text:
    Kenneth Ray SHIPMAN v. STATE of Arkansas
    CR 77-13
    550 S.W. 2d 454
    Opinion delivered May 9, 1977
    (Division II)
    [Rehearing denied June 13, 1977.[

      Kenneth C. Coffelt, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant entered a plea of guilty on June 30, 1976 to separate charges of felonious burglary and theft. He was on the same date, sentenced and committed to the State Penitentiary for a term of four years, with credit for two months pretrial incarceration in each case, which would run concurrently. See Ark. Stat. Ann. § 41-903 (Crim. Code, 1976). On July 28, 1976, he filed his motion to vacate the judgments and sentences. The motion was heard as one for post-conviction relief under Rule 37, Rules of Criminal Procedure, and denied. Hence, this appeal. We find no error and affirm.

Two informations charging the crimes were filed June 15, 1976. The informations alleged burglary from two separate dwellings in Jacksonville and theft from each of them. On June 25, 1976, the public defender was appointed by order of the circuit court to represent appellant. Deputy Public Defender Bill Simpson actually represented him. Employed counsel represented him on the motion to vacate his sentence. The motion was in the name of appellant, allegedly 16 years of age, and his natural guardian, father, and next friend, Don Shipman. It contained allegations that appellant had been unable to freely communicate with his parents during his pretrial incarceration due to his being held on excessive bail, that his parents did not know that he was going to plead guilty, did not consent to the entry of this plea, were not present when it was entered, or advised that he would appear in court on the day the plea was entered and that he should not have been represented by the public defender. It was also alleged that there were mitigating circumstances in his favor, that he had not been previously convicted, that he and his parents believed that he was not a party to the offense charged, that he tried to persuade others not to commit the offenses and that the person who actually committed the crimes had never been brought to trial. He asked that his guilty plea be set aside and that he be given a jury trial.

One of the points relied upon by appellant for reversal is his contention that the trial court refused to hear his motion, on the ground that the court was without jurisdiction to hear it. Appellant characterizes his motion as a motion for new trial. The trial judge correctly held that, unless the motion was amended so that it could be treated as a motion under Rule 37, Rules of Criminal Procedure, he could not consider it. Basically it was only a motion to permit appellant to withdraw his guilty plea. This could have been permitted in the trial court’s discretion at any time before sentencing. Rule 26.1 (e) Rules of Criminal Procedure. A timely motion to withdraw a guilty plea to correct a manifest injustice may be made after the entry of judgment. Rule 26.1 (b), Rules of Criminal Procedure. Such a motion must necessarily be made under Rule 37, if the sentence has been carried into execution. Rule 26.1 (c), Rules of Criminal Procedure requires that in order to be entitled to withdraw a plea of guilty, one must show that it is necessary in order to correct a manifest injustice for such reasons as denial of effective assistance of counsel, the involuntariness of the plea and other such grounds as would make the sentence subject to collateral attack under Rule 37.

This is consistent with case law prior to the adoption of the Rules of Criminal Procedure in that such a motion could have been entertained after entry of judgment but before the sentence had been put into execution. See Morris v. State, 226 Ark. 472, 290 S.W. 2d 624. However, when a valid sentence had been put into execution, the trial court was without jurisdiction to modify, amend or revise it, either during or after the term at which it was pronounced. Charles v. State, 256 Ark. 690, 510 S.W. 2d 68; Williams, Standridge & Deaton v. State, 229 Ark. 42, 313 S.W. 2d 242; Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005.

Appellant’s contention that the trial court permitted him to offer testimony in his motion, but that the evidence was not considered by the court, is not borne out by the record.

Otherwise, appellant’s attack is based, for the most part, on the alleged failure of the trial court to comply with Rule 24, Rules of Criminal Procedure. First, he claims that Rule 24.2 was not complied with and, perhaps inferentially, that he was denied the effective assistance of counsel.

According to the record the public defender was appointed when appellant made an affidavit of indigency. Appellant argues that appellant should have been accorded the right to employed counsel, who would surely, he says, have endeavored to obtain a suspended sentence on a plea of guilty to grand larceny (now theft), noting that Jones, allegedly the principal offender, had not been prosecuted. He contends that the record shows that his father and the father’s fiancee were prepared to employ counsel for him. The evidence on this score hardly bears out the argument. Appellant had been in jail two months without representation when he was sentenced. His affidavit of indigency was filed only five days earlier. He had been represented by a public defender at a hearing in a municipal court attended by his father, who said that he could not afford to employ an attorney for him at that time. The father testified that he had wanted appellant to have a different public defender, but that he thought the son would not be taken to court if he (the father) did not appear. He said that he was trying to get the money to employ appellant’s present counsel. He testified, however, that he had quit his job for health reasons, and had only been employed for a very short time before the hearing on the motion. The father’s fiancee was employed and said that she had tried to help appellant, but had no opportunity to do so. She never talked with the public defender and took no step toward employment of counsel for appellant prior to his sentencing. Rule 24.2 simply provides that a defendant shall not be required to enter a plea until he has had an opportunity to employ counsel, or, if he is eligible for the appointment of counsel, until counsel has been appointed, unless the assistance of counsel has been waived or refused. There was certainly compliance with the rule. The prospect of appellant’s having employed counsel was not very bright and there was no showing of any definite or specific efforts to employ counsel for him until after he was sentenced.

The record discloses nothing on which we can say that the trial judge erred in holding against appellant on the question of the effective assistance of counsel. There was good reason for appointment of the public defender and appellant was not deprived of adequate opportunity for the employment of an attorney of his or his father’s choice. The fact that appellant was represented by Simpson at the municipal court hearing was well known to his father, who was present, but was without means of employing an attorney.

Appellant’s argument includes assertions that employed counsel would certainly have made an effort “to turn the case on a grand larceny [now theft] plea of guilty followed by a suspended sentence,” due to his age and the fact that he is a first offender, pointing out that “the principal offender, Jones,” who had a penitentiary record, was never prosecuted.

There are certain facts that are clearly reflected by the record. Appellant and one Lawrence, who was also charged with the crimes, were arrested while in an automobile owned and driven by Jones and had made voluntary statements incriminating themselves, but exonerating Jones. Appellant wanted to plead guilty at the time of a preliminary hearing in the Municipal Court of Sherwood, but preliminary hearing was waived, after Simpson’s efforts to have appellant’s case referred to the juvenile court were unsuccessful. Appellant, in his testimony at the hearing on the motion claimed that he was unaware of the intentions of the others, protested against them and refused to participate. Yet he admitted either taking two radios from one house that was burglarized or at least carrying them from the house to the automobile. He admitted that an eyewitness had seen all three enter one of the houses, and that, when a lady started shooting at them, he dropped some of the groceries taken from it. He stated that he, Lawrence and Jones went to a “Dairy Queen” after leaving the last place under gunfire and had a hamburger and a coke and played some music. Even though he testified that he protested all along and wanted to leave before the thefts and to return the stolen goods after the thefts, he reentered the Jones automobile and was in it when they were stopped by a police officer. In relating the course of events in his own words, appellant stated that the policeman was “getting stuff out of the car that they have stole, that we stole. ...” He had not told his father the full extent of his involvement.

Simpson, who had served as a deputy public defender for five months after one year and seven months as an intern in the office, had talked with appellant on three or four occasions, at least one of which was prior to the circuit court appointment. He said that appellant freely admitted his guilt when they discussed the matter at the time of the preliminary hearing. Simpson had been permitted to review the prosecuting attorney’s file in the case and had talked with a deputy sheriff who was familiar with the case. He felt that the state had a strong case and advised appellant’s father that it would be a difficult case to win in a jury or court trial. He had talked with appellant’s father by telephone about the matter at least three times and had advised the father of the fact (admitted by appellant) that, in spite of the father’s and the father’s fiancee having advised appellant not to plead guilty, appellant had decided to accept the plea bargain. He told the father when the plea would be entered and encouraged him to be present. The father did not attend because “he just didn’t want to be down there.” He said he didn’t think appellant would be sentenced if he did not appear. The father’s fiancee also knew of the date when appellant’s plea of guilty was entered, but, in spite of the fact that she wanted an opportunity to come and do what she “could for the boy with Judge Kirby,” she did not come to court on that occasion because it was not convenient and she did not know what she could do. Parental consent is not essential to a voluntary custodial confession. See Jackson v. State, 249 Ark. 653, 460 S.W. 2d 319. Certainly it is not required for a voluntary plea of guilty in open court.

Simpson conferred with the deputy prosecuting attorney handling the case for the state. This attorney refused to recommend a suspended sentence because of the trial judge’s strong policy against such sentences in burglary cases. After negotiating for a three-year sentence, the best offer Simpson was able to obtain was a four-year sentence to cover all charges. He knew that the prosecuting attorney’s office sometimes charged larceny only in some cases and recommended a suspended sentence but he made no effort to get the charges in this case changed. When Simpson said that he could not enter a guilty plea for appellant unless appellant was actually guilty, appellant said that he was guilty and signed a plea statement acknowledging his guilt, after Simpson had carefully read it to him. This statement certainly indicated that the plea of guilty was made voluntarily, knowingly and understandingly.

Simpson had told appellant’s father that a trial could result in a greater sentence, that juries sometimes recommended suspended sentences for youthful offenders but the judge before whom the case would be tried was not lenient on burglars and generally sentenced them to the penitentiary.

Simpson testified that appellant’s father agreed to the acceptance of plea bargain, if that was what his son wanted to do. The public defender said that he had told him that the judge would require that appellant serve one-third of the sentence before being eligible for parole, but that this did not necessarily mean that he would have to do so. Don Shipman testified that his objection was not to the four-year sentence, but to the length of time his son would have to serve and admitted that he had said that it would be all right if he knew approximately how long appellant would have to stay at the penal institution at Tucker. He said that Simpson told him that young offenders did not stay very long. The burden was on appellant to show that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657. We cannot say that he met it.

Appellant contends that the trial court ignored other provisions of Rule 24 in that the court was never advised of the facts in the case, and that the sentencing judge had stated that he did not know what had happened. Appellant seizes upon remarks of the trial judge during the course of the hearing but before its conclusion. The rule in question requires that before accepting a guilty plea, the court advise the defendant of his rights and ascertain that the plea is accurate and voluntary. Appellant introduced a transcript of the proceedings at the time the plea was entered. It reflects that the deputy prosecuting attorney stated details of the crimes and circumstances surrounding appellant’s arrest, after the trial judge read the informations in full. It was disclosed that appellant’s attorney had explained the elements of the crimes charged to appellant and had read to him the pertinent Criminal Code provisions. The judge determined, by inquiring of appellant himself, that appellant knew that he was waiving his right to a jury trial, was voluntarily entering a guilty plea to the charges, and was in fact guilty and that he knew that the judge was not bound to accept the terms of the plea bargain. The age of appellant and the absence of any criminal record were disclosed to the sentencing judge. Appellant’s testimony at the hearing on the motion clearly indicates that he was well aware of the nature of the charges and the potential sentence. There was substantial compliance with this rule, insofar as the particulars mentioned by appellant are concerned.

Appellant also contends that the transcript as certified to this court shows that the trial judge never signed the judgment sentencing him and that this is required by Ark. Stat. Ann. § 22-314 (Repl. 1962). There are at least two reasons why this contention is without merit. It is raised for the first time on appeal. The statute relied upon applies only to actions of the court in vacation. Furthermore, the transcript is a reproduction of the court record, which would not necessarily, reflect signatures on an original judgment.

The judgment is affirmed.

We agree. Harris, C.J., and Byrd and Hickman, JJ.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Bill MORROW and Charles R. GOSLEE v. FIRST NATIONAL BANK of Hot Springs
    76-417
    550 S.W. 2d 429
    Opinion delivered May 16, 1977
    (Division I)

      Gibbs & Henry, by: Gary R. Gibbs, for appellants.

      Woottan, Land. & Matthews, for appellee.
   George Rose Smith, Justice.

For a number of years before 1971 the two plaintiffs, Morrow and Goslee, collected coins, individually and as partners. In 1971 a substantial part of the collection was kept at Morrow’s home in Hot Springs. On September 4 of that year someone broke into the house and stole coins valued at $32,155.17. Almost three years later the plaintiffs brought this action against the defendant bank to recover the value of the stolen coins. The complaint alleges a breach of contract, in that the bank failed to notify the plaintiffs of the availability, on August 30, 1971, of safety-deposit boxes in a new bank building. This appeal is from a summary judgment in favor of the bank.

We state the facts most favorably to the plaintiffs. Morrow collected coins for many years. In about 1964 he had metal cabinets built in a closet in his house, so arranged that a burglar would have to go through eleven sets of locks to reach the coins. In about 1969, as insurance rates were becoming prohibitive, the two plaintiffs began to look for large safety-deposit boxes in which to keep their coins. No boxes were available in Hot Springs. From time to time Morrow discussed the problem with one or more employees of the defendant bank, where he was a regular customer.

In the summer of 1971 the bank was planning to move into its new building. Safety-deposit boxes were advertised. On June 25 the plaintiffs reserved three large boxes in the new building, paying $25 for each box. It was expected that the boxes would be available in from 30 to 60 days. Morrow explained his need for the boxes, adding that he particularly wanted them by September 1, when his husky teenage son would leave for college. The bank was perhaps on notice, through a loan application to a different department, that the coins were worth at least $12,000.

One or two employees of the bank promised to notify Morrow as soon as the boxes were available. The burglary occurred on the evening of Saturday, September 4, while Morrow and his wife were out to dinner. When Morrow inquired about the safety-deposit boxes on the following Tuesday, after Labor Day, he learned that the boxes had become available on August 30. An employee of the bank explained that “we just didn’t have time” to notify Morrow that the boxes were ready. The plaintiffs immediately moved the rest of their coins into the safety-deposit boxes. We do not reach the bank’s argument that the plaintiffs’ acceptance of the rental contract was a waiver of their right to claim a breach.

We consider this case to be controlled by our holding in Hooks Smelting Co. v. Planters’ Compress Co., 72 Ark. 275, 79 S.W. 1052 (1904). There we adopted what is now known as the “tacit agreement test” for the recovery of consequential damages for a breach of contract. By that test the plaintiff must prove more than the defendant’s mere knowledge that a breach of contract will entail special damages to the plaintiff. It must also appear that the defendant at least tacitly agreed to assume responsibility. Justice Riddick’s entire opinion in Hooks is enlightening, but we emphasize this particular language:

It seems then that mere notice is not always sufficient to impose on the party who breaks a contract damages arising by reason of special circumstances, and the reason why this is so was referred to in a recent decision by the supreme court of the United States. In that case Mr. Justice Holmes, who delivered the opinion of the court, after remarking that one who makes a contract usually contemplates performance, not a breach, of his contract, said: “The extent of liability in such cases is likely to be within his contemplation, and whether it is or not, should be worked out on terms which it fairly may be presumed he would have assented to if they had been presented to his mind.” Globe Refining Co. v. Landa Oil Co., 190 U.S. 540.

Now, where the damages arise from special circumstances, and are so large as to be out of proportion to the consideration agreed to be paid for the services to be rendered under the contract, it raises a doubt at once as to whether the party would have assented to such a liability had it been called to his attention at the making of‘the contract unless the consideration to be paid was also raised so as to correspond in some respect to the liability assumed. To make him liable for the special damages in such a case, there mus, not only be knowledge of the special circumstarK :s, but such knowledge “must be brought home to the party sought to be charged under such circumstances that he must know that the person he contracts with reasonably believes that he accepts the contract with the special condition attached to it.” In other words, where there is no express contract to pay such special damages, the facts and circumstances in proof must be such as to make it reasonable for the judge or jury trying the case to believe that the party at the time of the contract tacitly consented to be bound to more than ordinary damages in case of default on his part. Wills, J., in British Columbia Sawmill Co. v. Nettleship, L. R. 3 C.P. 235; Globe Refining Co. v. Landa Oil Co., 190 U.S. 540; McKinnon v. McEwan, 48 Mich. 106, 11 N.W. 828; Snell v. Cottingham, 72 Ill. 161; Horne v. Midland R. Co., L. R. 8 C. P. 131; Booth v. Mill Co., 60 N. Y. 487; Wood’s Mayne on Damages (1st Am. Ed.), p. 50; 1 Sutherland on Damages, § 52; 8 Am. & Eng. Enc. Law (2d Ed.), 593. that the bank, in return for box rentals of $75, agreed in effect to issue a burglary insurance policy to the plaintiffs in the amount of at least $32,155.17 and probably much more, as the actual loss was only partial. The bank’s bare promise to notify the plaintiffs as soon as the boxes were available did not amount to a tacit agreement that the bank, for no consideration in addition to its regular rental for the boxes, would be liable for as much as $32,000 if the promised notice was not given.

The tacit agreement rule is a minority rule, but we think it to be sound. We did not lightly adopt it. To the contrary, we relied upon three textbooks and a number of decisions, including one written by Justice Holmes. This language from the Hooks opinion expresses what Holmes described as “common sense”:

Suppose, for instance, that a large manufacturing establishment is driven by power from a single engine, and that, by reason of an accident to some small but important part of the engine or machinery, it becomes necessary to stop the operation of the whole plant until a new part can be made or the old one repaired. If thereupon a blacksmith or machinist is called in, and, for the price of a few dollars, undertakes to make the repairs, but through some mistake or unskillfulness the part supplied by him should fail to fit, requiring it to be remade and entailing still further delay, would any court hold that the blacksmith or machinist could be held liable for all the damages entailed by the delay when they were large, in the absence of a contract on his part to be thus liable, unless the notice and the circumstances under which he made the contract were such that he ought reasonably to have known that in the event of his failure to perform his contract the other party would look to him to make good the loss?

The tacit agreement test, to be sure, has been questioned and was rejected by the draftsmen of the Uniform Commercial Code. Ark. Stat. Ann. § 85-2-715 and Comment 2 (Add. 1961); Williston, Contracts, § 1357 (3d ed., 1968); Casenote, 18 Ark. L. Rev. 169 (1964). We do not attach great importance to the Commercial Code provision, simply because the legislature, in adopting a uniform act containing hundreds of sections, certainly did not specifically and consciously decide that the rule of the Hooks case should be changed in all situations. We adhere to that decision.

Alternatively, the plaintiffs argue that the bank’s breach of its contract should be treated as a tort, for which liability may be imposed without regard to the tacit agreement test. As Prosser points out, a breach of contract is not treated as a tort if it consists merely of a failure to act (nonfeasance) as distinguished from an affirmatively wrongful act (misfeasance). Prosser, Torts, § 92 (4th ed., 1971). Prosser notes that there is an exception with regard to a person such as an innkeeper or public warehouseman, who is under a duty to serve all comers. A bank, however, may do business with whom it pleases. Michie, Banks and Banking, Ch. 9, § 13 (rev. ed., 1973).

Affirmed.

We agree. Harris, C.J., and Holt and Roy, JJ.


text:
    Howard D. TANNER et al v. CITY OF LITTLE ROCK et al
    77-11
    550 S.W. 2d 177
    Opinion delivered May 16, 1977
    (In Banc)

      Tom Tanner, for appellants.

      Wright, Lindsey & Jennings; Friday, Eldredge & Clark; Rose, Nash, Williamson, Carroll, Clay & Giroir; Joseph C. Kemp and Riddick Riffel, for appellees.
   George Rose Smith, Justice.

The question here is whether the residents of an area that is in the process of being annexed to a city have the right to vote in a municipal bond election before the annexation is effective. We agree with the trial court’s holding, upon stipulated facts, that the asserted right to vote does not exist.

At the 1975 general election the voters approved the proposed annexation of certain territory to the City of Little Rock. However, the effective date of the annexation was postponed by a circuit court action challenging the validity of the annexation. Ark. Stat. Ann. § 19-307.2 (Supp. 1975). On August 17, 1976, while the annexation contest was still pending, the city directors called a municipal election, to be held on September 21, to authorize the issuance of bonds to finance five separate public improvements. Notice of the election was published for four weeks, as required by Amendment 13 to the Constitution of 1874.

On September 15, after a two-day trial of the annexation contest, the circuit judge orally announced his decision sustaining the annexation. On September 21 the electors residing within the city approved the proposed bond issue by a vote of more than four to one. On September 30 the circuit judge signed an order approving the annexation. On October 11 the appellants filed this class suit for a declaratory judgment holding the bond election to be void, on the ground that the residents of the area that was being annexed were not allowed to vote in the election. (There is actually no indication that any resident of the area asked to be allowed to vote.)

The trial court was right in refusing to set aside the bond election. Amendment 13 provides: “Qualified voters of said municipality only shall have a right to vote at said elections.” Section 19-307.2 of the statutes provides that the annexation, in the event of a contest, becomes effective on the date the circuit court judgment becomes final. Under our procedural statutes a circuit court judgment does not become final until at least thirty days after its entry. Cranna v. Long, 225 Ark. 153, 279 S.W. 2d 828 (1955). As a practical matter, the city presumably needed a similar period of thirty days before the election in which to give notice of the election and to make the necessary arrangements for holding it. Yet, according to the appellants’ argument, the election would have been void even if the circuit judge had not announced his oral findings until the day before the bond election. If that were the law it would be a virtual impossibility for a city to hold a valid bond election during the pendency of a contested annexation proceeding, since it could never be known'in advance when the circuit judge might announce his decision.

The appellants also argue that they were constitutionally entitled to vote at the bond election, else they would be denied due process and equal protection and would be taxed without representation. Not so. Property owners within an area that is annexed to a city are ordinarily subject to municipal taxation for municipal purposes, even though the taxes may have been approved by the municipal electors before the annexation. McQuillin, Municipal Corporations, § 7.48 (3d ed., 1966). The right to vote for or against taxes may be limited to voters who are residents of the city at the time of the election. We so held in McKenzie v. City of DeWitt, 196 Ark. 1115, 121 S.W. 2d 71 (1938). There a nonresident of the city of DeWitt, who owned property in the city, argued that he was entitled to vote at an election which might subject his property to taxation. In rejecting that argument we said:

[O]ne of the appellants who did not reside in the city was not permitted to vote in the election, although he owned real property in said city, which will be subject to the additional tax of five mills. This contention [that the tax upon his property was invalid] is by no means unique, but because of the fact that the principle involved, of taxation without representation, has the heritage of generations to support it, adds nothing to its merit. In truth, it is wholly without merit because a provision of the Constitution, under which the city of DeWitt is acting, provides: “Qualified voters of said municipality only shall have a right to vote at said elections.”

That is the same constitutional issue that is now before us.

Affirmed.


text:
    Shirley Irene BUSH v. STATE of Arkansas
    CR 76-232
    550 S.W. 2d 175
    Opinion delivered May 16, 1977
    (In Banc)

      Gene Worsham, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was convicted of capital murder committed in the perpetration of robbery and was sentenced to life imprisonment without parole. Her principal points for reversal have to do with’the sufficiency of the evidence to support a finding of an intent to commit robbery and with the trial judge’s communications with the jurors during their deliberations.

Upon the first point there was an issue of fact for the jury. Mrs. Bush and her husband, in hitch-hiking back to Arkansas after a trip to Florida, were picked up by the decedent, Billy John Jones, in his truck and carried from Columbia, Louisiana, to Conway, Arkansas. At a Conway truck stop Bush left his wife and Jones in the truck for a short while. According to the confession of Mrs. Bush (the only eyewitness), Jones climbed into the sleeper, took off his clothes, and tried to pull Mrs. Bush up into the sleeper, assertedly with the intention of raping her. Mrs. Bush had a knife, with which she fatally stabbed Jones, principally in his neck. Upon Bush’s return the couple at first concealed the crime by driving the truck, with Jones’s body in it, to an isolated spot and abandoning it. Mrs. Bush said in her confession that during that trip she was wearing some of Jones’s clothes and took $40 from a wallet she found in one of the pockets. A few days later Bush reported the crime and the location of the truck to the police.

It is argued that Mrs. Bush committed the homicide in defending herself and not in the perpetration of robbery. The jury, however, was not required to accept her account, especially as she was an interested participant. Furthermore, Jones’s widow testified that he had more than $300 in cash when he left home two days before his death. Thus there was substantial evidence to support a finding that robbery was the motive for the crime.

The judgment must be reversed, however, as a result of the circuit judge’s communications with the jury, even though the opposing attorneys were also at fault.

The jury, after several hours of deliberation, reported that they were hopelessly divided. The lawyers in the case, thinking a mistrial to be imminent, discussed the possibility of a negotiated plea of guilty. The prosecutor insisted upon a 21-year sentence, but the defense was unwilling to recommend more than 12 years. The attorneys, in a novel but misguided effort to obtain helpful information, agreed that the judge might confer with the jury to determine two things only: their numerical division and the degree of homicide upon which they were divided.

Judge Roberts rashly agreed to counsel’s joint request and conferred privately with the jury in the courtroom, after the accused, the attorneys, and everyone else had been excused. After a substantial length of time Judge Roberts sent the jury back to the jury room, reported to counsel the information that had been sought, and explained that, upon an inquiry by a juror, he had discussed with the jury the governor’s possible pardoning power with respect to a life sentence without parole. He said he had told the jury that the legislature could not take away the governor’s constitutional pardoning power. The judge also mentioned that one or two jurors had been confused, but he thought they were straightened out. Within five minutes the jury, after having been hopelessly deadlocked, returned a verdict of guilty and fixed the sentence at life imprisonment without parole.

The exact details of what happened are not known, for none of the discussions were recorded by the court reporter, and at the hearing upon the defendant’s motion for a new trial, Judge Roberts refused to make any statement, sworn or unsworn, about his discussion with the jury. Of course the jurors were not competent witnesses; so the accused was left with no means of discovering whether prejudicial error occurred.

The motion for a new trial should unquestionably have been granted. It is immaterial that defense counsel did not at once object to the judge’s having discussed the matter of possible parole with the jury, for that was the judge’s own error. Bell v. State, 223 Ark. 304, 265 S.W. 2d 709 (1954). That the discussion took place at all must be regarded as prejudicial error, for, despite some inconsistencies in our earlier opinions, we made it unmistakably plain in Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86 (1971), that jurors are not concerned with the parole system and consequently should not be given even completely accurate information upon that subject. Here it is a reasonable inference that the jurors would not have returned their actual verdict had they not been given Judge Roberts’s explanation of the governor’s pardoning power.

The appellant also complains that the instructions to the jury were misleading and confusing. That is true, apparently as a result of the court’s having interposed oral comments in the course of reading a variety of written instructions. Nothing would be accomplished by an analysis of the court’s charge to the jury; we can only suggest that a complete set of instructions be prepared by counsel before the case is retried. Finally, the availability to defense counsel of the witness MacKenzie’s pretrial statement is moot, counsel eventually having seen it.

Reversed.


author: John A. Fogleman, Justice.

text:
    W. L. FULMER Sr., Loyd Wayne BOWEN and Orville ADAIR v. Gerald HOLCOMB, Mayor of the City of Booneville, Arkansas
    76-362
    550 S.W. 2d 442
    Opinion delivered May 16, 1977
    (Division II)

      Warner & Smith, by: J. H. Evans, for appellants.

      C. Richard Lippard, for appellee.
   John A. Fogleman, Justice.

Appellants were three of the five commissioners of the Housing Authority of the City of Booneville. Appellee is the mayor of the city. The mayor removed all the commissioners. Appellants filed their petition for certiorari in the Circuit Court of Logan County, seeking review of the proceedings for their removal. Writ of certiorari was granted to bring up the record of the proceedings. Thereafter the writ was denied and the action of the mayor sustained, the court holding that it was with sufficient legal cause and not arbitrary. Appellants ’ only point for reversal is the assertion that the circuit court erred “for the reason such removal was without legal cause. ” Although we find evidence of legal cause for removal of the commissioners which might well prevent us from saying that the action of the mayor was arbitrary, we find reversible error in the failure of the trial court to quash the removal of appellants for procedural reasons.

The applicable statute is Ark. Stat. Ann. § 19-3010 (Repl. 1968) which provides that a commissioner of a housing authority created under the provisions of Ark. Stat. Ann. § 19-3001 et seq (Repl. 1968) may be removed by the mayor for inefficiency or neglect of duty after notice and hearing. The commissioners were charged with having failed to conduct meetings as required by the by-laws of the housing authority; having failed to designate successors as required by Ark. Stat. Ann. § 19-3006 (Repl. 1968); permitting an employee of the housing authority to use a truck for driving between his home and place of private employment and various other places not connected with his duties with the housing authority; permitting the executive director of the authority to sign the name of one of the appellants, Loyd Wayne Bowen, then chairman, to various checks, in violation of the by-laws; and failure to file reports of recommendation annually as required by Ark. Stat. Ann. § 19-3033 (Repl. 1968).

Appellants argue that the case is governed by the definition of cause for removal stated in Carswell v. Hammock, 127 Ark. 110, 191 S.W. 935. They overlook the fact that the statute there involved only provided that removal be “for cause only” while the statute here specifically provides for removal “for inefficiency or neglect of duty or misconduct in office.” In the former statute, cause was not defined. In the statute we are considering it is defined. Still, the principles stated in Carswell furnish guidance in this case. Cause was thus defined there:

“ ‘Cause, ’ or ‘sufficient cause, ’ means ‘legal cause, ’ and not any cause which the Council may think sufficient. The cause must be one which specially relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.”

We would agree that a removal for inefficiency and neglect of duty must be for matters relating to and affecting the proper administration of the office and of a substantial nature affecting the rights of the public. Apparently, appellants feel that the public interests must have undergone appreciable damage before there could be a removal under the applicable statute — an attitude of waiting until the horse is stolen before locking the gate. We feel that the statute involved here enables the mayor to remove commissioners when there is substantial danger to the rights and interests of the public because of inefficiency, neglect or misconduct. The statement on removal for cause in Williams v. Dent, 207 Ark. 440, 181 S.W. 2d 29, is more appropriate here than that in Carswell, although we do not find any conflict. In Williams, “for cause” was taken to mean “just cause,” and we said that the cause stated must not be a mere whim or subterfuge, but must be of substance relating to the character, neglect of duty or fitness of the person removed.

It is in the light of the language of the statute applicable here and the statements in both Carswell and Williams that we view the evidence in a case such as this. The scope of our review is defined in Carswell. We inspect the record to see whether the mayor had jurisdiction to remove the commissioners; whether he kept within that jurisdiction; whether the charges preferred were sufficient in law; and whether the evidence furnished any legal and sufficient basis for removal. In reviewing the evidence, we do not weigh it and the circuit court hearing was not a trial de novo. The real question for the circuit court was whether the mayor acted arbitrarily and without legally sufficient evidence, i.e., evidence of a substantial nature, to support his action.

The argument that the reappointment of Godfrey and the removal of appellants demonstrated that the mayor’s action was arbitrary and capricious is not persuasive. There was evidence that Godfrey had advised the city officials that he would not accept reappointment if the board was to continue to be inactive, but if the board was to be active, he would be glad to serve.

A cursory review of the record discloses that there may well have been sufficient evidence upon which the mayor could have found, without being unreasonable, arbitrary or capricious, that certain of the specified grounds for removal had been sustained as cause for removal under the guidelines provided by the statute and by Carswell and Williams; however, we feel that there was a failure of proof on at least one of those specifications. Consequently, we must sustain appellants’ argument that the order of removal must be quashed. It was in the form of a letter to the commissioners simply stating that the removal was for cause, without stating the cause. In advancing this argument, appellants rely on Williams v. Dent, supra. Even though it might appear that there are factors distinguishing this case from that, it is clear that the opinion in Williams has previously been construed in Martin v. Cogbill, 214 Ark. 818, 218 S.W. 2d 94 in a manner which renders these factors insignificant. In short, the holding in Martin is that an order of removal in cases such as this should be quashed if it does not specify the particular charge or charges upon which the removal is based if there is any doubt about the sufficiency of the evidence to sustain any of the grounds charged.

For this reason, the judgment of the circuit court is reversed and the order of removal of appellants is quashed.

We agree. Harris, C.J., and Byrd and Hickman, JJ.


text:
    Pamela HAMMERS v. STATE of Arkansas
    CR 76-208
    550 S.W. 2d 432
    Opinion delivered May 16, 1977
    (In Banc)

      Wilson & Wilson and Hanks, Taylor & Suddarth, Clayton, Mo., for appellant.

      Bill Clinton, Atty. Gen., by: B. J. McCoy, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

We are confronted here with a difficult problem arising from the ago-old necessity for “dealing” with people involved in crimes in order to successfully prosecute their confederates. See Camron v. Texas, 32 Tex. Crim. 180, 22 S.W. 682 and accompanying Annot, 40 ASR 767 (1893). Pamela Hammers, appellant herein, and James E. Stephens, were jointly charged with the murder of Cynthia Walker, by choking, beating and drowning her. They were also charged with manslaughter for causing the death of Ms. Walker’s unborn child. Apparently, the prosecutor felt it was necessary, as it often is, to obtain the testimony of one of them against the other, if anyone was to be punished for the heinous crime committed by them. It eventually turned out, as is so often the case, both exhibited that extreme generosity about sharing the blame that makes accomplice testimony suspect. Each also seemed extremely reluctant to claim an equal share of the responsibility.

In spite of a “deal” made by appellant with the prosecuting attorney, she was put to trial, found guilty upon the testimony of Stephens, and some corroborating evidence tending to connect her with the crime, and sentenced to eight years’ imprisonment. Prior to trial, she had moved to stay and enjoin the prosecution, alleging that she had waived her privilege against self-incrimination upon the offer and promise of the prosecuting attorney to request immunity for her and to nolle prosequi the charge against her. She alleged that, in accordance with this offer, she made an oral statement in which she divulged completely and totally all facts concerning the crimes with which she and Stephens were charged. The denial of this motion is her first and principal ground for reversal of the judgment against her. A reversal would mean that a participant, perhaps the principal one, in a cruel, useless killing escapes punishment. Of course, this should not be the basis for our decision on the important questions raised, and the ultimate disposition of this case must not be dictated by that possibility.

The difficulties with which the treatment of such a troublesome problem as this is fraught are exace rbated by the potential for disagreement and misunderstanding inherent in the failure to put in the record a written memorandum of the agreement or to obtain a court approval, as required by statute, by the very disorganized presentation of this matter to the trial court and by the manner of the abstracting of the record by appellant which shows little regard for our rules. Although we are considerably handicapped in doing so, we will endeavor to glean enough facts from appellant’s unsatisfactory abstract and the state’s effort to supply the deficiencies to treat the basic problem. Our effort to state facts may not be totally successful, because very little, if any, evidence was presented to the trial court at the hearings on this motion. These hearings consisted for the most part of discourses by the opposing attorneys, which seem to have been part stipulation and part argument, and we have experienced considerable difficulty in distinguishing a statement of fact from an argument. The record discloses that a memorandum of the agreement was prepared, or was to have been prepared, but it is apparently not in the record, perhaps because the parties endeavored to stipulate the facts.

It was charged that the crimes were committed on July 27, 1975. The information charging the crime of murder was originally filed August 4, 1975, and an amended information, on August 6, 1975. On September 23, 1975, appellant filed a motion for severance, alleging that she would be prejudiced by a joint trial because the issues were different and separate as to the respective codefendants, because Stephens had previously been convicted of felonies on two occasions, because she anticipated that statements of both co-defendants, which were inconsistent with each other, would be offered in evidence, and because she anticipated that statements made to a witness by the defendants would be offered in evidence, some of which would not be applicable to her. This motion, which made no claim of immunity, was granted. As a matter of fact, there had been no negotiations of any sort between appellant and the state at that time.

At some time prior to November 4, 1975, appellant, acting upon the advice of her attorney, entered into plea bargaining with the prosecuting attorney and his deputy. It is conceded that some agreement, the exact terms of which we are unable to discern, was entered into between the prosecuting attorney and appellant. It did require appellant to waive her privilege against self-incrimination and to testify against Stephens. The prosecuting attorney agreed, in return, to move the court to enter a nolle prosequi and grant her total immunity against the charges against her. It was on November 3, 1975, the eve of the trial of Stephens, set for November 4, 1975, that appellant agreed to the terms and made a statement about the crime. She was present in court on November 4, 1975, ready, willing and able to testify, but the case was continued on motion of the state, because of the strange overnight disappearance of Thomas Griffin, a resident of California, who could have given and eventually did give, testimony about incriminating statements of the codefendants in the presence of each other, tending to connect them with the crime. An inquiry of the prosecuting attorney by appellant’s attorneys on that day confirmed the fact that they still had a “deal.”

Subsequently, upon a motion for discovery by the attorney for Stephens, filed about February 4, 1976, appellant’s statement was supplied to this attorney. Thereafter, Stephens submitted to a polygraph test and on March 8, 1976, made a complete and detailed statement about the crime to the prosecuting attorney, and changed his plea from one of not guilty to one of guilty to the charges of murder in the second degree and of possession of marijuana and agreed to testify against appellant. Appellant was then notified that the prosecuting attorney was withdrawing from the agreement and would prosecute her on the charges of murder and manslaughter. The prosecuting attorney took the position that the agreement was binding only if and when appellant took the witness stand and testified against Stephens, but that when Stephens pleaded guilty the agreement did not require him to grant immunity or to nolle prosequi the charges. He returned the statement of appellant to her, and erased the tape on which it had been recorded. No reference to the statement was made during the trial. The prosecuting attorney also contended that the agreement was tentative, not binding because it had not been approved by the court, and void because the statement given by appellant was not made in good faith.

Appellant was, on November 4, represented by two attorneys, both of whom made affidavits in support of her motion. One of them stated that appellant’s total immunity was not dependent upon Stephens going to trial. The other stated that she was granted immunity in exchange for her statement given and testimony to be given under oath, in the case of State of Arkansas v. James Eddie Stephens, and that on November 4, 1975, the guarantee of total immunity was affirmed and unconditionally promised by the prosecuting attorney and his deputy. The latter affiant stated that he was led to believe and did believe that all charges would be dismissed against appellant and that it would not be necessary that she stand trial. The prosecuting attorney contended that the agreement required “complete testimony” and that the prosecution should be permitted to continue because he had not moved and the court had not granted a nolle prosequi. In the state’s response to appellant’s motion it was alleged that the state had altered its position after further investigation revealed that the statement given by appellant was not made in good faith.

We cannot give great weight to the state’s contention that appellant did not act in good faith, because that charge was not sustained by evidence. We could speculate that the state’s attorneys had concluded that she had not made a full disclosure or that she had not stated the truth, but there was no showing, when the motions were heard, on which the trial court could have found that appellant had not made a complete and detailed statement of the occurrence or that she was untruthful. Furthermore, there was nothing to show that appellant was not, at all times, ready, willing and able to testify against Stephens had she been called as a witness, in spite of the fact that the prosecutors had some apprehension about the matter. We should add that we find no basis for holding that any of the attorneys had not acted in good faith in the matter.

It should be noted that the state has never moved for a nolle prosequi or for an order granting immunity to appellant, and, of course, no such order has been entered. It is clear that appellant’s attorney was fully aware of the fact that immunity could only be granted by the court and that a nolle prosequi could not be entered without the approval of the court. As a matter of fact, one of them stated at the hearing that he fully understood that the trial court had the authority “not to honor the prosecuting attorney’s request for immunity and a nolle pros” at the time of the hearing. The trial judge was aware when the Stephens trial was first set that appellant was going to testify and that she would give a statement or reduce her statement to writing, but no motion for the grant of immunity, even conditionally, was presented to him.

Since the parties attempted to stipulate the facts, we set out certain facts in addition to those previously stated upon which there appears to be no dispute. As a result of the plea bargaining, appellant made a written statement about the crime, and agreed that her testimony against Stephens would be based upon the content of that statement. When the Stephens case was continued, Mr. Hanks, one of appellant’s attorneys, in the presence of Mr. Wilson, her other attorney, asked Mr. Banks, the deputy prosecuting attorney, if they did have a* deal for her testimony and for her immunity. There was some agreement to the effect that the agreement would be nullified if appellant did not testify, but the terms of that agreement are the subject of vigorous dispute. The prosecuting attorneys contend that the agreement was not binding if she did not testify for any reason, regardless of the cause and regardless of her being ready, willing and able to do so. On the other hand, appellant’s position is that the agreement was to become void, only if she refused to testify against Stephens or if her testimony was not substantially in accord with her statement. Appellant’s attorney, Hanks, was under the impression that there was a specific understanding that the agreement guaranteed appellant immunity if Stephens pleaded guilty. It was agreed that the state’s attorneys were very apprehensive about appellant’s actually carrying out her agreement to give testimony incriminating Stephens. The prosecuting attorney admitted that, in the negotiations, he may well have said that he had no reason to believe that, if he requested immunity for appellant, the court would not grant it.

Of course, there has long been a universal practice of granting immunity, or sentencing consideration, to an accomplice who testifies fully, fairly and clearly, when called as a witness by the prosecution at the trial of an associate in crime. See (Whiskey Cases) United States v. Ford, 99 U.S. 594, 25 L. Ed. 399 (1879); State v. Crow, 367 S.W. 2d 601 (Mo., 1963); Camron v. State, 32 Tex. Crim. 180, 22 S.W. 682, 40 Am. St. Rep. 767; People v. Bryant, 409 Ill. 467, 100 N.E. 2d 598 (1951); Annot, 40 Am. St. Rep. 767, 768. In the absence of statute, the testifying accomplice has only an equitable, not legal, right to immunity or mercy. U.S. v. Ford, supra; People v. Bryant, supra; Lowe v. State, 111 Md. 1, 73 A. 637 (1909); State v. Guild, 149 Mo. 370, 50 S.W. 909 (1899); State v. Graham, 41 NJL 15 (1879); Commonwealth v. St. John, 173 Mass. 566, 54 N.E. 254 (1899); Wight v. Rindskopf, 43 Wis. 344 (1877). See also, Annot. 13 ALR 2d 1439; State v. Crow, supra.

It is only appropriate that an accomplice who, under an agreement with the prosecuting attorney, approved by or made known to the court, that he should be immune from prosecution, testifies fully and truthfully as to the whole matter charged, be vested with an equitable right to the entry of a nolle prosequi or appropriate clemency. Lowe v. State, supra; Scribner v. State, 9 Okla. Cr. 465, 132 P. 933 (1913). Cf. U.S. v. Carter, 454 F. 2d 426 (4 Cir., 1972), cert. den. 417 U.S. 933, 94 S. Ct. 2646, 41 L. Ed. 2d 237.

Clearly a promise of immunity approved by, or with the consent of, the court, should be upheld. See State v. Ward, 112 W. Va. 552, 165 S.E. 803, 85 ALR 1175 (1932); Lowe v. State, supra. Transactional immunity, i.e., full immunity from prosecution for the offense to which the testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege against self-incrimination, since immunity from use of the testimony, and evidence derived from it, affords Fifth Amendment protection. Kastigar v. U.S., 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972); State v. Quarles, 13 Ark. 307. Ordinarily, in the absence of statute, the public prosecutor is not authorized to grant immunity and it can be granted only with the approval of the court pursuant to express statutory authority. U.S. v. Ford, supra; U.S. v. Carter, supra; Whitney v. State, 53 Neb. 287, 73 N.W. 696 (1898); Messenger v. State, 81 Tex. Cr. 465, 198 S.W. 330 (1917); Apodaca v. Viramontes, 53 N.M. 514, 212 P. 2d 425, 13 ALR 2d 1427 (1949) and accompanying Annot, p. 1439. See also, Temple v. Commonwealth, 75 Va. 892 (1881); Ex parte Werner, 46 R.I. 1, 124 A. 195 (1924); U.S. v. Levy, 153 F. 2d 995 (3 Cir., 1946); Scribner v. State, supra. But even when the agreement is unauthorized, an accomplice who actually testified against a confederate voluntarily and made a full, true and candid disclosure of all the circumstances attending the transaction in question, in good faith, incriminating both the confederate and himself, has been held to have an equitable claim or right to mercy in some form. People v. Bryant, supra, 409 Ill. 467; State v. Davis, 188 S. 2d 24 (Fla., 1966), cert. den. 194 S. 2d 621; Commonwealth v. St. John, supra; Application of Parham, 6 Ariz. App. 191, 431 P. 2d 86 (1967); Annot, 13 ALR 2d 1439 (1949). See also, U.S. v. Ford, supra; Lowe v. State, supra; State v. Guild, supra; State v. Graham, supra; Wight v. Rindskopf, supra; People v. Brunner, 32 Cal. App. 3d 908, 108 Cal. Rptr. 501 (1973). Cf. U.S. v. Carter, supra; U.S. v. Levy, supra. It has been recognized that when all parties concerned acted in good faith and an honest effort to dispose of the charges in the manner that would best serve the public welfare, equity requires that a prosecutor’s compact be enforced, when he is willing. State v. Ashby, 43 N.J. 273, 204 A. 2d 1 (1964); Young v. State, 45 Tex. Cr. 202, 75 S.W. 23 (1903). It has also been widely held that an agreement for immunity which a prosecuting attorney made without consent or advice of the trial court is unenforceable. Annot, 40 Am. St. Rep. 767, 768.

This court has said, when there was no statute on the subject, that it is within the exclusive discretion of the prosecuting attorney to determine whether an accomplice be permitted to become “state’s evidence” and whether, if he does, he is entitled to be no further prosecuted by reason of what he has done. Runnels v. State, 28 Ark. 121. The determination whether the accomplice be called as a witness and permitted to testify so as to gain an exemption on the basis of an implied condition of exemption from punishment for turning informer and declaring the whole truth is within the discretion of the prosecuting attorney and the sound judicial discretion of the court. Annot, 40 Am. St. Rep. 767, 768. See also, State v. Reed, 127 Vt. 532, 253 A. 2d 227 (1969).

There is a wide divergence of authority as to the relief to be granted and the means of obtaining the relief, where there has been no court approval of a promise of immunity made by the public prosecutor. In at least one jurisdiction, it has been held that such an agreement affords no protection if the confessing accomplice is later placed on trial in violation of the agreement. Whitney v. State, 53 Neb. 287, 73 N.W. 696 (1898). In many others, the agreement cannot be raised as a plea in bar or as a defense. U.S. v. Ford, supra, 99 U.S. 594; Lowe v. State, supra, 111 Md. 1; State v. Guild, supra, 149 Mo. 370; State v. Graham, supra, 41 NJL 15; Commonwealth v. St. John, supra, 173 Mass. 566. See also, Wight v. Rindskopf, supra, 43 Wis. 344; State v. Davis, supra, (Fla.) 188 S. 2d 24. In one of these jurisdictions, the immunity agreement may affect the right of the court to enforce or impose a sentence. State v. Davis, supra. A plea in bar is proper in Texas and Oklahoma if all prerequisites to grant of immunity ¿lave been met. See Camron v. State, supra, 32 Tex. Cr. 180; Scribner v. State, supra, 9 Okla. Cr. 465, 132 P. 933; Annot, 40 Am. St. Rep. 767, 768. In some cases it has been said that the only relief available is a continuance to enable the claimant of the right to immunity to apply for a pardon. U.S. v. Ford, supra; Lowe v. State, supra; State v. Guild, supra; State v. Graham, supra; Commonwealth v. St. John, supra; Wight v. Rindskopf, supra.

Of course, where immunity is granted pursuant to statute, the statutory provisions usually provide for relief by a bar of prosecution, where the claimant of right to immunity shows that he comes within the statute. See State v. Smith, 12 Wash. App. 514, 530 P. 2d 354 (1975). But appellant does not come within the terms of any Arkansas statute governing immunity from prosecution. Ark. Stat. Ann. § 43-915 (Repl. 1964) only provides use immunity for an accomplice who actually testifies before a grand jury. Rhea v. State, 226 Ark. 581, 291 S.W. 2d 505. It does not apply where a written statement has been given to the prosecuting attorney. Horner v. State, 255 Ark. 426, 501 S.W. 2d 217. A use immunity is granted a defendant in a suit to recover money lost by gaming or betting who answers interrogatories propounded by the plaintiff. Ark. Stat. Ann. §§ 34-1607, 1608 (Repl. 1962). The only statute which could possibly apply is Act 561 of 1973, appearing as Ark. Stat. Ann. § 28-531 et seq (Supp. 1975). That statute was passed for the very purpose of establishing guidelines to facilitate prosecutions and to clarify the authority of the prosecuting attorney to grant immunity in cases such as this. See preamble. But it prohibits the grant of immunity from prosecution without prior court approval. Ark. Stat. Ann. § 28-534 (Supp. 1975). And appellant was certainly not compelled to testify in spite of a claim of privilege . against self-incrimination, which would be essential to a claim of immunity under Ark. Stat. Ann. § 28-532 (Supp. 1975). Such a statute is not self-executing [see U.S. v. Seavers, 472 F. 2d 607 (6 Cir., 1973)] and its purpose is only to preserve the constitutional privilege of self-incrimination to one compelled to testify. State v. Smith, 12 Wash. App. 354, 530 P. 2d 354 (1975). See also, Scribner v. State, supra, 9 Okla. Cr. 465; State v. Davidson, 242 Wis. 406, 8 N.W. 2d 275, 145 ALR 1411 (1943).

Since appellant had no statutory right to immunity and the agreement was not authorized by the court, her claim must be viewed as one to relief on equitable principles. In doing so, it seems that leaving her to beseech mercy at the hands of the Governor is as antiquated as the doctrine of approvement from which it springs. The Texas and Oklahoma preference for permitting a plea in bar seems highly superior to other procedures, even though contrary to the weight of authority. See, Annot, 40 Am. St. Rep. 767, 768; Whitney v. State, supra, 53 Neb. 287. The trial court certainly has no power to enter a nolle prosequi over the objection of the prosecuting attorney. Ark. Stat. Ann. §§ 43-806, 1230 (Repl. 1964). State v. Anderson, 119 Tex. 110, 26 S.W. 2d 174, 69 ALR 233 (1930) and accompanying Annot p. 240; Commonwealth v. Hughes, 153 Ky. 34, 154 S.W. 399 (1913); Commonwealth v. Shields, 89 Pa. Super. 266 (1926). Neither the trial court nor the appellate court may compel a nolle prosequi; they can only suggest it. Annot, 35 LRA 701 (1895). And the power of the court to grant immunity is statutory, not constitutional. Ferrantello v. State, 158 Tex. Cr. 471, 256 S.W. 2d 587 (1953). In the absence of statute, it has no such power. People v. English, 31 Ill. 2d 301, 201 N.E. 2d 455 (1964). There is no statute empowering the trial court to do so, except for Ark. Stat. Ann. § 28-531 et seq. In our view, the court’s hearing appellant’s motion was proper and appellant should not be denied relief on the basis that her motion was in substance a plea in bar.

But determination of a claimant’s equitable entitlement to immunity, when opposed by the prosecuting attorney, should lie within the sound judicial discretion of the trial court, which should see that the public faith pledged by the public prosecutor, in the furtherance of justice, is kept by giving due regard to promises and inducements made and held out by him, when the claimant has fulfilled his agreement in good faith. State v. Sceresse, 84 N.M. 312, 502 P. 2d 1002 (1972); State v. Reed, supra, 127 Vt. 532; People v. Brunner, supra, 32 Cal. App. 3d 908; Commonwealth v. St. John, supra, 173 Mass. 566; Camron v. State, supra, 32 Tex. Crim. 180. See also, Wight v. Rindskopf, supra, 43 Wis. 344 (1877); People v. Johnson, 372 Ill. 18, 22 N.E. 2d 683 (1939); People v. English, 31 Ill. 2d 301, 201 N.E. 2d 455 (1964); U.S. v. Carter, supra. It is appropriate to consider the extent of the claimant’s performance of the bargain. People v. Brunner, supra. In doing so, it should be remembered that the primary purpose of the exchange is to facilitate the prosecution of crime, not to grant immunity. State v. Smith, supra, 12 Wash. App. 514. See Act 561 of 1973, preamble.

Although the state is not estopped by the unauthorized act of its agent, (State v. Smith, supra, 12 Wash. App. 514; cf. Pulaski County v. State, 42 Ark. 118; Terry v. Little Rock Civil Service Commission, 216 Ark. 322, 225 S.W. 2d 13), appellant should be equitably entitled to have her agreement with the prosecutor enforced if she complied with its terms in good faith and made a full, fair, free and candid disclosure of all facts pertaining to the crimes charged, even though that requires barring her prosecution for the crimes. There does not seem to be any doubt about her being ready, willing and able, but not called upon, to testify. The burden of proving the agreement and appellant’s compliance with it rested upon her. Turney v. State, 40 Tex. Cr. 561, 51 S.W. 243 (1899); State v. Moody, 69 N.C. 529 (1873). See also, People v. Johnson, 255 Ill. App. 288 (1929). In spite of the very unsatisfactory record, we might endeavor to determine whether that burden had been met if the trial court had ruled upon the matter. From our examination of the record, it is clear that the trial judge simply ruled that appellant was not entitled to immunity because no agreement for it had been approved by the court and the state had not sought approval or moved for a nolle prosequi.

It almost goes without saying that, whatever the agreement may have been, the statement given by her could not be considered voluntary. See Annot, 7 ALR 419; Sullivan v. State, 66 Ark. 506, 51 S.W. 828, 11 Am. Crim. Rep. 280. But appellant’s privilege against self-incrimination was fully protected by the return of the transcription of the tape on which it was recorded, and the tape itself, and the non-use of the statement or its content as evidence or in cross-examination, just as effectively as it would have been upon suppression of a confession as involuntary upon any other ground, unless the state discovered other evidence through it, either directly or indirectly. But this is the basis of another asserted ground for reversal, i.e., that the testimony of Stephens should have been suppressed as fruit of the poisonous tree. The trial court held that it was not. We must affirm that holding, because it was not clearly against the preponderance of the evidence.

It is appellant’s contention that Stephens’ plea of guilty and his agreement to testify against her was the result of her giving her statement. But there is evidence to the contrary (even though appellant failed to abstract it), and some of the facts are undisputed. Stephens testified substantially as follows:

The first or second time I saw my attorney, Bill Ross, I advised my attorney that I wanted to enter into negotiations with the prosecuting attorney’s office for a negotiated plea. I believe this was in the month of August. These negotiations were continued up until the November term of court with my approval. On November 5, I assumed, because I know Pamela Hammers, that she had made a statement involving me in this crime. I continued to approve my attorney’s efforts to negotiate a plea and repeatedly asked for a polygraph test. I had not made a complete statement to my attorney. I took the polygraph test on March 7, 1976. I entered a plea of guilty on March 8. I had never talked to either of the prosecutors about this crime. A day or two after I was sentenced, I made a statement.

Ross testified substantially as follows:

I was appointed as counsel for Stephens on August 6 and had the initial interview with him on August 8. I had his custodial statement August 7. I had the custodial statement made by Pamela Hammers. I took a statement from Stephens who told me the same thing he had stated previously. He told me that he did not kill the girl, but that Hammers did. He was going to testify that she did the actual killing, but he helped her dispose of the body. In his custodial statement all he said was, “Talk to Pamela first.” I negotiated with the prosecuting attorney on the basis of time only, beginning in August, up until I convinced the prosecuting attorney to give him a lie detector test. As early as October, up to the time he ultimately plead guilty and agreed to testify, the only difference in the negotiations was roughly 15 years. Stephens first indicated his willingness to testify in October or November. At one time I was negotiating for time and that was one of the elements on which I was negotiating with the prosecuting attorney. At one time, I was negotiating for a plea of murder two and testimony in November. I can’t say for sure that we ever discussed the fact that he would testify before the November term. It had to be before the case was set for trial in the November term of court. Prior to the November term, he had been offered a term of 45 or 50 years and I had offered to take murder two and testify at that time. Before Pamela’s statement was taken, we started negotiating for a reduced sentence, based upon his prosecuting testimony. That offer was rejected at that time. We tried to negotiate, after the witness left and the trial broke down, in exchange for testimony, but the prosecution rejected that.
Pamela Hammers’ statement was given in early November. During the November term, I learned that Hammers was going to testify against him. Hanks had told me that she was not going to testify at all. Then I heard he was talking to the prosecuting attorney. Stephens advised me she was going to testify. I think he surmised it. He asked me about it and asked me if they would be willing to give him a murder two for prosecution at that time. They were talking to the prosecuting attorney and we were talking to him. Nobody had reached a “negotiation.” We were both trying to get to the same place at the same time and we didn’t make it.
In November Stephens was only aware that she had implicated him. We were informed during the November term of court that a statement was given and that she was going to testify. I obtained a copy of her statement February 8, only for the purpose of preparing for trial. He read the statement right after February 8. The statement had no relationship to any negotiations. The only thing we were doing from August 1 on was negotiating for time, until I convinced the prosecuting attorney he should let Stephens take a lie detector test. That was the turning point. After he took and passed the lie detector test, I was able to negotiate the time down to a certain time of 31 years, after the prosecuting attorney read the results of the lie detector test. There was no agreement to reduce the charge to murder two. When we went to Harrisburg on March 8 to enter the plea, the prosecuting attorney had some skepticism about pleading to a term of years, rather than life for murder one, so the plea was to murder two and on the other charge. Stephens did not make a statement until after he took the polygraph test. It was after he was sentenced on March 8.

The burden was on the state to show that it had an independent, legitimate source for Stephens’testimony. Murphy v. Waterfront Commission of New York, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964); Kastigar v. U.S., supra, 406 U.S. 441. The trial court found that it could hardly be said that the existence of the testimony of, or evidence known to, Stephens was discoveied or made known by reason of any statement obtained from Pamela Hammers, that the facts and circumstances disclosed did not bring the case under the “fruit of the poisonous tree doctrine,” and that the state would not be deprived of his testimony in a prosecution of appellant. This finding of fact should be reviewed in the same manner as we review the finding that a confession is voluntary, i.e., it should not be reversed unless it is clearly against the preponderance of the evidence. See Degler v. State, 257 Ark. 388, 517 S.W. 2d 515. We cannot say that the court’s finding was clearly against the preponderance of the evidence.

Appellant also contends that the corroboration of the accomplice was not sufficient to sustain the jury verdict. The corroborating testimony given by Thomas Griffin and Mae Holcott was not fully abstracted by appellant. Griffin had known Stephens and his mother, Mae Holcott, since 1961. He was also acquainted with appellant. He was visiting in the residence of Mrs. Holcott on July 26 and 27-, 1975, where appellant and Stephens were also staying. On the evening of the murder, after dinner they borrowed Griffin’s car and left about 7:00 or 7:30 p.m. Griffin saw them around 7:30 or 8:00 a.m. the following day. The three left for California about 5:00 or 5:30 p.m. on that day which was Sunday. They arrived in California on Tuesday night or Wednesday morning and checked into a motel in Santa Anna. They all went to visit Ms. Kay Areman the next day and, on their return trip, Griffin was stopped at about 10:30 p.m. for running a red light. While the police officer was checking identification, Hammers and Stephens disappeared. The policeman then held the car and Griffin had to take a cab. When he returned to the motei, appellant and Stephens were there. When Griffin asked why they ran, Stephens said, in the presence of appellant, that they had killed a girl in Blytheville, strangled her and thrown her in a ditch. According to Griffin, appellant said, when he asked her, “Yes, that is true.” Griffin had two telephone conversations with Mrs. Holcott, Stephens’ mother. When appellant and Stephens rejected Griffin’s suggestion that they surrender, he reported the matter to the officers. Griffin said that he had noticed something on the floor of his car that appeared to be blood with “vomit” in it the morning after he loaned the car to Stephens and Hammers. When he asked about this, Pamela explained that Stephens had ulcers and he had vomited in the car and she would clean it up.

Mae Holcott testified that she had visited appellant in the Mississippi County jail every Sunday and, on one occasion, had asked her if Stephens had done “thfs thing” and appellant responded, “You can die knowing that Eddie Stephens hurt no one, that I strangled her,” and then put her hand over her mouth and said she was sorry, she couldn’t tell me more. Mrs. Holcott said she reported this to the sheriff, who advised her to tell her son to tell the truth.

This testimony was sufficient for corroboration. Corroborating evidence need only tend to connect the defendant with the crime. Klimas v. State, 259 Ark. 301, 534 S.W. 2d 202. This it did.

We find it impossible to affirm the judgment in this case on the record before us, at least partially because of the trial judge’s holding that lack of court approval of the agreement barred relief to appellant. The situation here is somewhat similar to that in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), where the United States Supreme Court held that a hearing as to the voluntariness of a confession might be held in a separate post-trial hearing. Appellant is entitled to have a resolution of the factual issues and a determination whether the agreement made, even though unauthorized, should be enforced on equitable principles. Consequently, we vacate the judgment and remand the case to the circuit court with directions to that court to conduct a hearing from which it shall determine from evidence there presented the terms of the agreement and whether appellant is entitled to relief from her prosecution on equitable principles. If the circuit court finds she is entitled to relief, it shall set aside the jury verdict and dismiss the charge against appellant. If the court finds that appellant is not entitled to relief, it shall reinstate its judgment. Of course, the action of the trial court is subject to appellate review, as in other cases.

The judgment is vacated and the cause remanded for further proceedings consistent with this opinion.

       This defendant was charged as “James E. Stevens. ” When he testified at the trial his name was “Stephens.” We will use the latter spelling throughout this opinion.

       According to the statements of the attorneys a memorandum or document evidencing the agreement was to have been prepared. Appellant’s attorney stated that he and his co-counsel understood that they could prepare such a memorandum and that the deputy prosecuting attorney would file it on the morning of Stephens’ trial. Such a memorandum does not appear in the record and this is regrettable. Excellent guidelines for procedures in cases of this sort appear in U.S. v. Ford, 99 U.S. 594, 25 L. Ed. 399 (1879) and People v. Brunner, 32 Cal. App. 3d 908, 108 Cal. Rptr. 501 (1973); People v. Bryant, 409 Ill. 467, 100 N.E. 2d 598 (1951).

      Under this doctrine, one charged with a capital offense could confess the charge and accuse another as his accomplice in order to obtain a pardon. If the one charged as accomplice was found guilty, the approver was entitled to his pardon, but if the alleged accomplice was acquitted, judgment went against the approver. See U.S. v. Ford, supra.

       In a sequel to this case, we learn that Plant, the defendant who benefited from the unauthorized promises of the prosecuting attorney, was tried for aggravated burglary connected with the murder on which the New Mexico Supreme Court held that Plant was entitled to immunity. State v. Plant, 86 N.M. 2, 518 P. 2d 961 (1974).


author: Conley Byrd, Justice.

text:
    Robert Andrew BAYSINGER v. STATE of Arkansas
    CR 76-229
    550 S.W. 2d 445
    Opinion delivered May 16, 1977
    (Division II)

      Gail O. Matthews, Roy Gene Sanders, and Adams & Covington, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

This appeal comes from a judgment entered on a jury verdict finding appellant Robert Andrew Baysinger guilty of capital murder and fixing his punishment at life imprisonment without parole.

The record shows that Billy Joe Holder, the decedent, had been sheriff of Searcy County for a number of years. Loren Reeves ran against Holder for sheriff in 1972 but Holder won. Loren Reeves ran again in 1974 for sheriff and this time defeated Holder. Thereafter, Holder, over the objections of Reeves, was employed by the State as an enforcement agent with the Alcohol Beverage Control Board. Shortly before his death, Holder in his capacity as a law enforcement officer with the Alcohol Beverage Control Board had caused appellant and appellant’s wife to be arrested for bootlegging. Appellant at the time told Reeves that appellant was going to kill Holder. Some week or two later appellant told Reeves that if Reeves would put $2000 in the pot, appellant would try to take care of everything. Following Holder’s assassination on February 9, 1976, appellant told Reeves “. . . me, you, and the man that done it, and another woman are the only ones that can involve me. . . .” Reeves then quoted appellant as saying “you better damn sure keep your mouth shut.” In June appellant met Reeves on the parking lot of the Sunset Motel where Reeves taped the conversation he had with appellant. Appellant there identified Norman Sutterfield as the trigger man and explained that he contacted him through the Kiddie Care Nursery in Conway, Arkansas. The State proved that long distance calls had been made from appellant’s phone to the Kiddie Care Nursery. The proof showed that appellant had been seen in the vicinity on the day of the murder in a pickup truck matching the description of Sutterfield’s truck. Other proof showed that appellant had caused to be withdrawn $17,697.27 from a savings account within a few weeks of the murder. Appellant had hunted other persons who were responsible for his bootlegging arrest for the purpose of whipping them.

POINT I. We can find no merit to appellant's contention that he was entitled to a directed verdict in his favor.

POINT II. Appellant here contends that the trial court erred in allowing into evidence the incriminating tape recorded conversation between him and Reeves. The first contention is that it violated his Fifth and Sixth Amendment rights because he was not given his Miranda warnings. We can find no merit to this contention. See Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977). The proof on the part of the State shows that appellant was neither in custody nor deprived of his freedom while talking with Reeves — in fact, the evidence shows that appellant wanted Reeves for a confederate and at least considered the sheriff a confidant instead of a law enforcement officer.

Neither do we find any merit to appellant’s contention that the recorded conversation violated his Fourth Amendment rights. See Kerr & Pinnell v. State, 256 Ark. 738, 512 S.W. 2d 13 (1974) and United States v. White, 401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971).

POINT III. The contention that the trial court, after holding an Omnibus hearing, erred in failing to rule on appellant’s motion to suppress prior to trial is not likely to arise upon a new trial.

POINT IV. The fourth contention is that the trial court erred in refusing to permit appellant to show that Reeves had made inconsistent statements.

On February 25, 1976, after interviewing Reeves, Officer Partlow made the following report, to-wit:

“On the morning of 2/25/76, at 11:45 a.m. in Room 28 of the Marshall Motel in the presence of Sgt. Duvall, Sgt. Young and Trooper Partlow, Loren Reeves was offered the opportunity to take a polygraph test and he had previously stated that he would take the test.
When he was told that Sgt. Young was ready to give him the test he became somewhat upset and refused to take the test. He went on to state that he had discussed this with the County Attorney, John Driver, and Driver told him to tell us we could take that box and shove it up our ass. He went on and said that he had nothing to hide but thought the reason for asking him to take the test was politically motivated by Will Goggin, Venson Jones, and Phil Womack.

He further stated that he was a good friend of Robert Baysinger’s, he did hunting with Baysinger and considered him a pretty good fellow and didn’t believe he would kill anyone.”

At the June trial, Reeves testified that Baysinger had planned to kill Holder and that after the murder Baysinger told him “me, you, and the man that done it, and another woman are the only ones that can involve me, and you better damn sure keep your mouth shut.” The appellant attempted to have Reeves’ February statement put into evidence at the trial in order to impeach Reeves’ credibility. But when the State’s objection to it was sustained, the appellant made a proffer of the investigative report for the record.

Apparently, the State’s objection to the February statement was based on Ark. Stat. Ann. § 28-708 (Repl. 1962) which required that, before an inconsistent statement can be entered, the witness must be inquired of concerning the same, together with the circumstances of time and persons present. That statute was specifically repealed by Acts 1975 (Extended Sess., 1976), No. 1143, Art. XI § 2. The procedure for examining witnesses with respect to prior inconsistent statements is now controlled by the Uniform Rules of Evidence, Rule 613 (Acts 1975, No. 1143).

The State, to sustain the action of the trial court, now takes the position that the contradictory statements involved collateral matters. However, Reeves’ February statement that appellant was a good fellow and that Reeves didn’t believe appellant would kill anyone is certainly contradictory to Reeves’ statements at the trial to the effect that appellant planned and hired Holder’s assassin. It follows that we must hold that the trial court erred in excluding the proffered evidence.

POINT V. Appellant’s contention that the prosecuting attorney in his closing argument referred to appellant’s failure to take the stand is not likely to arise on a retrial. However, from the meager record presented we find no error.

POINT VI. For the appellant’s sixth point for reversal, it is alleged that the trial court erred in overruling appellant’s motion for a new trial based upon the non-disclosed relationship of a juror to witnesses called by the prosecution. The record shows Bennie Morrison was the second juror to be seated and was subsequently elected foreman of the jury. On motion for new trial, the State stipulated that Bennie Morrison was a first cousin to witness Donnie Griggs and a third cousin to Jim Morrison who were subpoenaed as witnesses for the State. Jim Morrison was married to the daughter of the decedent.

The record shows that at the Omnibus hearing it was agreed between the Court, the Prosecuting Attorney and Defense Counsel that all jurors related to witnesses within the degree of second cousin would be routinely dismissed for cause. When each new panel of jurors was brought into the courtroom, both the prosecution and the defense read their list of prospective witnesses to the panel. Witness Donnie Griggs was listed as a witness for both the prosecution and the defense. The court instructed the jurors to raise their hand if they were related in any way to any of the witnesses. If a juror raised his hand, he was then questioned as to the degree of the relationship. The record reflects that a number of jurors raised their hands and were excused for being within the designated relationship. However, juror Bennie Morrison did not respond to the inquiries.

To counteract the showing made by appellant in support of their motion for new trial, the State introduced the following affidavit:

“STATE OF ARKANSAS County of Marion
Comes the State of Arkansas, by Kenneth R. Smith, Prosecuting Attorney, and having been duly sworn states on oath:
That on the 30th day of August, 1976, in the presence of Donald Joe Adams, Gail Mathews, and Roy Gene Sanders, Attorneys for the defendant, Robert Baysinger, and in the presence of the Court, after six jurors had been selected, Bennie Morrison being one of said jurors, I moved the Court to excuse Bennie Morrison as a juror for cause to which the defense objected. I then moved the Court to permit me to exercise a preempt toward challenge and excuse Bennie Morrison to which the defense objected pointing out to the Court that the State and the defense had previously agreed at the Omnibus hearing held in this matter that in accordance with case law the State would not be permitted to excuse a juror once accepted except for cause.
That the defense attorneys were at that time advised that the State had received information after Bennie Morrison had been selected that Bennie Morrison was a good friend and customer of Robert Baysinger having purchased whiskey from Robert Baysinger and that Bennie Morrison might have information that the State would want to produce at the trial.
The defense stated that they objected unless State could prove such. A hearing was set for 8:45 Tuesday morning, August 31, in the chambers of the Circuit Court for the State to offer such proof. During the night of August 30th I, accompanied by Jack D. Knox, special agent of the FBI, interviewed witnesses in an attempt to substantiate same but were unable to do so. On August 31st at 8:45 in chambers, I advised the Court and the defense that I could not substantiate same but only have hearsay evidence concerning it, to which the defense renewed their objection to Bennie Morrison being excused either peremptorily or for cause.
Kenneth R. Smith, Prosecuting Attorney”

Based upon the showing made the trial court overruled appellant’s- motion for new trial.

In Bryant v. Brady, 244 Ark. 807, 427 S.W. 2d 179 (1968), we had before us jurors who had remained silent when they were asked to respond to questions as a group by raising their hands. After pointing out that the silence of a juror in such a situation amounts to a response to a question, we then stated:

“Here we think the trial court abused its discretion by not setting aside the verdict. Obviously, the jurors did not fairly answer the questions put to them by the court. Of course, truthful answers to the questions would not necessarily have disqualified the jurors, but how can we assert that they returned a fair verdict when they did not give fair answers to questions of the court? When viewed from the standpoint that ‘justice ought not only to be fair but appear to be fair, ’ Arkansas State Hwy. Comm’n v. Young, 241 Ark. 765, 410 S.W. 2d 120 (1967), we think the trial court under the record here abused its discretion in not setting aside the verdict.”

Following our decision in Bryant v. Brady, supra, the General Assembly recognized the justness of the premise thereof by Acts 1969, No. 568, § 6 [Ark. Stat. Ann. § 39-106 (Supp. 1975)] which provides:

“No verdict or indictment shall be void or voidable because any juror shall fail to possess any of the qualifications required in this Act [§§ 39-101 — 39-108, 39-201 —39-220] unless a juror shall knowingly answer falsely any question on voir dire relating to his qualifications propounded by the court or counsel in any cause. A juror who shall knowingly fail to respond audibly or otherwise as is required by the circumstances to make his position known to the court or counsel in response to any question propounded by the court or counsel, the answer to which would reveal a disqualification on the part of such juror, shall be deemed to have answered falsely.”

In view of the constitutional guarantee (Ark. Const. Art. 2 § 10) of a trial by “an impartial jury,” we must hold on the record before us that the trial court erred in overruling appellant’s motion for new trial. To avoid these consequences, the State contends that the juror was overly friendly to the appellant. However, this contention is not substantiated by the record. Since the State at the trial recognized that the evidence was not sufficient to sustain a death sentence, we fail to see how a juror who has failed to give fair answers to the qualifying questions put to him and who subsequently votes to bring in the highest possible penalty against the defendant can be said to be overly friendly toward him.

POINT VII. The record shows that the jury was sequestered by court order. Some of the jurors were permitted in the presence of the bailiff to place calls to members of their family for personal supplies such as clean clothes. On the night before the court submitted the case to the jury, the bailiff at the suggestion of the court arranged for the jurors to have dinner with members of their family. At that dinner the bailiff, of couse, did not hear every conversation. However, under the circumstances it would appear that the State met its burden of showing that no improper influence was brought to bear upon an individual juror — i.e. any separation of the jurors that may have occurred cannot be said to have been done without the permission of the court.

POINT VIII. Sergeant Earl Rife and Major Tudor, after listening to the taped recording of the conversation between Reeves and appellant, caused a transcription of the tapes to be made. Where the officers were unable to understand the conversation, a blank was left or a notation made to show that the officers could not understand the tape. Over the objection of appellant that it was the officers’ interpretation of the tape and that the officers did not have the original transcript they corrected, the court permitted the transcription to be introduced into evidence and an identical copy was given to each juror to look at while the tape recording itself was being played to the jury. Every witness who was questioned about the transcript stated that the transcription was correct. In fact, appellant did not in the trial court and does not now controvert anything contained in the transcript or assert that it prejudicially misrepresented the conversation on the tape. The assertions now made by appellant are that the trial court erred in allowing the transcript into evidence and in allowing each member of the jury to have and retain a copy of the transcript throughout the trial.

The record does not sustain appellant’s assertion that the jurors were permitted to retain a copy throughout the trial. On the other issue the authorities are not in agreement. In Bonicelli v. State, Okla. Cr., 339 P. 2d 1063 (1959) and Duggan v. State, Fla. App., 189 S. 2d 890 (1966), it was held error for the State to give the jurors a transcription of a tape recording. In United States v. Turner, 528 F. 2d 143 (9th Cir. 1975), it was held permissible. We believe that United States v. Turner, supra, states the better policy where as here the transcription is shown to be accurate and it would be necessary to replay the recording for the jurors several times unless the transcription is used.

For the two errors indicated, the judgment is reversed and the case is remanded for a new trial on the merits.

Reversed and remanded.

We agree: Harris, C.J., and Fqgleman and Hickman, JJ-