author: John A. Fogleman, Justice.

text:
    Everett Lawrence KING Jr. v. STATE of Arkansas
    CR 73-27
    494 S.W. 2d 476
    Opinion delivered May 21, 1973

      John P. Corn, for appellant.

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

Appellant asserts that we should reverse the circuit court’s judgment entered upon a jury verdict finding him guilty of burglary of the Arkansas State Police Headquarters in Little Rock on the night of August 2, 1971. Although he states the contention in two points, his principal argument is that there was not sufficient evidence to corroborate the testimony of Robert Prather, who, according to Prather, was an accomplice. We find the corroborating evidence to be sufficient to support the jury verdict and affirm the judgment.

There is no real dispute between the parties as to the applicable law. Our basic applicable statute on the subject [Ark. Stat. Ann. § 43-2116 (Repl. 1964)] was a part of our Criminal Code and has been construed so many times that there is little room for argument about its requirements. The principal difficulties in this regard arise from application of the statute. By its own language, the statute only requires that there be corroboration by evidence tending to connect the defendant with the commission of the offense and that this evidence go beyond a showing that the crime was committed and the circumstances thereof. We have, therefore, consistently held that the corroborating evidence need not be sufficient in and of itself to sustain a conviction, but it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime. Lauderdale v. State, 233 Ark. 96, 343 S.W. 2d 422; Shipp v. State, 241 Ark. 120, 406 S.W. 2d 361; Fleeman v. State, 204 Ark. 772, 165 S.W. 2d 62.

While the corroborating evidence must do more than raise a suspicion of the defendant’s guilt, it need not be direct, but may be circumstantial, so long as it is substantial, and tends to connect the defendant with the commis-. sion of the offense. Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304; Mullen v. State, 193 Ark. 648, 102 S.W. 2d 82. Even though one circumstance or a combination of several circumstances might not be sufficient, all of the circumstances in evidence may constitute a chain sufficient to present a jury question as to their adequacy as corroboration of the accomplice. Lauderdale v. State, supra. The question of sufficiency of the corroborating evidence to justify submission of the question of a defendant’s guilt must, of necessity, be governed by the facts and circumstances of the particular case, having regard for the nature of the crime, the character of the accomplice’s testimony and the general requirements with respect to corroboration. Underwood v. State, supra. Where the circumstantial evidence tending to connect the defendant with the offense is substantial, the question of its sufficiency, along with the testimony of the accomplice, becomes one for the jury. McClure v. State, 214 Ark. 159, 215 S.W. 2d 524; Fleeman v. State, supra.

Roger Lane Prather testified that, at about 11:00 p.m., he and King burglarized the Arkansas State Police Headquarters, where they obtained an armload of weapons, which they put in an automobile and, after driving to Bentonville, hid them out near the lakes along Highway 12 toward Rogers. Prather testified that his sister accompanied him and King to Little Rock and back. He said that King cut the fence to gain entry. According to Prather, King told him while both were in the Pulaski County jail awaiting the trial that if he (Prather) would keep his mouth shut, everything would be all right.

There was corroborative evidence showing the following:

A man named Everette Lawrence King, Jr., of Rogers married a woman named Deanna Mae Elzey in Benton County on September 24, 1970. Both appellant and Deanna King were known to a police officer in Rogers, who had seen both driving a dark green 1964 model Mercury convertible automobile in Rogers in July and August, 1971. The officer had seen Roger and his sister Sherry F’rather Stevens in this automobile from time to time. Whenever the officer saw the automobile, either appellant or his wife, Deanna, was driving it. Arkansas License No. CHE 852 was issued to Deanna King of 506 S.W. 6th Street, Bentonville, for a 1964 Mercury convertible. In early 1971, King had worked at the state police headquarters, and his duties took him into or around the automobile maintenance shop, the radio shop (where the only person on duty the night of the burglary was stationed), the records room and the weapons room. Major Harold D. Bell, Commander of the Administrative Division of the Arkansas State Police, who was in charge of care and security of weapons at the armory, had made certain that the weapons room was secure before he left the headquarters on the night of August 2, 1971. A dark 1963 or 1964 Mercury convertible was seen at the police headquarters about 11:00 p.m. on the night of August 2 by an official of the Livestock and Poultry Commission, whose office was near the police armory room, and who recorded the vehicle’s license plate number (CHE 852) on a match cover, which was made an exhibit. The next morning Major Bell found the front door open at the office complex of the headquarters, a chain link fence cut and scratch marks on all locks on the doors. He found ten weapons, including four shot guns, two automatic rifles and several pistols and revolvers missing from his office and the vault in the storage room. L. E. Gwynn, personnel officer for the Arkansas State Police and custodian of official records at the headquarters, caused a search to be made of personnel records and found that the only record missing was that of King. Sergeant Yates, Post Sergeant for District A of the Arkansas State Police, recovered the missing weapons when he was taken to the place they had been concealed by Prather and his sister. These weapons were delivered to Major Bell on August 14, 1971.

In Shipp v. State, supra, we found that the mere fact that the defendant bought the rain suit which was worn in a bank robbery by an accomplice was sufficient corroboration of the testimony of the accomplice that the defendant had suggested and planned the robbery and furnished the attire worn and discarded after the robbery. Although any one of the above facts, standing alone, would only constitute a suspicious circumstance, as consistent with King’s innocence as his guilt, when considered together, they constitute substantial circumstantial evidence tending to connect King with the burglary. Cf. Clayton v. State, 247 Ark. 643, 447 S.W. 2d 319. It was for the jury here, and not the court, to decide whether there was reasonable doubt as to defendant’s guilt. Bush v. State, 250 Ark. 224, 464 S.W. 2d 792; Pharr v. State, 246 Ark. 424, 438 S.W. 2d 461.

Prather testified that, shortly after his return to Benton County after the burglary, he and his sister were arrested on a charge of possession of unlabeled drugs. He said that while serving in jail on that offense for five days he was questioned abodt the burglary and finally gave the police a statement about it and took the officers to the place the weapons were recovered, in return for the release of his sister. This testimony in not controverted. Appellant contends that the testimony of Prather was inadmissible because it was obtained by duress, coercion, threats and unconscionable conduct of police officers. The circumstances shown in this regard only went to the credibility of and the weight to be given his testimony but did not render it inadmissible. McDonald v. State, 249 Ark. 506, 459 S.W. 2d 806; Vaughan v. State, 57 Ark. 1, 20 S.W. 588.

The judgment is affirmed.


source: Caselaw Access Project

author: J. Fred Jones, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    James HOLCOMB and Leona HOLCOMB v. FARMERS INSURANCE EXCHANGE
    73-20
    495 S.W. 2d 155
    Opinion delivered May 21, 1973
    [Rehearing denied. June 25, 1973.]

      Bon McCourtney 6- Associates by: Troy L. Henry, for appellants.

      Cockrill, Laser, McGehee, Sharp ir Boswell, for appellee.
   J. Fred Jones, Justice.

James Holcomb owned a 1971 Ford Maverick and his wife, Leona Holcomb, owned a 1965 Plymouth. They both had separate liability insurance policies issued by Farmers Insurance Exchange on their respective automobiles. Mr. Holcomb had uninsured motorist coverage on his Ford but Mrs. Holcomb had rejected uninsured motorist coverage on her Plymouth. Mr. Holcomb was driving his wife’s Plymouth when it was damaged and he and Mrs. Holcomb were injured in a collision caused by the negligence of an uninsured motorist. Mr. and Mrs. Holcomb filed suit against Farmers and against the uninsured motorist, Sammy Walker, for the sum of $25,000. The trial court granted Farmers’ motion for a summary judgment.

On appeal to this court the Holcombs contend that the exclusion in the insurance policy relied on by Farmers is void and against public policy under the uninsured motorist statute; that there are material issues of fact in dispute and the trial court erred in granting Farmers’ motion for summary judgment.

The statute in question, Ark. Stat. Ann. § 66-4003 (Repl. 1966) reads as follows:

“No automobile liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in not less than limits described in section 27 of Act 347 of 1953 [§ 75-1427], as amended, under provisions filed with and approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage.”

Under the policy involved in this case James Holcomb is the named insured under Item 1 and the vehicle described is a 1971 Maverick. The policy is divided into Part I, covering liability, and Part II, pertaining to the benefits for bodily injury caused by uninsured motorists. Certain exclusions are set out under each part but under Part I the company agrees:

“To pay all damages the insured becomes legally obligated to pay because of:
(A) bodily injury to any person, and/or (B) damage to property arising out of the ownership, maintenance or use, including loading or unloading, of the described automobile or a non-owned automobile.”

In Part I under “Definition of Named Insured” the policy provides:

“If the insured named in Item 1 of the Declarations is an individual, the term ‘named insured’ includes his spouse if a resident of the same household.”

And in Part I under “Definition of Insured” the policy provides:

“The unqualified word ‘insured’ includes
(a) with respect to the described automobile,
(1) the named insured, and
(2) any other person while using such automobile and any other person or organization legally responsible for its use, provided the actual use of such automobile is by the named insured or with his permission; and
(b) with respect to a non-owned automobile,
(1) the named insured or a relative, and
(2) any other person or organization not owning or hiring such automobile if legally responsible for its use by the named insured or a relative, but only in the event such named insured or relative is legally liable for the occurrence; provided the actual use of the non-owned automobile by the persons in (1) and (2) above is with the permission of the owner.”

Under Part I “Non-Owned Automobile” is defined as:

“[A]n automobile not owned by or regularly or frequently used by the named insured or any resident of the same household, other than a substitute automobile.”
“[A]n automobile not owned by the named insured or any resident of the same household, while temporarily used with the permission of the owner, as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.”

Under Part II, coverage (C) of the policy, the company agrees:

“To pay all sums which the owner or operator of an uninsured motor vehicle would be legally responsible to pay as damages to the insured because of bodily injury sustained by the insured, caused by accident, and arising out of the ownership, maintenance or use of such uninsured motor vehicle; provided that, (1) insurance under Coverage A of this policy must be in effect at the time of such accident.”
Under “Definitions” in Part II the policy provides:
“The following definitions in Part I apply to Part II: ‘Bodily injury’, ‘Damages’, ‘Newly Acquired Automobile’, ‘Non-Owned Automobile’, ‘Relative’, ‘Substitute Automobile’, ‘Named Insured’” . . .
Described Automobile means the automobile described in the policy Declarations for which Uninsured Motorists insurance is indicated as covered, including a newly acquired automobile or a substitute automobile.
Insured means (1) the narr. ' insured or a relative, (2) any other person wh ±e occupying an insured motor vehicle, and (3) any person, with respect to damages he is entitled to recover because of bodily injury to which Part II applies sustained by an insured under (1) or (2) above.”
Under “Exclusions” in Part II the policy provides:
“This policy does not apply under Part II: * * * (3) to bodily injury to an insured while occupying an automobile or 2 wheel motor vehicle (other than an insured motor vehicle) owned by a named insured or any relative resident in the same household, or through being struck by such vehicle.”

It was Farmers’ contention that Mrs. Holcomb was an insured as the spouse of Mr. Holcomb and a resident of the same household, and therefore, that both were occupying a motor vehicle (other than an insured motor vehilce) owned by a named insured, within the exclusionary clause of the policy. The trial court agreed with Farmers, so the question presented on this appeal is whether the policy exclusion is void or contrary to the public policy under § 66-4003, supra. More specifically the question is whether Mr. and Mrs. Holcomb’s protection against uninsured motorist provided under the policy on Mr. Holcomb’s automobile followed and protected them while riding in another automobile owned by them and on which the uninsured motorist protection or coverage had been rejected. The precise question presented here has not been before this court previously but the courts of other states have reached different results under facts and policy provisions similar to the case at bar and statutory provisions similar to our own. In the 1971 Arizona case of Owens v. Allied Mut. Ins. Co., 15 Ariz. App. 181, 487 P. 2d 402, the plaintiff insured appealed from a summary judgment in favor of his insurance company. The plaintiff owned a Chevrolet on which he had uninsured motorist coverage but was driving his uninsured 1962 Studebaker when he was injured in a collision with an uninsured motorist. The plaintift contended that his protection against uninsured motorist under the policy on the Chevrolet extended to cover him while driving the uninsured Studebaker. The insurance policy contained an identical provision as does the policy in the case at bar, to the effect that the protection afforded did not apply “to bodily injury to an insured while occupying an automobile (other than the insured automobile) owned by the insured.” The plaintiff’s sole contention in that case, as is the appellants’ contention in the case at bar, was that the exclusion was not valid because the statute mandated uninsured motorist coverage for the named insured even though he might be driving an uninsured self-owned automobile. The Arizona uninsured motorist statute was practically identical with ours in its wording and was identical with ours in meaning. In Owens the court said:

“We can see nothing in the statute which requires an insurer to extend uninsured motorist protection under one policy to a policyholder who has elected not to insure another vehicle owned by him, so as to give coverage at such times as he might be driving that uninsured vehicle. Any other interpretation would allow an insured to purchase one liability policy on one owned vehicle and claim uninsured motorist coverage thereunder for himself and others while driving any number of other uninsured automobiles also owned by him.”

In a footnote to Owens the court quoted from a previous Arizona case in which it was said:

“ ‘In light of that stated purpose, the question is whether or not the statute is intended to restrict the privilege of an individual to contract with his insurance carrier to exclude his own personal recovery under the policy terms in the event of his own injury. We read nothing in the statute which states such a restriction nor do we find ourselves compelled by public policy to so construe this statute.’ ”

In the 1970 Illinois case of McElyea v. Safeway Ins. Co., 266 N.E. 2d 146, the plaintiff insured owned a Chevrolet one-half ton truck on which Safeway had issued a policy with “Family Protection Coverage” with an uninsured motorist provision similar to the one in the case at bar, and with an exclusionary clause providing that the endorsement did not apply “to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by a named insured or any relative resident in the same household . . . .” The insured plaintiff was struck and injured by a hit and run vehicle while riding a motorcycle he owned. The plaintiff sued his insurance company under the uninsured motorist provision of his policy on the truck and the trial court struck his complaint and dismissed the action. The Illinois statute made it mandatory for the issuing insurance companies to assume liability for an additional risk (uninsured motorist) on automobile liability policies. In affirming the trial court in that case, the appellate court of Illinois said:

“We find no conflict between the public policy of this state as evidenced by Section 755a and the exclusionary provisions of the uninsured motorist endorsement in the present policy.”

In the 1968 Nebraska case of Shipley v. American Standard Ins. Co. of Wis., 158 N.W. 2d 238, the plaintiff insured owned a Chevrolet automobile and a motorcycle. He had liability insurance with uninsured motorist coverage on the automobile but none on his motorcycle. He was injured when his motorcycle collided with another uninsured motorcycle. His suit on the uninsured motorist endorsement of his automobile policy was dismissed on the ground that no cause of action was stated. The policy contained similar provisions with a similar exclusion as the policy in the case at bar and the insurance company relied on the exclusion clause. The court considered the motorcycle as coming within the “owned automobile” provision of the policy and the Nebraska statute prohibited the delivery of an automobile liability policy “unless coverage is provided * * * for the protection of persons insured thereunder who are legally entitled to recover damages from * * * operators of uninsured motor vehicles. ...” The Supreme Court of Nebraska affirmed the judgment holding that to do otherwise would be unreasonable.

The appellants cite the 1967 Virginia case of Allstate Ins. Co. v. Meeks, 153 S. E. 2d 222, as being a case with similar facts and policy exclusion as in the case at bar, in which the Virginia court held that uninsured motorist coverage on an insured automobile extended coverage to the injured owner, as one of a class, while driving his uninsured automobile. The Virginia court pointed out in that case that the uninsured motorist statute,

“as amended, defines the term ‘insured’ as, ‘the named insured and, while resident of the same household, the spouse of any such named insured, and relatives of either, while in a motor vehicle or otherwise. . .

The Virginia court then said:

“Here the language used does not limit or restrict the coverage to the named insured while he is in or operating the vehicle covered by the policy. On the contrary, the coverage extends to him while he is ‘in a motor vehicle,’ that is, in any motor vehicle, ‘or otherwise.’ ”

We point out here that Ark. Stat. Ann. § 66-4003, supra, which applies to the case at bar, contains no such provision.

The appellants correctly argue that the Florida case of United States Fidelity & Guaranty Co. v. Webb, 191 So. 2d 869, relied on by the appellee at the trial, was overturned by the Florida Supreme Court in the case of Mullis v. State Farm Mut. Automobile Ins. Co., 252 So. 2d 229. The Florida court in Mullís compared the state’s financial responsibility statute with the Uninsured Motorist Act and found that the complementary provisions of the two Acts indicated the intention that the uninsured motorist act should provide uniform and specific benefits to members of the public to cover damages for bodily injury caused by the negligence of insolvent and uninsured motorists.

The appellants cite the California case of Aetna Ins. Co. v. Hurst, App. 83 Cal. Rptr. 156, 2 Cal. App. 3rd 1067. In that case Hurst owned a motorcycle and his wife owned an automobile covered by liability insurance with uninsured motorist coverage. Hurst was riding his morcycle when he was injured by an uninsured motorist. The policy provision and the exclusion were similar to the ones in the case at bar, but as in Allstate v. Meeks, supra, the statute was not. The California court held the exclusion to be ineffective but in doing so, pointed out that the California statute defined insured in two classes of which the claimant was a member of the first class, and provided that the definition of insured covered “the named insured and family, who are insured ‘while occupants of a motor vehicle or otherwise,’” (Our emphasis).

Apparently Nevada has adopted the view the appellants urge on us in the case at bar. In State Farm Mut. Automobile Ins. Co. v. Hinkel, 488 P. 2d 1151, Gordon Hinkel, a minor, was operating a motorcycle owned by him and was involved in an accident with an uninsured motorist. Gordon’s father owned an automobile covered by a liability policy with uninsured motorist coverage. The Nevada court found the statutorily expressed public policy of that state to be, “that an insurance company may not issue an automobile or motor vehicle liability policy which does not protect the insured from owners or operators of uninsured motor vehicles, unless the named insured rejects such coverage.” The court then held that since young, Hinkel’s father did not reject the coverage, he and the residents of his house, his spouse and the relatives of either, were entitled to uninsured motorist protection without limitation, and that his coverage is not dependant upon whether or not he is in any kind of vehicle.

It is a matter of common knowledge that in most automobile use related injuries two automobiles and drivers are involved. Under the broad coverage insisted on by the appellants, by the purchase of single coverage on one automobile an owner could protect himself and his entire family against financial loss caused by uninsured motorists while each of them are themselves driving uninsured and uninsurable automobiles. We are of the opinion such was not the intent of the Legislature in the enactment of § 66-4003.

We conclude, therefore, that Ark. Stat. Ann. § 66-4003 does not restrict contracts between liability insurance companies and the owners of automobiles in this state to the extent urged by the appellants, and we hold that the policy exclusion in the case at bar was valid and effective in this case.

The judgment is affirmed.

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

John A. Fogleman, Justice,

dissenting. My reasons dissenting in this case of first impression are First, I regret to see this court align itself with a pitifully small minority in deciding such a case. Second, I think that the decision either reads something into the uninsured motorist act that is not there, or reads something out of it that is there. While I probably would not dissent in the absence of those reasons, I feel further urged to do so because the court’s decision leaves Arkansas in the absurd position, as appellants point out, of requiring the automobile liability carrier to offer insurance providing persons insured under the liability policy with indemnity up to the required amounts against bodily injury by an uninsured motorist at any place, at least in this nation, except when occupying an owned automobile, on which the owner carried no liability insurance, or, if he did, that policy did not contain an uninsured motorist clause. The absurdity of this result is further illustrated by a statement in Winslow Drummond’s “Uninsured Motorist Coverage — A suggested Approach to Consistency,” 25 Ark. L. Rev. 167, p. 171:

A comparison of the first two categories of “insured” leads to the obvious conclusion that the named insured and any member of his family in the same household need not be occupying any automobile, much less an insured automobile, at the time of injury in order for coverage to be extended. In other words, if one of this category, however situated, is injured through the negligence of an uninsured motorist, there is coverage.

I agree with that statement and think it should be applied in this case. Other pertinent statements in that article include:

All courts which have considered the question are in accord that the purpose of or public policy underlying the compulsory uninsured motorist coverage statute is to guarantee that the injured insured will be in the same position in the event of injury attributable to the negligence of an uninsured motorist as that insured would be if he were injured through the negligence of a motorist carrying liability insurance to the extent required by the financial responsibility law of the state in question. In other words, the insured’s recovery should be the same in either situation — no more, no less.
* # #
A motorist who purchases liability insurance on his automobile does so for the benefit of an unidentified third party. On the other hand, the motorist who purchases uninsured motorist coverage does so for his own benefit and the benefit of his family and any passengers in his automobile. Uninsured motorist insurance is not liability insurance. To the contrary, it is, in effect, accident and health insurance, very similar to automobile medical payments insurance.

The purpose of our act is to establish a means of providing indemnity to the persons insured under an automobile liability policy for injuries arising out of the operation of a motor vehicle by an uninsured motorist in an amount not less than the minimum required by the Motor Vehicle Safety Responsibility Act. Travelers Ins. Co. v. National Farmers U. Prop. & Cas. Co., 252 Ark. 624, 480 S.W.2d 585; Heiss, Executrix v. Aetna Cas. & Surety Co., 250 Ark. 474, 465 S.W.2d 699; Farm Bureau Mut. Ins. Co. v. Mitchell, 249 Ark. 127, 458 S.W.2d 395; MFA Mutual Ins. Co. v. Bradshaw, 245 Ark. 95, 431 S.W.2d 252. Any purchaser of “automobile liability insurance covering liability arising out of ownership, maintenance or use of any motor vehicle * * * delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State * * * ” is clearly entitled, at his option, to “coverage * * * therein or supplemental thereto, in not less than limits described * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom” — no more and certainly no less. Ark. Stat. Ann. § 66-4003 (Repl. 1966). Any exception or exclusion gives him less and is contrary to the public policy purposes of our act. It seems to me that the clear language of the statute dictates a result directly contrary to that reached by the majority.

We have recognized the right of the parties to contract in reference to such a policy, so long as the terms of the contract are not contrary to public policy and the statutes, but that these may not be contravened, even with the approval of the Insurance Commissioner. Travelers Ins. Co. v. National Farmers U. Prop. & Cas. Co., supra. I submit that, under our previous decisions, the exclusion here contravenes both. It is clear that the coverage required has nothing whatever to do with the vehicle for which the liability policy is issued. If this were not otherwise clear, the fact that the coverage need not be provided in the liability policy, but may be provided supplementally, seems to lead to no other conclusion. The insurer selling automobile liability insurance is simply required to offer to its prospective purchasers of liability insurance, either in the liability policy or by separate policy, indemnity against any personal injury damage done to persons insured under its liability policy indemnity in the minimum amounts that are required under the motor vehicle financial responsibility act — no more, no less. There simply is no “uninsured motorist protection or coverage” on any automobile, as premised by the majority.

This brings me to a consideration of authorities from other states on the question. Clearly a majority supports my position. First, however, I will direct my attention to Owens v. Allied Mutual Ins. Co., 15 Ariz. App. 181, 487 P.2d 402 (1971), which seems to be the leading authority upon which the majority relies. The Arizona statute is quite similar to ours. This decision by an intermediate appellate court rests upon a rickety foundation, to say the least. That court not only failed to see a requirement of uninsured motorist protection to persons insured under a liability policy, which covered them when driving any automobile anywhere, but also failed to find any contrary authority. Furthermore, the Owens court did not rationalize its result. It simply concurred in the result reached in Rushing v. Allstate Insurance Co., 216 So. 2d 875 (La. App. 1968); National Union Indemnity Co. v. Hodges, 238 So.2d 673 (Fla. Ct. App. 1970); McElyea v. Safeway Insurance Co., 131 Ill. App. 2d 452, 266 N.E. 2d 146 (Ill. App. 1970). It is interesting to note that even though each of these decisions by intermediate courts has been undermined and its authoritative effect impaired, the majority not only accepts Owens as authoritative, it also finds succor in McElyea.

McElyea was effectively overruled in Doxtater v. State Farm Mutual Automobile Ins. Co., 8 Ill. App. 3d 547, 290 N.E.2d 284 (1972). In Doxtater, the court said that the issues before it were virtually identical to those presented in McElyea, but that McElyea was decided prior to the decision of the Illinois Supreme Court in Barnes v. Powell, 49 Ill. 2d 449, 275 N.E.2d 377 (1971), and Madison County Automobile Ins. Co. v. Goodpasture, 49 Ill. 2d 555, 276 N.E.2d 289 (1971). In overruling McElyea to the extent it conflicted with the opinion rendered, the language in Doxtater is so appropriate to the situation before us, our statute and our previous decisions, I take the liberty of quoting extensively from the Illinois court’s recognition of the effect of Barnes. It said:

Numerous authorities were cited for the proposition that the legislative purpose behind Section 143a was “to assure that compensation will be available to policyholders, in the event of injury by an uninsured motorist, to at least the same extent compensation is available for injury by a motorist who is insured in compliance with the Financial Responsibility Law.” (49 Ill.2d at 453, 275 N.E.2d at 379.) It was further noted that “the intent of the legislature was that the uninsured motorist coverage would protect an insured generally against injuries caused by motorists who are uninsured, and by hit-and-run motorists, and that this would complement the liability coverage.” (49 Ill.2d at 454, 275 N.E.2d at 379.) Therefore, it was held that, to the extent that the policy definition conflicted with the breadth of coverage envisioned by the statute, it could be of no force and effect.
Although we recognize that the facts of Barnes v. Powell are distinguishable from the facts at bar, we nonetheless cannot overlook the Supreme Court’s statements therein regarding the legislative intent behind Section 143a. The expansive interpretation applied by a majority of that court leads us to conclude that, presented with the issue at bar, our Supreme Court would interpret Section 143a of the Insurance Code as a direction to insurance companies to provide uninsured motor vehicle coverage for “insureds,” regardless of whether, at the time of injury, the insureds occupied or operated vehicles declared in the subject policy. We note that the highest coúrts in two other states have recently invoked similar statutory constructions to enforce coverage under facts identical to those at bar. (State Farm Mutual Automobile Ins. Co. v. Hinkel, Nev., 488 P.2d 1151; Mullis v. State Farm Mutual Automobile Ins. Co., Fla., 252 So.2d 229, Contra: Shipley v. American Standard Ins. Co. of Wisconsin, 183 Neb. 109, 158 N.W.2d 238; Owens v. Allied Mutual Ins. Co., 15 Ariz. App. 181, 487 P.2d 402. See also Vantine v. Aetna Cas. & Surety Co. (N.D.Ind.) 335 F.Supp. 1296; Vaught v. State Farm Fire & Cas. Co. (8th Cir.) 413 F.2d 539; Bryant v. State Farm Mutual Automobile Ins. Co., 205 Va. 897, 140 S.E.2d 817).
It is only with great circumspection that we will overturn a ruling of as recent a vintage as McElyea v. Safeway Insurance Co. However, as the intermediate court of review in Illinois, we are obligated to adhere to the statutory constructions applied by our Supreme Court and to decide issues in conformity with the logical extensions of such constructions. Further, as jurists we cannot ignore the weight and trend of authority in jurisdictions outside of Illinois. Accordingly, based on the precedent of Barnes v. Powell, 49 Ill.2d 449, 275 N.E.2d 377, as well as on compelling out-of-state precedent, we hold that Exclusion (b) in the insurance policy issued to Ervin Doxtater conflicted with Section 143a of the Insurance Code. By virtue of Section 442 of that Code, said exclusion could be of no force and effect in limiting the Doxtaters’ uninsured motor vehicle coverage. Hartford Accident and Indemnity Co. v. Holada, 127 Ill. App.2d 472, 262 N.E.2d 359. To the extent that the case of McElyea v. Safeway Insurance Co., conflicts with this holding, it is overruled.

National Union Indemnity Co. v. Hodge, has suffered a similar fate. It was reversed by the Florida Supreme Court, 249 So.2d 679 (Fla. 1971). In Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla. 1971), the Florida Supreme Court undertook conflict certiorari review of Mullis v. State Farm Mutual Automobile Ins. Co., 251 So.2d 46 (Fla. App. 1970). The Supreme Court found the exclusion before us to be contrary to the Florida uninsured motorist statute, an act virtually identical to ours, and said:

Whenever bodily injury is inflicted upon named insured or insured members of his family by the negligence of an uninsured motorist, under whatever conditions, locations, or circumstances, any of such insureds happen to be in at the time, they are covered by uninsured motorist liability insurance issued pursuant to requirements of Section 627.0851. They may be pedestrians at the time of such injury, they may be riding in motor vehicles of others or in public conveyances and they may occupy motor vehicles (including Honda motorcycles) owned by but which are not “insured automobiles” of named insured.
Uninsured motorist coverage or family protection is intended by the statute to protect the described insureds thereunder to the extent of the limits described in Section 524.021(7) “who are legally entitled to recover damages, namely those from owners or operators of uninsured motor vehicles because of bodily injury” and is not to be “whittled away” by exclusions and exceptions.
Bodily injury to a member of the public due to motor vehicle accident, whether produced by the negligence of an automobile liability insured or by an uninsured motorist has the same financial loss impact on the injured member of the public, and in the eyes of our reciprocal motorist public protection laws, F.S. chapter 324 and section 627.0851, F.S.A., the injury is just as acute and damaging to the member of the public whether he was injured as a pedestrian or while riding in a public conveyance or in an “uninsured automobile.”
The public policy of the uninsured motorist statute (Section 627.0851) is to provide uniform and specific insurance benefits to members of the public to cover damages for bodily injury caused by the negligence of insolvent or uninsured motorists and such statutorily fixed and prescribed protection is not reducible by insurers’ policy exclusions and exceptions any more than are the benefits provided for persons protected by automobile liability insurance secured in compliance with the Financial Responsibility Law.
Insurers or carriers writing automobile liability insurance and reciprocal uninsured motorist insurance are not pen dtted by law to insert provisions in the policies they issue that exclude or reduce the liability coverage prescribed by law for the class of persons insured thereunder who are legally entitled to recover damages from owners or operators of motor vehicles because of bodily injury.

Certainly Hodge is not authoritative. The rule of Mullis has been subsequently applied in Florida in Gilligan v. Liberty Mutual Ins. Co., 265 So.2d 543 (Fla. App. 1972); Navarro v. Yosemite Ins. Co., 254 So.2d 33 (Fla. App. 1971); Government Employees Ins. Co. v. Smith, 257 So. 2d 90 (Fla. App. 1971); Midwest Mutual Ins. Co. v. Santiesteban, 266 So. 2d 102 (Fla. App. 1972).

The fate of Rushing has been little more auspicious. It does not appear to have ever been followed in Louisiana. In a much better-reasoned decision in a factual background much more nearly parallel to the case before us than was Rushing, the Court of Appeals for another Louisiana Circuit reached quite a different result from that in Rushing. The question answered in the negative in Elledge v. Warren, 263 So. 2d 912 (La. App. 1972), was the same as the majority answers in the affirmative here. Again some of the reasoning of the Louisiana court is appropriate to our consideration:

There existed in our society a situation whereby financially irresponsible people could acquire and drive vehicles capable of great damage. Because of their financial irresponsibility and lack of insurance, they were unable to respond to their victim in damages under LSA — C.C. Art. 2315. This created a class of injured people in our state who were left without recourse and who, without some form of relief, might become wards of the state. Insurance plans (such as the financial responsibility law) oriented toward coercing motorists to purchase insurance or removing them from the highways if they did not, proved ineffective. Other plans had to be developed.
In an effort to forestall plans distasteful to itself, the insurance industry set forth a plan of compensation for the innocent victims of the uninsured motorists. In surveying the problem, it became evident to our legislature that the source of the harm was a danger peculiar to the use of the automobile and the industry most capable and most interested in resolving the problem was the one most closely related thereto in terms of economics and self interest —the automobile insurers. Therefore, our legislature seized upon the solution set forth by the insurance industry and made the offering of uninsured motorist protection a mandatory condition precedent before the companies could conduct business in Louisiana.
The evil and the injuries existed. By the terms of our statute, whenever evil perpetuates itself upon a policy holder availing himself of uninsured motorist coverage (or insureds under his. policy), he is to be compensated for his injuries. In Booth v. Freeman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580, 583 (1969), our Supreme Court concluded “that the intent of our uninsured motorist statute and the policy endorsement issued thereunder is to afford protection to the insured when they become the inhocent victims of the negligence of uninsured motorists.” See also Valdez v. Federal Mutual Insurance Company, 272 Cal.App.2d 223, 77 Cal.Rptr. 411, 413 (1969). “. . . Such statutes must be liberally construed to carry out this objective of providing compensation for those injured through no fault of their own.”

Clearly, we should not follow the Arizona intermediate court. This leaves the Nebraska decision in Shipley v. American Standard Ins. Co. of Wisconsin, 183 Neb. 109, 158 N.W.2d 238 (1968), standing alone, except for the dissenting opinions mentioned by the majority. I submit that a reading of that opinion in contrast with the quotations above will clearly demonstrate the lack of logic supporting the decision in Shipley.

I do not find the majority’s distinction of cases supporting the majority rule to be wholly apt. It is true that Allstate Insurance Coinpany v. Meeks, 207 Va. 897, 153 S.E.2d 222 (1967), and Aetna Ins. Co. v. Hurst, 2 Cal. App. 3d 1067, 83 Cal. Rptr. 156 (1969), involve the construction of a statute and not a contract, and that the statute naming the persons insured is explicit as to coverage. So does Gulf American Fire & Casualty Company v. McNeal 115 Ga. App. 286, 154 S. E. 2d 411 (1967), but the court said that if the “insured person” section of the statute (virtually identical to the Virginia and California statutes) did not apply, it would reach the same result under the policy provisions. I do not agree that the rationale of Mullís is distinguishable on the basis that the Florida Uninsured Motorist and Financial Responsibility Acts are complementary. So are ours.

State Farm Mutual Automobile Ins. Co. v. Hinkel, 87 Nev. 478, 488 P.2d 1151 (1971), seems indistinguishable. It is a well-reasoned opinion which specifically rejected Rushing and Shipley, but found support in Allstate Ins. Co. v. Meeks, supra, Travelers Indemnity Co. v. Powell, supra, Aetna Insurance Co. v. Hurst, 2 Cal. App. 3d 1067, 83 Cal. Rptr. 156 (1969), Bankes v. State Farm Mutual Automobile Ins. Co., 216 Pa. Super. 162, 264 A.2d 197 (1970) and Gulf American Fire & Casualty Company v. McNeal, supra. The Nevada statute, substantially similar to ours, was held to be unambiguous, to be a part of every policy and to void an exclusion substantially similar to the one in the policy before us. The Nevada court, in holding that once a person was included as a “person insured” the insurer could not exclude him from coverage and that any limitation on his coverage was void, said:

If our legislature had intended to prevent an owner of two motor vehicles from paying for insurance on only one and recovering benefits for his injuries sustained while operating the other, it could have followed the lead of the legislatures in some of the other jurisdictions and limited the coverage by providing that N.R.S. 693.115(1) did not apply to bodily injury suffered by the insured while occupying a motor vehicle owned by him, unless the occupied vehicle was an insured motor vehicle. Such an amendment would be the prerogative and responsibility of the legislature and not the function of this court.

See also, Cannon v. American Underwriters, 275 N.E.2d 567 (Ind. App. 1971), where the court rejected an attempt of an insurance company to limit coverage to injuries while the insured was operating or occupying an insured automobile, upon the same basis and rationale as the majority rule; and Vantine v. Aetna Casualty & Surety Company, 355 F. Supp. 1296 (D.C.Ind. 1971), wherein an exclusion virtually identical to the one in issue was held void as being in conflict with a virtually identical Indiana statute, and the infirmities of McElyea are pointed out.

In conclusion, I find appropriate language in Motorists Mut. Ins. Co. v. Bittler, 14 Ohio Misc. 23, 43 Ohio Op. 2d 64, 235 N.E.2d 745 (1968), a frequently cited trial court case, where the court appreciated that its decision would require that uninsured motorists coverage would cover a named insured while he is operating or occupying another otherwise uninsured automobile owned by him. The court said:

Since the uninsured motorists protection chiefly constitutes indemnification in the nature of personal accident insurance for the named insured, there is, in the absence of any special provision or exclusion, no need for his procuring and paying for two such contracts for one injury. This special indemnification contract becomes effective because a third person, not the named insured, operates an automobile without Bodily Injury Liability coverage.

I would reverse the judgment because adoption of the position of the majority of jurisdictions considering the question is clearly indicated by our statute, and would produce a desirable result, consistent with the policy of which the act is expressive, and prevents erosion of coverage by exclusions, exceptions and limitation.

I am authorized to state that the Chief Justice and Mr. Justice George Rose Smith join in this dissent.

      I am not unaware of Mr. Drummond’s statement that the exclusion of coverage involved here is designed to prevent recovery in those cases where uninsured motorist coverage is purchased for only one automobile within a particular household, and a member of the household sustains injury while occupying a second family car on which no premium for uninsured motorist coverage has been paid. He cites only Hilton v. Citizens Ins. Co., 201 So.2d 904 (Fla. App. 1967) as authority. He acknowledges that Hilton was distinguished in Travelers Indem. Co. v. Powell, 206 So. 2d 244 (Fla. App. 1968), on the ground that in the latter case (as here) the same carrier provided coverage to both vehicles. My analysis of Hilton causes me to doubt it as an authority for the author’s statement. At any rate, any doubt about the validity of such an exclusion has been dispelled in Mullis v. State Farm Mutual Automobile Ins. Co., 252 So.2d 229 (Fla. 1971), where it was held invalid. It must be recalled drat Drummond’s article was written in 1969.


author: Frank Holt, Justice. Conley Byrd, Justice,

text:
    Elgin WHEELER et al v. CITY of Arkadelphia
    CR 73-17
    495 S.W. 2d 862
    Opinion delivered May 21, 1973

      A. T. Goodloe and Walker, Kaplan & Mays, P.A., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Charles A. Banks, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellants were convicted of various misdemeanors in a municipal court. These misdemeanors consisted of assaults and batteries and disturbances of the peace. The circuit court held the appellants had not perfected their appeals and dismissed them. For reversal the appellants contend “[Ajppellants made effort to perfect their appeals and substantially complied with Ark. Stat. Ann. § 26-1301, 1302, 1306 and 1307.’’ We think the circuit court was correct.

It appears from the record before us that appellants only compliance with the procedural requirements for appeal was filing a notice of appeal within 30 days from the rendition of the municipal court judgment. The notice of appeal was filed in the circuit court along with payment of the filing costs. The municipal court clerk testified that she “picked up” a photostatic copy of the notice of appeal from the circuit clerk’s office. However, she never received any payment of the clerk’s fee for preparation of the municipal court’s proceedings, nor a request that the transcript be filed with the circuit court. According to the municipal judge, he received a copy of the notice of appeal which was filed with the circuit clerk. However, he never received a request for a transcript and, further, the appellants never posted an appeal bond. It appears undisputed that the appellants filed no appeal bonds with the municipal court and never made a request to the municipal court or the clerk for a transcript.

It is well established that the burden is upon the appellants to make certain that the municipal court transcript is filed with the circuit clerk within the 30 day limitation in the event the transcript is not filed by the

municipal court clerk as required by § 26-1307. Whitely v. Pickens, 225 Ark. 845, 286 S.W. 2d 4 (1956), Hot Springs Civil Service Comm. v. Miles, 238 Ark. 956, 385 S.W. 2d 930 (1965), Sheridan v. State, 239 Ark. 322, 289 S.W. 2d 232 (1965). Further, § 26-1307 applies to misdemeanors and civil cases alike. Massina v. State, 211 Ark. 1060, 204 S.W. 2d 547 (1947). Compliance with this section is mandatory and jurisdictional. Whitely v. Pickens, supra. When it is clear that the court will not file the transcript, “the party appealing must assume the burden of taking prudent and diligent measures to protect his right of appeal, eliminating burdens of a character completely beyond his control.” Brown v. Curtis, Clerk, 254 Ark. 162, 492 S.W. 2d 235 (1973). There we further stated “[Filing within that period is excused only when **** the taking of these measures is prevented by matters completely beyond the control of the appellant.” In the case at bar we find no merit in appellants’ assertion of substantial compliance with the required procedure to perfect their appeals. Certainly it is not demonstrated that the failure to file the transcript was due to conditions beyond their control.

Appellants next assert for reversal that “[Pjlacing a companion (burden) of lodging an appeal on the appellants when the appellants have given notice and requested the appeal is violative of fundamental due process and the right of unhampered access to the courts protected by the fifth and fourteenth amendments to the United States Constitution.” As we understand the record as abstracted this issue was not presented to the court and is not properly before us as we held in Brown v. Curtis, Clerk, supra. Furthermore, appellants base their argument as to the asserted violation of their constitutional rights upon indigency. There is no showing whatsoever that the appellants are indigents. Again the legal responsibility for perfecting an appeal in this state has long been fixed by our statute and upheld by this court in our many previous decisions. In the case at bar, as indicated, there is a noncompliance by the appellants with out prescribed procedures.

Appellants, also, assert that “[I]f a person cannot post an appeal bond, he must then serve the jail sentence and/or pay the fine imposed. Inability to post an appeal bond should not render an appeal impossible.” Even if this contention was properly before us, we cannot agree inasmuch as the appellants have not demonstrated financial inability to pay the appeal bond which they never requested.

Affirmed.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. Among the members of the human race there is a little good in the worst of us and a little bad in the best of us. Our Constitutions, both state and federal, in recognition of this human trait have guaranteed to every person charged with a crime the right to a jury trial. In our system of municipal courts no provision is made for a jury trial. We have held that the refusal to a trial by jury in the municipal court does not violate the constitutional guarantee of a jury trial because those wishing a jury trial can obtain one by appeal to the circuit court. It appears to me that the procedure required by the majority for one to obtain a trial by jurors, who have not forgotten the frailties of human nature, is overly complicated for the person in court for the first time and that through the requirement of the bond an undue and impermissible burden is cast upon one seeking a jury trial. By Ark. Stat. Ann. § 43-732 (Repl. 1964), judges are given considerable control over professional bail bondsmen and in my experience as a practicing lawyer I usually found that the cost of an appeal bond approximated the amount of the municipal court fine.

It is true that if one can convince the municipal judge of his indigence he can take an appeal without a surety on his bond but the burden of proving his indigence is upon the accused. The result is that the accused in a municipal court is denied the right to a jury trial unless he pays the cost of the bond or takes the physical and mental effort to prove his indigence. In either situation the state is not granting him a right to a jury trial but forcing a burden upon him to obtain one.

For the reasons stated, I respectfully dissent.


author: Frank Holt, Justice.

text:
    Roger Gail SMITH and Don Calvin SMITH v. STATE of Arkansas
    5793
    494 S.W. 2d 489
    Opinion delivered May 21, 1973

      Donald Leigh McLaughlin and Lady, Webb ér Johnson, for appellants.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins and Gene O’Daniel, Assts. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellants were convicted by a jury of burglary and grand larceny. Through their present court appointed counsel, appellants persuasively argue for reversal of the judgments that the state failed to prove the voluntariness of their confessions and did not overcome the legal presumption that the confessions were involuntary because the state failed to call material witnesses or explain their absence. We must agree with this contention which is one of first impression in our state.

In Mitchell v. Bishop, Supt., 248 Ark. 427, 452 S.W. 2d 340 (1970), we said:

“Of course, under our own case law, there is a presumption that an in-custody confession is involuntary and the burden is on the state to show the statement to have been voluntary, i.e., freely and understandably made without hope of reward or fear of punishment. In determining whether a confession is voluntary, the court must look to the whole situation and surroundings of the accused.”

In the case at bar appellants contested the introduction into evidence of their alleged confessions by a motion to suppress. Accordingly, a Denno hearing was held in chambers to determine the issue of voluntariness which resulted in the court’s finding, by a preponderance of the evidence, that the confessions were freely given as is required by Ark. Stat. Ann. § 43-2105 (1964 Repl.). The state offered only one witness, Kenneth McFerran, an arresting officer, to meet its burden of showing the confessions were voluntary. During appellants’ interrogation, there were, also, present Trooper Snider and a stenographer, who reduced appellants’ oral statements to typewritten forms. McFerran testified that he arrested appellants about 10 a.m., placed them in custody of other officers and didn’t see appellants again until he returned about 10 p.m. to question them. Appellants were properly advised of their constitutional rights and signed waivers. According to McFerran, he did all of the questioning and used no force, threats, beatings, coercion, nor any promise of leniency or reward to induce appellants to make their oral confessions or to sign their typed statements the next day. McFerran did not know whether appellants were questioned by Snider during the approximate 11 hour interim between their arrest and their interrogation that night.

Both appellants agree that they were given the Miranda warnings, knew their rights, signed waivers and the typewritten statements. However, both appellants contra-dieted parts of MeFerran’s testimony. According to them, Snider questioned them during the time they were in custody and before McFerran returned that night. Also, Snider alone did all the questioning that night. Appellants testified that Snider physically abused and threatened them before conducting the interrogation that night. One testified that preceding the interrogation Snider slapped him, stuck a cocked pistol in his face and, also, said “I can help you.” The other appellant said Snider threatened him with a pistol and that another officer kicked him. Because of this treatment, appellants say they orally confessed their guilt and signed their controverted confessions.

After appellants testified, McFerran was recalled and reiterated that he did the actual questioning of each appellant; appellants made their statements to him only; and, although Snider was present, he didn’t ask any of the questions nor offer any leniency or coercion. Also, appellants didn’t complain to him nor have the appearance of having been abused, mistreated, threatened or coerced by Snider or anyone else. Again, he acknowledged that he didn’t see appellants after they were placed in jail around 11 a.m. until 10 p.m. and was unaware of what happened to appellants during this 11 hour period.

The state didn’t call the stenographer to testify even though she was present during appellants’ interrogation, took appellants’ statements down in shorthand, and reduced the statements to typewritten form. No explanation was made for her absence when it appears that she is a secretary for the local police department. Snider was not called to contradict appellants’ allegations although it appears he was working out of a nearby town on the trial date. His absence was, also, unexplained. Thus, appellants’ testimony as to Snider’s coercion and promises of leniency was not challenged by Snider himself. McFerran admitted that he had no knowledge of what happened to appellants after they were placed in jail and before he conducted his interrogation.

Recently we found error in a trial court’s ruling that a confession was voluntary where the appellant’s testimony was uncontradicted by an official who appellant said agreed to “try to help me” in exchange for his statement. Shelton v. State, 251 Ark. 890, 475 S.W. 2d 538 (1972). There we again recognized that a confession of guilt cannot be tainted by any official inducement which results from promises of reward, coercion or fear. Of course, this is true even if the Miranda warnings are given. In the case at bar, as indicated, appellants’ testimony of Snider’s coercion and promise of assistance is uncontradicted by Snider. McFerran only testified that he himself had no knowledge of threats or promises of leniency. He could not rule out these possibilities. In these circumstances we must agree with appellants that the state did not meet its burden of overcoming the presumption that the alleged confessions were involuntary.

This is in accord with other states where this issue, now before us, was presented. They have adopted a reasonable and practical approach in determining the voluntariness of a confession. They hold that all material witnesses must be called or their absence satisfactorily explained in order for the state to meet its burden of proving that a confession was voluntarily given. In Mercer v. State, 206 A. 2d 797 (Md. 1965), the appellant’s conviction was reversed because his testimony that he was physically mistreated by two detectives was uncontradicted by either of the persons accused of the mistreatment. However, in Gill v. State, 289 A. 2d 575 (Md. 1972), that court held that it is not required that “each person who had casual contact with the accused, once he was in police custody or being interrogated, must testify to the voluntariness of the confession in order for the prosecution to satisfy its burden. But when it is contended that someone employed coercive tactics to obtain inculpatory statements, the charge must be rebutted.” In People v. Armstrong, 282 N. E. 2d 712 (Ill. 1972), the appellant was properly advised of his constitutional rights before making a statement. A motion to suppress was sought and refused. The state failed to produce all witnesses material to the making of the statement or explain their absence. It was held that appellant’s statements should have been suppressed. From that opinion:

‘The burden of proving that a confession is voluntary is one which the State must assume when the admissibility of a confession is questioned on the grounds that it was coerced. Only by producing all material witnesses connected with the controverted confession can the State discharge this burden.’ ”

See, also, Stevens v. State, 228 So. 2d 888 (Miss. 1969).

We hold that whenever the accused offers testimony that his confession was induced by violence, threats, coercion, or offers of reward then the burden is upon the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence.

Appellants, further, contend the court erred in permitting the prosecuting attorney to refer to other crimes in questioning a state witness and make prejudicial statements during his closing arguments. Even though we should agree with this assertion, we need not discuss it since it is not likely to happen again on retrial. Neither do we deem it necessary to discuss appellants’ assertion there was insufficient evidence to support the verdict since they do not favor us with any argument to support this contention.

Reversed and remanded.

Fogleman, J., not participating.


author: Joe C. Barrett, Special Justice. Carleton Harris, Chief Justice,

text:
    Anderson Gene DuBOIS v. STATE of Arkansas
    5734
    494 S.W. 2d 700
    Opinion delivered May 21, 1973 .

      Donald A. Forrest, for appellant.

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellee.
   Joe C. Barrett, Special Justice.

Anderson Gene DuBois was convicted of murder in the Crittenden County Circuit Court and sentenced to death. While imposition of the death penalty was not constitutionally permissible, we would not reverse this case solely on that ground, but would remand it for resentencing in line with the procedure approved by this court in O’Neal v. State, 253 Ark. 574, decided December 11, 1972.

The controlling principle involved in this appeal is the application of Section 43-2116, Arkansas Statutes Annotated to the record made in the trial court. That Section reads as follows:

“A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. Provided, That in misdemeanor cases a conviction may be had upon the testimony of an accomplice.”

Obviously the charge upon which DuBois was tried is a felony.

ACCOMPLICES

Counsel for DuBois forcefully argue that witnesses, Linda Austin and G. W. Stewart, were accomplices to the crime for which DuBois is charged.

In Froman and Sanders v. State, 232 Ark. 697, 339 S.W. 2d 601, this Court said:

“There is a conflict of authorities as to whether an accessory after the fact is an accomplice, but the decisions of this Court are to the effect that he is.”

Applying this rule, whether Mrs. Austin, Mr. Stewart or either of them were accessories before or after the fact or actively participated in the commission of the crime becomes immaterial if, in fact, they were either.

In Havens v. State, 217 Ark. 153, 228 S.W. 2d 1003, this Court said:

“We have approved the following test applied to determine whether one is an accomplice: ‘Could the person charged be convicted as principal or an accessory before the fact or an aider and abetter upon the evidence? If a judgment of conviction could be sustained then the person may be said to be an accomplice. . .’ ”

In Froman and Sanders v. State, supra, this Court quoted with approval the following statement from Underhill’s Criminal Evidence, 5th Edition, Volume I, Page 335, as follows:

“The burden is on the defendant to show that the witness for the state is an accomplice. This is usually determined by the Court as a question of law, but if the evidence is conflicting as to the participation of the witness in the commission of the crime the matter should be left to the jury under proper instruction as to intent and participation.”

Applying these tests to the record in this case, this Court is of the opinion that Linda Austin, at least, was an accessory within the meaning of Section 43-2116.

The record reflects that at the time of the trial of DuBois, G. W. Stewart was charged along with appellant and Jerry Austin with the murder of Mack Howell. He had been held in the West Memphis City Jail from the time of his arrest until the time of the trial. During the trial counsel for the State conceded that Stewart was an accomplice. In view of this concession by the State, for the purpose of review (as distinguished from what may occur on a re-trial), we must accept Stewart’s status as an accomplice. Such concession having been made in the trial of this case, it relieved the defense counsel from the burden of proof on the subject and may well have affected the trial strategy or the method of going forward with proof and in the nature of the argument.

CORROBORATIVE EVIDENCE

In Pitts v. State, 247 Ark. 434, 446 S.W. 2d 222, this Court said:

“... Uncjer the statute a conviction for a felony cannot be had upon the testimony of an accomplice ‘unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.’ Ark. Stat. Ann. Section 43-2116 (Replacement 1964). In construing the statute we have held that the test of the sufficiency of the corroboration is whether, ‘if the testimony of the accomplice is eliminated from the case,’ the other evidence establishes the required connection of the accused with the commission of the offense. Froman v. State, 232 Ark. 697, 339 S.W. 2d 601 (1960). Corroborating evidence which merely raises a suspicion of guilt is not enough. Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304 (1943).”

While the writer of this opinion feels that this test is too rigid, nevertheless, I feel bound by the prior decisions of this Court.

If it be determined as a fact that G. W. Stewart was not an accomplice as that term is defined above, there is ample evidence in this record to sustain the conviction of DuBois. If, however, it be found as a fact that Stewart was an accomplice, it is clear that the conviction of DuBois must be reversed. Without the testimony of witnesses Austin and Stewart the record contains no evidence connecting DuBois with the killing of Mack Howell. The only evidence placing DuBois in the State of Arkansas at the time of Mack Howell’s killing comes from the testimony of Linda Austin and G. W. Stewart.

In Instruction No. 19 the trial #ourt, without objection, told the jury:

“You are instructed that one may not be convicted of a felony upon the uncorroborated testimony of an accomplice. You cannot, therefore, convict the defendant on the testimony of an accomplice unless you find such testimony is corroborated by other evidence in the case tending to connect the defendant with the commission of the crime, and the corroboration is not sufficient if it merely shows that the crime was committed and the circumstances thereof, but you are instructed that the amount of such coiroborating evidence and its weight, is a matter solely for the jury. And, if you find that such accomplice has been corroborated by evidence, positive or circumstantial, other than the accomplice’s own testimony tending to show that the crime was committed and connecting the defendant with its commission, you will be justified in convicting the defendant provided you believe him guilty from all of the evidence in the case beyond a reasonable doubt.”

The court also defined an accomplice in another instruction.

This Court is unable to determine whether the finding of guilty by the jury was based upon a finding of fact that either or both Linda Austin and G. W. Stewart were not accomplices or whether it was based upon the finding of' fact that both were accomplices, but that there was sufficient corroborative evidence to sustain the conviction.

Upon a new trial we suggest that it would be appropriate for the trial court upon request to give the jury an instruction that would permit it to determine whether Stewart was an accomplice. See Satterfield v. State, 245 Ark. 337, 432 S.W. 2d 472, where such an instruction was requested but refused by the trial court.

REASONABLE DOUBT

Over objection, the trial court defined reasonable doubt in Instruction No. 23 as follows:

“The phrase ‘beyond a reasonable doubt’ should be explained to you, and it means that after a full and fair consideration of all the facts and circumstances proved in the case there naturally arises in your mind, either out of the evidence or by reason thereof, or on account of the lack of it, a substantial doubt of the defendant’s guilt, then that is what the law means by a reasonaable doubt. It is not an imaginary or far-fetched doubt to be conjured up in order to allow a guilty man to escape just punishment, but, as stated, it is a shield to protect the innocent from unjust conviction.
The best definition of a reasonable doubt is that it is a doubt that is reasonable and one upon which you yourself would be willing to act in any matter of highest concern to you with which you may come into contact in your everyday walks of life.”

We have no hard and fast rule as to language to be employed in defining reasonable doubt. This seems to be true in other jurisdictions. Examination of Words and Phrases, Volumn 36, Pages 495-502, discloses a great variety of phrasing that did not constitute error. In this opinion we do not intend to lay down a fixed rule for definition of the phrase “reasonable doubt.” Nevertheless, in Laird v. State, 251 Ark. 1074, 476 S.W. 2d 811 (1972), the following definition of reasonable doubt was approved:

“Reasonable doubt is not a mere possible doubt, or imaginary doubt, because everything relating to human affairs and depending upon mortal evidence is open to some possible or imaginary doubt; but it is such a doubt as arises from such a candid and impartial consideration of all the evidence in the case as would cause a reasonable and prudent man to pause and hesitate in the graver transactions of life; and a juror is satisfied beyond doubt if from a candid consideration of all the evidence he has an abiding conviction of the truth of the charge.”

In the opinion in the Laird case this Court corrected what was an obvious typographical error in Dempsey v. State, 83 Ark. 81, 102 S.W. 704 (1907), where the letter “t” was dropped from the word “mortal.”

On a retrial of DuBois it would not be inappropriate for the trial court to instruct the jury in the language approved in the Laird case, but we made it abundantly clear that other appropriate language defining reasonable doubt would not be disapproved by this Court.

MOTION FOR DIRECTED VERDICT OF NOT GUILTY

The trial court overruled defendant’s motion, seasonably made, for a directed verdict of not guilty. Such a motion would have been proper only if: (1) both Linda Austin and G. W. Stewart were accomplices, and (2) there was insufficient other evidence to corroborate their testimony. An examination of the transcript indicates other evidence is available to the prosecution. At a new trial of the defendant, the deficiencies we find in this record may well be supplied. Under this record a remand is proper as was done in Paschal v. State, 245 Ark. 396, 432 S.W. 2d 879, (1968).

OTHER POINTS URGED

Numerous other grounds for reversal are urged in the brief filed on behalf of DuBois. This Court has carefully examined all of these and we find them without merit. Comment upon each of the other points raised would add nothing to the judicial literature and would be a waste of judicial time. Indeed, a number of the points raised have been answered by this Court in O’Neal v. State, supra.

In view of the disposition we make of this case, the alleged prejudicial argument of the prosecuting attorney is not likely to recur.

Accordingly, the judgment is reversed and the case remanded for a new trial.

Fogleman, J. not participating.

Harris, C.J. and Jones, J. would affirm.

Carleton Harris, Chief Justice,

dissenting. I do not agree with the majority that Linda Austin was an accomplice as a matter of law; to the contrary I think this was a fact question to be decided by the jury. Mrs. Austin, during her testimony, testified that she was in fear of appellant, and certainly if her acts, or concealment of the crime, were due to fear, she was not an accomplice. We have also said that the mere failure to inform the officers of the law when one has learned of the commission of a crime does not make one an accomplice. Butt v. State, 81 Ark. 173, 98 S.W. 723. On trial, during cross-examination, Mrs. Austin was asked if she noticed in a newspaper account, following Howell’s murder, that the Howell telephone wire had been cut. She answered that she had and the transcript then reveals the following:

“Q. At that point did you go to the police and tell them what you knew about it?
A. I was afraid to.
Q. You were afraid to?
A. Yes.
Q. Because you had aided and abetted in the beginning, hadn’t you?
A. No.
Because, as I told them, Gene might hurt some of my family.
Q. And that is the reason you did not go to the police?
A. Yes, sir.”

There is other evidence in the record which, in my view, raised a question of fact as to whether Mrs. Austin was an accomplice. The testimony reflected that DuBois had gone to the Howell home to cut the telephone wire, but was first unsuccessful and returned to the house for further tools. From the record:

“Q. Now, at this point knowing that he was going over there to cut those wires and after having given him and knife, and after him going over there and coming back from an unsuccessful mission, you are telling this jury that you went to your closet and looked in your toolbox and handed him a pair of pliers?
A. What am I supposed to do? He’s got the gun. What am I supposed to do? Am I supposed to sit there and say, 'Listen here, you don’t do this,’ and then him shoot me?”

The motive for the crime, as shown by the state, was that Howell, the deceased, had some days earlier ' made improper advances to Mrs. Austin. Mrs. Austin testified that after DuBois and Stewart left the Austin home, she and her husband went to bed. From the record:

“Q. And you are telling us now that Jerry, the husband of the wife whose honor had been insulted, went to bed?
A. Yes. Why not?
Q. And that you all merely went to sleep?
A. Yes. We didn’t think Gene would do anything.
Q. You didn’t?
A. No.
Q. He didn’t have any reason to do anything, did he?
A. We didn’t ask him to do nothing, no.
Q. Did you try to stop him from doing anything?
A. We told him — I plainly asked him — I told him, I said, 'Jerry will talk to Mack himself.’ And Gene said, ‘No, I will do the talking.’
So far as I knew he was just going to talk to the man.
I thought Gene was just a big bully. You know, just blowing-off, because he’d said stuff like that before around me.”

I agree that there is quite a bit of evidence to indicate that Mrs. Austin was an accomplice, but I think the evidence just cited raises a question of fact for the jury to determine.

To illustrate my view, let me use a hypothetical situation that I consider analogous to the point in question. A defendant is charged with murder, it being alleged that he killed another by shooting him. Five persons testify that they were in the room where the shooting occurred; that they saw the defendant fire the shots; that the individual killed had no weapon and was sitting in a chair at the time. Yet, if the defendant testified that these witnesses were all wrong, and that the person killed was, at the time of the shooting, advancing on him (the defendant) with a knife in his hand, we would have a jury question.

I might also say I am even more of the opinion that the question of whether Stewart was an accomplice was a fact question. However, since the state conceded on trial that Stewart was an accomplice, he must be so considered in determining this appeal.

Because of the finding of this court that Linda Austin, as a matter of law, was an accomplice, I respectfully dissent.


author: Carleton Harris, Chief Justice.

text:
    Robert BAGGETT v. STATE of Arkansas
    CR 73-25
    494 S.W. 2d 717
    Opinion delivered May 28, 1973

      Howard, Howard ir Howard, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, Robert Baggett, was convicted of first degree murder for the slaying of June V. Shillcutt while perpetrating the crime of larceny. Approximately two months later a motion for a new trial was denied by the Pulaski County Circuit Court. On this appeal, two points are relied upon for a reversal, viz., that evidence obtained in a search of an apartment should have been suppressed, and second, that one of the jurors was incompetent to participate in the jury’s deliberations. We proceed to a discussion of these points in the order named.

The court conducted a hearing in chambers at which time Officer R. B. Jones, of the Little Rock Police Department, and Baggett, testified. The evidence reflected that on August 12, 1970, two days after the death of Shillcutt, officers were admitted to an apartment at 311 West 7th Street, North Little Rock, which Baggett had occupied. The officers had no search warrant, but were voluntarily admitted by Jack Ballard, owner of the apartment house. The apartment keys had been turned over to Ballard by Baggett on August 11, Baggett leaving on that date to go to Louisiana. Baggett, who was also employed by Ballard, quit his job at that time. The officers had received information that Baggett had spent a large sum of money and had left town. After being admitted to the apartment, they found the general appearance to be rather “messy”. There were dirty dishes, left-over food in the pans and there were no bed clothes on the bed.

The officer testified:

“We looked in the drawers; there were no clothes in the drawers. We looked in the closets; there were no clothes in any of the closets. We looked in the — there was a pan on the stove that had not been cleaned for some time. We looked in the bathroom, and all the items that would be in the shelf were gone. The apartment gave the appearance that it was vacant.”

In searching the room, various items were found, including keys which were found on the floor bearing the name “June B. Shillcutt.” After completing the search, the officers went to the drug store operated by Shillcutt where his Chevrolet automobile was parked. One of these keys opened the driver’s side door, and when inserted into the ignition, started the vehicle. The attack upon the warrantless search is based upon the assertion that there was no prqbable cause tq search this apartment. The trial court held that Baggett had abandoned the apartment and ordinarily required procedures in searching occupied premises were not necessary. We agree that the apartment had been abandoned, even though the rent had been paid until Friday (two days after the search was made) and Baggett testified that he had planned to return to Little Rock if he did not find a job in New Orleans. What were the circumstances showing abandonment? Baggett quit his job, received pay for one day’s work, told several people that he was going to New Orleans to get a job, paid all bills that he owed except one, told his friends in Little Rock good-bye on the 11th, turned the apartment keys over to the owner, and took all personal belongings to New Orleans with him. Of course, had he returned within the two days before his rent became due, he could not have gone into his apartment for Ballard had the keys. The fact that the rent was paid up for three days,after Baggett left does not mean that the apartment had not been abandoned. In Feguer v. United States, 302 F. 2d 214 (1962), the United States Court of Appeals (Eighth Circuit) passed on a similar contention. There, the court said:

“The defense during the trial moved to suppress eight tendered government exhibits (the Dubuque rent receipt, the Howes identification, the Quality Cleaners slip, the Dubuque Laundry slip, the Milwaukee bank envelope, the bus ticket, the Wisconsin Employment Service card, and the one horseshoe die) which had been found and seized by the Dubuque police (and later turned over to the FBI) when, with the landlord’s permission but without a warrant, they searched the room at 1004 Bluff Street on the night of July 12, 1960. This motion to suppress similarly rests on claims of unreasonable search and seizure under the Fourth Amendment. The trial court denied the motion on the ground that at the tíme of the search the defendant had left Dubuque with intent not to return and thus had abandoned the room.
“The defense position is that these exhibits were seized on mere suspicion. It points out that the defendant had paid the room rent for a period not ending until July 14; that the lights were on when the room was entered; that the examining officers had no reason then to believe that the defendant was not still occupying the room or that his absence was more than temporary; ■ and that the only real information they possessed was that the defendant had rented that room five days before.” ***

The court proceeded to discuss the Fourth Amendment, a safeguard against unreasonable search and seizures, citing cases where Fourth Amendment rights were violated. It was then pointed out that the cases mentioned were concerned with occupied, and not vacated, premises, and the court held that the items of evidence found by government officials in the room rented by Feguer had been discarded and abandoned. An earlier case was cited, the court stating:

“The present situation, it seems to us, is governed by Abel v. United States, 1960, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668. There, the defendant checked out of his hotel room, albeit with encouragement from arresting officers. After he had done so, but prior to the checkout hour, an FBI agent, with the consent of the hotel management, searched the room without a warrant and seized articles left in a waste basket. The court said, p. 241, 80 S. Ct. p. 698:
‘ * * * it was entirely lawful, although undertaken without a warrant. This is so for the reason that at the time of the search petitioner had vacated the room. The hotel then had the exclusive right to its possession, and the hotel management freely gave its consent that the search be made. Nor was it unlawful to seize the entire contents of the wastepaper basket, even though some of its contents had no connection with crime. So far as the record shows, petitioner had abandoned these articles. He had thrown them away. So far as he was concerned, they were bona vacantia. There can be nothing unlawful in the Government’s appropriation of such abandoned property. * * *’
“Abandonment is not to be foreclosed here until the paid rent period ran out any more than, in the Abel case, it was not foreclosed until the check-out hour had arrived. It follows that the search and seizure here, although without warrant, were not illegal and that the evidence in question is not inadmissible on the constitutional grounds asserted.”

In the instant case, we think an abandonment of premises, and the items found, could not be more clearly shown than by the circumstances herein mentioned, and we hold appellant’s contention to be without merit.

On a motion for new trial, appellant offered evidence that juror Ernest Mason was not qualified to sit on the jury, and it is contended that the jury verdict should be set aside for that reason. We disagree. Ark. Stat. Ann. § 43-2204 (Repl. 1964) provides as follows:

“A juror cannot be examined to establish a ground for a new trial; except it be to establish, as a ground for a new trial that the verdict was made by lot.”

We have held many times that a verdict cannot be impeached by a juror’s testimony except to prove that the verdict was reached by lottery. Wallace v. State, 180 Ark. 627, 22 S.W. 2d 395; Post v. State, 182 Ark. 66, 30 S.W. 2d 838; Patton v. State, 189 Ark. 133, 70 S.W. 2d 1034; Goodnaugh v. State, 191 Ark. 279, 85 S.W. 2d 1019.

Finding no prejudicial or reversible error, the judgment is affirmed.

It is so ordered.

George Rose Smith, J., not participating.

      The juror’s ability to serve was allegedly impaired by the taking of insulin.