had signed a deed, and in applying the doctrine of mutuality, it was held that both of them had obligated themselves to convey, regardless of failure of one of them to be bound on the contract to sell. In the. case before us, Greta Foshee’s deceased husband had signed no deed and had not signed the contract. ,

I also find párt three of the majority opinion objectionable, as it implies that a party must execute a document or be bound to it without having signed it just because it was prepared by her attorney. I know of no authority for such a proposition.

My reason for agreeing with the result here is that Greta Foshee purported to convey her interest in the property in question, and that would include any right to which she might succeed as a survivor of her husband. Her intent appears from her conduct subsequent to the date of the contract. I believe the “doctrine of inurement” thus applies, but I want it clarified I could not acquiesce in specific performance had it appeared she intended to convey only if her husband signed the contract too.


author: Marian F. Penix, Judge. David Newbern, Judge,

text:
    Earl CALDWELL v. STATE of Arkansas
    CA CR 79-85
    594 S.W. 2d 24
    Opinion delivered January 16, 1980
    Released for publication February 13, 1980

      Robert L. Lowery and Patton, Brown, Leslie & Davidson, by: Robert B. Leslie, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   Marian F. Penix, Judge.

This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals pursuant to Rule 29(3).

Earl Caldwell was charged by felony information with the. rape of Linda Skidmore on May 11, 1978. The victim reported to police she had been raped by a man who forced his way into her home at about 1:3.0 a.m. She stated a man had broken through her back door, tied her hands and forced her into the living room. The man held a flashlight in her face most of the time he was in the house. The man forced her to lie down on a couch and proceeded to rape her. The victim called the police at 2 a.m. Officer Herbert of the Little Rock Police, Department went to Ms. Skidmore’s home. He observed that the kitchen door had been kicked open. Ms. Skidmore described her assailant as a white male, approximately 40 years old, and very large. She estimated him to be 6'4", 250 pounds, with reddish brown hair. She stated the man had worn a black cap, red sweater, and black work gloves.

David Garner, a Little Rock police officer, arrived at Ms. Skidmore’s home about 7:30 a.m. where he held a mug shot identification session. The photographs consisted of line-up photos, and Polaroid and regular police photos. Ms. Skidmore positively identified an 8 x 10 line-up photo of Earl Caldwell as a picture of the man who had raped her. Caldwell’s picture was the third photo which Ms. Skidmore viewed.

Later the same day, Ms. Skidmore witnessed a physical line-up at the police station. There were six white males in the line-up, four of whom were FBI agents. Earl Caldwell was also in the line-up. All six men were dressed in blue coveralls. Ms. Skidmore identified Earl Caldwell as the man who had raped her.

Earl Caldwell was arrested for the rape of Ms. Skid-more. Police records reveal he is a 26 year old white male with bushy reddish brown hair. He is 5'10" and weighs 200 pounds.

Caldwell was tried before a jury and found guilty of rape. The jury fixed his sentence at 18 years in the state penitentiary. From this conviction, Caldwell has appealed. The appellant bases his argument for reversal on four separate points.

I

Defendant contends there was error in permitting the State to inquire about the previous conviction of the defendant and permitting the state to go beyond evidence of the conviction per se. The defendant argues the prosecutor’s questioning and use of the prior conviction was so prejudicial that its probative value was outweighed.

Prior to the trial, defendant filed a Motion in Limine requesting the state be precluded from mentioning his previous charge of rape and his conviction for the crime of sexual abuse.

At the trial the defendant took the stand. His attorney asked him whether he had been convicted of sexual abuse. The scope of cross-examination includes matters developed on direct examination. When the defendant produced five character witnesses the trial court ruled it proper for the prosecutor to cross-examine the witnesses by asking whether their opinions as to the defendant’s reputation would be altered by knowing of the defendant’s prior conviction. This was proper pursuant to Ark. Stat. Ann. § 28-1001, Rule 405(a) (Repl. 1979). The prosecutor inquired of one of the character witnesses whether the fact the defendant and defendant’s wife had testified inconsistently in regard to defendant’s whereabouts on a particular date would have any effect upon the witnesses’ opinion of the defendant’s truthfulness. The prosecutor phrased the question in terms of a hypothetical. Rule 607 of the Arkansas Uniform Rules of Evidence provides a witness’ credibility may be attacked by any party. The scope of the examination is largely within the discretion of the trial court. Dillard v. State, 260 Ark. 743, 543 S.W. 2d 925 (1976). Opinions of character witnesses were the means by which defendant chose to prove his reputation for truthfulness. It is logical to allow the cross-examiner to explore the basis of the witnesses’ opinion, i.e., whether the witness had heard all the facts about the defendant on which to base his opinion. Lowe v. State, 264 Ark. 205, 570 S.W. 2d 253 (1978). We find no abuse in the court’s allowing the prosecutor to cross-examine the character witnesses as to the basis of their opinion.

II

Defendant contends the court erred in commenting upon the weight of the evidence in the presence of the jury.

The court, in the presence of the jury, stated the defense counsel had asked the prosecuting witness a certain question “about six times at least. Go ahead. One more time.”

The court continued: Come on Mr. Leslie, ask the questions. Let’s move this case along.
Mr. Leslie: Your Honor, welí these are important issues.
The Court: I realize how important they are and it’s important to move this case along, Mr. Leslie. We’re having way too much repeating of questions in this case. This jury is not stupid. Now they can hear these answers. Let’s move along.”

Again while arguing the relevance of a witness’ testimony the defense counsel stated the issue was very important.

The Court: Well, it may be to you. It doesn’t seem to be to me, but go ahead. I’ll let you explore it for whatever it’s worth.

The defense counsel made no objection to either judicial comment. Further, there was no error present.

The first alleged improper comment was made because defense counsel was hounding and badgering the witness with repetitious picayune cross examination as the specific height, to the quarter of an inch, of herself and her assailant. The judge asked the defense counsel to move on. The judge was attempting to move the trial forward. Certainly curtailment of repetitious questions is not an abuse of the trial court’s discretion where the witness’ answers are only a reiteration of earlier testimony. Nelson v. State, 257 Ark. 1, 513 S.W. 2d 496 (1974).

The second alleged improper comment was made to end a lengthy debate by counsel over relevance of testimony of a defense witness. It is the trial court’s duty to determine relevancy. Tucker v. State, 264 Ark. 890, 575 S.W. 2d 684 (1979).

The court instructed the jury:

I have not intended by anything I have said or done, or by any questions that I may have asked, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness who testified. If anything that I have done or said has seemed to so indicate, you will disregard it.
We find the court’s remarks not improper.

Ill

The defendant alleges error in permitting in-court identification of him by the victim.

On the same day as the rape, a live line-up was held and a mug shot line-up was conducted. In both instances, the prosecuting witness positively identified the defendant without hesitation or reservation. There are several factors to consider in determining the reliability and admissibility of the identification testimony. The Arkansas Supreme Court has set these factors out: time between the commission of the crime and the identification; attentiveness and opportunity of the victim to view the assailant at the time of the crime; level of certainty at the confrontation; and accuracy of the description of the accused. See Lindsey v. Jackson, 264 Ark. 430, 572 S.W. 2d 145 (1978).

The defendant alleges there is too great a discrepancy between the victim’s description of her assailant’s height, weight and age and the actual size of the assailant. The factors in dispute are very deceptive. Officer Herbert testified as to the description given him by the victim: “. . .he looked very large when he came through the door. She guessed 6'4".” The victim stated she concentrated on the defendant’s face.

We find the defendant has failed to meet his burden of demonstrating that when the totality of the circumstances are considered.there was a “very substantial likelihood of irreparable misidentification.” Pollard v. State, 258 Ark. 512, 514, 522 S.W. 2d 627 (1975).

At no time was the victim unsure of her identification. She testified she did not learn of defendant’s prior rape charges until the day following her positive identification of him.

We find the in-court identifications were based upon observations of the prosecuting witness sufficiently independent of any line-up procedure and the trial court properly admitted this testimony into evidence. The defendant did not object at the trial to the in-court identification.

IV

Defendant alleges error in the court’s prohibiting the expert testimony of a psychologist concerning eye witness identification.

The testimony of a qualified expert in the field of human perception was offered for the purpose of aiding the jury in understanding how human perception works mechanically and what factors influence the perception, and the ability of an individual to later recall that perception. Secondly, the testimony was offered for the purpose of an opinion as to the reliability of the victim’s perception and recall under the circumstances, and what effect outside influence may have had on her recall. The Court refused to allow such proffered testimony. The qualifications of the expert witness are not in issue. Rather the issue is the scope of the testimony of the expert. The actual testimony would be invading the purview of the duties of the jury. The credibility of witnesses and the weight accorded to their testimony is solely within the province of the jury. Smith v. State, 258 Ark. 601, 528 S.W. 2d 389 (1975).

The defendant demanded a trial by a jury of his peers. He received such a jury. Defendant contends he should be permitted to assist the trier of fact with the offered psychologist testimony.

Parties to a trial have the right to take the opinion of experts upon questions involved in cases which can only be answered by those who have expert knowledge of the subject; ...

However, in Hinton v. Stanton, 121 Ark. 626, 183 S.W. 2d 765 (1916), our Supreme Court held “Where the subject matter could be understood by a jury of average intelligence, the court below did not err in excluding expert testimony.”

The science of human perception testimony is new. In the federal case of U.S. v. Fosher, 590 F. 2d 381 (1st Cir. 1979), the trial, court refused proffered expert testimony relating to perception and memory of the eyewitnesses. The Appellate Court upheld the trial court and stated the testimony would not assist the jury in determining the fact in issue and that the jury was fully capable of assessing the eyewitnesses’ ability to perceive and remember, given the help of cross-examination and cautionary instructions, without the aid of an expert; that the expert testimony would raise a substantial danger of unfair prejudice, given the aura of reliability that surrounds scientific evidence; and that the limited probative value of the proof offered was outweighed by its potential for prejudice.

No proffer was made in the present case as to the basis of the knowledge gained by the expert. The field of perception and memory is alleged to be a science. Here in Arkansas, our Supreme Court has consistently held certain scientific analysis testimony inadmissible based upon its unreliable nature, to-wit: polygraph tests, voice stress analyzers. Gardner v. State, 263 Ark. 739, 756, 569 S.W. 2d 74 (1978).

The defendant was in no way harmed by the denial of the expert’s testimony. The defendant was given ample opportunity to cross-examine the victim in order to emphasize the same areas for possible mistakes as the expert would have testified to, without the possible undue influence and prejudice.

The general test regarding the admissibility of expert testimony is whether the jury can receive “appreciable help” from such testimony. 7 Wigmore, Evidence, § .1923 (3d ed., 1940); Jenkins v. U.S., 113 U.S. App. D.C. 300, 307 F. 2d 637 (1962). The balancing of the probative value of the tendered expert testimony evidence against its prejudicial effect is committed to the “broad discretion” of the trial judge and his action will not be disturbed unless manifestly "erroneous. Ray v. Fletcher, 244 Ark. 74, 423 S.W. 2d 865 (1968); Ark-La Gas Co. v. Maxey, 245 Ark. 15, 430 S.W. 2d 566 (1968).

We find the expert testimony was properly excluded as an invasion into the province of the trier of fact.

From the record we find no reversible error.

Affirmed.

Wright, C.J., and Newbern, J., concur.

David Newbern, Judge,

concurring. Although I concur in the result reached, I cannot agree with that part of the majority opinion which characterizes the defense counsel’s cross examination of the prosecuting witness as “hounding and badgering” and “picayune.”

Chief Judge Wright joins in this concurring opinion.


author:
George Howard, Jr., Judge.
      M. Steele Hays, Judge,

text:
    GENERAL MORTGAGE CORPORATION v. H. K. PEACOCK et al
    CA 79-169
    594 S.W. 2d 35
    Opinion delivered January 16, 1980
    Rehearing denied February 20, 1980
    Released for publication February 20, 1980

      Lightle, Beebe & Raney and Roscopf & Epes, P.A., by Charles B. Roscopf, for appellant.

      Paul Petty, for appellees.
   George Howard, Jr., Judge.

This is an appeal from a judgment rendered by the trial court, without the aid of a jury, denying both appellant and appellees damages in a breach of contract action involving a contract for sale of land.

While the trial court made no definite findings, the court held that “neither party met the burden of proof on the issue of damages”. However, appellant was permitted to recover the $10,000.00 earnest money that it deposited with the escrow agent.

The force of appellant’s argument for reversal is: the trial court committed error in holding that appellant did not meet the burden of proof on the issue of damages.

It is widely accepted that the findings of a trial judge sitting as ajury deserve the same weight and consideration as the findings of a jury when his findings are supported by substantial evidence. Substantial evidence means legal, credible and persuasive evidence sufficient to support the action of the court.

We now turn to the record before us in order to determine whether the evidence is sufficient to support the holding of the trial judge.

On November 24, 1972, appellant, as purchaser, and appellees, as sellers, executed an offer and acceptance to purchase 3800 acres of land in White County for $532,000.00 — a fixed rate of $ 140.00 per acre. Appellant paid $10,000.00 as earnest money, to Standard Abstract and Title Company, escrow agent, which was to be applied ultimately to the purchase price. Appellant agreed to pay $75,000.00 at the closing of the transaction and to assume a first mortgage held by Northwestern Mutual Life Insurance Company securing an indebtedness of $188,000.00, payable in annual installments of $22,500.00, consisting of principal and interest. The offer and acceptance specified that appellant was to pay the next annual installment becoming due January 1, 1973. Appellant also agreed to assume a second mortgage in favor of Agristor securing a debt for $25,000.00. The balance of the purchase price, $244,000.00, was to be paid in ten annual installments with interest at the rate of 6% per annum.

On January 10, 1973, appellant’s attorney sent the following communication to appellees’ attorney:

Dear Mr. Peacock:
I received the abstracts today. We need your directions as to where and to whom General Mortgage should direct payment due pursuant to terms of the Earnest Money Contract.
General Mortgage is prepared to forward the ‘preclosing payment’, as provided in the contract upon receipt of your directions.

On January 16, 1973, appellees’ attorney submitted the following letter to appellant’s counsel:

Dear Mr. Knight:
Payment on the Mortgage of the Peacock Ranch should be made to Northwestern Mutual Life Insurance Company, Box 50521, Milwaukee, Wisconsin 53201. The loan number is F323007 and the principal due as of January 1, 1973, is $7,500.00 along with interest of $15,000.00 making a total of $22,500.00.
Please mail me a copy of a financial statement on your client, General Mortgage Corporation and a corporate resolution authorizing Paul Chambers to execute the referenced land purchase contract.

On January 31, 1973, appellant advised appellees that appellant was unwilling to accept title of the property as reflected by abstracts delivered to appellant on January 10th and, as a consequence, appellant would require title insurance coverage.

On March 1, 1973, a title insurance commitment was issued to appellant containing approximately eighteen exceptions which included, among other things, six unsatisfied mortgages in favor of White River Production Credit Association and a requirement that patents be obtained from the United States Government.

On April 4, 1973, appellees advised appellant, by letter, that the contract was terminated and, therefore, regarded the earnest money in escrow forfeited because appellant had failed to perform the conditions contained in the offer and acceptance agreement.

On April 5, 1973, appellant informed appellees, by letter, that appellant would not assume the mortgages in favor of White County Production Credit Association, as previously requested by appellees, since the offer and acceptance did not provide for the assumption of these mortgages; that appellant stood willing and ready to proceed with finalizing the sale at such time as appellees were prepared to deliver a valid title to the property and close the sale in accordance with the terms of the agreement. In addition, appellant’s letter closed by tendering the following proposal:

. . . However, in an effort to settle this matter, and to terminate the difficulties prior to further dispute and litigation, General Mortgage offers to pay $100.00 per acre cash for the Peacock Ranch and fee simple title thereto. This offer is made solely in the nature of settlement of the disputes which have arisen and is not in any manner whatsoever to be deemed to waive the rights of General Mortgage contained in the above referenced contract, which General Mortgage stands ready to perform and insists that you perform.

On April 9, 1973, appellant again informed appellees, by letter, it desired to finalize the transaction providing title to the property had been cleared and the terms of the agreement are followed. Appellant also advised appellees that appellant had advised the escrow agent to retain the earnest money since appellant was of the opinion that appellees had breached the agreement while appellant had not.

On April 13, 1973, appellees advised appellant:

In reference to your letter of April 5, 1973, concerning your counter offer of $100.00 cash per acre or approximately total cash offer of $380,000.00, we will not accept this counter offer as it is totally unacceptable and we are still considering General Mortgage bound to the original contract and expect them to complete said contract or consider themselves in breach thereof. I am sure you are aware that we have done everything possible in order to close this sale and if General Mortgage is standing ready to perform, then I suggest this be done immediately and that they pay on the contract as originally agreed.

On April 18, 1973, appellant informed appellees by letter:

. . . If it will be of assistance, I will gladly forward a Xerox copy of the title report supplied by American Title Insurance Company through Standard Abstract and Title Company, Little Rock, Arkansas. On second thought, please find same enclosed, which indicates that title to this property is by no means in the.condition your letter indicates.
... In addition, we reiterate that General Mortgage Corporation is prepared to consummate this transaction at a time when the Peacocks are prepared to close upon the terms and conditions expressed in the contract. If you will notify me in writing that General Mortgage is no longer expected to assume the indebtedness at Production Credit and that all of the objections set out in this title report and exceptions thereto, will be eliminated and removed at closing, we will proceed to arrange for a closing time.

On April 2, 1973, appellees entered into an agreement with Franklin Collier to sell the lands for $510,000.00 and the sale was finalized on May 14, 1973.

On April 30, 1973, Franklin Collier entered into an agreement with Irving H. Brauer to sell the lands for $725,000.00 and this transaction was closed on May 22,1973.

Appellant instituted its action on September 14, 1974, seeking damages for $ 168,000.00 for breach of the offer and acceptance agreement. Appellees filed their answer and counterclaim claiming damages against appellant for breach of contract.

In 91 C.J.S., Vendors & Purchasers, § 124, at page 1052, it is provided:

If one party fails to perform or tender performance within a reasonable time, and the other fails within a reasonable time to default the first party by tendering his own performance, rescission of the contract by mutual consent may be presumed.

The Arkansas Supreme Court in Hicks v. Woodruff, 238 Ark. 481, 382 S.W. 2d 586 (1964), emphasized that a contract may be rescinded by conduct which indicates intention to abandon contractual rights. The Supreme Court in articulating this view adopted the following comment from Restatement, Contracts, § 406, comment b (1932):

'b. The agreement to rescind need not be expressed in words. Mutual assent to abandon a contract, like mutual assent to form one, may be manifested in other ways than by words. Therefore, if either party even wrongfully expresses a wish or intention to abandon performance of the contract, and the other party fails to object, there may be sometimes circumstances justifying the inference that he assents. If so there is rescission by mutual assent; but mere failure to object to repudiation is. not a manifestation of assent to a rescission. Sometimes even circumstances of a negative character, such as the failure by both sides to take any steps looking towards the enforcement or performance of a contract, may amount to a manifestation of mutual assent to rescind it.’

We are of the opinion that paragraph 13 of the offer and acceptance agreement between the parties is the pivotal point in resolving this controversy. Paragraph 13 provides:

Payment of principal and interest due Northwestern Mut. Ins. Co. on Jan. 1,1973, will be paid by buyer. Said interest to be applied against unpaid balance of principal owed to sellers.

We are persuaded that General Mortgage Corporation breached the agreement by not paying Northwestern Mutual, or tending to the escrow agent, $22,500.00 on January 1, 1973, as it had agreed. Appellant was fully aware of its obligation to pay Northwestern Mutual for appellant advised appellees on January 10, 1973, “We need your directions as to where and to whom General Mortgage should direct payment due pursuant to terms of the Earnest Money Contract’ ’. Furthermore, appellant stated ‘ ‘ General Mortgage is prepare to forward the pre-closing payment as provided in the contract, upon receipt of your directions.” Appellees immediately forwarded to General Mortgage Corporation the name, address and the amount due, but appellant failed to make this payment. Northwestern Mutual held a first mortgage on the property involved and while the payment due in January,. 1973, was only $33,500.00, the total indebtedness owed Northwestern Mutual was $188,000.00; therefore, it is plain that the failure of appellant to perform, as it had agreed, involved a matter which was vital to the existence of the agreement between appellant and appellees.

• On the other hand, appellees, while recognizing that appellant' had agreed to pay the annual installment due Northwestern Mutual acquiesced in appellant’s conduct. The conduct of both appellant and appellees clearly evidences a rescission of the agreement.

Whether the conduct of a vendor and purchaser amounts to an abandonment of a land contract is ordinarily a question of fact; however, it may become a matter of law where the acts and conduct are clear and unambiguous as in the instant case. Wallace v. Johnson, 217 Ark. 878, 234 S.W. 2d 49 (1950); 77 Am. Jur. 2d, Vendor and Purchaser, § 543, at page 671; 91 C.J.S., Vendor and Purchaser, § 121.

While the record reflects that the parties continued to communicate with each other after appellant defaulted in paying Northwestern Mutual, appellant, upon learning that appellees were negotiating an agreement to sell the lands to a third party, offered appellees $100.00 per acre cash for the property which was rejected. We do not perceive a waiver by appellees by advising appellant that if appellant proceeded immediately to comply with the original terms of the agreement, appellees were willing, after all, to sell the property to appellant. The fact remains that appellant took no steps to pay Northwestern Mutual or make a tender; appellant was not in possession of the property and knew that appellees were negotiating a sale with Franklin Collier.

In Hargis v. Edrington, 113 Ark. 433, 168 S.W. 1095 (1914), our Supreme Court stated that a vendee has a duty to assert promptly his intention to perform his contract of purchase when he is aware that the vendor is treating the agreement.as having been rescinded.

Although the trial court did not articulate any findings, it is plain that the trial judge recognized that the parties had abandoned the contract or there was evidence of mutual breaches and concluded that the parties should be restored to the status quo. We are persuaded that the action of the trial court is supported by substantial evidence.

Affirmed.

Wright, C.J., and Hays, J., dissent.

M. Steele Hays, Judge,

dissenting. I am unable to comprehend how the majority could arrive at the conclusion that there is substantial evidence that the offer and acceptance agreement was rescinded by mutual consent. Neither party urges this point on appeal, and nothing in the language of the trial court provides a foundation for such a contention.

Each side argues strenuously the opposing party breached the contract and the trial court’s finding that neither side met the burden of proof as to damages cannot be reconciled with the evidence.

The real issue is, as I see it, which party failed to meet the obligations of the offer and acceptance agreement. A careful reading of this record leads me to the conclusion that it was the Sellers who breached the contract by failing to provide evidence of merchantable title as required by the agreement.

The appellant offered substantial evidence as to damages, and the appellees offered rebuttal evidence on damages. The court should have made a finding based on the preponderance of the evidence as to the party responsible for breach of the contract and the amount of damages, if any, sustained by reason of the breach.

I concede the Buyers equivocated on the January 1 payment to Northwestern Mutual Life Insurance Company, but this was not fatal to the agreement. If it was fatal breach, when did it become so, on January 2, or February 1, or March 1? Time was not of the essence and as I read the provision, it was simply that Buyers were responsible for that payment in connection with the closing together with any interest accruing by reason of late payment. It is clear the parties contemplated closing by the end of the year when they executed the offer and acceptance agreement on November 24. However, the abstracts which Sellers contracted to furnish were not delivered to the Buyers until January 10 and Buyers had a reasonable time from that point to examine the abstracts. To hold the Buyers breached this provision by failing to pay the January 1 payment when they did not even receive the abstracts until January 10 is going further than I am able to go in upholding the trial court. Moreover, how could it be said the Buyers should have risked payment of $22,500.00 in the face of abstracts containing as many clouds and encumbrances as were admittedly present here? In short, I interpret this provision as contemplating the Buyers would make the payment as soon as the transaction was closed.

If Sellers had moved with greater punctuality or had shown greater interest in moving to a closing, this January 1 mortgage payment would not have been a stumbling block as Sellers later contended. Sellers never made categorical demand that the payment be made. Sellers say they considered Buyers to have forfeited by the latter part of January because of the non-payment, but their actions belie that attitude. In February they accepted the return of the abstracts for the issuance of title insurance, and after March 1, they for-. Weirded to Sellers a title commitment reflecting numerous encumbrances on the title and no evidence of patents for some of the lands. Even Seller’s letter of April 4, raising the suggestion of a breach by the Buyers (written after Sellers had contracted withanother buyer), makes no mention of the alleged breach by failure to pay the January 1 payment. Moreover, when Sellers wrote Buyers on April 13, well after Sellers had contracted to sell to Collier, Sellers wrote the Buyers as though the contract was still in effect saying: “and we are. still considering General Mortgage bound to the original contract and expect them to complete said contract...”

The real stumbling block in this transaction, as I see it, was Seller’s failure to provide evidence of certain patents and to remove numerous encumbrances in favor of White River Production Credit Association. It is undisputed these encumbrances were outstanding and totaled in excess of $400,000.00, but Seller’s only explanation for their failure to remove or to satisfy them was that, “we also agreed at the same time that PCA would either be assumed (by the Buyers) or be paid off but that wasn’t part of the written contract.” However, they were not included in the ágreement and Buyers had every right to stand upon the agreement as signed.

I would reverse the case and remand to the trial court for a new trial. De Vagier v. Whit Davis Lumber Company, 257 Ark. 371; Hinton v. Bryant, 232 Ark. 688.

lam authorized to say that Wright, C.J., concurs in this dissent.

       The offer and acceptance does not designate a definite date for finalizing the transaction. A stipulation in the offer and acceptance that refers to closing simply provides: “Interest will commence on the day of closing or on January 15, 1973, whichever is first, i.e. on unpaid balance on assumed notes.”

       Appellant at no time supplied appellees with a copy of a title opinion regarding the condition of the land as determined by appellant’s attorney from an examination of the abstracts supplied by appellees. As previously indicated, the title insurance commitment containing the exceptions was' issued to appellant om March 1, 1973.

      Our Supreme Court in Wallace v. Johnson, 217 Ark. 878, 243 S.W. 2d 49 (1950), recognized that the terms abandonmént and rescission are words quite often used indiscriminately.

       Appellant was also aware that Franklin Collier sold the property to Irving H. Brauer for 5725,000.00 on May 22, 1973.


author: George Howard, Jr., Judge.

text:
    Dorcas F. PATTERSON, Floyd RAGSDALE, Mae FERGUSON, Tommy RAGSDALE, Martha Jo KINSLOW and Katherine KELLAM, Individually and as Guardian of Ethel HAMMONS v. Burl HARRIS, Executor
    CA 79-179
    593 S.W. 2d 489
    Opinion delivered January 16, 1980
    Released for publication February 6, 1980

      Eichenbaum, Scott, Miller, Crockett, Darr & Hawk, P.A., by: Leonard L. Scott and Ronald G. Harris, for appellants.
    ■ Gardner & Gardner, for appellee.
   George Howard, Jr., Judge.

This appeal involves the construction of Article IX of the Last Will and Testament of the late Mrs. Hazel Ferguson providing for the compensation to be paid the executor for services rendered in connection with the administration of her estate.

Article IX, in relevant part, provides:

The appointment of my said Executor and Trustee, and the power and authority vested in him shall include also the right to receive reasonable compensation often per cent (10%) of the total gross estate as finally determined for federal estate tax purposes for his services and expenses as shall be deemed by the Probate Court to be just and equitable, ...

The trial court, pursuant to a petition filed by the executor for construction of the pertinent part of Article IX held:

The will is construed to provide or direct the payment of ten percent of the gross estate for estate tax purposes. ... It is ten percent of the amount claimed there, which includes expenses, for which no claim was made for that matter. ...

The Federal Estate Tax Return computes the total gross estate at $624,253.44. Afee of $62,425.34 was allowed the executor which was claimed as a deductible item on the estate tax return.

In Mills’ Heirs v. Wylie, 250 Ark. 703, 466 S.W. 2d 937 (1971), our Supreme Court made the following pertinent observation:

. . . [T]he purpose of construction is to arrive at the intention of the testator; but that intention is not that which existed in the mind of the testator, but that which is expressed in the language of the will.

Our Supreme Court has also emphasized that words and sentences used in a will are to be construed in their primary or ordinary sense so as to arrive at the real intention of the testator. Morris v. Dosch, 194 Ark. 153, 106 S.W. 2d 159 (1937); Morgan v. Green, 263 Ark. 125, 562 S.W. 2d 612 (1978). Moreover,, in interpreting a will, it is the duty of the court to apply its best judgment consistent with applicable rules of construction. Morgan v. Green, supra.

Giving the following relevant words a construction in their usual and customary meaning:

The appointment of my said Executor and Trustee, and the power and authority vested in him shall include also the right to receive reasonable compensation of ten per cent (10%) of the total gross as finally determined for federal estate tax purposes for his services and expenses as shall be deemed by the Probate Court to be just and equitable, . . .

we are persuaded the testatrix intended that the executor shall receive ten percent (10%) of the gross estate as finally determined for federal estate tax purposes as a fee which she deemed to be reasonable compensation for services to be rendered by the executor in the administration of her estate. We are further persuaded that the words “as shall be deemed by the Probate Court to be just and equitable” modify the word “expenses” and were not meant to confer any discretionary authority on the Probate Court in setting the executor’s fees.

We believe that the construction rendered by the trial court was correct as well as reasonable. Accordingly, we affirm.

Affirmed.

      The bulk of decedent’s estate consisted of real estate located in Oklahoma. The executor was directed to reduce all assets — both real and personal property — to cash within two years. However, a parcel of land, 56 feet by 120 feet together with all buildings located on the property in Russellville, was specifically devised to two nieces.
      Appellants are the heirs of the testatrix’s husband, A. H. Ferguson, who predeceased the testatrix. In addition, appellants’ interest in the estate is approximately 26.8%.


author: David Newbern, Judge.

text:
    Larry Eugene SONGER v. Deborah Dee SONGER
    CA 79-180
    594 S.W. 2d 33
    Opinion delivered January 16, 1980
    Released for publication February 6, 1980

      Virginia (Ginger) Atkinson, for appellant.
    No brief for appellee.
   David Newbern, Judge.

In this case the issue is whether the alimony portion of a divorce decree is also the subject of an independent contract and thus not subject to modification.

In a modification hearing initiated by a petition filed by the appellant, the chancellor recited the circumstances surrounding the issuance of the decree. The uncontested divorce was taken on deposition. The decree provided alimony, child support and a detailed division of property. When presented to the chancellor, it had been signed by the parties and their respective attorneys who thereby purported to approve the suggested decree “as to form and substance.”

After the hearing on the appellant’s petition to modify, the chancellor held the alimony part of the decree was not subject to modification because, in his words, “I had nothing to do with the division of property” and “it was strictly the parties’ dealings.” Yet in his order, the chancellor relieved the appellant of his obligation under the decree to pay for insurance for the appellee’s car and for her gasoline purchases.

To us, it seems highly inconsistent that the chancellor would say the decree was “contractual” and thus not subject to modification with respect to one aspect of support for the appellee but not as to another. More importantly, however, we find no evidence in the record to show the decree should be regarded as an independent contract which would make the decree unmodifiable.

A leading Arkansas case on this question is Seaton v. Seaton, 221 Ark. 778, 255 S.W. 2d 954 (1953). There the court said:

Our decisions have recognized two different types of agreement for the payment of alimony. One is an independent contract, usually in writing, by which the husband, in contemplation of the divorce, binds himself to pay a fixed amount or fixed installments for his wife’s support. Even though such a contract is approved by the chancellor and incorporated in the decree, as in the Bachus case [216 Ark. 802, 227 S.W. 2d 439 (1950)], it does not merge into the court’s award of alimony, and consequently, as we pointed out in that opinion, the wife has a remedy at law on the contract in the event the chancellor has reason not to enforce his decretal award by contempt proceedings.
The second type of agreement is that by which the parties, without making a contract that is meant to confer upon the wife an independent cause of action, merely agree upon “the amount the court by its decree should fix as alimony.” Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700 [1908]. . . construed an agreement of the first type, and Holmes v. Holmes, 186 Ark. 251, 53 S.W. 2d 226, involving an agreement of the second type. See also 3 Ark. L. Rev. 98. A contract of the latter character is usually less formal than an independent property settlement; it may be intended merely as a means of dispensing with proof upon an issue not in dispute, and by. its nature it merges in the divorce decree. In the Holmes case we held that the second type of contract does not prevent the court from later modifying its decree. [221 Ark. at 780]

It seems clear in this case the parties were agreeing to the contents of the suggested decree when they signed it and presented it to the chancellor. The decree did not mention any separate agreement, and there is nothing, written or otherwise, showing intent that any agreement be enforceable separately from the decree.

In the Pryor case, cited in the excerpt above, our supreme court held the alimony portion of the divorce decree could not be modified where it was a recitation only of a separate contract which was intended by the parties to be enforceable independently of the decree. The court said that under those circumstances modification of the decree would amount to modification of the contract itself. Whether or not we are persuaded by the logic of that statement, we find no need to apply it here. The burden of showing the intent of the parties to have an independently enforceable contract is upon the party asserting it. Law v. Law, 248 Ark. 894, 455 S.W. 2d 854 (1970). We find nothing in the record on this matter other than the recitation by the chancellor that the matter was “ contractual .’’Wecanseeno basis for finding an independent contract. The mere fact that the parties had agreed on a suggestion to the chancellor of the contents of the decree is not enough.

Reversed and remanded for further determination whether the alimony portion of the decree should be modified.


text:
    Roy VAIL, James VAIL and Ronald ADCOCK v. STATE of Arkansas
    CA CR 79-99
    593 S.W. 2d 491
    Opinion delivered January 16, 1980
    Released for publication February 6, 1980

      A. James Lineker, for appellants.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   David Newbern, Judge.

The appellants were charged with first degree battery and were found guilty of the lesser included offensé of third degree battery, a class A misdemeanor. Ark. Stat. Ann. § 41-1603 (Repl. 1977). In points one, two and four of their brief, the appellants argue insufficiency of the evidence as a basis for conviction, error by the court in failure to instruct a verdict and error in failure of the court to enter a judgment of not guilty despite the jury’s verdict of guilty. We will address these points together as they all deal essentially with sufficiency of the evidence, and we find the evidence was sufficient to make a jury question. We decline to consider the appellants’ third point which urges reversal for failure to consider and failure to give instruction proffered by the appellants. The appellants did not abstract any of the instructions proffered or any instructions given by the court. See Ellis v. State, 267 Ark. 690, 590 S.W. 2d 309 (Ark. App. 1979), in which this court discusses the history of the requirement that instructions be abstracted. See also, Rule 9 (d) of the Arkansas Supreme Court and Court of Appeals, and Williams v. Fletcher, 267 Ark. 961, 593 S.W. 2d 48 (Ark. App. 1979). Another reason we decline to consider this point is that no case or other authority is cited in the appellants’ brief, and no argument is made from which we might evaluate whether the appellants were prejudiced in any way by the court’s handling of their proffered instructions. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606 (1977).

George Pugh kept beer in returnable bottles in a cooler in a structure adjacent to his home. He kept a close watch on the beer, placing exactly eight bottles in his ice box at a time. He suspected the beer was being pilfered, and on one occasion previous to the night of the event giving rise to this case, he chased an intruder from his yard and fired a shot, apparently for the purpose of frigtening the intruder.

On the evening of November 26, 1977, Mr. Pugh observed some of his beer was missing. He also observed a car moving slowly up and down a road behind the wooden fence at the rear of his property. Mr. Pugh obtained his loaded .22 caliber pistol from his kitchen and walked into his back yard. It was dark and although his outdoor night light was on, he saw ho one. He testified thát he simultaneously heard and felt a gunshot and received a wound in his face. He then ran for cover and fired his own weapon several times in various directions. He was not firing at a target, as he still saw no one. He was not seriously injured by the bullet, and he thereafter got in his car and drove it on the road behind his house where the car he had seen earlier was parked. He observed appellant Adcock in the parked car. Without getting out of his car, he returned to his home. The sheriff s office was notified, and Mr. Pugh accompanied Deputy Bates in the sheriffs vehicle.

They first sought to investigate the occupants of a pick up truck moving on a street near Mr. Pugh’s house, but on seeing the truck’s occupants, a young couple, decided they could not have been involved in the incident. They then drove up to the parked car earlier referred to and found it occupied by the appellants. The appellants professed not to know what was going on. They apparently were just sitting in the car drinking beer. They cooperatively accompanied the deputy and Mr. Pugh to the “station.” A later search of the car revealed several fire arms, none of which was capable of firing a .22 caliber projectile. One of the weapons was a 16 gauge shotgun. Along with other ammunition, one .22 caliber bullet was found in the car. Neither the briefs nor the record makes it clear whether it was a spent casing or an unfired bullet. In addition, a 16 gauge shotgun shell was found the following morning in the yard near where the beer was stored. A full bottle of beer was found in the yard near to where the shotgun shell was found, and several empty beer bottles of the same returnable type were found near the place where the car occupied by the appellants had been parked the previous night. The investigation also revealed the fence had two fresh bullet holes which had been made by firing through the fence from outside the yard toward the interior of the yard. There was testimony that the holes could have been made by either a .22 caliber bullet or a heavy shotgun pellet.

The bullet removed from Mr. Pugh’s jaw was a .22 caliber. The appellants argue no evidence whatever connects them with the crime because no .22 caliber weapon was found in the car or otherwise in their possession.

We concur in the appellee’s position that it was not necessary that such a weapon be found if the other circumstantial evidence in the case was sufficient to go to the jury and thus constitute a basis for conviction.

As no one saw any of the appellants shoot Mr. Pugh, the evidence recited above is circumstantial. That does not make the evidence insubstantial. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975); Upton v. State, 257 Ark. 424, 516 S.W. 2d 904 (1974). We hold the evidence found in Mr. Pugh’s yard, i.e., the shotgun shell and full beer bottle, and the evidence found in the car occupied by the appellants and about the ground where it had been parked, i.e., the guns and ammunition as well as the beer bottles of the same peculiar kind as those kept by Mr. Pugh, when combined with the fresh holes in the fence which could have been made by a .22 bullet, were sufficient to exclude, in the minds of the jurors, other reasonable hypotheses showing how Mr. Pugh was shot. Thus, we regard the evidence as sufficiently substantial to support the conviction.

Affirmed.

       A crime laboratory report entered as a joint exhibit said the four bullet fragments removed from Mr. Pugh's jaw were from a bullet which is of .22 caliber size, rather than from a bullet "appearing" to be .22 caliber as stated in the appellee's brief.


author: Ernie E. Wright, Chief Judge. David Newbern, Judge,

text:
    Jerry TATE v. DIRECTOR, ARKANSAS EMPLOYMENT SECURITY DIVISION et al
    CA 79-61
    593 S.W. 2d 501
    Opinion delivered January 23, 1980
    Released for publication February 13, 1980

      Kenneth R. Smith, for appellant.

      Heim Northcutt,. for appellees.
   Ernie E. Wright, Chief Judge.

This is an appeal from the denial of a claim of unemployment benefits.

The appellant last worked for her employer, Ozark Opportunities, in the school head start program oil May 25, 1979. She has been employed in the program for the past few years, and works eight and one-half months each year. She expects to return to work with the resumption of school in the fall. She filed her claim for unemployment benefits on May 29, 1979. The local Employment Security Office determined her ineligible for benefits on the ground she was on leave and had hot been terminated.

She appealed for the stated reason, ‘ ‘ My boss told me to file as I could draw unemployment.” After hearing on June 27, 1979, the appeals referee held that although the claimant was unemployed, she has limited her availability, was not doing those things a reasonably prudent individual would do to become reemployed, was not making a serious effort to find another job, and was ineligible for benefits through June 27, 1979.

The evidence shows claimant had not been working during prior school vacation periods since she has been in the head start program. She lives at Flippin and applied for work only at two grocery stores and at a boat factory and plastic factory all in Flippin.

On appeal the Board of Review on July 27, 1979, affirmed the decision of the appeals referee. In her petition for appeal to the Board of Review the claimant requested a review of all records and testimony previously given and offered no further evidence.

Section 4(c) of the Arkansas Employment Security Law provides a claimant is eligible for benefits only if he is unemployed and doing those things a reasonably prudent person would be expected to do to secure work.

As claimant’s testimony shows she made no effort to secure work outside the Flippin community and had applied for work at only four places, we cannot say the finding and decision of the Board of Review is not supported by substantial evidence. Terry Dairy Products Company, Inc. v. Cash et al, 224 Ark. 576, 275 S.W. 2d 12 (1955).

We would point out this and other recent similar cases before this court indicate local Employment Security Offices and perhaps appeals referees may not be adequately informing claimants of benefit eligibility requirements of Section 4(c) of the Employment Security Law. Although this is regrettable and hopefully will be remedied, this circumstance does not relieve a claimant of his burden of establishing his eligibility for benefits by meeting all of the requirements of the law.

Affirmed.

Newbern, J., dissents.

David Newbern, Judge,

dissenting. I respectfully dissent for the reasons stated in my dissenting opinion in Teegarden v. Director, Arkansas Employment Security Division, 267 Ark. 893, 591 S.W. 2d 675 (Ark. App. 1979). Although some of the facts in this case with respect to the validity of the claim may be different from those in Teegarden, the problem about the fairness of the notice, or lack of it, is the same.