text:
    Donnie JONES v. STATE of Arkansas
    CR 73-46
    496 S.W. 2d 423
    Opinion delivered July 2, 1973

      Wayland A. Parker and Donald Goodner, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   Lyle Brown, Justice.

Donnie Jones appeals from a conviction for grand larceny for which he received a sentence of five years with four of those years suspended. He attacks the sufficiency of the evidence and asserts the lack of corroboration of the testimony of the accomplice.

On the night of January 8, 1972 thirteen rolls of barbed wire were taken from the premises of a hardware store in Waldron. Witness Winford Oliver who lives near the hardware store and in view of the stacked wire heard his dog barking and went to the kitchen window. He saw two men in a green truck rolling wire onto the truck. He was able to identify the accomplice, James Leon Moore, but not the other party. Witness Hershel Sims testified as to the loss of wire from his store and estimated its value at $165. Witness Donnie Rogers, a city policeman on patrol, testified that on the same night he observed James Leon Moore and appellant in a green truck parked beside the hardware store. Later in the night and after the theft had been reported, the officer again saw the same boys in the truck and later arrested them. It was the theory of the State that by the time of the arrests the wire had been stashed a short distance from town. James Leon Moore testified for the State. He admitted his participation in the theft and implicated appellant. The defense produced no evidence.

Under the point alleging insubstantiality of the evidence appellant argues that the wire recovered was not introduced in evidence. In the first place the accomplice said they took some thirteen or fourteen rolls of wire from the hardware store; that it was secreted a short distance from Waldron; and that he took the officer to the hiding place and the wire was recovered. The owner of the hardware store testified as to the quantity of wire taken and to its value. At the trial the wire was in a pickup truck located just outside the courthouse. As to the introduction of the wire the prosecutor made this statement: “We’ve got this barb wire down here in a pickup truck; I don’t know — I’d hate to take it all the way up these stairs. It’s pretty heavy. I wonder if we could just — we can’t introduce it and let them [the jury] look out the window, can we?” After considerable colloquy, counsel for appellant said he was not disputing that the hardware merchant lost some merchandise and that the attorney would agree that the testimony of the merchant was correct. That concession ended the argument and the wire was not introduced. Counsel for appellant impliedly waived the introduction of the wire. That waiver was of no prejudice to his client because there was sufficient other evidence to connect the recovered wire with the theft in issue. Finally, it was not necessary to a conviction that the fruits of the crime be introduced.

We think it is readily discernible from the evidence we have recited, concededly stated in the light most favorable to the State, that the evidence was substantial and that the accomplice was sufficiently corroborated. Before the theft the two young men were seen in the truck parked beside the hardware store; thereafter, two men were seen loading the wire in a truck of the same description; and after the theft, Moore and appellant were again seen in a truck of the same description.

It is true the corroborating evidence is circumstantial, but that fact does not defeat its effectiveness. “While the corroborating evidence must do more than raise a suspicion of the defendant’s guilt, it need not be direct, but may be circumstantial, so long as it is substantial, and tends to connect the defendant with the commission of the offense.” King v. State, 254 Ark. 509, 494 S.W. 2d 476.

Affirmed.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    BEN M. HOGAN COMPANY, Inc., et al v. Will E. NICHOLS, et al
    5-6168
    496 S.W. 2d 404
    Opinion delivered July 2, 1973

      Bethel, Callotuay & Robertson, for appellants.

      Sam Sexton Jr. and Douglas O. Smith, for appellees.
   John A. Fogleman, Justice.

We have concluded that this |175,000 judgment against Ben M. Hogan Company, Inc. and Vernon Stewart, appellants herein, for personal injuries sustained by Will E. Nichols must be reversed. Nichols was the driver of a water truck which collided virtually head-on with a dump truck owned by Jack Steele and driven by either Steele or Joe Pat Cumbie. The collision occurred on November 20, 1970, during the course of construction of Interstate Highway No. 40 in Franklin County. Nichols suffered severe, painful and disabling injuries. He sued Hogan, and Hogan’s employee Vernon Stewart, alleging that Stewart’s actions in driving a cement mixer truck were a proximate cause of the collision and his resulting injuries. While appellants assert that the jury awarded excessive damages, we do not reach this point, because we find procedural errors which necessitate a new trial, and will not speculate as to the result of that trial.

Specifically, we find reversible error in the admission of the testimony of Dr. Robert G. Fisher, the liability insurance contract between Hogan and Aetna Life and Casualty Company and certain clauses in the contract between the Arkansas Highway Department and Ben M. Hogan Company, as well as in restriction of the cross-examination of Joe Pat Cumbie. Other points asserted by appellants which are based upon matters likely to arise on retrial will be discussed. ;

After all other testimony in the case had been completed, Dr. Fisher appeared as a witness for appellee Nichols. This physician is a neurological surgeon residing in Oklahoma City, Oklahoma, who recited impressive credentials as an expert in his field. On voir dire examination it was disclosed that he first saw Nichols on October 15, 1971, at the request of Nichols’ attorney, Sam Sexton, and that he took the patient’s history and obtained information as to his symptoms from Nichols and Nichols’ wife, supplemented by a closing of gaps or inadequacies in the narrations given by this couple through medical records afforded by an attorney from Mr. Sexton’s office. The doctor’s entire examination was conducted in the presence of Nichols’ wife and this attorney, both of whom, he stated, were present throughout the examination, which consisted of inquiries by the doctor to ascertain Nichols’ complaints, current symptoms and capabilities and the nature and effects of his injury. The doctor said that the attorney did answer inquiries made during the discussion of these matters, but that Mrs. Nichols answered more. Voir dire also revealed that, even though it would be possible for this witness to express an opinion as to diagnosis and prognosis relative to Nichols' injuries by filling gaps in Nichols’ memory with hospital history of notes of treating physicians, Dr. Fisher did, in fact, consider the history given him as an extremely important feature in his ultimate findings. The witness also stated on voir dire that Nichols was referred to him by Sexton, partially for testimony, and partially in the interest of confirmation of a previous diagnosis and any treatment that might be necessary. When asked whether he had intended to perform any treatment or to simply pass suggestions he might have along to attending physicians, Dr. Fisher replied that he thought that, ethically, it would be his role to do the latter. He neither performed any treatment, nor had any suggestions for the attending physician.

This testimony conclusively establishes that Dr. Fisher was not a treating physician, but that he occupied the exclusive role of a medical expert witness, giving opinion testimony, the admissibility of which must be determined on that basis. The doctor was permitted to testify as to matters of history of symptoms and injuries related to him by those present at the examination and reflected by medical records furnished him, over the objections of appellants. Appellants objected to any statement of medical opinion, diagnosis or prognosis, based upon history secured from the patient, his wife and attorney, on the ground of hearsay, to repetition of this history by the witness, and to the expression of opinions based upon records and reports of other physicians. Neither Nichols nor Dr. James A. Brown, his attending neurosurgeon, testified.

The general rule, supported by the weight of authority, is that statements by an injured or diseased person as to his current conditions and symptoms, or as to past conditions and symptons, made to a physician conducting an examination for the purpose of qualifying as an expert witness, and not for treatment, are inadmissible. See Annot. 67 A.L.R. 10, 15 et seq., 22 et seq. (1930); 130 A.L.R. 977, 978, et seq., 982 et seq.; 65 A.L.R. 1217, 1219 (1930); 51 A. L. R. 2d 1051, 1065; 32 C.J.S. 357, Evidence § 546 (94).

We have sustained the admission of expert opinion as to prognosis of an injury based upon testimony given at the trial by another physician as to disclosures from x-ray pictures made by the other physician. Missouri Pac. R. Co. v. Sorrells, 201 Ark. 748, 146 S.W. 2d 704. A medical expert may also base his opinion upon testimony as to symptoms of the injured party given by that party and his attending physician. Safeway Stores, Inc. v. Ingram, 185 Ark. 1175, 51 S.W. 2d 985. But an expert medical opinion based entirely upon a review of the record of a medical examination and a diagnosis by another physician is not admissible. Southern Nat. Ins. Co. v. Heggie, 206 Ark. 196, 174 S.W. 2d 931. The proper rule seems to be that the medical expert should not be allowed to base his opinion upon matters that are neither within his personal knowledge nor in evidence in the case. See Wild v. Bass, 252 Miss. 615, 173 So. 2d 647 (1965).

Since Dr. Fisher was not present at the trial, did not hear the testimony and did not base his opinion upon the testimony given at the trial, and since no hypothetical question embracing facts shown by the evidence was addressed to him, his testimony cannot be held admissible under the rule as to expert witnesses, stated in Polk v. State, 36 Ark. 117; and followed in St. Louis, I. M. & S. Ry. Co. v. Williams, 108 Ark. 387, 158 S.W. 494; Ringlehaupt v. Young, 55 Ark. 128, 17 S.W. 710; and Arkansas Baking Co. v. Wyman, 185 Ark. 310, 47 S.W. 2d 45.

The basic rule for the admission of expert medical testimony was státed thus in Polk:

If the expert has been present, and heard all the evidence as to the symptoms and appearances, detailed upon the trial, he may give his opinions upon the facts so stated, if they be found true by the jury, but can not, himself, judge of their truth. If he has not been present and heard them they may be repeated to him, in the presence of the court and jury, and his opinion concerning them required upon the same supposition of their truth. But, in either case, the opinion is upon a hypothetical state of affairs, and its value depends upon the view the jury may take of the truth of the facts, to which witnesses have sworn. It can not be based upon any facts which the expert may have heard outside, and may believe to be credible; and, if based upon his own knowledge of particular facts, he should, himself, detail the facts, and give his opinion thereon.

Consistent with the general rule, we have held that where there were no objective symptoms, the opinions of physicians as to the extent of injuries, based on exclamations and other indications of pain and the plaintiff’s inability to handle himself, were properly admitted in evidence, but that an opinion based upon self-serving declarations is inadmissible. Biddle v. Riley, 118 Ark. 206, 176 S.W. 134, L.R.A. 1915F 992. In Biddle, we quoted the rules as follows:

“A medical expert may base his opinion upon a clinical history of the case under consideration, and in order to make his testimony intelligible, he may testify to the observations that he made, and also as to what his patient said to him in describing his bodily condition and the character and manifestations of his sickness, pains, etc. The reason for this rule is that the physician must oftentimes of necessity take into consideration such statements in reaching a conclusion as to the physical condition of the patient, and the nature and extent of his malady or injury; and hence the rule being founded on such necessity, it has been declared that it must be applied with caution, and not extended beyond the reason of necessity upon which it rests. It has been declared, however, that the mere statements made by a person as to his sufferings, pain, etc., which statement was made for the sole purpose of furnishing the expert with information on which to base an opinion, is not admissible, and that the witness, in testifying to what he has heard and observed, is confined to exclamations, shrinkings and other expressions which appear instinctive, intuitive and spontaneous.” 5 Encyclopedia of Evidence, p. 608.
The rule on the subject is also stated by Mr. Jones, in his work on Evidence (2 ed.), section 349, as follows: “Whenever it becomes material to show a person’s condition of health, or motives, or state of mind, such person’s declarations may often be received in evidence for such purpose, provided the requisites already pointed out are complied with; and it appears that such statements are spontaneous and undesigned, and that they illustrate the facts which are the subject of inquiry. In some of the decisions, the utterances are limited to groans and exclamations, and other involuntary exclamations of pain. But in others assertions and complaints as to present feeling are received more liberally. But on the grounds already stated, such declarations are confined to the present condition of the declarant. # * * Anything in the nature of narrative or statement is to be carefully excluded; and testimony is to be confined strictly to such complaints, exclamations and expressions as usually and naturally furnish evidence of a present existing pain or malady.”

See also, Subiaco Coal Co. v. Krallman, 143 Ark. 469, 220 S.W. 664.

We have said that such an expert cannot be asked his opinion upon a disputed fact question unless he is personally acquainted with the material facts, unless he was present and heard all the testimony or unless the inquiry is made by a hypothetical question. Arkansas Baking Co. v. Wyman, 185 Ark. 310, 47 S.W. 2d 45. We have also held that even a treating physician should not be permitted to repeat a self-serving declaration of a patient about his present conditions and symptoms made during a pre-trial examination sometime after the injury, when the doctor himself, had no knowledge of the matter other .than the patient’s statements. St. Louis, I. M. & S. Ry. Co. v. Bostic, 121 Ark. 295, 180 S.W. 988, 181 S.W. 135.

The Arkansas cases above cited are in harmony with the general rule established,by the great weight of authority, that testimony of the type to which appellants objected is not admissible.

After an extensive review of authorities, the United States Circuit Court of Appeals for the Eighth Circuit, in a diversity case tried in the Western District of Arkansas, held that' a medical expert n'eurologist, who was hot a treating physician, but who made his examination of the injured plaintiff for the purpose of qualifying himself to testify at the trial should not have been permitted to relate the statements made to him by the injured party’ as to the accident or as to his feelings and sensations subsequent thereto, or to state his opinion based partly upon the statements of the plaintiff and partly, upon his examination. Lee v. Kansas City Southern Co., 206 F. 765 (1913).

A case remarkably similar to the one at hand, Goodrich v. Tinker, 437 S.W. 2d 882, was decided by a Texas Court of Civil Appeals in 1969. The Texas court recognized the well established rule that a doctor, who is not á treating physician, and who examines' the patient for the purpose of making a report or testifying in court, if necessary, cannot base his opinion testimony as to the condition and prognosis of the injury to the patient upon the subjective complaint and history of' the casé,', but must base it upon a study of objective'symptoms and' such objective evidence as x-rays. The history there related by the patient was, of course, under' the circumstances, self-serving and hearsay. The Texas court,' however, declined to decide the question solely on á decision whether the physician was a “treating” doctor or an “examining” doctor. It chose to base its decision upon the underlying reason for the rule, i.e., that expert medical opinion must be formed from facts found or'known to the witness from treatment or examination._;_____

We need go no further on this appeal than the Texas court went. The opinion testimony of Dr. Fisher based in substantial part upon self-serving and hearsay statements should have been excluded, and he certainly should not have been permitted to relate to the jury the statements made to him during the examination. We agree with other jurisdictions that such testimony is. especially prejudicial where, as here, the treating physician did not testify. See, e.g., Briney v. Williams, 143 Ind. App. 691, 242 N.E. 2d 132. See also, Chicago & N.W. Ry. Co. v. Garwood, 167 F. 2d 848 (8th Cir. 1948); Holt v. Hartschiek, 96 Ohio App. 491, 122 N.E. 2d 653 (1953).

Passing now to the point concerning the introduction of appellant Hogan’s liability insurance policy, we find that the trial court permitted appellees to introduce in evidence certain clauses in the policy and evidence that premiums thereon were calculated, in part, on amounts paid for hire of vehicles not covered by insurance. The court also permitted appellees’ attorney to state, in opening statement, that appellees would show that Hogan’s liability insurance policy covered hired trucks and that Aetna Casualty and Surety Company collected a premium specifically covering Steele’s truck. This was done in spite of appellants’ motion in limine for an order prohibiting such evidence based upon an assertion that pre-trial depositions established the inadmissibility of the testimony and appropriate objections made and preserved by appellants. The trial court ruled that the questioned evidence was admissible insofar as the policy tended to show whether the defendants Cumbie and Steele came within the coverage of the policy or whether Aetna charged Hogan a premium for coverage of Cumbie and Steele. Whenever the question was raised, the circuit judge did admonish the jury that the testimony could be considered only for the purpose of showing what degree of control, if any, was exercised by Hogan over Cumbie or Steele and their gravel truck.

One of the critical questions of fact was whether Hogan had vicarious liability for the negligence of Cumbie and Steele. Steele was the owner and Cumbie the driver of a gravel dump truck being utilized to supply gravel for making concrete to be used on the construction job contracted to Hogan by the Arkansas Highway Department. Hogan contended that Steele was an independent contractor and that Cumbie was Steele’s employee. Appellees contended that both should be considered as agents, servants or employees of Hogan. There was some question as to whether Cumbie or Steele was driving the truck on the date Nichols was injured, but there was substantial evidence tending to show negligence on the part of the driver of this truck and that this negligence was a proximate cause of the collision in which Nichols was injured.

When John Gillen, auditor for Aetna Casualty Company, was called as a witness by appellees, the court directed that his examination be confined to two issues, i.e., whether there was coverage by the policy and whether there was a premium charge. During Gillen’s testimony he read the following excerpts from the policy:

V. Additional Definitions

When used in reference to this insurance (including endorsements forming a part of the policy):

“automobile business” means the business or occupation of selling, repairing, servicing, storing or parking automobiles;
“hired automobile” means an automobile not owned by the named insured which is used under contract in behalf of, or loaned to, the named insured, provided such automobile is not owned by or registered in the name of (a) a partner or executive officer of the named insured or (b) an employee or agent of the named insured who is granted an operating allowance of any sort for the use of such automobile;
“non-owned automobile” means an automobile which is neither an owned automobile nor a hired automobile;
“owned automobile” means an automobile owned by the named insured;
“private passenger automobile” means a four wheel private passenger or station wagon type automobile;
“trailer” includes semi-trailer but does not include mobile equipment.
* * #
Description of Terms Used as Premium Bases:
When used as a premium basis: * * *
6. A. “cost of hire” means , the amount incurred for (a) the hire of automobiles, including the entire remuneration of each employee of the named insured engaged in the operation of such automobiles subject to an average weekly maximum remuneration of $100, and for (b) pick-up, transportation or delivery service of property or passengers, other than such services performed by motor carriers which are subject to the security requirements of any motor carrier law or ordinance. The rates for each $100 of “cost of hire” shall be 5% of the applicable hired automobile rates, provided the owner of such hired automobile has purchased automobile Bodily injury Liability and Property Damage Liability insurance covering the interest of the named insured on a direct primary basis as respects such automobile and submits evidence of such insurance to the named insured; * * *.

It was established through Gillen that Aetná did collect a premium from Hogan because of the hire of the truck ordinarily driven by Cumbie.

After these policy provisions and Gillen’s testimony had been admitted, Hogan called the manager of Aetna’s underwriting department. This witness described the hired-truck endorsement as a standard clause, used not only by Aetna but by other major insurance companies. He explained that the endorsement afforded coverage to the insured on a hired truck operated either by his own employee or by an independent contractor, but not to the driver of a truck of an independent contractor who was not an employee of the insured. He testified that it would not have been possible for Hogan to purchase from Aetna, or any other “bureau” company, any “hired-truck endorsement” affording coverage to the insured only when the driver of a hired truck was Hogan’s employee, and not an independent contractor or the employee of the latter. He referred to Paragraph 11(c) of the policy provision entitled “Persons Insured” which follows:

any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, * * *.

This witness also testified that the rates for coverage of hired trucks amounted to less than 10% of the premium for owned vehicles. After this witness testified, appellant Hogan moved to strike the insurance policy and all testimony pertaining to it, and moved for a mistrial.

The entire policy was made an appellate exhibit, for the purpose of demonstrating the basis of Hogan’s objection to its introduction. It contains this further pertinent provision with reference to persons insured:

jj # * *
None of the following is an insured: * * *
(ii) the owner or lessee (of whom the named insured is a sub-lessee) or a hired automobile or the owner of a non-ojvned automobile, or any agent or employee of any such owner or lessee; * * .

These clauses clearly eliminated Steele and Cumbie from coverage, unless they were employees of Hogan. There was substantial evidence tending to show that Steele was an independent contractor and that Cumbie was his employee.

Evidence relating to the existence of liability insurance is ordinarily excluded because of its lack of relevance. Because of the inherently prejudicial effect of such evidence, it should only be admitted when it has some probative value relevant to the issues. Evidence along these lines has been admitted when it tended to show facts or circumstances having a bearing upon an issue. This policy or its content could be admitted only to the extent it tends to show that Cumbie and Steele were employees of Hogan. But the policy, by its terms, does not do so. Hogan is afforded coverage regardless of its relationship with Cumbie and Steele. Cumbie and Steele would be afforded coverage only if they were employees of Hogan. Therefore, the policy of insurance and its terms had no probative value on the issue as to the relationship of Cumbie and Steele to Hogan.

We are not unmindful of our decisions in Delamar and Allison v. Ward, 184 Ark. 82, 41 S.W. 2d 760; Pollock Stores Co. v. Chatwell, 192 Ark. 83, 90 S.W. 2d 213; Ozan Lumber Co. v. McNeely, 214 Ark. 657, 217 S.W. 2d 341, 8 A.L.R. 2d 261; Brown v. Keaton, 232 Ark. 12, 334 S.W. 2d 676; and Phillips Cooperative Gin Co. v. Toll, 232 Ark. 236, 335 S.W. 2d 303, relied upon by appellees and, apparently, the trial court. This decision is not intended to overrule or limit the application of any of them. Each is clearly distinguishable from the case at bar and the application of any of them in this case would require an unwarranted extension of its rationale.

Delamar has a more nearly parallel factual background than any of the other cases. Delamar and Allison were sued by one injured by a truck owned by A. C. and Charles Bratcher and driven by Westmoreland, on the theory that Westmoreland was the servant of Delamar and Allison. Delamar and Allison contended that Westmoreland was the servant of Bratcher and that Bratcher was an independent contractor hauling gravel for use in highway construction from a pit controlled by Delamar and Allison, who had contracted to furnish the gravel to the highway department. We found no error in the admission of evidence tending to show that Delamar and Allison were insured against liability, along with evidence that Delamar and Allison withheld 1% of the amount due truck owners for insurance. There was no evidence in that case, as there is here, that Delamar and Allison were unable to obtain insurance that would protect them against liability for negligence of a driver of a hired vehicle who was their employee without also paying for coverage as to their potential liability for acts of employees of independent contractors driving vehicles hired but to be operated by employees of the owner of the vehicle. This requirement by insurance companies is understandable in view of the fact that they may well be required in many cases to indemnify an insured for a liability imposed upon a jury fact finding that one considered by both the insured and the carrier to be an independent contractor was actually an employee. The question is more often than not one for the jury and its answer usually depends upon the drawing of fine inferences from conflicting evidence. We also think that it is significant that there was evidence in Delamar that 1 % was withheld from the compensation due each of 302 truck owners to pay for insurance. In the first place, the withholding of premiums placed Delamar in that category of cases in which evidence of payment of workmen’s compensation premiums is admissible to shed light on an issue of employment relationship. And then this fact could also give rise to an inference that the liability insurance coverage in Delamar was intended to encompass the owners and drivers of the trucks, as well as the contractor, regardless of their relationship. It is clear to us that Hogan, and Hogan alone, is the insured in this case if the vehicle owner is an independent contractor. Since under the circumstances here, the existence of insurance protecting Hogan is as consistent with one relationship as the other, it has no probative value on the issue. The application of Delamar should not be extended to these circumstances.

In Pollock Stores v. Chatwell, supra, the fact that the corporate defendant carried liability insurance on a motor vehicle owned by its Fort Smith manager was relevant and had probative value to show its interest in the manager’s automobile, when the crucial issue in the case was whether the driver of that vehicle, a sometime employee of the company, was performing services for the company or the manager in driving the vehicle to its usual place of storage. The Ozan Lumber Company case related only to the probable effect of introduction of testimony which might have tended to show that the company paid workman’s compensation insurance on an alleged independent contractor and his employees. In Brown v. Keaton, supra, there was a contract under which the owner of a trailer had leased a tractor from the driver of the combined rig. We said that a provision in that contract requiring the owner to carry liability insurance with expense to be borne by the driver through deductions from weekly payments under the contract might have been admissible as bearing upon the driver’s status as an employee or independent contractor. In Phillips Cooperative Gin Co. v. Toll, supra, we were considering a case wherein the alleged independent contractor would have been required to file evidence of liability insurance with the Arkansas Commerce Commission if he were not an employee. Since the content of the policy here had no probative value to establish the employment relationship, it should not have been admitted into evidence.

Portions of the contract between Hogan and the highway department were also admitted for consideration of the -lationship between Hogan and Steele and Cumbie. The entire contract was admitted and the attorneys for the respective parties were given permission to call the attention of the jury to any portions they felt pertinent. This contract contained a definition of an employee as any person working on the project mentioned in the contract who was under the direction or control of, or receives compensation from, a contractor or subcontractor. A subcontractor was defined as:

A person, firm or corporation who has written approval of the chief engineer written in the agreement with the prime contractor for the performance of any of the work included under these specifications.

Another provision had reference to subletting or assigning the contract. It read:

The subcontractor will not be permitted to sublet, assign, sell, transfer or otherwise dispose of the contract or any portion thereof or of his right, title or interest therein to any individual, firm or corporation without the written consent of the Commission and Chief Engineer. The contractor must file with the Chief Engineer a signed copy of each subcontract with his request for approval; no approval will be given unless the proposed subcontractor is pre-qualified to bid on work offered by this department. No subcontract, or transfer shall in any case release the contractor of his liability under this contract and bond.

It was shown that Hogan did not obtain approval of a subcontract with either Steele or Cumbie. A further requirement of the contract read:

2. The contractor shall perform with his own organization contract work amounting to not less than fifty percent of the original total contract price, except that ány items designated by the State as “Specialty Items” may be performed by subcontract, and the amount of any “specialty items” so performed may be deducted from the original total contract price before computing the amount of work required to be performed by the contractor with his own organization.
a. “His own organization” shall be construed to include only workmen employed and paid directly by the Prime Contractor and equipment owned or rented by him, with or without operators.

None of these provisions had any probative value on the issue and should not have been admitted. The definition of an employee for the purposes of the contract definitely included an independent contractor who receives compensation from the contractor, or even from a subcontractor, as well as agents and servants. On the other hand, an independent contractor is necessarily included in the term subcontractor who, for purposes of the contract, would be treated as an employee. Even though the contractor’s “own organization” was defined to include equipment owned or rented by the subcontractor with or without operators, there is nothing that makes everyone who comes within the scope of his organization an employee. These provisions, as we read them, clearly place independent contractors of the type Hogan alleged Steele to be as employees for the purpose of construing that contract, but do not purport to affect their legal status as between themselves. Cases cited by appellees such as Jones and Harrington v. Scott, 116 Ark. 108, 172 S.W. 840, Brown v. Keaton, 232 Ark. 12, 334 S.W. 2d 676, and Eldridge v. McGeorge, 99 F. 2d 835 (8th Cir. 1938), relate to other types of contract clauses, such as insurance and safety requirements and have no bearing on the admissibility of the clauses above set out.

We do not agree with appellants, however, that clauses relating to safety requirements of the contract were inadmissible. One of these clauses required Hogan to comply with all pertinent governmental safety requirements and to provide all safeguards and take actions reasonably necessary to protect the life and health of employees on the job. Similar questions were treated in Hogan v. Hill, 229 Ark. 758, 318 S.W. 2d 580, and Erhart v. Hummonds, 232 Ark. 133, 334 S.W. 2d 869. We are unable to apply appellants’ arguments to distinguish this case from those. True it is that the provisions in each of those cases called for a specific type of precaution while the clause in this case is general. In Collison v. Curtner, 141 Ark. 122. 216 S.W. 1059, 8 A.L.R. 760, forerunner of Hogan v. Hill, supra, however, the clause upon which a lessor’s liability for injuries on leased premises was founded was his undertaking to “furnish * * * all repairs and new parts of machinery * * That clause is little more specific than the one involved here. But the real relevance of the safety provisions lies in their bearing upon the question whether the general contractor was responsible for the safety precautions to be taken for the protection of the employees of persons such as Nichols, an employee of a subcontractor. In Gordon v. Matson, 246 Ark. 533, 439 S.W. 2d 627, we said that the responsibility of the prime contractor to employees of a subcontractor was to use ordinary care and to warn in the event there are unusually hazardous conditions existing which might affect their welfare, but recognized that there was an exception to this limitation .whenever the prime contractor has undertaken to perform certain duties or activities and negligently fails to perform them or performs them in a negligent manner. Certainly, it cannot be said that the common law duty of Hogan to Nichols necessarily covered all the acts and omissions alleged by Nichols as a basis of liability, such as failure to utilize traffic controls, flagmen and devices governing movement of vehicles on the construction job. Yet, the contract with the Highway Department definitely placed that responsibility on Hogan if such actions were reasonably necessary for the protection of employees on the job. The expression “employees on the job” was certainly broad enough to encompass the employees of Hogan’s subcontractors. In Ratzlaff v. Franz Foods of Arkansas, 250 Ark. 1003, 468 S.W. 2d 239, we recognized and applied the rule of Hogan v. Hill, supra, and Collison v. Curtner, supra, that one who owes no duty to third persons or the public may, by contract, assume an obligation to use due care toward such persons or the public. That rule seems clearly applicable here.

We do not agree with appellees, however, that the provisions of the Hogan contract under which the contractor agreed to indemnify and save harmless the State from claims for injuries and damages were relevant or admissible.

We agree with appellants that there was reversible error in restricting the cross-examination of the witness Cumbie, who turned out to be the most important witness in support of Nichols’ theory that Cumbie was an employee of Hogan, and who had apparently undergone a change of mind about that relationship between the time his discovery deposition was taken and the time he testified. Specifically, Hogan’s attorney should have been permitted to inquire as to the understanding he had with Steele and Hogan, or both, as to the source of his pay and as to whether Cumbie’s cashing of a Hogan check rather than turning it over to Steele was not unusual and contrary to the understanding among the parties. We do not think that there was prejudicial error in sustaining an objection to an inquiry to Cumbie whether he had been arrested at the scene of the collision.

Other assertions of error likely to arise on retrial will be treated as briefly as possible. Even though the allegations of Nichols that Joe Pat Cumbie was the agent or servant of Hogan were not as positive as they might have been, we think that the issue was presented. Appellant Hogan, in its answer, denied any agency relationship with Cumbie. At the inception of the trial, Hogan’s attorney objected to the introduction of any evidence on this point, but admitted that he had formed the idea that Nichols was making this contention during the few weeks preceding the trial. He did not at any time plead surprise or move for a continuance, in the face of evidence tending to show that Hogan was controlling, directing and paying Cumbie. There was no error in submitting to the jury the question whether Cumbie was an agent or employee of Hogan. There was no reversible error in the giving of AMI 209 over the objection made by appellant Hogan, even though Hogan contended throughout the trial that Steele, the owner of the truck driven by either Steele or Cumbie, was an independent contractor and that Cumbie was the employee of Steele. The only objection to the giving of this instruction was that it only applies when the facts are as consistent with the master-servant relationship as the independent contractor relationship, and that, if given, the jury should be so advised.

We find the evidence sufficient to submit an issue as to Hogan’s negligence independent of that of Stewart or Cumbie. There was evidence tending to show that: Hogan had control of the area; the intersection at which Stewart entered a highway slab as the Steele-Cumbie dump truck approached on that slab was provided by Hogan in furtherance of the construction work and was said to have been so located as to impair the view of one approaching from the direction Stewart came; Hogan reserved the right to control the speed of all vehicles on the job and the Steele truck was being driven at an excessive speed; one of Hogan’s supervisory employees advised cement truck drivers, such as Stewart, that they had the right-of-way over all other traffic, but gravel truck drivers, such as Cumbie, were not so informed.

The court gave the following instruction as to Hogan’s responsibility: Appellants objected that, under the circumstances, Hogan owed no duties to die public and that plaintiff could not rely on the contract provisions because the contract itself specified that it was not for the benefit of third parties. The objection to the inclusion of the public in the instruction was well taken. Otherwise, the instruction was not vulnerable to Hogan’s objections for the reasons given for our holding the contract terms admissible. We do not see how the contract recitation disavowing any intent to create the "public or any member thereof a third party beneficiary” or to authorize anyone not a party to the contract to maintain a suit for personal injuries or property damage pursuant to the terms of the contract alters the fact that under the contract safety controls were the responsibility of Hogan.

It was the duty of Ben M. Hogan Company, Inc., to use ordinary care to comply with the provisions of its contract with the Arkansas Highway Commission that were inserted for the safety of the public and the employees on the job.

Appellant Hogan also complains of the failure of the trial court to give an instruction delineating in detail characteristics of an agency relationship on the one hand and that of an independent contractor on the other. The court gave AMI Civil 707, and we are not convinced that it did not adequately cover the issue presented by the evidence. This being so, our per curiam order of April 19, 1965, with reference to the giving of AMI, governs.

On the other hand, we see no reason why the court should not have given AMI 106, as modified in appellants’ request, to apply only to driver defendants. Appellees argued that the instruction was inapplicable because the Committee Comment states that it should not be given when the negligence of one defendant may be imputed to another. Óf course, there is no way in which the negligence of Cumbie could be imputed to Stewart, or that of Stewart to Cumbie, so the modification made the instruction appropriate. The Committee Comment is pertinent when the negligence of one of multiple defendants may be imputed to the others. The language of AMI 106 is clearly contradictory to the correct rule of law in that situation. Nothing in Hogan’s request would have indicated that the negligence of either or both drivers could not be imputed to Hogan.

We find no error in the admission of testimony tending to show that Steele did not, on the date of the collision, have a. certificate of authority as a contract hauler from the Arkansas Transportation Commission then required under the Motor Carrier Act. The fact that other such operators neglected to obtain such certificates certainly does not distinguish this case from Phillips Cooperative Gin Company v. Toll, 232 Ark. 236, 335 S.W. 2d 303. Neither do we find a basis for distinction because of evidence that the Steele dump truck had been hired to different people at different times. Even though the question whether Steele was an employee of Hogan was never submitted to the jury, we understand that one of Hogan’s contentions was that Steele was an independent contractor and the employer of Cumbie, so Steele’s actions in the premises were material and the evidence relevant on that question. Certainly, the evidence was far from conclusive on the question, but this does not mean that the evidence is irrelevant.

The judgment is reversed and the'cause remanded.

      For further discussions of the general rules as to expert witnesses, see 31 Am. Jur. 2d 537, et seq., Expert and Opinion Evidence, §§ 36, 37, and as to Medical Experts, see 31 Am. Jur. 2d 634, et seq., Expert and Opinion Evidence, §§ 108, 109, 110.

      The decision in Seaman Store Co. v. Bonner, 195 Ark. 563, 113 S.W. 2d 1106, is not contrary to the general rule. There, the examining physicians made tests to determine the accuracy of his patient’s statements of the history of his case and satisfied themselves that the results verified the patient’s subjective statement of symptoms, pains and aches. No contention was made that this testimony was improper.

      See annotations and text references heretofore cited.

      The diagnosis'in that case was traumatic neurasthenia, a'condition of nerve exhaustion, or lack of nerve strength caused by injury.


text:
    FINANCIAL SECURITY LIFE ASSURANCE CO. v. Ellis E. WRIGHT et ux
    73-35
    496 S.W. 2d 358
    Opinion delivered July 2, 1973

      Pope, Pratt, Shamburger, Buffalo ér Ross, by: Donald J. West, for appellant.

      E. L. Holloway, for appellees.
   John A. Fogleman, Justice.

This case involves claims under two hospital insurance policies issued to appellees at different times by appellant and by a company whose business was purchased and assumed by appellant. The record in this case is confusing both as to the background facts and allegations of coverage under the policies. As we understand the record, appellees were issued a hospital and surgical policy by the American International Life Insurance Company of Little Rock (hereinafter referred to by its number, H-1030) effective September 13, 1962, with semi-annual premium payments of $73.80. This policy was assumed by appellant on January 15, 1968, as evidenced by an “Assumption Certificate.” A similar policy (No. HB-1722) was issued by appellant to appellees bearing the date of March 13, 1969, with semiannual premiums of $109.40.

The claims asserted by appellees were based upon illness, surgery and hospitalization undergone by Hattie E. Wright, wife of the named insured, Ellis Wright, from July 17, 1969, through July 22, 1969, and from August 13, 1969, through October II, 1969. The record is not clear as to the specific nature of her malady, but the medical and hospital bills reveal that surgery was involved and that the need for surgery resulted from some arthritic or other orthopedic condition.

Suit was brought August 5, 1970, by appellees for recovery of $6,549.09, which they claimed to be due under the policies, along with a penalty of 12% and attorney’s fees. Appellant answered by general denial, and by an amended answer admitted liability in the amount of $978.75 under one policy, having previously tendered $138 under policy H-1030. Appellees amended their complaint, itemizing the amount allegedly due under the two policies for a revised total of $2,186.24. Appellant answered the amended complaint by again admitting liability under one policy for $978.75 and eventually tendered that amount into court.

The case was tried before a jury which returned a verdict in the exact amount sought in the amended complaint. From the judgment for that amount plus 12% penalty and an attorney’s fee, appellant brings this appeal alleging four points for reversal or modification. The first point deals with the sufficiency of the evidence to support the jury’s verdict, and, specifically, appellant contends that there was no substantial evidence to support a conclusion that both policies were in force at the time of the hospitalization as alleged in appellees’ complaint. Even though appellees had been issued two policies, numbers H-1030 and HB-1722, appellant contended at trial that the second policy, HB-1722, superseded the first, and introduced a form entitled “Replacement Endorsement,” said to have been attached to the policy when issued, reading as follows:

This policy replaces coverage extended under policy no. H-1030 based on information contained in the application herefor with the assumption that all representations are true and correct.
Should any claim arise that has its origin prior to the effective date as shown hereon, the submitted claim will be processed and computed under that policy that was in force on or immediately prior to the effective date as shown on the face of this policy.

Appellant also introduced what it contended to be a “receipt” given by one J. Kelly to the appellees, allegedly when Kelly had sold policy HB-1722 to them, and the appellees had paid the first premium. The “receipt” was nothing more than a printed circular describing the benefits available under a policy offered by appellant, bearing a handwritten statement scrawled across the top which stated: “Received $109.40 for first six months starting 3/1S/69. Replaces No. H-1030 dated 9/13/62 /s/ J. Kelly” The appellant’s chief operating officer also testified that the company records showed that HB-1722 replaced H-1030 and that no premiums had been paid on H-1030 since the issuance of HB-1722.

The appellees claimed the premium on the first policy had been paid, but did not offer any canceled check, receipt, or other documentary evidence in support of this contention. However, both Mr. and Mrs. Wright did testify directly that the premium had been paid. Mrs. Wright testified that she herself wrote the check to pay this premium and stated that the receipt or check was at home. Wright testified that the canceled check might be at home. He apparently referred to a personal expenditure summary when testifying about this payment. Appellant asserts, for the first time on appeal that this testimony and the reference by Mrs. Wright to a personal expenditure summary violated the “best evidence rule.” This contention might very well be correct in the abstract, but it is axiomatic that we cannot consider the erroneous admission or exclusion of evidence on appeal where there has been neither a general nor a specific objection to the evidence offered to the trial court.

The narrow question on which we must decide this point is whether there was any substantial evidence that the premiums had been paid on both policies, so that both were in effect. The testimony of appellees leaves much to be desired in the way of clarity and consistency, and may well have been attacked for want of credibility. Resolution of the question depended upon whether the Wrights or appellant’s employees were to be believed, and the jury apparently felt constrained to accept the word of 65-year-old Wright, a 30-year resident of Clay County, where he has been a school teacher during all those years. On the other hand, appellant’s chief operating officer, Charles Selman, admitted that he could not state positively that the replacement endorsement was on policy HB-1722 when it was delivered to Wright, and could only testify that the records of the company kept in the regular course of business did not reflect a payment of the premium on policy H-1030 which would have kept that policy in force after March 13, 1969. On the other hand, both appellees testified that the later policy bore no such endorsement. Furthermore, in spite of testimony of the Wrights about the payment of the premium on the first policy and the payment of a full premium on the new policy and their denial that the second was issued as a replacement, J. Kelly was not called as a witness for appellant in spite of the fact that appellant’s attorney announced that he was present and would testify. The jury would have been justified in inferring that Kelly’s testimony would have been unfavorable to appellant. Southern Farm Ins. Co. v. McGibboney, 245 Ark. 1016, 436 S.W. 2d 824. See also, Reliable Life Ins. Co. v. Elby, 247 Ark. 514, 446 S.W. 2d 215; Abbott v. Prothro, 228 Ark. 230, 307 S.W. 2d 225; Jones v. Jones, 227 Ark. 836, 301 S.W. 2d 737. Regardless of doubts we may entertain on the matter of credibility, we cannot say that the version of the Wrights was so inherently improbable as to render their testimony insubstantial.

Appellant’s second contention is that the trial court erred in failing to strike appellees’ exhibits 1 and 2 (the American International Policy and the Assumption Certificate of Financial Security Life Assurance Company) and in failing to grant appellant a directed verdict. As we read these contentions, they are necessarily answered by our ruling of appellant’s first point. In order to sustain appellant on this point, we would have to hold as a matter of law that policy HB-1722 replaced H-1030, and that appellant’s tender of $978.75 satisfied all legitimate claims of appellees thereunder. This we cannot do because of the factors discussed in treating the first point.

Next, appellant contends that the court erred in allowing the 12% penalty and attorney’s fee and that the jury award was in excess of the maximum benefits payable even if both policies were in force. Appellant hypothecates alternative theories to support this contention. The first theory is that, if both policies were in force, the “Assumption Certificate” did not apply, and policy HB-1722 is taken subject to its exclusions and limitations provisions, and since the malady suffered by appellee was one subject to a standard six-month exclusion, there can be no recovery under HB-1722, and the limit of coverage for H-1030 is $1,116.78, the amount admitted by appellant to be due. We do not agree with this theory for the simple reason that the record is not clear as to the exact nature of appellee’s illness. The burden is on the insurer to plead as an affirmative defense and prove that the occurrence on which a claim is based comes within a specific policy exclusion or exception. Riverside Insurance Company of America v. McGlothin, 231 Ark. 764, 332 S.W. 2d 486; Bankers National Insurance Company v. Hemby, 217 Ark. 749, 233 S.W. 2d 637; Life & Cas. Ins. Co. of Tennessee v. Barefield, 187 Ark. 676, 61 S.W. 2d 698, aff’d 291 U.S. 575, 54 S. Ct. 486, 78 L. Ed. 999 (1934). See also, Lynch v. Travelers Indemnity Company,, 452 F. 2d 1065 (8th Qr. 1972). For this reason and for reasons hereinabove set out in treatment of appellant’s fibst point, we must assume that both policies were in force and that the exclusions and exceptions of policy HB-1722 were not applicable. Appellant’s second theory is based on this assumption, i.e., it contends that, even if both policies were in force, without the exclusions and exceptions, the jury award was excessive by $69.49. We agree with this contention but are unable to reconcile the figures with appellant’s calculations.

In order to understand our result, we set forth portions of the amended complaint of appellees. They sought to recover the following items:

Operating Room $ 123.00
Room rent (65 days at $10 per day) 650.00
Anesthesia: 50.00
X-ray 113.00
Blood 25.00
Dressing and cast 295.24
Physical therapy 185.00
Drugs, Lab and Medicine 250.00
Emergency Room 10.00
Metabolism 15.00
Doctor’s Examination (5 days at $7.00 per day) 35.00
Surgery 400.00
$ 2,186.24

When the coverage provisions of the two policies are considered together the jury could have found that the total amounts for room rent, blood, dressings and casts and metabolism tests were covered by policy H-1030. Anesthesia, physical therapy, emergency room and surgery were likewise within the policy limits of HB-1722. Although H-1030 had a policy limit of $20.00 for x-rays, the jury could have found that the $93.00 difference was covered by the HB-1722 policy provision covering x-rays, drugs, lab and medicine which had a maximum limit of $250.00. However, the balance of $157.00 under this provision plus the $25.00 maximum for medicine in policy H-1030 plus the $15.00 maximum for laboratory in H-1030 was insufficient by $53.00 to cover the $250.00 claim for drugs, lab and medicine. Also, the hospital bill exhibited in support of the claim of appellees shows a debt for operating room expense which is $10.00 less than that claimed by appellees. Appellees apparently are trying to combine a $10.00 recovery room fee shown on the hospital bill with the operating room charge. There also is some dispute as to the $35.00 claim for doctor’s calls, but we treat appellant’s statements in its brief and in the record admitting liability for $150.00 under the various provisions for doctor’s visits to include the $35.00 claimed by appellees. Thus we find it impossible for the jury to have awarded the full amount of appellees’ claims under the clear terms of the policies.

This $63.00 difference necessitates a denial of the award of 12% penalty and attorney’s fee. We have uniformly held that the statute allowing the penalty and attorney fee award is penal in nature and must be strictly construed, which requires that a party must recover the full amount sued for in order to obtain the benefit of the statute. Smith v. U. S. F. & G. Co., 239 Ark. 984, 395 S.W. 2d 749.

The final contention of appellant ideals with an alleged error of the trial court in the computation of interest and in the time from which interest should run. We agree with the appellant on the basis of our holding in Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 436 S.W. 2d 829. There we said that interest in an action such as this accrues as a matter of law from the date the amount due became payable under the policy. Here as in Old Republic, there were clauses in the policy which provided that amount became due upon proof of loss and that no action could be commenced until 60 days after proof of loss is furnished. Those provisions were held to be reasonable and to give sufficient time for payment. The record is unclear as to when proof of loss was submitted, so we are constrained to hold that interest should have begun running 60 days after the final date of hospitalization, October 11, 1969, the earliest possible date.

Because of the errors we find, the judgment will be reversed and the cause remanded for a new trial unless appellees elect within 17 days to accept a remittitur down to the amount of $2,123.24 plus 6% interest from December 10, 1969, with credit to be given in calculating the interest for amounts previously tendered by appellant, in the amount of $138.00 on August 29, 1969, and $978.75 on August 31, 1972.

Byrd, J., not participating.

      Although it is unclear just what surgery was performed on appellee, the jury could have found that the surgery was subject to an omnibus clause in the policy allowing coverage for unscheduled operations to a maximum of $400.00.


author: J. Fred Jones, Justice.

text:
    James WILLIAMS v. STATE of Arkansas
    5742
    496 S.W. 2d 395
    Opinion delivered July 2, 1973

      Walker, Kaplan ¿r Mays, P. A. and Jack Green-berg and Norman J. Chackin, New York, N.Y., for appellant.

      Ray Thornton, Atty. Gen., by: Henry Ginger, Deputy Atty. Gen., for appellee.
   J. Fred Jones, Justice.

James Williams was charged with first degree murder committed in the perpetration of rape. He was found guilty as charged at a jury trial in the Ashley County Circuit Court and on December 9, 1964, he was sentenced to death by electrocution. His conviction and sentence were affirmed by this court on appeal, Williams v. State, 239 Ark. 1109, 396 S.W. 2d 834, and his execution date was set by the Governor for July 22, 1966. Execution was stayed by an order of this court entered on July 21, 1966, to permit Williams to seek post-conviction relief under our Criminal Procedure Rule No. 1 promulgated and adopted because of the tremendous increase in habeas corpus petitions being filed in the state and federal courts by convicted felons pro se as authorized and permitted under United States Supreme Court decisions.

Following the Rule No. 1 hearing in the Ashley County Circuit Court on November 9, 1967, the petition was denied by final order filed on May 25, 1971, and Williams now appeals from the trial court order denying relief on his petition to vacate the former judgment of conviction. In the intervening eight years since Williams was first tried and convicted, his death sentence was commuted to life imprisonment by executive clemency. The appellant now contends that the trial court erred in denying his petition for post-conviction relief for the reasons stated as follows:

“Appellant’s unrebutted evidence that Negroes were systematically excluded from or included in token numbers only upon the jury venires of Ashley County, Arkansas established a denial of his Fourteenth Amendment rights.
Appellant’s trial was conducted under such intimidating conditions and after such adverse, hostile and prejudicial publicity as to deny him a fundamentally fair hearing, and thus his rights under the due process clause of the Fourteenth Amendment were denied him.”

The appellant’s second assignment was presented, argued and considered on his first appeal and we do not reach it here because we find we must reverse his conviction under the first assignment.

The constitutional prohibition against exclusion of members of any race from jury service because of race has never been questioned in Arkansas. Williams v. State, 229 Ark. 1022, 322 S.W. 2d 86; Dorsey v. State, 219 Ark. 101, 240 S.W. 2d 30; Green v. State, 222 Ark. 222, 258 S.W. 2d 56; Maxwell v. State, 217 Ark. 691, 232 S.W. 2d 982; Bailey v. State, 227 Ark. 889, 302 S.W. 2d 796. In Williams and Dorsey we pointed out that the burden of showing facts which permit an inference of purposeful limitation for jury service because of race is on the defendant. It only follows that when a prima facie case of purposeful limitation is proven by the defendant, the burden then shifts to the state to prove otherwise. The state offered no evidence whatever in the case at bar, so the question before us is whether the appellant made out a prima facie dase of purposeful exclusion of Negroes because of their race from the jury panel in this case.

There can be no question that this court, as well as the trial courts of this state, is bound by the decisions of the United States Supreme Court concerning rights and prohibitions under the provisions of the United States Constitution and, there is no question that the United States Supreme Court has spoken clearly, and more than once, on the question of racial discrimination in the selection of juries in criminal cases. We shall not attempt to cite all the Supreme Court decisions bearing on the subject nor shall we quote extensively from any of them, but the substance of these decisions is simply this: Where individuals are selected for jury service from tax lists, or from any source, where separate race is indicated, and where there is a large percentage of Negroes as compared with whites who are presumed to have the legal qualifications to serve as jurors; a prima facie case of racial discrimination is presented when jury commissioners select those to serve on juries only from among the individuals with whom they are acquainted and such procedure results in a small percentage of Negroes as compared with whites being selected for jury service. Such prima facie evidence may, of course, be rebutted by evidence that the comparatively small percentage of Negroes selected was not because of their race. The burden of presenting such evidence, however, rests on the state.

We need only mention in some detail two United States Supreme Court decisions from which the above rule is extracted. They are Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed. 2d 599. These decisions have been followed by the Federal Courts of Appeals in many cases but we deem it unnecessary to comment on more than two or three of them including the case of Bailey v. Henslee, 287 F. 2d 936, which arose from this state.

The background for the decision in Cassell v. Texas, supra, arose in two prior cases, Hill v. Texas, 316 U.S. 400 and Akins v. Texas, 325 U.S. 398. In Hill no Negro had ever been selected for grand jury service in Dallas County, Texas, and the jury commissioners testified that they had summoned, for service on the grand jury which returned the indictment, members of the white race with whom they were acquainted and whom they knew to be qualified to serve. They said that they considered Negroes for selection but did not personally know a qualified Negro they thought would make a good grand juror. The Supreme Court held that the petitioner had made a prima facie case of racial discrimination in the selection of jurors and after referring to Pierre v. Louisiana, 306 U.S. 354, said:

“We thought, as we think here, that had there been evidence obtainable to contradict the inference to be drawn from this testimony, the State would not have refrained from introducing it, and that the evidence which was introduced sufficiently showed that there were colored citizens of the county qualified and available for service on the grand jury.”

The Hill case was decided on June 1, 1942, and on June 4, 1945, the United States Supreme Court handed down the opinion in Akins v. Texas, supra, wherein the Texas State Court, in attempting to comply with the decision in Hill, selected one Negro on a 16 man grand jury panel from which 12 were chosen as a grand jury. In upholding the jury selection in Akins, the Supreme Court said:

“Purposeful discrimination is not sustained by a showing that on a single grand jury the number of members of one race is less than that race’s proportion of the eligible individuals. . . . Defendants under our criminal statutes are not entitled to demand representatives of their racial inheritance upon juries before whom they are tried. But such defendants are entitled to require that those who are trusted with jury selection shall not pursue a course of conduct which results in discrimination ’in the selection of jurors on racial grounds.’ Hill v. Texas, supra, 404. Our. directions that indictments by quashed when Negroes, although numerous in the community, were excluded from grand jury lists have been based on the theory that their continual exclusion indicated discrimination and not on the theory that racial groups must be recognized. Norris v. Alabama, supra; Hill v. Texas, supra; Smith v. Texas, supra. The mere fact of inequality in the number selected does not in itself show discrimination. A purpose to discrimination must be present which may be proven by systematic exclusion of eligible jurymen of the prescribed race or by unequal application of the law to such an extent as to show intentional discrimination. Cf. Snowden v. Hughes, 321 U.S. 1, 8.”

The opinion in Cassell v. Texas, supra, was rendered on April 24, 1950. In that case an all white grand jury panel had been selected and the Negro population of Dallas County was approximately 15.5%. There were 21 grand juries during the period between the Hill decision and the Cassell indictment, and of the 252 names on the panels, 17, or 6.7%, were Negro. The payment of a poll tax was a qualification for jury service and 6.5% of the poll tax payers were Negro. It was determined by the court that as a matter of proportional percentages, a prima facie showing of racial discrimination had not been shown. But in Cassell, the petitioner also contended that subsequent to the decision in Hill, the grand jury commissioners, for 21 consecutive lists, had consistently limited Negroes selected for grand jury service to not more than one on each grand jury, on the theory that such limitation was permissible under Akins provided the limitation should be approximately proportional to the number of Negroes eligible for grand jury service. In Cassell the Supreme Court said:

“An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race.
Our holding that there was discrimination in the selection of grand jurors in this case, however, is based on another ground. In explaining the fact that no Negroes appeared on this grand-jury list, the commissioners sáid that they knew none available who qualified;'at the same time they said they chose jurymen only from those people with whom they were personally acquainted. It mav be assumed that in ordinary activities iri Dallas County, acquaintanceship between the races is not on a sufficiently familiar basis to give citizens eligible for appointment as jury commissioners an opportunity to know the qualifications for grand-jury service of many members of another race. An individual’s qualifications for grand-jury service, however, are not hard to ascertain, and with no evidence to the contrary, we must assume that a large proportion of the Negroes of Dallas County met the statutory requirements for jury service. When the commissioners were appointed as judicial administrative officials, it was their duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race and color. They did not do so here, and the result has been racial discrimination. We repeat the recent statement of Chief Justice Stone in Hill v. Texas, 316 U.S. 400, 404:
‘Discrimination can arise from the action of commissioners who exclude all negroes whom they do not know to be qualified and who neither know nor seek to learn whether there are in fact any qualified to serve. In such a case, discrimination necessarily results where there are qualified negroes available for jury service. With the large number of colored male residents of the county who are literate, and in the absence of any countervailing testimony, there is no room for inference that there are not among them householders of good moral character, who can read and write, qualified and available for grand jury service.’
The existence of the kind of discrimination described in the Hill case does not depend upon systematic exclusion continuing over a long period and practiced by a succession of jury commissioners. Since the issue must be whether there has been discrimination in the selection of the jury that has indicted petitioner, it is enough to have direct evidence based on the statements of the jury commissioners in the very case. Discrimination may be proved in other ways than by evidence of long-continued unexplained absence of Negroes from many panels. The statements of, the jury commissioners that they chose only whom they knew, arid. that they knew no eligible Negroes in an area where Negroes made up so large a proportion of the population, prove the intentional exclusion that is discrimination in violation of petitioner’s constitutional rights.” (our emphasis).

In Whitus v. Georgia, supra, the Negro population was 45% of the total population in the area involved; 27.1% of the taxpayers were Negro and 42% of the males over 21 years of age were Negro. After the jury list was revised under court order in Whitus, only three of the 33 prospective jurors were Negro and none served on a 19 member grand jury. The jury commissioners in that case made up the jury venires from tax records which were kept on a segregated basis and the jury commissioners selected prospective jurors on the basis of personal acquaintance. Only seven of the 90 persons from which the petit jury was selected were Negro and none were accepted on the petit jury. While the Whitus case contained elements not present in the case at bar, the Supreme Court in Whitus said:

“Under such a system the opportunity for discrimination was present and we cannot say on this record that it was not resorted to by the commissioners. Indeed, the disparity between the percentage of Negroes on the tax digest (27.1%) and that of the grand jury venire (9.1%) and the petit jury venire (7.7%) strongly points to this conclusion. Although the system of selection used here had been specifically condemned by the Court of Appeals, the State offered no testimony as to why it was continued on retrial. The state offered no explanation for the disparity between the percentage of Negroes on the tax digest and those on the venires, although the digest must have included the names of large numbers of ‘upright and intelligent’ Negroes as the statutory qualification required. In any event the State failed to offer any testimony indicating that the 27.1% of Negroes on the tax digest were not fully qualified. The State, therefore, failed to meet the burden of rebutting the petitioners’ prima facie case.” (Our emphasis).

In the case of Bailey v. Henslee, 287 F. 2d 936, above referred to, the Eighth Circuit Court of Appeals in granting habeas corpus said:

“In avoiding racial discrimination in the selection of jurors it is not enough for the jury commissioners or any other selecting agency to be content with persons of their personal acquaintance. Smith v. State of Texas, 311 U.S. 128, 132, 61 S.Ct. 164, 85 L.Ed. 84; Hill v. State of Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 86 L.Ed. 1559. It is ‘their duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race and color.’ Cassell v. State of Texas, supra, at page 289 of 339 U.S., at page 633 of 70 S.Ct.”

In the 1940 case of Smith v. Texas, 311 U.S. 128, the Supreme Court said:

“Where jury commissioners limit those from whom grand juries are selected to their own personal acquaintance, discrimination can arise from commissioners who know no negroes as well ■ as from commissioners who know but eliminate them. If there has been discrimination, whether accomplished ingeniously or ingenuously, the conviction cannot stand.”

In Vanleeward v. Rutledge, 369 F. 2d 584, the court citing from the Fifth Circuit case of Scott v. Walker, 358 F. 2d 561, said:

“It is plain from the record here that the commissioners put on the list only those personally known to them. They made no especial effort to ascertain whether there were qualified Negroes in the parish for jury service. In failing to do so they violated the rule announced by the Supreme Court through Mr. Justice Reed in Cassell v. Texas, where it was said, ‘When the commissioners were appointed as judicial administrative officials, it was their duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race and color. They did not do so here, and the result has been racial discrimination.’ 339 U.S. 282 at 289, [70 S.Ct. 629, 633, 94 L.Ed. 839.]’”

Returning now to the facts and evidence in the case at bar; at the time of Williams’ trial, the payment of a poll tax was necessary under the statute (Ark. Stat. Ann. § 3-107 [Repl. 1956]) to become a qualified elector in Arkansas. Under Ark. Stat. Ann. § 3-118 (Repl. 1956) the tax collector was required to file with the county clerk “a list containing the correct names, alphabetically arranged (according to the political or voting townships, and according to color) of all persons who have up to and including October 1st of that year paid the poll tax assessed against them respectively.” The county clerk was then required to record the list in a bound book and to deliver same to the county election commissioners for use in ascertaining the qualfied electors as they appeared at polling places for casting ballots.

The statutory qualifications for grand and petit jurors under Ark. Stat. Ann. §§ 39-206 — 39-208 (Repl. 1962) required that they be,

“. . . [Electors of the county . . . persons of good character, of approved integrity, sound judgment and reasonable information. ...”

The circuit judge was required to select three jury .commissioners of statutory qualifications whose duty it was to select the grand and petit juror list. Ark. Stat. Ann. § 39-225 (Repl. 1962) provided that any person who served on the regular panel of the petit jury would be ineligible to serve on a subsequent panel for a period of two years. Consequently, the jury commissioners in the case at bar followed the usual and customary procedure of using the poll tax list as the most convenient and accurate aid in determining who are “electors of the county” in selecting jury veniremen, and also, used prior jury lists in determining who is disqualified by recent prior service.

Returning now to the selection of the jury panel in this case, it was stipulated at the Rule No. 1 hearing that the 1964-65 poll tax list used by the jury commissioners in selecting the jury panel for the 1964 October term of the circuit court in Ashley County, contained the names of 8,656 qualified electors and that 25% of them were Negro. The jury panel for the October 1964 term of court here involved consisted of 60 members. Four of the members, or 6.67% of the panel, were Negro. The important question then is whether this disparity between the 25% qualified Negro electors in Ashley County and the 6.67% selected for jury service, was the result of excluding Negroes from jury service because of their color or race. Of course, unexplained prior, or “systematic,” exclusion of Negroes from jury service would leave the inference they were excluded because of their race if no other explanation is given; consequently, prior, or systematic, exclusion is admissible in evidence in support of a claim of intentional exclusion because of race in a given case. The evidence on this point, in the case at bar, includes the percentage of Negroes on the jury panels for a ten year period prior to the October 1964 term here involved. These percentages vary from none in two adjourned March 1960 terms to 24% in one adjourned March term, but they average only 9.42%.

The three jury commissioners who selected the jury panel from which the jury was selected in this case were called by the appellant and testified at his Rule No. 1 hearing. On direct examination all three were questioned on collateral matters appárently aimed at bringing to the surface any personal feeling that could be interpreted as racial prejudice, such as to their membership in the NAACP or any predominately Negro civic and social ■organizations, and as to whether the membership of the churches to which they belong were predominately black or white. As to the actual question involved on this appeal, we deem it unnecessary to set out the testimony of the commissioners in detail but, Mr. Charles Grassi, one of the commissioners, testified that in selecting the jury panel the commissioners were furnished a list of the jurors for the past several years which they used in determining who was eligible to serve. He testified that they were also furnished with a county poll tax list and that as he recalls, the poll tax list did designate the race beside the name of each of the qualfied electors. He then said:

“Of course, there was three of us. We went down the lists and if one or three of us knew the man that was under discussion and knew who he was, we would see if he was qualified, a registered voter.”

Mr. Grassi testified that they tried to pick the members of the jury panel from different sections of the county, and that he was acquainted with Negroes who lived in and around Crossett. He said that he did not know them personally but knows them by name and when he sees them. He said he did not know them well enough to know what occupation they were engaged in but did know 20 or 25 of them well enough to know their general character. He said that the trial judge instructed the commissioners to select people of sound judgment, proven integrity and reasonable information, and that the jurors should be selected without regard of race, creed or color. He said that in determining the qualifications of the members of the jury panel he based his opinion mainly on his personal observations of the ones selected. He testified that he made no effort to famaliarize himself with the character, judgment and integrity of the Negroes in the county with whom he was not already personally acquainted. He said he was personally acquainted with perhaps 20 or 25 Negroes and perhaps 250 white people in and around Crossett well enough to accurately estimate their character.

Mr. Allen Cameron, another one of the commissioners, testified that he had lived in Ashley County since 1953 and is personally acquainted with 40 or 50 Negroes who live outside the city of Crossett, and that a majority of these individuals work for the same company he works for. He said he is acquainted with perhaps six or 12 Negroes who live inside the city of Crossett. He said he is personally acquainted with 150 or 200 white people living in Ashley County outside the city of Crossett and perhaps 1,000 living inside Crossett. He said he had no knowledge of the education or qualifications of the Negroes he knows in Crossett and does not knoyv whether any of them have criminal records or not. He testified that he made no particular effort to ascertain the qualifications of Negroes or whites living in the community with whom he was not already acquainted.

Mr. Ray Phillips, the third commissioner, testified that he is a general merchant living in Fountain Hill, and had been a merchant in Ashley County for 42 years. After being asked if the members of his church were all white or all Negro, Mr. Phillips readily admitted that he does not believe in white and black people attending school or eating in cafes together, however Mr. Phillips just as readily testified as follows:

“Q. So, you tell me whether you believe a negro man or a number of negroes should be able to sit in judgment of a white man accused of a capital crime? A. Well, if he is qualified, Fd just as soon have him as some of the others.”

The substance of the remainder of Mr. Phillips’ testimony was to the effect that he knew the people in his community and assumed that the other two commissioners knew the people in their respective communities; that he recommended for jury service the ones from his commúnity he knew to be high class citizens and assumed the other commissioners did likewise.

From the overall testimony of the commissioners there is no question as to the procedure they followed in selecting the jury panel in this case. They simply examined the list of qualified electors and selected the jury panel from among the individuals oh the list some member of the commission knew. When they would come to a name of a person one of the commissioners knew, that individual’s qualifications (other than being a qualified elector) would be discussed by the three commissioners and he would either be accepted for jury service or passed over, and the commissioners would then continue .down the list to the next person with whom one of them was acquainted.

Crossett precinct is by far the most populated precinct in the county containing the names of 4,420 qualified electors of whom 16.0% were Negro according to the voting list in evidence. There were 25 white and one Negro jurors selected from this township. In “going down the list” in selecting the 26 jurors from this township, the commissioners started with R. L. Brooks, a white man, and ended with Richard Rogers, who is Negro. From the name of R. L. Brooks as it alphabetically appears on the voting list, to and including Richard Rogers, there are 2,414 white and 475 Negro electors listed. Consequently, the number of electors the commissioners were bound to have considered between the names of R. L. Brooks and Richard Rogers consisted of slightly less than 13% Negro and slightly more than 87% white. Of the 26 individuals selected 25 were white and one was Negro, making slightly less than 4% Negro and slightly more than 96% white.

Hamburg is the next largest voting precinct containing 1,720 qualified electors of whom 11.3% were Negro. By the same process, between the first and last name selected from this township, the commissioners were bound to have considered the names of 1,375 white and 180 Negro electors, making a total of 1,555 individual names of whom slightly less than 12% were Negro and slightly more than 88% were white. There were 15 jurors selected from this precinct all of whom were white.

There was a total of 322 qualified electors listed in Fountain Hill precinct of whom 44, or 13.7%, were Negro. There were 12 members of the jury panel selected from this precinct, all of whom were white. The remaining seven jurors were selected from Wilmot, Boydell, Portland and Parkdale precincts, with two Negroes and two whites being selected from Wilmot precinct which contains 143 listed white electors and 122 Negro electors.

It is obvious that in selecting a jury venire of 60 from a list of 8,656 qualified jurors in a county, there are many times more individuals eligible for jury service than there are positions to be filled. It is, of course, a matter of common knowledge that there are many reasons why many qualified electors would be passed up for jury service in preference to the ones selected. It may be that jury commissioners would pass up some individuals for jury service for economic reasons in recognition of unusual hardships in individuals sacrificing their daily wages for the amount paid for jury service. It is entirely possible that persons working in industry who have the qualifications for good jurors would also be working at jobs on which other jobs depend and in many instances jobs not easily filled by temporary assignment while the regular employee serves on a jury. It may be that jury commissioners take into consideration the handicap to the employer as well as to the employee in such cases in requiring the individual to leave his job and serve on juries. The same situation may apply in agricultural sections of the state in the so-called “busy season” of the year (planting and harvest time) and, of course, many legally qualified electors may not possess the education, sound judgment, experience or temperament to sit as jurors and intelligently apply the law as given in instructions to intricate and complicated facts and render a fair and impartial verdict in a given case. Be that as it may, no such reasons were given for excluding anyone for jury service in the case at bar. As a matter of fact the substance of the commissioners’ testimony in the case at bar places them squarely within the prohibition announced in the cases above cited. They simply went down the list of the qualified electors of the county and selected the jury panel from among the individuals with whom they were personally acquainted. As already pointed out, this procedure. has been condemned by the United States Supreme Court wheh it results in considerable disparity between the races. Consequently, when jury commissioners select jury panels only from the people with whom they are acquainted, they should be prepared to show that they are as widely acquainted with one race as with the other in the involved area; and when they select a high percentage of white jurors from a list containing the names of a high percentage of Negroes, the state must be prepared to explain the discrepancy and affirmatively show why the names of eligible Negroes were passed over in preference of eligible whites. This was not done in the case at bar.

We regret that at this late date Ashley County must be put to the expense, inconvenience and ordeal of again trying Williams for that county’s most brutal crime which occured more than eight years ago. The question of whether Williams was guilty of the crime for which he was convicted, or whether he was tried by a fair and impartial jury, or whether his rights were prejudiced by a trial before an all white jury, is not involved on this appeal. Williams had no constitutional right to have Negroes on the jury before whom he was tried and he had no constitutional right to have Negroes on the panel from which the jury was selected for his trial. He was, however, entitled to be tried before á legally constituted jury and a jury from which members of any race have been excluded simply because of their race, is not a legally constituted jury.

It is clear that under the United States Supreme Court decisions, supra, a prima facie case of racial discrimination appears on the face of the record in this case and there was no evidence offered to rebut it. Therefore, it is also clear, that we have no other alternative, under the United States Supreme Court decisions, than to reverse the judgment in this case because of unrebutted evidence of racial discrimination in the selection of the panel notwithstanding the fact that the selection was made under a jury selection system that has now been abandoned by appropriate legislation in Arkansas.

The judgment is reversed and this case remanded for a new trial. .

        Fay v. Noia, 372 U.S. 391; Townsend v. Sain, 372 U.S. 293 and Sanders v. United States, 373 U.S. 1. See also article “Accommodating State Criminal Procedure and Federal Post Conviction Review” by Daniel J. Meador in American Bar Association Journal, October, 1964, vol. 50, p. 1928.


author: Conley Byrd, Justice.

text:
    Steven A. CASSIDY and Harry Jack ROBEL v. STATE of Arkansas
    CR 73-53
    496 S.W. 2d 376
    Opinion delivered July 2, 1973

      Harold L. Hall, Public Defender, by: Robert L. Lowery, for appellants.

      Jim Guy Tucker, Atty. Gen., by: James W. Atki?is, Asst. Atty. Cien., for appellee.
   Conley Byrd, Justice.

Appellants Steve Cassidy and Harry Jack Robel while inmates of the Pulaski County Penal Farm were charged with attempting to burn a building contrary to Ark. Stat. Ann. § 41-504 (Repl. 1964). On October 4, 1972, the jury found them guilty and assessed their punishment at 5 years imprisonment in the State Department of Corrections. For reversal they contend that State’s Instruction No. 1 as amended was abstract and that it contained an inherently erroneous statement of the law in that no mention was made of the value of personal property necessary to constitute a felony.

We find no merit in the contentions now raised. The objections now raised were not made in the trial court and we have often held that we will not consider alleged errors raised for the first time on appeal. Furthermore, since December 31, 1971, Rule XIII of Uniform Rules for Circuit and Chancery Courts, adopted pursuant to Acts 1971, No. 470, specifically provides that: “No party may assign as error the giving or failure to give an instruction to a jury unless he objects there to before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds for his objection. ...” See 251 Ark. 1117.

Affirmed.


text:
    Jesse SHELTON v. STATE of Arkansas
    CR 73-62
    496 S.W. 2d 419
    Opinion delivered July 2, 1973

      James K. Young, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   Conley Byrd, Justice.

This matter was before us, see Shelton v. State, 251 Ark. 890, 475 S.W. 2d 538 (1972), wherein we reversed a life sentence conviction for error in the admissibility of a confession. On remand, appellant Jesse Shelton was again convicted of rape but this time his punishment was fixed at 30 years imprisonment. For reversal he contends:

“1. That the court erred in its refusal to quash the jury panel for the reason that the names of the persons on the jury list were disclosed in violation of Ark. Stat. Ann. § 39-201 (Supp. 1971);
2. The court erred in refusing to quash the jury panel for the reason that 96 names were drawn from the jury wheel for reasons other than to serve members of the petit jury;
3. The court erred in refusing to allow the withdrawal of James K. Young, Court appointed attorney for defendant, for the reason that there was a conflict of interest in this matter;
4. The court erred in refusing to grant a continuance for the reason that William Bud Campbell, an eye witness to the alleged offence, was not present, and
5. That there was not sufficient evidence presented to the jury to allow them to find appellant guilty.”

The record shows that Jesse Shelton, Clinton Holt, Joe Hilderbrand and Howard Vanderpool were jointly charged in the rape of the prosecutrix. The particular allegation as to Joe Hilderbrand being:

“That the said Joe Hilderbrand brought himself and the other defendants in the car owned by Joe Hilderbrand to the scene of the rape and stood by, aided and abetted in said rape.”

The prosecutrix testified that she and her date, Bud Campbell, had parked at the scene of the rape in a pickup truck. While they were listening to the radio and talking, a man came up and said, “alright, Buddy, open the door.” The assailant had another man watch Bud while he made her lay on the ground and raped her. When she first reported the matter to the officers, she described her assailant as bald, gray, and fifty years old. At the trial she positively identified Shelton as her assailant even though he was neither bald, gray, nor fifty.

Joe Hilderbrand testified that he took Shelton and Clinton Holt to Newton County to buy some beer. On the way back, he had a flat. Shelton, Clinton Holt and the other boy walked off while he fixed the flat. They came back about the time he got the flat fixed.

Before the commencement of the trial, Shelton’s court appointed Counsel, in an effort to withdraw as counsel, caused the following record to be made:

“MR. YOUNG:
I renew my motion I made at the first of the trial, that the State has subpoenaed Joe Hilderbrand, and I have always represented Mr. Hilderbrand, and I am now, with Mr. Williams, court-appointed in another matter. I have information from Joe I received in a confidential source; and I made this known to the Court prior to this first trial; and I again request that I be allowed to withdraw and the Court appoint additional counsel.
MR. STREETT:
The case Mr. Young referred to that he is associated in, the facts have no connection with the facts in this case, and the State feels there would be no conflict.
MR. YOUNG:
Of course, Mr. Streett has a short memory. The case I am referring to is the State of Arkansas vs Clinton Holt, Jessie Shelton, Joe Hilderbrand, and Harold Vanderpool. The prosecution has thrown out Hilderbrand in this case, for which I am happy, but I have information obtained in a confidential manner, and I would not be free on cross examination of Mr. Hilderbrand if he is called to testify.
THE COURT:
Mr. Williams could cross examine.
MR. YOUNG:
He is not in this case.
THE COURT:
I don’t believe that is such a conflict of interest that would jeopardize this defendant’s rights.
MR. YOUNG:
You have me muzzled, Judge.

Communications between attorney and client are privileged under the laws of Arkansas, Ark. Stat. Ann. § 28-601 (Repl. 1962). All textbooks on the subject of attorney and client point out that an attorney must faithfully, honestly and consistently represent the interests of his client and that he may not divulge to others confidential communications, information and secrets imparted to him by his client during their professional relation. See 7 Am. Jur 2d, Attorneys at Law § 93 and 7 C.J.S., Attorney and Client § 125. See also the Annotation in 34 A.L.R. 3d 470. Most of the authorities take the position that doubts as to effectiveness of respresentation should be resolved in separate representation of counsel where an informed speculation of conflict exists. As the Court in Lollar v. United States, 126 App. D. C. 200, 376 F. 2d 243 suggested, an informed speculation as to apparent conflicting interests, like the tip of an iceberg, may not reveal the whole story. Consequently, we must hold that the trial court erred in refusing to permit the appointed counsel from withdrawing because of the apparent conflict of an adverse interest.

Having found prejudicial error on the one point, we next take up those issues that are apt to arise on a new trial. We find no merit in the suggestion that the evidence was insufficient or that the trial court erred in denying a .continuance because of the absent witness on the showing here made. The matter of the quashing of the jury panel is hereinafter discussed.

The record shows that the jury Commissioners in the preparation of their list of prospective jurors did not include the last known addresses as required by Ark. Stat. Ann. § 39-206 (Repl. 1962), and that a deputy clerk, not sworn in accordance with Ark. Stat. Ann. § 39-205 (Repl. 1962), took over the list and filled in the addresses before the master list was placed under lock and key. The record further shows that the Chancery Judge in trying some eminent domain cases on the 11th day of September 1972, withdrew 36 names for use in the Chancery Court and again on September 25 th withdrew an additional 60 names for similar use in another case. Since only the circuit clerk and the circuit judge have keys to the jury wheel and both such keys are necessary to gain entrance to the jury wheel, the circuit judge was present when the chancellor withdrew the 96 names. The 96 names withdrawn by the chancellor were not placed in the Jury Book, but, after their use, those names were placed in what the officials called “discards” or “dead jurors” — meaning that they were no longer available for call.

In Horne v. State, 253 Ark. 1096, 490 S.W. 2d 806 (1973), we held that, due to the many successful attacks that were being made upon our jury selections in post conviction proceedings prior to Acts 1969, No. 568, we could not construe the Act as directory — i.e., the procedure therein outlined is mandatory when the challenge is made at the proper time.

Since Act 568 takes pains to protect the secrecy of the master jury list and specifically provides that clerical employees used in the preparation of the alphabetized master list shall take a specific oath to that effect, we must hold that the use of unauthorized personnel did not comply with Act 568.

Courts like Caeser’s wife must be above suspicion and while we do not wish to discourage chancellors from the use of a jury, we find that the method here used did not comply with Act 568.

Section 18 of Act 568 (Ark. Stat. Ann. § 39-210) provides that the number of jurors drawn and placed in the Jury Book as provided by Section 17, shall be “. . . summoned to appear on a date set by the Court to answer questions concerning their qualifications; and, ... to serve the required number of days or for the maximum period during the calendar year. . . .” The method here used in selecting -...id discarding jurors for use in the chancery court could lead to the suspicion that the courts are using one jury for criminal cases and another for civil cases, in holding that the refusal to quash on this ground was contrary to the spirit and intent of Act 568, we are not saying that it is error for the chancery court to borrow jurors for the trial of issues in equity. Furthermore, we are not condemning such practice. Rather, the better procedure, as it appears to us, would be for the chancery court to take its jurors from the list on the Jury Book and to return them for future use in other trials, being the same procedure required of the circuit court. When the selection is done in that manner both the circuit and chancery courts are above all suspicion in the manipulation of the jury wheel for civil and criminal trials either through selection in the first instance or through the discretionary use of skipping or excusing jurors. We are led to this conclusion because one of the checks on the credibility and integrity of the jury wheel is the requirement of Ark. Stat. Ann. § 39-209 (Supp. 1971), that the circuit judge “not less than 15 days prior to the first jury trial in the year for which the prospective jurors have been selected . . . shall enter an order which shall be spread of record stating a time and place for the initial drawing of the names of petit jurors from the jury wheel or box.” This section also requires that the circuit clerk record the names in the Jury Book in the same order in which they are drawn from the wheel. Ark. Stat. Ann. § 39-213 (Supp. 1971), sets forth the procedure of choice of jurors when an excess number has been drawn and listed in the Jury Book and specifically mentions the order as being the same order as they appear in the Jury Book.

Reversed and remanded.