author: Conley Byrd, Justice.

text:
    George DAVIS v. STATE of Arkansas
    CR 75-173
    533 S.W. 2d 202
    Opinion delivered March 1, 1976

      Jones & Tiller, by: Delector Tiller, for appellant.

      Jim Guy Tucker, Atty. Gen., by: B.J. Walker, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant George Davis was found guilty of murder in the second degree and sentenced to 15 years in the Department of Correction. For reversal he contends:

“I. Under the circumstances that developed at the time of trial, it was impossible for defendant to get a fair trial.
II. The Court erred in sustaining the State’s objection to the defendant’s effort to inform the jury as to the conversation between himself and Charlie Bailey and as to a conversation defendant had with his Aunt Gloria Dean Dodson.
III. The Court erred in overruling the defense objection to the line of argument pursued by the prosecution in its closing argument.
IV. The verdict is contrary to the law and the evidence.
V. The Court erred in refusing to give the jury defendant’s instruction labeled No. 2 over defendant’s objections.
VI. The Court erred in overruling defendant’s motions for a directed verdict.”

The record shows that appellant shot one Charlie Bailey at a party in a neighbor’s house. The bullet entered the decedent’s body just under the right shoulder blade. Appellant relied upon self defense and sought to show that in the afternoon before the shooting his Aunt Gloria told him that the decedent had threatened him. The trial court sustained an objection on the basis that such testimony was hearsay. There is testimony from other witnesses that the decedent had threatened to kill appellant one or two times shortly before the shooting. It is fairly well conceded by all witnesses that the decedent had been removed from the party at least once before the shooting. ,

We find no merit in appellant’s contentions I, III, IV, V and VI. The testimony was certainly sufficient to go to the jury on second degree murder. However, we find that prejudicial error was committed when the trial court ruled that appellant could not testify about the threat communicated to him by Aunt Gloria. In Decker v. State, 234 Ark. 518, 353 S.W. 2d 168 (1962), we stated:

“. . . Of course, it is well settled that a communicated threat by the victim against the accused is admissible to explain the conduct, or show motive of the accused, when self defense is relied upon, or an overt demonstration of violence on the part of the victim is present. Lee v. State, 72 Ark. 436, 8 S.W. 385.”

In McCormick on Evidence § 295 (2d ed. 1972) the author states:

“Homicide and assault cases present another special problem. If the accused claims self defense, and threats of the victim were known to the accused, these threats are admissible to prove the accused’s apprehension of danger and its reasonableness. ...”

In 1 Wharton’s Criminal Evidence § 225 (13th ed. 1972) the author states:

“It is relevant for the accused himself to testify directly as to his apprehension of imminent danger and his reasons therefor, and he may state what he believed the deceased intended to do in the encounter. In support of the accused’s claim of apprehension, it may be shown that the deceased had previously threatened the accused.”

The author in 2 Wigmore on Evidence § 247 (3rd ed. 1940) states:

“On the same principle as that of the preceding section, threats of violence against the defendant, uttered by the deceased, and brought to the knowledge of the defendant, are relevant to show his belief of impending danger from the deceased. The state of the law in the several jurisdictions varies only in the phrasing of the generally accepted conditions of admissibility.
(a) As in the preceding topic, considerations of policy call for some restrictions calculated to secure the ‘bona fide’ use of such evidence. These may be, and frequently are, the same as those applied (in the preceding topic) to the use of the deceased’s character. But they are less frequently laid down for the present class of evidence, apparently for two reasons, — first, because there is less danger of improperly using the deceased’s threats in justification for the killing (less danger, that is, than where he can be shown to be an abandoned ruffian, a curse to the community), and, secondly, because specific threats of violence have a more decided bearing on the probability of aggression than mere dangerousness of character. It is therefore to be noted that the rulings on the two subjects in a given jurisdiction are not necessarily mutually applicable.
(b) Wherever the overt-act limitation is adopted, the rule should prevail (as in the preceeding topic) that the trial Court’s discretion determines the sufficiency of the evidence of an overt act.
(c) The threats are required to have been communicated to the defendant, i.e. brought to his notice in some way; otherwise they have no bearing for the present purpose.
(d) The use of uncommunicated threats, as showing the probability of the deceased having been the aggressor, involves a different principle (dealt with ante, § 110); but the respective precedents are not always duly discriminated.
(e) The actual making of the threats is immaterial, if there was a communication made to the defendant of supposed threats. This illustrates the contrast of principle with the doctrine of uncommunicated threats {ante, § 110).”

From the foregoing authorities, we find that the accused is entitled to testify as to his apprehensions and that for that purpose his testimony, as to threats of the decedent communicated to him by third persons, does not constitute hearsay. It matters not whether the communications were truthful or untruthful but only that the third person made the communication to the accused and that he had a right to rely upon the communications to make him apprehensive of the decedent’s subsequent conduct.

Reversed and remanded.


source: Caselaw Access Project

author: Elsijane T. Roy, Justice. John A. Fogleman, Justice, George Rose Smith, Justice,

license: Public Domain

text:
    Glenn JORDAN and Marge WOMACK v. Sara ADAMS and J. W. ADAMS
    75-266
    533 S.W. 2d 210

    Opinion delivered March 1, 1976

      George K. Reeves and Max B. Harrison, for appellants.

      Gardner & Steinsiek, for appellees.
   Elsijane T. Roy, Justice.

On May 29, 1973, appellees Sara Adams and J. W. Adams were guests at the Imperial Diners Club, Inc., a private club with a bar located in the Ramada Inn, Blytheville, Arkansas. The bar is operated immediately off the main dining room of the inn and is separated by a semi-private partition.

Prior to the arrival of appellees at the club, appellants Glenn Jordan and Marge Womack were seated at a table in the, dining area near the partition dividing it from the bar area. Appellants had been dating for about a year and a half, and Mrs. Womack drove from Caruthersville, Missouri, to the Ramada Inn in Blytheville about once a week to meet Jordan.

According to testimony of others seated nearby agitated and vulgar conversation was heard from appellants’ table. Mrs. Womack left the table and went to talk to a man seated at the bar. Jordan followed her and, using profanity, spoke to the man to whom Mrs. Womack was talking.

When Jordan returned to his table he picked up Mrs. Womack’s purse and threw it approximately 26 feet toward the bar where Mrs. Womack was standing. The purse landed on a table between appellants, knocking off a glass candle holder, which broke upon impact. The purse then slid off the table and hit the floor. A .25 caliber pistol in the purse discharged, and the bullet struck Sara Adams below the calf of her left leg.

Appellees brought this action for damages, and the jury returned a verdict in favor of Sara Adams in the sum of $20,-000 and for J.W. Adams in the amount of $600. From such verdict appellants lodged this appeal. Appellants first argue that the court erred in overruling their motion for a directed verdict since there was no negligence which would entitle appellees to recover. We do not agree with this contention. We find that there was substantial evidence of negligence to make a question of fact for the jury as to each appellant.

J. W. Adams testified that he and his wife were guests of John Olson the night of the accident and that after they were seated Tom Miller came over to visit with them. He noticed that Jordan came to the bar and had an agitated conversation with a man talking to Mrs. Womack and then Jordan returned to his table. Then came the crash, after which he noticed Mrs. Womack stoop down, pick up her purse and go out the door. Within seconds he saw blood coming from his wife’s leg and initially he thought it was a cut from the glass candle stick, but in reality it was a gunshot wound. Mrs. Adams was admitted to the Chickasawba Hospital and remained there five days; while there she was attended by Dr. Sims and Dr. Jones; the medical expense for the hospitalization, x-rays, doctors’ fees, etc. at that time amounted to approximately $446; she continued to go to see Dr. Sims when necessary thereafter. In order to ascertain how far the purse had been thrown after the accident he stepped off the distance from Jordan’s table to the bar and found it to be about 26 feet.

Mrs. Adams testified that during the five days she was in the hospital she was given medication for pain; the first night at home was an extremely bad one; and for two weeks after she got home she stayed in bed. The following week when she tried to walk, pursuant to the doctor’s instruction, she suffered extreme pain. She lost 21 pounds the first three weeks after the accident.

Prior to the accident she had performed her household duties, did gardening and yard work, rode a bicycle and maintained a walking schedule of three miles almost every day. These activities were curtailed all summer and to the date of trial (about two years after the incident) she still had not been able to resume some of them. Mr. Adams’ sister helped take care of her, and she paid a maid to come in twice a week. Even though she has resumed her exercise activity as much as possible she still gets cramps in the calf of her leg and has to get off the leg and take something for pain.

She also testified that just recently one night she felt the length of the bullet under the skin in her leg, and this was confirmed by her husband.

Mrs. Tom Miller testified she and her husband were in the dining area of the Ramada Inn and that coming from a table to their right there was loud conversation with vulgar language, making her feel uncomfortable. The people at the table were later identified as appellants.

Both John M. Olson and Mrs. Miller confirmed other testimony about the purse flying through the air and hitting the bar area. Olson also testified that Jordan was slurring his words and seemed to act like a person who had been drinking.

Dr. Hunter C. Sims testified that he saw Mrs. Adams on May 29, and she had a gunshot wound in the left calf in the bottom part of her leg. X-rays were taken and indicated a missile present from a .25 caliber gun.

He stated an injury of this nature does damage to every tissue it traverses, including blood vessels, nerves, fat, muscle, skin and subcutaneous tissue. The velocity of the bullet and the heat of the bullet both caused damage. He described her hospital treatments for five days and stated she was seen after her discharge because she continued to have some discomfort, swelling and redness in her left calf, all of which was diagnosed as superficial thrombophlebitis or an intervascular clot in her left leg. She was placed on cortisone, but she developed an allergic reaction to this drug. The bullet was not removed from her leg because the size of the object was such that it probably would not move around in the body. However, Dr. Sims also testified that if Mrs. Adams continued to have pain from the projectile in her leg, then the bullet would have to be removed and if she continued to experience difficulty and pain in walking it probably would be related to the gunshot wound.

On appeal we consider only that evidence which is most favorable to appellees in determining if substantial evidence exists.

Nevertheless we note that Jordan himself testified he “tossed” the purse to Mrs. Womack, though her back was to him and he did not know why he did it. He admitted he had been drinking but said he was not staggering; he was not mad but he had a bad habit of cursing. He denied he knew Mrs. Womack had a pistol in her purse, but he did not deny that he had been target shooting with her nor that he had been seeing her once or twice a week for about two years.

Mrs. Marge Womack testified concerning her association with Jordan and arrival at the Ramada inn on May 29, 1973.

She admitted the purse and pistol belonged to her and that she carried the pistol whenever she went out of town at night, but that she did not have a permit.

She further testified there were two safety devices on the gun but she did not check the gun before she left that night; the last time she had the gun out for the purpose of shooting it was when she was out in the country with Jordan and Mr. De Priest.

Mrs. Womack testified she left the scene that night because she was scared.

Appellants argue Marge Womack could not have foreseen that someone would throw her purse causing the pistol to fire and Jordan, not knowing the pistol was in the purse, could not foresee injury from the act of throwing it.

We do not agree. It is well established that if the act is one which the party in the exercise of ordinary care ought to have anticipated was likely to result in injury to others, then such person is liable for the injury proximately resulting therefrom although he might not have foreseen the particular injury which did happen. Missouri Pacific Railroad Company v. Johnson, 198 Ark. 1134, 133 S.W. 2d 33 (1939). In Johnson the foreseeability rule enunciated in the case of Helen Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), was discussed by the court as follows:

* * * If we should hold in following the rule that one to be held liable for an alleged negligent act, such act must be the proximate cause of the injury and also be of such a nature that the consequent injury must be one a person of ordinary foresight and prudence would have anticipated, and unless the particular injury suffered could have been so anticipated, there is no liability. Such an application of a sound rule destroys liability for negligence. It would be a rare case, indeed in which any ordinary mortal might possess such foresight or power of anticipation that he could in the exercise or such power know or foresee the exact injury, or effect that would come from any form of negligence. No such foresight has ever been possessed by modern man, nor is any such required in the matter of negligence to anticipate the exact injury or nature of it to establish or fix liability as a result thereof.

In the case at bar the evidence as above detailed is certainly sufficient for the jury to infer that Jordan knew Womack carried a pistol in her purse since, according to her testimony, she always carried it when she went out of town at night. They had been meeting regularly at night for well over a year, and on at least one occasion she had her pistol with her and they went out to target shoot together. However, even if we assume that Jordan was unaware that Womack had a pistol in her purse, it was a culpably negligent act for him to throw a purse (large enough to hold a pistol and other things a woman carries therein) 26 feet across an area where people were dining and drinking. It certainly could have been or reasonably should have been foreseen that the purse might hit someone in the head and/or land on a table breaking glasses or other fragile articles causing serious injury. The throwing of the purse did result in the crash of the glass candle holder which initially was thought to be the cause of Mrs. Adams’ injury. Mrs. Adams was certainly within the foreseeable group of persons who might be injured by Jordan’s negligence, and it was not necessary that he foresee the exact manner in which the injury would be caused. The Palsgraf case, supra, dealt with the “unforseeable plaintiff”. Here we do not have such a situation.

Mrs. Womack’s bringing, without checking the safety, a loaded pistol in her purse into an establishment where people were drinking intoxicating beverages constituted sufficient evidence of negligence to make a fact question for the jury. Furthermore, a party under such circumstances could reasonably foresee a risk of harm to others.

The case of Cobb v. Indian Springs, Inc., 258 Ark. 9, 522 S.W. 2d 383 (1975), also presents a bizarre set of circumstances. In Cobb we held that a directed verdict as to a security guard was improper where there was evidence from which a jury could conclude that the automobile driver was encouraged and incited by the security guard on the premises to demonstrate the speed of the driver’s car: The jury could have found the driver engaged in the tortious conduct complained of, and that the security guard also was guilty of negligence, but in his conduct, both becoming tortfeasors who by concurrent acts of negligence, though disconnected, were guilty of acts which were the proximate cause of the injury. The court stated:

As to foreseeability, it was only necessary that Babbitt [the security guard], at the time the suggestion was made, foresee an appreciable risk of harm to others.

In the case at bar we have the negligent act of Mrs. Womack’s carrying the pistol into the establishment in her purse and the negligent act of Jordan’s throwing the purse; these acts concurred to proximately cause Sara Adams’ injuries.

As to the excessiveness of the verdict, the fact a jury’s award is possibly larger than the court would have given is not sufficient to disturb the verdict. The ultimate question is whether the amount shocks the conscience of the court or demonstrates that the jurors were motivated by passion, prejudice or undue influence. Clark County Lumber Company v. Collins, 249 Ark. 465, 459 S.W. 2d 800 (1970), and McChristian v. Hooten, 245 Ark. 1045, 436 S.W. 2d 844 (1969).

Furthermore, in Clark County Lumber Company the court said:

Every case involving the issue of an excessive verdict must be examined on its own facts; and before this court can constitutionally reduce a verdict we must give the evidence in favor of the verdict its highest probative force and then determine whether there is any substantial evidence to sustain the verdict. Breitenberg v. Parker, 237 Ark. 261, 372 S.W. 2d 828.

Applying the principles enunciated in the atjove cited cases to the evidence herein we do not find the verdict as to either of the appellees excessive.

Affirmed.

Harris, C.J., and George Rose Smith and Fogleman, JJ., dissent.

John A. Fogleman, Justice,

concurring in part, dissenting in part. I concur in the affirmance of the judgment as to Marge Womack. The pistol she carried in her purse was a dangerous instrumentality. See dissenting opinion in Purtle v. Shelton, 251 Ark. 519, 474 S.W. 2d 123 (per Fogleman, J.) and cases cited therein. See also, Williams v. Davidson, 241 Ark. 699, 409 S.W. 2d 311. One handling such instrumentalities must take every precaution to reasonably assure the safety of any persons lawfully coming into proximity with it. Hobbs Western Tie Company v. Orahood, 229 Ark. 241, 315 S.W. 2d 930. See also, Manning v. Jones, 95 Ark. 359, 129 S.W. 791.

Mrs. Womack’s conduct in failing to check the safety on the weapon and in leaving her purse on the floor near the table did not meet that standard, particularly if those at the table were, as might be inferred from some of the testimony, intoxicated and boisterous.

Jordan’s liability is quite a different matter. As to him, I join in the dissent of Mr. Justice George Rose Smith.

I am authorized to state that the Chief Justice joins in this opinion.

George Rose Smith, Justice,

dissenting. I would reverse as to Jordan, because as I interpret the testimony Jordan had no reason to foresee the possibility that Mrs. Womack’s purse contained a pistol that might go off upon the purse’s being thrown across the room. Yet the majority opinion, after saying that “even if we assume that Jordan was unaware that Womack had a pistol in her purse,” still imposes liability, simply because the thrown purse might have hit someone in the head or have caused injury by breaking glasses on a table.

Such reasoning is properly criticized by Harper and James in their Law of Torts, § 20.5 (1956): “Courts and writers have from time to time taken the position that if defendants should anticipate that certain conduct is fraught with unreasonable probability of some harms to somebody, then the duty to refrain from that conduct is owed to anyone who may in fact be hurt by it. As we have seen, this was the view taken in the dissenting opinion of Judge Andrews in Palsgraf v. Long Island Railroad Co.”

What the present majority opinion really says is that if Jordan could foresee some danger, then he is liable for any injury that might actually occur, no matter how unforeseeable. It would make no difference if the purse contained a pistol, a vial of poison gas, or an angry rattlesnake. Prosser points out why that view is wrong: “It is here at least that the line must of necessity be drawn to terminate the defendant’s responsibility. The courts have exhibited a more or less instinctive feeling that it would be unfair to hold him liable. The virtually unanimous agreement that the liability must be limited to cover only those intervening causes which lie within the scope of the foreseeable risk, or have at least some reasonable connection with it, is based upon a recognition of the fact that the independent causes which may intervene to change the situation created by the defendant are infinite, and that as a practical matter responsibility simply cannot be carried to such lengths.” Prosser on Torts, § 44 (4th ed., 1971). I would hold that the discharge of the pistol was an intervening cause for which Jordan is not liable.


author: Robert S. Lindsey, Special Chief Justice. John A. Fogleman, Justice,

text:
    Almer MARTINDALE Jr. v. Charles L. HONEY
    75-102
    533 S.W. 2d 198
    Opinion delivered March 1, 1976

      James E. Davis, for appellant.

      Norman M. Smith, for appellee.
   Robert S. Lindsey, Special Chief Justice.

To the question “May a member of the General Assembly, during his term of office, constitutionally be appointed a deputy prosecuting attorney?”, we answer “No.”

On August 1, 1973, the prosecuting attorney appointed appellee Charles L. Honey, a member of the House of Representatives, to the position of deputy prosecuting attorney for Nevada County. In chancery court appellant Aimer Martindale, Jr., as a citizen and taxpayer, challenged the legality of the appointment.

The chancellor transferred the action to circuit court - “insofar as the question of the defendant’s legal qualifications to be appointed and to serve ... is concerned,” but retained jurisdiction to afford the plaintiff the remedy of an accounting, should the plaintiff’s contentions concerning Honey’s qualifications to serve as deputy prosecuting attorney be upheld. There was no motion to transfer back to chancery court and it is not necessary to discuss or decide the propriety of the transfer to circuit court. Quinn v. Murphy, 181 Ark. 260, 25 S.W. 2d 429 (1930).

Section 10 of Article 5 of the Arkansas Constitution provides:

“No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.”

By Section 1 of Article 4 the powers of government of the State are “divided into three distinct departments,” legislative, executive and judicial.

Section 2 of Article 4 reads:

“No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”

The Constitution provides for the office of prosecuting attorney and places it in the judicial department. Art. 7, § 24. It is a State office and the prosecuting attorney is an officer of the State. Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380 (1907); Smith v. Page, 192 Ark. 342, 91 S.W. 2d 281 (1936).

The office of deputy prosecuting attorney has been created and provided for by the legislature, a deputy being appointed by the prosecuting attorney, with the appointment not to take effect until approved in writing by the circuit court. Ark. Stats. Ann. § 24-119 (Repl. 1962).

In previous discussions concerning whether a particular position was an office or a mere employment, we have said that the distinction often becomes indistinct and we have refrained from framing an inflexible definition or drawing a precise line. Lucas v. Futrall, 84 Ark. 540, 106 S.W. 667 (1907); Rhoden v. Johnston, 121 Ark. 317, 181 S.W. 128 (1915); Middleton v. Miller County, 134 Ark. 514, 204 S.W. 421 (1918); Maddox and Coffman v. State, 220 Ark. 762, 249 S.W. 2d 972 (1952); Bean v. Humphrey, State Auditor, 223 Ark. 118, 264 S.W. 2d 607 (1954); Haynes v. Riales, 226 Ark. 370, 290 S.W. 2d 7 (1956).

Somewhat by definition, there is a distinction between deputies and assistants. Ordinarily, a deputy acts officially for another, as a substitute, and by his appointment exercises the office in his principal’s right or name, his acts being of equal force with those of the officer himself. 63 Am. Jur. 2d Public Officers and Employees, §§483 through 487, 67 C.J.S. Officers, §148.

This court has said

“It is true that it is generally said that a deputy prosecuting attorney, legally appointed, is generally clothed with all the powers and privileges of the prosecuting attorney, but he must file the information in the name of the prosecuting attorney. ” Johnson v. State, 199 Ark. 196, 203, 133 S.W. 2d 15, 18 (1939); Bingley v. State, 235 Ark. 982, 363 S.W. 2d 530 (1963).
In the latter case we upheld the validity, under Amendment 21 to the Constitution, of an information where the name of the prosécuting attorney and the word “by” were typewritten and followed by the signature of the deputy prosecuting attorney.
As noted, the office of deputy prosecuting attorney is created by law; deputy prosecuting attorneys regularly exercise some of the State’s soverign power in the judicial department; their duties are statutory rather than contractual; they hold their positions by official appointments, not by contract of hire; and their compensation is fixed or regulated by law. These characteristics of the office, considered collectively, indicate a public office as contrasted with a mere public employment, even though every public office may be an employment.
The circuit judge, after holding that a deputy prosecuting attorney “is not a civil officer within the meaning of the constitutional prohibition,” dismissed the plaintiff’s complaint. Having concluded that a member of the General Assembly is prohibited by our Constitution from being appointed or serving as a deputy prosecuting attorney, we reverse and remand with directions that judgment be entered declaring that the appellee, during his term of office as a member of the General Assembly, is ineligible to be appointed or to serve as a deputy prosecuting attorney.

Harris, C.J., disqualified and not participating.

Holt, J., disqualified and not participating,

Special Justice H. David Blair sitting in his stead.

Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. It may well be that the majority has reached a desirable result. But even if the answer given should be correct, it has been given to the wrong question. The principal basis of my disagreement is the question as stated by the majority. I humbly submit that the only question presented to the trial court or in the briefs was somewhat different. It was whether the appointment of a representative to the position of deputy prosecuting attorney violates Art. 5 § 10 of the Arkansas Constitution. The judgment was entered upon motions for summary judgment made by each of the parties. Appellant’s motion was based upon the sole contention that the position of deputy prosecuting attorney was a civil office. Appellee’s motion was based upon the contention that the deputy prosecuting attorney was a public employee and not a civil officer. Art. 4 § 2 was never mentioned by anyone except the members of this court. More simply stated, the question at issue in the trial court and submitted to us was: “Is the position of deputy prosecuting attorney a civil office?” I cannot agree with the majority in this respect. As I see it, a deputy prosecuting attorney is an employee, not a civil officer.

Although this court has appropriately avoided any rigid rule in the matter, the importance of certain factors cannot be overlooked. In Maddox v. State, 220 Ark. 762, 249 S.W. 2d 972, cited in the majority opinion, we said:

Since the distinction between a public officer and a public employee tends to become indistinct when the position in dispute has some of the characteristics of each, we have never attempted to frame an inflexible definition of either. Yet the governing principles are well established. A public officer ordinarily exercises some part of the State’s soverign power. His tenure of office, his compensation, and his duties are usually fixed by law. The taking of an oath of office, the receipt of a formal commission, and the giving of a bond all indicate that a public office is involved, although no single factor is ever conclusive. *** On the other hand, mere public employment differs from a public office in that some or all of these characteristics are lacking.
It is clear that a school teacher, whose tenure, compensation, and duties are all fixed by his contract with the school board, is an employee rather than an officer. ***

As in Maddox, some of the important characteristics of a public office (which I take to be included within the definition of a civil office) are missing.

In the first place the deputy prosecuting attorney has no authority to exercise any of the sovereign power in his own name. Whatever power he exercises is in the name of his principal, the prosecuting attorney. It is clear that this power can be limited by the prosecuting attorney. In considering Ark. Stat. Ann. § 24-120 (Repl. 1962) giving the deputy prosecuting attorney the authority to file informations charging persons with criminal offenses, we made it quite clear that there was only a prima facie presumption that a deputy prosecuting attorney has been authorized to file an information. State v. Eason, 200 Ark. 1112, 143 S.W. 2d 22. There we said:

*** Pope’s Digest, § 10885, authorizes deputy prosecuting attorneys to file information in their own names. There is, prima facie, a presumption that a deputy prosecuting attorney acts under direction of his superior. Until the authority is questioned and there is failure of the prosecuting attorney to affirm, the information, being voidable only, is sufficient to bring the defendant before the court, and in consequence such court acquires jurisdiction.

The deputy prosecuting attorney is only required to attend and prosecute charges on behalf of the state when a warrant has been issued by a judicial officer, or when a judicial officer or the prosecuting attorney requests him to do so. See Ark. Stat. Ann. §§ 24-Í21, 123 (Repl. 1962). Thus it may be clearly seen that the deputy prosecuting attorney’s exercise of the sovereign powers of government is in the name of another.

The acts of a deputy in the name of his principal are those of the principal and not of the deputy, and it is the principal not the deputy who is exercising the sovereign power. State v. Christmas, 126 Miss. 358, 88 S. 881 (1921). See also, Jamesville & Washington R. Co. v. Fisher, 109 N.C. 1, 13 S.E. 698, 13 LRA 721 (1891); Oklahoma City v. Century Indemnity Co., 178 Okla. 212, 62 P. 2d 94 (1936). Where the statute confers a power to be exercised only in the name of the principal the deputy is not an officer. 67 CJS 450, Officers § 148. State v. Christmas, supra; State v. Houck, 31 Ohio Cir. Ct. Rep. 15 (1908). See also, Nelson v. Troy, 11 Wash. 435, 39 P. 974 (1895).

The investment of sovereign powers in the incumbent is one of the more important, if not the most important, criteria of public office. 63 Am. Jur. 2d 627, Public Officers & Employees, § 2; 67 CJS 110, Officers, § 5b (2). We have said that sovereign powers are a necessary requisite to any office. Bean v. Humphrey, 223 Ark. 118, 264 S.W. 2d 607.

Tenure is also an important, even if not controlling, characteristic of a public office. A deputy prosecuting attorney has no tenure and cannot be assured any by agreement of the prosecuting attorney. He may be removed by the prosecuting attorney at any time. Ark. Stat. Ann. § 24-120. Sheffield v. Heslep, 206 Ark. 605, 177 S.W. 2d 412. Certainly, it would be hard for one subject to dismissal on a moment’s notice to feel that he had the security of a civil office.

Some duties of the deputy prosecuting attorney are stated by law. As pointed out, those stated are not duties until someone else has acted to make them so. But I am sure that no one would say that his duties are fixed by law, so that other duties could not be assigned by the prosecuting attorney. It is common knowledge that deputy prosecuting attorneys do many things other than those named in the statutes.

There is no requirement that the deputy prosecuting attorney take an oath, were it not for the holding that he holds a civil office bringing him within the purview of Art. 19 § 20. I find no requirement that any formal commission be issued to a deputy prosecuting attorney or that his appointment be formal in any sénsé. It is only required that the appointment be approved, in writing, by the circuit court. Ark. Stat. Ann. § 24-119. No bond whatever is required.

Upon review of the Maddox requirements, I find only one of the criteria for determining whether one is the holder of a public office which is met in this case. That is the fixing of compensation by law. I do not see how such an important determination can rest upon such a slim reed.

To illustrate the importance of the distinction between the question at issue and the question posed and answered by the majority, I point out that if Art. 5, § 10 is applicable, a senator or representative could not even resign before the expiration of his term and accept appointment as a deputy prosecuting attorney. People v. Lennon, 86 Mich. 468, 49 N.W. 308 (1891); Richardson v. Hare, 381 Mich. 304, 160 N.W. 2d 883 (1968); State v. Sutton, 63 Minn. 147, 65 N.W. 262, 30 LRA 630, 56 Am. St. Rep. 459 (1895); Chenowith v. Chambers, 33 Cal. App. 104, 164 P. 428 (1917); Baskin v. State, 107 Okla. 272, 232 Pac. 388, 40 ALR 941 (1925); Annot 5 ALR 117, 120 (1920), S 40 ALR 945 (1926). Cf. Jones v. Duckett, 234 Ark. 990, 356 S.W. 2d 5; Johnson v. Darrell, 220 Ark. 675, 249 S.W. 2d 5. If the majority’s result should be reached by applying Art. 4 § 2, he could.

I would affirm the judgment.

I am authorized to state that Mr. Justice Jones joins in this opinion.


author: Carleton Harris, Chief Justice.

text:
    Carl W. LEE v. B.J. VAUGHN
    75-268
    534 S.W. 2d 221
    Opinion delivered March 8, 1976
    [As amended on denial of rehearing, April 12, 1976.]

      Walker, Campbell, McCorkindale & Young, for appellant.

      Adams & Covington, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Carl W. Lee, guaranteed the payment of “the first S3,000.00” of a S4,000.00 note from Norvile and Rofena Akin, which Lee assigned to appellee, B. J. Vaughn, a resident of Lamesa, Texas; the guaranty agreement was also executed in Texas. The agreement provided that “If any monthly installment is past due more than 15 days, B. J. Vaughn shall promptly mail notice of that fact to the said Lee, P. O. Box 266, Bentonville, Arkansas, 72712.” The Akins defaulted on the note, and appellant refused to perform his agreement, contending that appellee failed to give the requisite notice. Appellee instituted suit on the guaranty and the trial court, sitting as a jury, rendered judgment for Vaughn in the amount of $2,921.13. From the judgment so entered, appellant brings this appeal, contending that the lack of notice by appellee constituted failure of consideration with a resultant release of appellant from liability under the guaranty.

At the outset it should be mentioned that since the guaranty agreement was executed in Texas, and was to be performed there, Texas law should have governed the case; however, neither party gave notice of this fact to the trial court, and neither argues the point on appeal. Accordingly, the case must be decided under Arkansas law. American Aviation, Inc. v. Aviation Insurance Managers, Inc., 244 Ark. 829, 427 S.W. 2d 544. In that case, we stated:

“Appellant did not plead the application of the Texas statutes [as required by Ark. Stat. Ann. § 37-2504 (Supp. 1975)], and the law of this state applies.”

Returning to the main issue, the record reveals that Lee and Smith executed the assignment and guaranty on August 15, 1968. The note called for monthly payments of $100.00 by the Akins and they made seven monthly payments. In April, 1969, no payment at all was made, and only $41.32 was paid in May. Four more payments were made before the Akins missed the payment for October, 1969; likewise, a payment was missed in February, 1970, and no payments were made after March 18, 1970.

Sometime during 1968 or 1969 Vaughn moved to Nashville, Tennessee, apparently leaving the management of his Lamesa interests in the hands of his office manager, and his Lamesa attorney, Robert Snell. The evidence does not reveal that any type of notice was given to either Lee or Smith until “right at the end of 1969 or the early part of 1970 ***.” In answer to interrogatories, Snell stated that he had some earlier calls from Smith, and an office notation reflected a call from Smith in January, 1969; of course, this was before any default at all occurred. Snell was not able to state that he had received any calls from Lee, the witness only stating “perhaps” from Lee, but he said that most of his conversation was with Smith. According to Snell, on April 3, 1970, he directed a letter to Smith and Lee wherein he requested each to sign a statement, which he had enclosed, that “it will not be necessary from month to month for Mr. Vaughn to notify you about the default in payments in order to keep the $3,-000.00 guarantee in force.” The statement to that effect was not executed and returned to Snell, and Lee denied that he ever received this letter. On August 12, 1970, another letter was directed to Smith and to Lee wherein Snell stated that he thought he had the executed statement, heretofore referred to, in his files, but found that he did not, and he again requested the execution of the waiver of notice. Lee stated that he received this notice.

In answer to Interrogatory No. 3, Snell stated that he talked with Smith near the end of 1969 or early part of 1970 and advised that the Akins were having difficulties making the payments, and he stated that Smith and Lee, together with Akin, on March 24, 1970, came to his office to discuss the matter. Thereafter, he wrote the letter requesting the waiver. In answer to Interrogatory No. 4, Snell stated that Smith had indicated that he would sign the statement, but he (Snell) never did receive it.

Vaughn testified that he called Smith on March 18, 1970, informing the latter that the Akins were delinquent on their note payment, and stated, “I presumed he would call Mr. Lee.”

Lee testified that he was never notified in writing by either Vaughn or his attorney that the Akins were in default; that had he been so notified as the monthly payments became delinquent, he could have, and would have, honored the guaranty agreement.

We are of the opinion that the trial court erred in rendering judgment against Lee. Admittedly, the failure to make payment in April, 1969, the partial payment in May, and the failure to make payment in October were never communicated to Lee, and it appears from the record that Lee’s first notice of any default came when he was told of that fact in March, 1970; as earlier pointed out, the first attempt to give either Smith or Lee written notice was the letter of April 3, 1970.

We have held that a guarantor is entitled to have his undertaking strictly construed and that he cannot be held liable beyond the strict terms of his contract. Gulf Refining Company v. Williams Roofing Company, 208 Ark. 362, 186 S.W. 2d 790; National Bank of Eastern Arkansas v. Collins, 236 Ark. 822, 370 S.W. 2d 91. In the last mentioned case, we quoted 24 Am. Jur. Guaranty § 71, p. 158, as follows:

“A guarantor, like a surety, is a favorite of the law, and his liability is not to be extended by implication beyond the express limits or terms of the instrument, or its plain intent.”

However, the instant appeal presents a question of first impression for this court; i.e., apparently no Arkansas case has construed a guaranty contract that contained an express requirement of notice of the principal’s default. It seems clear, however, that the great majority of states (all but one, Michigan) that have considered a like situation have reached a conclusion in conformity with the Restatement of Security, § 136, where it is stated:

“Subject to the rules pertaining to negotiable instruments, the surety’s obligation to the creditor is not affected by the creditor’s failure to notify him of the principal’s default unless such notification is required by the terms of the surety’s contract.” [Our emphasis].

The leading state decision on the point appears to be Yama v. Sigman, 114 Col. 323, 165 P. 2d 191, in which the debtor was obligated to make biweekly payments, and the guaranty was conditioned upon immediate notice of default. The Colorado Supreme Court held that under such an agreement the guarantor could not be held liable after the debtor’s default, when the creditor failed to prove that he had given the necessary notice — “their failure in this respect relieves the defendant of all liability under his guaranty.” In a New York decision, Pergament v. Herrick Credit Corp., 200 N.Y.S. 2d 535, the rule is summarized as follows:

“Where a contract of guarantee specifically provides for notice of default, the failure to give such notice discharges the guarantor’s obligations [citations omitted]. The guarantor may limit his liability as such by whatever conditions he may see fit to impose, and non-compliance with them will preclude recourse to him. As stated above, his undertaking is strictissimi juris and cannot be extended beyond the fair import of its language.”

Ohio courts adhered to the same principle in Lakemore Plaza, Inc. v. Shoenterprise Corp., 188 N.E. 2d 203 (Ct. Cmn. Pleas):

“Where a guarantor attaches a certain condition or conditions to his agreement, such condition or conditions must be construed in favor of the guarantor, and the failure of a creditor to strictly comply with any condition or conditions invalidates the guaranty.”

Other courts that have adopted this analysis are the Wisconsin Supreme Court, Electric Storage Battery Co. v. Black, 27 Wis. 2d 366, 134 N.E. 2d 481; the District of Columbia Court of Appeals, United States Plywood Corp. v. Continental Casualty Corp., 157 A. 2d 286; and the Pennsylvania Superior Court, Barati v. M.S.I. Corp., 243 A. 2d 170. In the United States Plywood decision, the court stated:

“Since the foundation of any rights of the donee or creditor is the promisor’s contract, it follows that his rights are restricted by the terms of the promise and any conditions, express or implied, affecting them. A stipulation for notice of default is a condition of liability which may always be imposed. The weight of authority holds that where the notice provision is reasonable and is stated as a condition precedent to the right of instituting legal action, failure to observe it will discharge the surety.”

Lee was entitled to the protection that he had insisted upon in guaranteeing the note; after all, the note contains an acceleration clause under which the entire indebtedness could have become immediately due and payable following the April, 1969 default. While Vaughn alleged in a second amendment to his complaint that Smith and Lee “were partners in the transaction herein sued upon,” the record contains no evidence to that effect, nor is such a contention argued by appellee. Actually, the guaranty agreement itself indicates the contrary, since the notification clause called for both Smith and Lee to be notified by mail at two separate addresses.

Reversed.

      C.E. Smith was Lee’s co-guarantor on the note, for the same amount, but he died while this litigation was pending, and appellee did not revive the action against Smith’s estate. Though Smith may be referred to infra as Lee’s codefendant at the trial level, his estate is not a party to this appeal.


author: George Rose Smith, Justice.

text:
    Leon ODOM v. STATE of Arkansas
    CR 75-200
    533 S.W. 2d 514
    Opinion delivered March 8, 1976

      William B. Blevins and Robert L. Pierce, for appellant.

      Jim Guy Tucker, Atty. Gen., by: B.J. McCoy, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, a resident of Brinkley, was charged as an accessory before the fact in the robbery of the Mad Butcher grocery store at Brinkley. It was the State’s theory that Odom assisted three other men, Embrey, Bruton, and Zappas, in planning the robbery. The other three actually committed the crime, with Odom receiving $400 as his share. The jury returned a verdict of guilty and imposed sentences of ten years for the robbery and eight years for the use of a firearm.

Inasmuch as there is one clear-cut reversible error, we confine our discussion to that point and such others as may recur upon a retrial. Embrey, one of the robbers, admitted his guilt and testified for the State. He said that when he returned to Brinkley several weeks after the robbery to pay Odom, he left at Odom’s house a suitcase containing clothing and some stolen blank Oklahoma car titles. Embrey testified that after his arrest he gave a federal special agent, Paul Darby, permission to pick up the suitcase. Darby testified that he did so, telling Mrs. Odom that he was Embrey’s stepbrother.

Mrs. Odom testified for her husband, asserting his innocence. On cross-examination she denied having made any statement to Darby about the Oklahoma car titles. The court permitted the State to attack Mrs. Odom’s credibility by means of Darby’s rebuttal testimony that Mrs. Odom said to him that she thought Embrey had the car titles with him when he was arrested.

The court’s ruling was erroneous. Embrey’s possession of the titles at the time of his arrest was a collateral matter, in that the State could not have proved it as part of its case in chief. Peters v. State, 103 Ark. 119, 146 S.W. 491 (1912). It is firmly settled that a party cannot cross examine a witness about a collateral matter and then impeach him by proof of a contradictory statement. Peters v. State, supra; Tullis v. State, 162 Ark. 116, 257 S.W. 380 (1924). We certainly cannot say that the error was harmless. To the contrary, the prosecutor argued to the jury that Mrs. Odom had lied to Darby and that the rest of her testimony was therefore open to question.

Odom insists that the trial judge should have told the jury as a matter of law that Odom’s 19-year-o)d stepson, Steve Nash, was an accomplice. Steve was living in the Odom home and testified that he heard Odom and the other men planning the robbery, which was to be brought off by tying up the store manager at his home and compelling him to reveal the combination to the safe. Steve knew the details of the plan. He had previously worked at the store and told the men where the safe was and how much money it might contain. He showed Embrey the store manager’s house and went with Embrey to buy cord for tying up the manager. Steve had no part in the actual robbery, received none of its proceeds, and testified that he was afraid to report the crime to the police.

In our various definitions of an accomplice we have said that he is one who participates in any manner in the criminality of the act (Rhea v. State, 226 Ark. 68, 288 S.W. 2d 34 [1956]) and that he is one who could have been indicted for the offense (McClure v. State, 214 Ark. 159, 215 S.W. 2d 524 [1948]) or convicted of it (Havens v. State, 217 Ark. 153, 228 S.W. 2d 1003 [1950]). That one knows that a crime is about to be committed does not necessarily make him an accomplice. Simon v. State, 149 Ark. 609, 233 S.W. 917 (1921). Nor does concealment of a crime for fear of one’s own safety. Melton v. State, 43 Ark. 367 (1884).

In harmony with the general rule, the court should not instruct the jury that a certain witness is an accomplice if there is any dispute in the testimony upon that point. Simms v. State, 105 Ark. 16, 150 S.W. 113 (1912). Whether a witness is an accomplice is ordinarily a mixed question of law and fact, to be submitted to the jury. Norris and Hamlett v. State, 168 Ark. 151, 269 S.W. 46 (1925); Rogers v. State, 136 Ark. 161, 206 S.W. 152 (1918). Here a jury could readily find that Steve Nash was not an accomplice, in that he did not take part in any criminal act, that he supplied information that was readily available to anyone, and that fear kept him from reporting the crime. The court correctly refused to instruct the jury that Steve was an accomplice as a matter of law.

Odom argues that Embrey’s suitcase and the Oklahoma titles were not admissible. Although we see no reason for the titles to play any part in a new trial, there was actually no error as the issues arose. The prosecutor took the position that he had to prove, on the one hand, Odom’s activity in planning the crime and, on the other, the execution of the plan by others. The suitcase and titles were offered solely to corroborate Embrey’s testimony about the crime. The court twice instructed the jury that the evidence was admitted only for that corroborative purpose. In both instances defense counsel were apparently satisfied with the instruction and made no other objection.

It is also argued now that the suitcase was inadmissible, because Darby obtained it by telling Mrs. Odom that he was Embrey’s stepbrother. When a plain-clothes or undercover officer misrepresents his identity as a reasonable means of ap~ prehending a criminal, we do not think that the guilty person is in a position to complain unless the conduct should be prohibited, such as an entrapment. See Peters v. State, 248 Ark. 134, 450 S.W. 2d 276 (1970). Moreover, since Embrey authorized Darby to get the suitcase and it was used only to corroborate Embrey, we do not see that Odom’s rights were violated. Similarly, he does not have standing to complain that a car belonging to one of the other three participants in the crime may have been searched in Missouri without a valid search warrant.

Reversed.


author: John A. Fogleman, Justice. Conley Byrd, Justice,

text:
    Carter A. WORLEY Jr. a/k/a Jack WORLEY v. STATE of Arkansas
    CR 75-177
    533 S.W. 2d 502
    Opinion delivered March 8, 1976

      Jon R. Sanford and James R. Pate, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Carter A. Worley, Jr., was tried on a two-count indictment charging him with obtaining money under false pretenses. The first count charged that he had falsely represented to Mr. and Mrs. Albert Ford, for whom he was building a house, that certain material bills had been paid for the purpose of inducing them to authorize additional construction. In the second count, he was charged with having, on August 23, 1973, fraudulently altered a promissory note executed by the Fords with the intent to defraud the Fords and the Bank of Dover of $10,000. He was acquitted of the first count, but found guilty of the second, in a jury trial held on October 29, 1974. We find no reversible error and affirm.

The first contention made by appellant is that there was prejudicial error in the denial of his motion for continuance. Worley was charged by information filed on October 25, 1973. His motion was made on October 18, 1974 and heard at a pretrial conference on October 28, 1974. The motion was written, but not verified by affidavit. In the motion, Worley alleged that, after the information was filed, he was informed by “the State” that he would not be prosecuted, and was not told that the case would be tried until about October 1, 1974 and was not arraigned until October 10, 1974. He also alleged that he did not make any arrangements to be represented by counsel until October 18, 1974, and that his attorney did not have sufficient time to properly prepare for trial on October 29. He further alleged that certain documents important to his defense were in the possession of parties residing in Kansas and the time for obtaining those documents before trial was insufficient. Worley asked a continuance for at least 60 days, saying that he could prepare his defense and obtain the documents within that time.

The granting or denial of a motion for a continuance lies within the sound judicial discretion of the trial judge. Cox v. State, 257 Ark. 35, 513 S.W. 2d 798; Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500. There is no abuse of discretion in the denial of this motion which failed to meet the statutory requirements, which include verification under oath. Ark. Stat. Ann. §§ 27-1403 (Repl. 1962), 43-1706 (Repl. 1964). See, Carter v. State, 196 Ark. 746, 119 S.W. 2d 913; Thacker v. State, supra. The allegations of the motion are deficient in that no reason for his delay in employment of counsel from October 1 to October 18 is stated and the conclusional allegations about the evidentiary documents he desires were extremely vague, not only as to the description of the documents and a statement of their relevance, but as to the identity of their custodian. The motion, on its face, did not state facts which would constitute grounds for a continuance. Conway v. State, 256 Ark. 131, 505 S.W. 2d 758; Brown v. State, 252 Ark. 846, 481 S.W. 2d 366; Parker v. State, 179 Ark. 1064, 20 S.W. 2d 113. But, even worse, although appellant was given the opportunity to substantiate any ground alleged for continuance when the motion came on for hearing, he failed to do so. When the state controverted the allegation that Worley had been told by the state that he would not be prosecuted on the charges, his attorney offered to show by testimony of Worley that the impression had been left with him that he would not be, and that he had no information to the contrary until he was advised in early October of his impending arraignment on October 10. This proffer was rejected by the judge, who held that it was immaterial, noting that the charge had remained pending since its filing. It is notable that the proffer does not include any indication of the manner in which Worley was left with his impression or any justification for such a belief.

If defense counsel was tardily employed, Worley failed to show that anyone except him was to blame. There is no indication that Worley is or was indigent. According to Worley’s testimony, the attorney who did represent him at the trial and on the motion was the same lawyer who had assisted him in posting bail on the charge and this attorney had stated then that he would not further represent appellant until appellant had arranged to employ him for defense of the charge. In the intervening period he had consulted the same attorney about civil litigation and there were probably some conversations about the charges during the time the attorney was representing him in these matters. Worley said that he received a letter about October 7 advising him that the case was to be tried and that he actually learned that he was to come to the courthouse for arraignment by a call from this attorney’s office. Even then “financial arrangements” for the employment were not made until October. If counsel was handicapped in preparing for trial, it was because of Worley’s dilatory action and he was entitled to no relief on that account. See Gathright v. State, 245 Ark. 840, 435 S.W. 2d 433; Nash v. State, 248 Ark. 323, 451 S.W. 2d 869; Shinsky v. State, 250 Ark. 620, 466 S.W. 2d 911.

Worley’s testimony about the documentary evidence was little better than his allegation. He revealed that, at the time of his alleged criminal conduct, he was employed by, but not a stockholder of, Worley Construction Company, a corporation, of which his son, daughter and wife were the major stockholders, that the company had subsequently gone out of business and its records packed up for safekeeping. Except to say that the corporation actually was the builder of the house for the Fords and that the records were important to his defense, he failed to inform the court of the relevance and materiality of the records he sought or to further identify them or their contents. He was very indefinite about where or in whose custody they were, except that his mother-in-law and father-in-law had possession of them in Kansas. He did say that he had notified the parties concerned and had been promised, when he was able to reach these people by telephone during the preceding week, that these records would be mailed but that he had not received them. When the judge asked what assurance there was that this evidence would be available if additional time was granted, appellant’s attorney said the documents were principally cancelled checks. Worley only verbally assured the court they would be forthcoming. Without more definite information or better assurance of the availability of these documents, the trial court was justified in denying a continuance on this ground. Brown v. State, supra; Thacker v. State, supra; Conway v. State, supra; Shinsky v. State, supra. It would appear, at least superficially, that the records sought would more likely relate to the charge on which appellant was acquitted than that on which he was convicted. There is no error in denial of a motion for continuance to obtain evidence that is not material and relevant. Morphew v. State, 84 Ark. 487, 106 S.W. 480; Padgett v. State, 171 Ark. 556, 286 S.W. 819.

Even though the denial of his motion for continuance was included as an allegation of error in motion for new trial filed by appellant, he gave no additional information about the documentary evidence he sought or about prejudice. He only said that it unjustly deprived him of the right to accumulate evidence, obtain witnesses (not identified) or confer with counsel in order to adequately defend himself. The motion for new trial was not denied until nearly eight months had elapsed after the trial. The burden of showing abuse of discretion in denial of a continuance was on appellant. Cox v. State, 257 Ark. 35, 513 S.W. 2d 798. He failed to meet it.

Appellant attacked the jury panel by motion to quash because jurors whose names were on a panel that had been quashed previously were not put back into the jury wheel when the panel from which the jury in his case was drawn was drawn from the jury wheel. It was shown that 100 names were drawn from an 850-name jury wheel on March 18, 1974 and 40 more on June 26, 1974, but that this combined panel was quashed on October 11, 1974, and a new panel drawn for the remainder of the April, 1974 term and for the November, 1974 term. Somehow it was calculated that when this last panel was drawn there were only 660 names in the wheel and that many of the 140 persons whose names had been originally drawn either did not serve or had not fully served the time they could have been required to do so. The circuit judge had specifically directed that these names not be returned to the jury wheel. It is appellant’s contention that the statute required that there be at least 800 names in the jury wheel when a panel was drawn. The record does not disclose how many days any of these 140 persons might have been required to report for jury duty. It is clear that the 100 drawn in March had been subject to call for six months. No juror may be required to report for more than a six-month period or to report for more than 24 days. Ark. Stat. Ann. § 39-104 (Supp. 1974). There was probably good reason for the court to direct that these names not be returned to the jury wheel. Ark. Stat. Ann. § 39-212.1 (Supp. 1975) contains a provision that the circuit judge may, in the exercise of his discretion, direct the jury commissioners to submit additional names to be placed in the jury wheel prior to any additional drawing of jurors. There is no requirement that the minimum number of 800 names be constantly maintained after the original panel has been drawn from it. This is not the same situation we had in Horne v. State, 253 Ark. 1096, 490 S.W. 2d 806. There the trial court deviated from the statutory requirement that there be a new jury wheel for each calendar year by simply adding 74 names to the 1970 jury wheel in order to constitute the 1971 jury wheel. The flaw that occasioned our disapproval of the procedure by which the chancery court used 96 names drawn from a jury wheel which were not placed in the jury book nor returned to the jury wheel in Shelton v. State, 254 Ark. 815, 496 S.W. 2d 419 was that these 96 people were rendered unavailable for use in criminal cases. We said the better procedure would have been for the chancery court to take its jurors from the list on the jury book and to return them for future use in other trials. This is an entirely different situation.

Another objection to the jury panel was that there were two or three persons on the list of 850 who were not registered voters. The clerk of the court explained that this meant that when these people were called to serve they were not qualified electors but that the circuit judge always directed such people to register to vote. It is not indicated that any of these people served on appellant’s jury or even that they were on the panel drawn from the wheel. There is no indication that their names were not on the voter registration list when selected by the jury commissioners. It is, as the state suggests, quite possible that their names were subsequently removed. At any rate, we cannot say that the inclusion of three names of persons not qualified out of a list of 850 would invalidate the entire list, or a panel drawn from it.

Appellant also contends that the manner in which the list was made up invalidated it. He says that the typing of the list selected by the commissioners by a secretary of one of them invalidated the jury wheel. His argument is based upon the absence of any written oath filed by the typist and of any docket entry to the effect that any oath had been administered. He also contends that the typist was given the list by her employer and never met any of the other jury commissioners who did not verify the authenticity of the list given her either in person or by signatures or initials. There was also testimony that the marked voter registration list identifying those selected from it remained unsafeguarded in her desk during the entire two-week period required for her typing of the list. The office was open to the public during working hours and several persons had access to it both day and night. The typist testified that she was brought to the court where an oath was administered by the circuit judge. The manner in which she described the oath indicated that it was in conformity with the statute. We find no error in the court’s accepting her testimony about this matter and we certainly could not say that her employment was unauthorized if the judge actually administered the oath to her. The trial judge made a specific finding that there had been substantial compliance with the statute. Even though we think that better precautions probably should have been taken and better records kept, we cannot say that the trial court’s finding was erroneous.

Appellant asserts error in the denial of the admission into evidence of what he describes as “business records.” Appellant testified that James Morrow, office manager, did all of the paper work in the construction company office and that, to the best of his knowledge, the note on which the charge was based was prepared by Mr. Morrow. On this note the figures indicating the amount actually read “$16,000.” The complaining witness testified that the note had been altered from $6,000. The note itself showed that the figure “1 ” did not appear on the same level as the remainder of the figures in the principal amount, being a little lower. All of the figures were typed. Appellant proffered as exhibits a purported copy of a letter from Morrow to appellant, carbon copies of seven checks and two contracts. On some of these there were irregularities in the typing so that letters in the same word did not all appear on the same line. In making the proffer appellant’s attorney stated that this was a random sampling of papers from the construction company’s business and that all of them were prepared by Morrow, who was dead at the time of trial and that these papers were prepared in the regular course of business and had been in the sole exclusive possession of appellant since their preparation and that they reveal irregularities of the location of numbers with reference to lines on the page showing that the typewriter could be responsible for the mislocation of the “1” in the principal sum appearing on the face of the note. The proffer was refused on the basis of hearsay.

Appellant argues here that these exhibits were admissible under the Business Records Act Ark. Stat. Ann. § 28-928 (Repl. 1962). Whatever might be otherwise said about their admissibility, they are certainly not admissible under the Business Records Act. The section to which appellant refers makes writings made as a memorandum or record of any act, transaction, occurrence or event, if made in the regular course of business and if it was the regular course of such business to make such memo or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter. The records simply were not proffered as evidence of any act, transaction, occurrence, or event of which they could be considered as a memorandum or record. There was no attempt to make a business record of the manner of operation of a typewriter and the transactions recorded were wholly irrelevant to the case on trial.

The only purpose of the act was to eliminate the necessity of calling as witnesses everyone who had knowledge of the transaction in order to remove the hearsay objection to the record and declarations therein as evidence of the particular matter recorded, which would otherwise be inadmissible, and nothing else. See Shehtanian v. Kenny, 156 Cal. App. 2d 576, 319 P. 2d 699 (1957); Fagan v. Newark, 78 N.J. Super. 294, 188 A. 2d 427 (1963); 30 Am. Jur. 2d 52, Evidence § 933; McCormick on Evidence (2d Ed.) 729, § 312; 2 Jones on Evidence (6th Ed.) 355, § 12.11; V Wigmore (Chadbourne Rev.) 489, § 1561 a. The fact stated in the entry made must be material, relevant and evidentiary as to the issue. D’Amato v. Johnston, 140 Conn. 54, 97 A. 2d 893, 38 ALR 2d 772 (1953).

Appellant also attempted to testify that Morrow had stated in the presence of the complaining witnesses, their attorney and appellant that he (Morrow) prepared the note in question in his office on his own typewriter with the amount shown as $16,000 and that it had not changed form from the time he made it and gave it to appellant for signature by the complaining witness up to the time of the conference at which he made the statement. The circuit judge held that this was hearsay and obviously introduced as truth of the matter asserted. We agree with the trial judge. This certainly was not offered to show whether the statements or declarations were made and we do not understand the hearsay rule to be relaxed just because of the difficulty of obtaining other proof, as appellant contends. The exception relied upon by him, even if otherwise applicable, requires that the declarant be disinterested, that his statement must have been before the dispute or litigation, and that it be made without bias on account of existence of a dispute which the declarant might be disposed to favor. St. Louis, I.M. & S. Ry. Co. v. Gibson, 113 Ark. 417, 168 S.W. 1129. The declaration was made in connection with the dispute so the statement of Morrow could not come within this exception.

The judgment is affirmed.

The Chief Justice, Mr. Justice Byrd and Mr. Justice Holt dissent.

Conley Byrd, Justice,

dissenting. The only count upon which the jury found appellant Worley guilty was that he altered a $6,000 note signed by Mr. and Mrs. Ford to read $16,000. The main evidence upon which the State relied to show the alteration was the fact that the “1” in the figure $16,000 was not in line with the remainder of the figures. To counter this proof Worley sought to introduce, under the “Business Records as Evidence Act,” Ark. Stat. Ann. § 28-928 (Repl. 1962), other prior business transactions that had been prepared by his office manager, James Morrow, to show that the mis-location of the “1” was due to Morrow’s typing and not to a subsequent alteration. Among the records proffered was a draft to Gosnell Buick-Chev. Co. (attached hereto as an appendix) which shows that, on the typewriter used, the lower case “1” was also used as the numeral “1” and that in the figure $90.11 the 11^ was not in line with the remainder of the figures. Neither was the “11 ” in Gosnell in line with the remainder of the name Gosnell. At the time of trial Morrow was dead; thus, it became necessary to show that both the proffered records and the Ford note in question were prepared by the same man. To lay the foundation for that proof, Worley sought to prove the Gosnell Buick-Chev. Co. transaction to establish that the draft was made while Morrow worked for him. The trial court, without objection from the State, ruled such evidence hearsay and collateral and would not permit its introduction. Somehow, the majority says it is not relevant.

The hearsay ruling by the trial court was clearly erroneous. As pointed out in Frampton v. Hartzell, 179 Cal. App. 2d 771, 4 Cal. Rptr. 427 (1960), it is true that business records are hearsay, but “nevertheless they are admissible as being an exception to the hearsay rule, hence an objection only that they are hearsay is not a valid objection.”

Neither can it be said that the proof offered is collateral or not relevant. The conduct of the jury leaves no doubt about the relevancy or materiality of the evidence — i.e. their desire to compare the typing on the note with other typing of Morrow is demonstrated by the following excerpt from the record:

“THEREUPON, after a period of deliberation by the Jury, the Jury returned into open court and with the defendant present the following proceedings were had:
THE COURT: Members of the Jury, I am advised by the bailiff that you have a question.
FOREMAN: Yes, Your Honor. The question came up to us, several members of the jury would like to see them other two notes, the first two six thousand dollar notes.
THE COURT: Only the evidence which has been introduced in this case is . . .
FOREMAN: They’re not, they’re not available?
THE COURT: They’re not introduced in this case, no, sir. Only the evidence which was introduced in this case may be submitted to the jury for your consideration.
JURY AGAIN RETIRES.”

The majority’s assertion that the records “simply were not proffered as evidence of any act, transaction, occurrence, or event of which they could be considered as a memorandum or record” is neither supported by the record nor the authorities upon which it relies. In McCormick on Evidence § 312 (2d ed. 1972), cited by the majority, it is stated:

“Implementing the common law exception, courts have traditionally required that one offering proof under the regularly kept records exception either call as witnesses all links in the organizational chain by which the entry was made, i.e., all entrants, informants, and intermediaries, or establish their unavailability. This was not part of the requirement of unavailability. To the contrary, it assumed that availability did not render the proof inadmissible, apparently on the reasonable anticipation that the participants would not remember the particular transaction at issue. The requirement was one as to the manner of proving that the offered record met the other requirements of the exception.
In light of present business practices, the common law requirement is clearly unreasonable. The complex nature of modern business organizations is such that all participants in the preparation of a record can most often not be identified or, if they can be pinpointed, could not reasonably be expected to have any helpful recollection concerning the specific transactions at issue. Moreover, production of the large numbers of participants that would be required would be a substantial burden on the offering party, a burden not likely to be justified by the benefits to be derived from requiring production of all participants. The revisions of the exception have dealt with this problem in various manners. The Commonwealth Fund Act did not deal with the matter expressly, although it seems clear that it was proposed principally to alleviate the burdensome method of proof required by some courts under the common law rule. The same is true of the Model Code of Evidence and the Uniform Rules of Evidence. On the other hand, the Uniform Act, the Texas statute, and the Proposed Federal Rules specifically provide that the foundation may be laid by ‘the custodian or other qualified witness’ thus expressly rejecting the requirement that all participants be called.”

In 5 Wigmore on Evidence § 1561a (Chadbourn rev. 1974), cited by the majority, we find the following comment:

“This proposed rule was after a long interval adopted by legislation in a few states; in Rhode Island, the attempt to improve upon it produced an inferior pedantic formulation. The liberal interpretation of it by courts should serve to give the exception a rational relation to the search for truth. But much depends on whether the preverse stolidity of the juristic mind can be compelled by a few statutory words to leave its accustomed ruts.”

Now, obviously, if Morrow had been alive, he could have been called to show that the records proffered were made on the dates in question in connection with the business transaction that they represented. Likewise, if the parties to the transactions, such as those at Gosnell Buick-Chev. Co., had been called, their testimony would have been relevant to show that the event represented by the record actually took place on that specific date. If the proof of those parties would have been permissible to show the events and the time of their occurrence; then, obviously, the records were admissible under the “Business Records as Evidence Act” as construed by the authorities cited in the majority opinion.

For the reason stated, I respectfully dissent.

Harris, C.J. and Holt, J., join in this dissent.


author: John A. Fogleman, Justice.

text:
    Carl WALTERS v. STATE of Arkansas
    CR 75-214
    533 S.W. 2d 517
    Opinion delivered March 8, 1976

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

      Jim Guy Tucker, Atty. Gen., by: Terry Kirkpatrick, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant challenges his sentence to five years’ imprisonment with credit thereon for six months pretrial incarceration on a charge of assault with intent to kill by firing a pistol and wounding Levonia Gray. He contends that the court abused its discretion by requiring appellant to accept a greater term of imprisonment as a condition for receiving credit for pretrial incarceration, saying that he was thereby effectively denied “jail time credit” solely on the basis of indigency.

The circuit judge first indicated that since he had given another man a three-year sentence, he would sentence appellant for three years. The deputy public defender representing appellant then called the court’s attention to the fact that appellant had been in custody for six months, whereupon the judge said, “I’ll give him five and give him credit for. his jail time.” Appellant’s question whether he could get some kind of probation received a negative response. The judge then asked: “Which do you want? Three or five? You can get five with credit for your jail time or three without it. Which do you prefer?” Appellant answered, “Five” and was accordingly sentenced, with the requirement that he serve one-third of the sentence before being eligible for parole.

We agree that the manner in which the court’s sentencing discretion was exercised was erroneous. A sentence must be definite, certain and not dependent upon any condition or contingency, unless there is specific statutory authorization. State v. Sturgis, 110 Me. 96, 85 A. 474 (1912). In the absence of statute, a court has no power to impose a sentence which gives, or imposes upon, the defendant a choice of alternatives. State v. Johnson, 30 N.J.S. 235, 104 A. 2d 87 (1954); State v. Sturgis, supra. If such a sentence is not void, it is at least irregular. State v. Sturgis, supra; State v. Johnson, supra; Keene v. State, 37 Ala. App. 713, 76 S. 2d 180 (1954).

Of course, we recognize that where there is an inconsistency, the sentence controls, not the judge’s preliminary statements. People v. Champtal, 201 N.Y.S. 2d 125 (1960). See also, United States v. Hark, 320 U.S. 531, 64 S. Ct. 359, 88 L. Ed. 290 (1944), reh. den., 321 U.S. 802, 64 S. Ct. 517, 88 L. Ed. 1089 (1944). But the imposition of a greater sentence because of a good faith request for pretrial incarceration is in itself an abuse of the sentencing court’s discretion. See Lange v. State, 54 Wis. 2d 569, 196 N.W. 2d 680 (1972).

It appears that the irregularity in sentencing was prejudicial to appellant and the state does not suggest that it was not. This is the sort of error that may be corrected by reduction of the sentence as excessive under the provisions of Ark. Stat. Ann. § 43-2725.2 (Supp. 1975); Abbott v. State, 256 Ark. 558, 508 S.W. 2d .733. It is obvious that the three-year sentence originally proposed by the judge was arrived at without consideration of appellant’s indigency or the time he had spent in jail awaiting trial, so appellant’s sentence is reduced to three years with credit for six months’ pretrial incarceration.

The judgment is accordingly modified and affirmed.