author: J. Fred Jones, Justice.

text:
    RYDER TRUCK RENTAL, Inc. v. H. B. WREN OIL DISTRIBUTING COMPANY, Inc.
    5-6122
    489 S.W. 2d 236
    Opinion delivered January 22, 1973

      Smith, Stroud, McClerkin & Conway, by: R. Gary Nutter, for appellant.

      Autrey ér Weisenberger, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Ryder Truck Rental, Inc., hereafter called Ryder, from a circuit court order denying its motion to set aside a default judgment rendered against it in the amount of $7,021.43 for diesel fuel and gasoline sold by an independent contractor operating Scotty’s Truck Stop in Texarkana and charged to credit cards issued to Ryder by American Oil Co., the accounts having been assigned to the appellee H. B. Wren Oil Distributing Company, Inc., hereafter called Wren.

Ryder is a Florida domiciled corporation authorized to do business in Arkansas. It is engaged in a nationwide truck rental business with its home office in Miami, Florida, and branch offices in Pittsburgh, Pennsylvania, and Denver, Colorado. Through its Pittsburgh branch Ryder leased a number of trucks and trailer rigs to Kelly Tire Co. who operated the trucks through Texarkana, Arkansas. Kelly hired its own truckdrivers and they purchased fuel as needed on credit cards issued to Ryder. The individual driver would sign the usual credit card receipts for the purchases and Ryder would pay for the fuel at regular intervals and then collect from Kelly under their lease agreement. The operator of Scotty’s Truck Stop assigned 151 of the credit card purchase accounts totaling $7,021.43 to Wren in exchange for fuel and merchandise. When the account was presented to Ryder for payment, a controversy arose as to the validity of some of the credit card purchases.

After considerable negotiation by mail and phone between Wren’s attorneys and Ryder officials and Ryder’s general counsel in Miami, Florida, Wren filed suit on the verified account and obtained proper service on Ryder’s designated agent for service in Arkansas. Immediately upon filing the suit, Wren’s attorney wrote a letter to Ryder’s attorney advising that suit had been filed and enclosing a copy of the complaint. The suit was filed and service issued on January 5, 1972, and service was had on January 7, 1972. No responsive pleading of any kind was filed by Ryder, so on February 18, 1972, the trial court entered a default judgment in favor of Wren for $7,021.43 as prayed in the complaint. On February 29, 1972, through local attorneys, Ryder filed its motion to set aside the default judgment and following a hearing on March 17, 1972, the motion was denied.

On appeal to this court Ryder contends that the trial court abused its discretion when it sustained Wren’s objection to Ryder’s oral motion to amend its original motion to set aside the default judgment; that the decision of the trial court was a hindrance to justice, and that the trial court erred in holding that Ryder had not proven such unavoidable casualty or excusable neglect as would justify setting aside the default judgment.

The facts as they relate to the default appear as follows: After considerable negotiations between the parties and their attorneys, and after being unable to arrive at a settlement on the account, complaint was filed and service had on Ryder’s duly designated agent for service as already stated. It appears that upon receipt of process served by the sheriff of Pulaski County on January 7, the agent for service in Little Rock immediately forwarded same to Ryder’s district office in Denver, Colorado, as was the usual and customary procedure, and the Denver office in turn forwarded same to Ryder’s home office in Miami, Florida, which was also the usual procedure followed by Ryder in such matters. The motion filed by local counsel to set aside the default judgment stated that Ryder had and still has a meritorious defense to the cause of action stated in the original complaint and the attorney’s affidavit was attached to the motion. Among other things the affidavit stated that the affiant attorney was contacted by Ryder’s general counsel Gerry B. Turner in Miami, Florida, on February 21, 1972, and that Mr. Turner advised that when the original complaint was received by Ryder, it was not acted on by Ryder for reasons unknown by Mr. Turner. The affiant stated that he was also contacted by Mr. Bob Sheehan, the district manager of Ryder in Pittsburgh, Pennsylvania; that Mr. Sheehan related to affiant that the defendant had a meritorious defense to a portion of the original complaint in that the amount claimed by Wren over and above the approximate sum of $1,600 was charged to false credit cards and that the same could be proved.

At the hearing on the motion to set aside the judgment, there was considerable discussion between the court and the attorneys as to whether a meritorious defense had been properly and timely pled by Ryder, and whether it was necessary to set out in the written motion the facts relied on as constituting unavoidable casualty or misfortune preventing Ryder from appearing and defending within time. Ryder contended that it was not necessary to set out the facts in the pleading but was only necessary to plead that there existed facts that would constitute excusable delay or unavoidable casualty, and that the specific facts relied on were a matter of proof. The trial court did not agree with Ryder on this point, but permitted Ryder to make its proffer of proof for the record.

We find it unnecessary to discuss the propriety of the pleadings in this case for the reason that the parties apparently confused the trial court’s jurisdiction and control over its judgments during the term in which judgment was rendered with its jurisdiction under Ark. Stat. Ann. § 29-506 (Repl. 1962) after it has lost control of the judgment by a lapse of the term in which it was rendered. See Ayers v. Anderson-Tully Co., 89 Ark. 160, 116 S.W. 199. A trial court’s authority for setting aside its judgment after the term in which it was Tendered is found in § 29-506 as follows:

“The court in which a judgment or final order has been rendered or made, shall have power, after the expiration of the term, to vacate or modify such judgment or order.
# * #
Seventh. For unavoidable casualty or misfortune preventing the party from appearing or defending. * *

The necessary pleadings under the strict construction of this statute will not be gone into here for the reason that this statute does not apply to the case at bar.

A trial court’s authority over its judgments during term time is found in Ark. Stat. Ann. § 29-501 (Repl. 1962) which simply states: A judgment, therefore, is subject to the trial court’s control during the term in which it is rendered. Wells Fargo & Co. v. Baker Lbr. Co., 107 Ark. 415, 155 S.W. 122.

“A judgment rendered, or final order made in the circuit court, may be reversed, vacated, or modified, either by the Supreme Court, or by the court in which the judgment was rendered, or order made.”

The trial court’s jurisdiction to render a default judgment under Ark. Stat. Ann. § 29-401 (Repl. 1962) is not questioned in this case. The statute provides as follows:

“Judgment by default shall be rendered by the Court in any case where an appearance or pleading, either general or special, has not been filed within the time allowed by this Act; provided, that the Court may for good cause allow further time for filing an appearance or pleading, if application for granting further time is made before expiration of the period within which the appearance or pleading should have been filed; and that nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause.”

The default in pleading under Ark. Stat. Ann. § 27-1135 (Repl. 1962) is not questioned in this case, and there is no question that the motion to set aside the judgment was filed during the same term of court in which the judgment was rendered, so the question simply boils down to whether the trial court abused its discretion in refusing to set aside the default judgment because of excusable neglect, unavoidable casualty or other just cause.

Ryder’s general counsel from its Miami office testified in the proffer of proof on the motion to set aside the judgment, but the substance of his testimony was to the effect that someone in Ryder’s Miami office simply failed to advise him that process had been served on the resident agent in Arkansas and had failed to call to his attention that a copy of the complaint and the letter accompanying same had been received in his Miami office. In Walden v. Metzler, 227 Ark. 782, 301 S.W. 2d 439, we failed to find lexcusable neglect or unavoidable casualty under facts very similar to those in the case at bar and we are unable to find any evidence of excusable neglect, unavoidable casualty or other just cause for setting aside the default judgment in this case.

We conclude, therefore, that the trial court did not abuse its discretion in denying Ryder’s motion to set aside the default judgment. The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Herbert COLLINS and John Collins ROGERS, as Trustees Under the Will of J. B. MILBURN Deceased v. J. B. MILBURN, Jr. and Marynell Milburn SUTTON
    5-6130
    490 S.W. 2d 453
    Opinion delivered January 22, 1973
    [Rehearing denied March 12, 1973.]

      Kenneth Lane and Langston if Langston, for appellants.

      Pope, Pratt, Shamburger, Buffalo if Ross, for appellees as Cross Appellants.
   J. Fred Jones, Justice.

This is an appeal by Herbert Collins and John Collins Rogers, trustees under the will of J. B. Milburn, deceased, from a chancery court decree ordering a partial distribution of trust funds in the amount of $5,518.23 to J. B. Milburn, Jr. and Marynell Milburn Sutton, the beneficiaries of the trust. J. B. Milburn, Jr. also cross appeals from that portion of the decree refusing to terminate or dissolve the trust and distribute the assets to J. B. Milburn, Jr. and Marynell Mil-burn Sutton.

The will of J. B. Milburn, Sr., as it relates to the trust here involved, is in the following language:

“FIFTH: All the rest and residue of my estate whether real, personal or mixed and wherever situated, I give, devise and bequeath to Herbert Collins and John Collins Rogers to be held in trust, however, for the uses and purposes set forth as follows:
My Executors and/or Trustees or successors are hereby given full power to manage my estate and the trust set up herein as fully to all intents and purposes as I now possess including the authority and power to lease, mortgage, renew or extend any existing mortgage, to pledge, sell and/or convey any asset, part or all of said estate in such manner and for such consideration as they deem to be for the best interest of my estate and to invest, re-invest, exchange, loan and re-loan any part or all of the trust estate in such property, loans or securities as in their discretion seems best.
The entire net income received or accumulated in this trust account shall be paid, at intervals convenient to my Trustees, to my two children, Marynell Mil-burn Sutton and J. B. Milburn, Jr., in equal parts, share and share alike, during their lifetime, on the same basis as though the principal or corpus of this Trust was also equally divided and maintained as separate accounts.
If by reason of an emergency or unforeseen contingency or by reason of the insufficiency of said net income, and should my said Trustees deem it necessary or advisable, they may in their absolute discretion use a part or up to onfe-half of the principal or corpus of this Trust, under such circumstances, for the benefit of each child, from time to time, to provide for his or her proper care; and any such expenditure shall be charged against the one-half principal interest set up separately for the user of this emergency. In the event of the death of either of my children, his or her share remaining at that time in this Trust shall descend to his or her child or children of the body to be equally divided, share and share alike. Or if either of my children die without issue and intestate then such interest shall revert to the survivor of the two to be distributed upon his or her death in accordance with the preceeding sentence.
In the event either of my children attempt to hypothecate, sell or convey his or her interest in this Trust by assignment or otherwise my Trustees are authorized, if in their absolute discretion they deem it advisable, to discontinue the payment of that part of the net income which may be involved in such transaction and to accumulate such net income for the use and benefit of the said descendant or descendants as hereinabove provided.
Regardless of any conflict stated above, my two children shall have and are hereby given the right and privilege to dispose by last will and testament of their life estate (or contingent interest) remaining in this trust at the time of their respective deaths. The Trustees herein are authorized to make settlement with the Executor of the estate of the decedent, should they elect to die testate.
This Trust shall ipso facto cease and terminate upon the death of the survivor of my two children and all remaining assets paid, assigned or conveyed in accordance with my wishes hereabove stated.
SIXTH: My Executors are to pay all estate death taxes and all beneficiaries are to receive specific bequests made to them without deduction of pro rata Federal and State Estate Taxes.
SEVENTH: I hereby appoint Herbert Collins and John Collins Rogers of Little Rock, Arkansas, Executors of this my last will and testament with full power to manage my estate, including the right to sell and convey any part or all of said estate in such manner as they deem for the best interest of my estate. In the event of the death, resignation or inability of either of my Executors to serve, the other shall serve as sole Executor with the same power and authority given to them jointly and request that they be allowed to serve without bond. In event of the death of both said Executors and Trustees it is requested that a successor be appointed by the Pulaski Chancery Court with the approval of my children.”

The litigation in this case was commenced when J. B. Milburn, Jr. filed his petition alleging that under the terms of the will the trustees are authorized to use up to one-half of the corpus of the trust for the benefit of the petitioner in providing for his proper care and welfare. He alleged that the income from the trust had been insufficient to provide for his needs; that an emergency situation exists in that he is totally disabled because of physical infirmities; that he is unable to work and provide income for himself and family. He alleged that he is heavily in debt and in dire need of funds to pay his necessary medical and dental expenses and to provide for the necessities of life. He prayed that the trustees be ordered and directed to pay to him $500 per month up to one-half of the principal or corpus of the trust. By amendment to his petition J. B. Milburn, Jr. alleged that the trust assets are not liquid but are expensive to maintain; that the expenses of carrying out the trust exceed the income available to the beneficiaries and that the trust should be dissolved and terminated by distributing the corpus of the trust to himself and his co-beneficiary, Marynell Mil-burn Sutton.

Marynell Milburn Sutton intervened by petition making similar allegations and prayer for relief. By amendment to her petition Marynell Milburn Sutton alleged that the testamentary purpose and intention as expressed in the will of J. B. Milburn, Sr., deceased, was being defeated and evaded; that the income she was receiving from the trust was totally insufficient to meet the necessary expense of her proper care; that the assets of the trust were being depleted by the trustees and she also prayed that the trust: be terminated and dissolved and the assets be distributed in full to herself and J. B. Milburn, Jr. in equal shares.

The answer of the trustees denied the allegations set out in the petitions and their amendments. They point out the “absolute discretion” given to them under the trust instrument and they set out in answer to the petitions and intervention other matters supporting their contention that they were properly preserving the corpus of the trust and properly distributing the income therefrom.

At the close of the testimony on the hearing in this case, the chancellor ordered the distribution of the cash in the hands of the trustees, in the amount of $5,518.23, equally between Mr. Milburn, Jr. and Mrs. Sutton. It is not questioned that this $5,518.23 was derived from real estate notes and constituted a part of the corpus of the trust estate. In reaching his conclusion the chancellor found that the evidence showed need, particularly with reference to Mr. Milburn, Jr., since he is ill with emphysema, is out of work, and owes some $2,500 of pressing debts. As to Mrs. Sutton, the chancellor found that she had shown less need than had Mr. Milburn, Jr. The chancellor then recited his findings as follows:

“Well, it is obvious here from the Will itself that Mr. Milburn, Sr. desired that Mr. Collins and Mr. Rogers act as Trustees here and exercise their best judgment and supervision over this estate, which has been some years ago. I don’t know how many years it has been since Mr. Milburn, Sr. died — approximately four years?
MR. ROGERS: Yes, sir.
THE COURT: And he certainly had some purpose in naming these gentlemen, who were not only Trustees, but Mr. Herbert Collins is his brother-in-law and Mr. Rogers is his nephew by marriage. Mrs. Mona Milburn would be the sister of Mr. Collins, and the aunt of Mr. Rogers and it is their duty, of course, to exercise their best judgment.
I don’t think they have a right to abuse their discretion, but I don’t think the testimony is sufficient here to show any abuse of discretion.”

We agree with the above observations and findings of the chancellor, including the last above paragraph.

We deem it unnecessary to detail the testimony as to the needs of Mr. Milburn and his sister Mrs. Sutton for the reason that we agree with the chancellor that the evidence was not sufficient to show an abuse of discretion on the part of the trustees. The gross value of the estate at the time of Mr. Milburn’s death was approximately $72,500 and consisted primarily of real estate. The evidence indicates that the trustees were also realtors operating as Collins & Co., Inc.; that the trustees have been managing the estate by renting the real property, selling and reinvesting the proceeds.

It is clear to us that Mr. J. B. Milburn, Sr. intended to create a “spendthrift” trust in this case and it is clear from the four corners of his will that he succeeded in doing so in clear and unambiguous language. It is obvious that Mr. J. B. Milburn, Sr. had the utmost confidence in the trustees and there is no question as to the unlimited discretion he attempted to place in them in the administration of the trust.

Mr. Milburn, Jr. and Mrs. Sutton complain about the real estate commissions and other charges made by Collins & Co. on the sale and rental of the trust real property, but such commissions and charges appear to be standard amounts charged by real estate companies for such services and Mr. Milburn, Sr. evidently knew the connection of the trustees with Collins & Co., and that the services of the company would be employed in the sale and rental of the properties when he made his will and gave the trustees unlimited authority to sell and manage the property and reinvest the corpus value. No fraud is alleged or proven in this case and it might be remembered that Mr. Milburn, Sr. could have willed all o£ his property outright to the trustees had he desired to do so.

We find it unnecessary to determine whether the trustees’ discretion, under the trust instrument, is exclusive to that of the chancellor under the law, for the reason that we agree with the chancellor that the evidence in this case is not sufficient to show that the trustees have abused their discretion. The decree is reversed and dismissed on direct appeal, and the decree of the chancellor is affirmed on cross-appeal.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the result and all of the majority opinion except that part treating fees and commissions paid to the trustees. I do not reach the question of the testator’s intention in this regard, because it is unnecessary to do so. It is true that it was alleged that the estate had been substantially reduced in value by reason of various costs and expenses charged to the estate by the trustees. At least one of the appellees prayed that the trustees be prohibited from charging any costs or expenses to the trust estate. Appellees also sought to have the trust terminated because of the danger of its depletion. The chancellor denied all relief except that mentioned in the majority opinion. The cross-appeal of appellees only related to that portion of the decree denying a dissolution and termination of the trust. That is the only connection in which the commissions and charges made by the trustees were argued on appeal. I agree that the evidence produced was not sufficient to justify dissolution or termination of the trust.


text:
    Richard LLOYD v. STATE of Arkansas
    5801
    489 S.W. 2d 240
    Opinion delivered January 22, 1973

      Roy Finch Jr., for appellant.

      Ray Thornton, Atty. Gen., by: Kirby Smith, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

The appellant, Richard Lloyd, was convicted of robbery and was sentenced to 25 years in the penitentiary. On appeal to this court he contends that the evidence was not sufficient to sustain his conviction. We do not agree.

Mrs. Evelyn McAdams, who is 57 years of age, testified that she had finished shopping for groceries at a Safeway Store and as she got into her automobile to leave the parking lot, the appellant suddenly appeared, struck her in the face, then seized her purse and after ripping the purse from its handle, ran away with the purse in his hand. She positively identified the appellant in court as the one who took her purse.

Mrs. Elizabeth Young testified that she lived near the Safeway Store and was working out in her front yard when she heard a woman on the Safeway parking lot screaming and shouting “help me, help me.” She said she looked in the direction of the store and saw the appellant running from around the Safeway Store with Mrs. McAdams following him and shouting, “help me, help me.” This witness said that she shouted to the appellant to stop but that he kept running. Mrs. Young positively identified the appellant in court as the person she saw on that occasion.

Mr. Phillip Milligan, a 25 year old truckdriver for the Safeway Stores, testified that he was making a delivery to the store in question and saw two women in the street waving their arms and saw a man running toward him on the the sidewalk behind the store. He testified that the man ran between his truck and an automobile that had stopped in front of his truck and that the man ran south on Battery Street. He positively identified the appellant as the person he saw running from the scene.

Police Officer David Hart testified that he was within about two blocks of the store when he received a call to the scene. He said he immediately went to the scene and after obtaining a description of the suspect and the direction he had gone, he apprehended the appellant about three blocks south and one block east of the Safeway Store. He said that the appellant was walking fast when he stopped him; that the appellant stated he had just left his girl friend’s house but was vague as to her name and where she lived. He said he arrested the appellant on suspicion of robbery.

The appellant testified that on the day in question a friend of his had let him out of an automobile near where the officer arrested him. He said that he was looking for a girl by the name of Willie Jean who visits one of her girl friends in the vicinity; that he does not know the address where he went to see Willie Jean, but when he knocked on the door where she was staying, no one answered the door. He said he was just walking out of her yard when the officer arrested him. The appellant on cross-examination admitted that he had been convicted of grand larceny in 1963, burglary and grand larceny in 1964, grand larceny in Oklahoma in 1965, and of escape in 1971.

We are of the opinion that the evidence in this case, is amply sufficient to sustain the conviction.

Judgment affirmed.


author: Conley Byrd, Justice.

text:
    Bobby Earl NORFUL and Samuel Edward NORFUL v. STATE of Arkansas
    5795
    489 S.W. 2d 239
    Opinion delivered January 22, 1973

      John C. Earl, for appellants.

      Ray Thornton, Atty. Gen., by: Julie McDonald, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellants Bobby Earl Norful and Samuel Edward Norful contend that their robbery conviction should be set aside because of lack of identification. There is no merit to this contention. The record shows eye witness identification, possession of the fruits of the crime within minutes after the robbery, and a signed confession by both appellants.

Affirmed.


author: Frank Holt, Justice.

text:
    Betty WILLIAMS v. Clifford WILLIAMS
    5-6132
    489 S.W. 2d 774
    Opinion delivered January 22, 1973
    [Rehearing denied February 26, 1973.]

      Henson & Faubus, for appellant.

      W. J. Walker, for appellee.
   Frank Holt, Justice.

This appeal results from the chancellor’s order in favor of appellee upon his petition for a change in custody of his minor child and a reduction in his child support payments. In the original action the appellant sought and was awarded, by a consent decree, the custody of the parties’ two minor children. A written property settlement agreement was incorporated into the decree. In pertinent part it reads:

“Defendant agrees to pay $225.00 per month to the Plaintiff for child support, however, it is further agreed by the parties hereto, unless otherwise ordered by the Court, that the $225.00 a month house payment shall be made by Defendant in lieu of the child support herein and Defendant agrees to provide and maintain said residence **** rent free to Plaintiff for a period of six years.”

Approximately two months after the divorce decree was entered, appellee petitioned the court for custody of the parties’ 15 year old son. The chancellor granted custody of the son to his father, the appellee, and reduced appellee’s child support payments in half by ordering appellant to pay appellee $112.50 per month for as long as she remained in the home, the title to which is in appellee by virtue of the settlement of their various property rights. The order further provided that in the event appellant should vacate the home, appellee should commence paying $112.50 per month to appellant for the maintenance and support of their 12 year old daughter who remained in custody of the appellant mother.

For reversal, appellant contends: “The Chancellor erred when he changed the property settlement agreement.” In support of this contention, appellant relies only upon Anding (Anders) v. Anders, 249 Ark. 413, 459 S.W. 2d 416 (1970), where we affirmed the chancellor’s refusal to modify a property settlement agreement which was “without provision for its amendment or change.” However, in the case at bar, the agreement specifically provides for alteration in the use of the words “unless otherwise ordered by the Court.” Moreover, we do not construe the “rent free” provision to be independent of and unrelated to the agreed sum of child support. The monthly house payment agreed upon was to be made by appellee “in lieu of the child support.”

Furthermore, “*#*#[T]he power of a court to modify a decree for the support of minor children cannot be defeated by an agreement between the parents even when the agreement is incorporated in the decree.” Lively v. Lively, 222 Ark. 501, 261 S.W. 2d 409 (1953). Also, see Clifford v. Danner, 241 Ark. 440, 409 S.W. 2d 314 (1966). The court has “the right to review and modify in accordance with changing circumstances awards for support of children, increasing or reducing same as warranted.” Johnston v. Johnston, 241 Ark. 551, 408 S.W. 2d 885 (1966). In the instant case, certainly the change in custody constitutes a change in circumstances.

It follows that we are of the view that the chancellor correctly held the decree was subject to modification.

Attorney’s fees and costs denied.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Bobby K. DOYLE v. STATE of Arkansas
    5789
    489 S.W. 2d 793
    Opinion delivered January 29, 1973

      William F. Sherman, for appellant.

      Ray Thornton, Atty. Gen., by: Henry Ginger, Deputy, for appellee.
   Carleton Harris, Chief Justice.

Bobby K. Doyle was charged with the crime of assault with intent to kill Captain P. B. Frederick, a court bailiff in Pulaski County, and on trial was convicted of the offense and given 18 years imprisonment in the Arkansas Department of Corrections. From the judgment so entered, appellant brings this appeal. For reversal of the judgment, it is urged that the trial court erroneously charged the jury.

The substantiality of the evidence supporting the conviction is not questioned and we accordingly proceed to discuss the asserted errors relied upon.

First, it is contended that the court erred in refusing to give appellant’s requested instructions 7 and 8. We find no error in this connection for the reason that matters pertinent to the charge were covered in the court’s instruction No. 8. For instance, appellant asserts that the jury was not told that assault with a deadly weapon is an offense lesser included in the offense of assault with intent to kill; the court, however, did give an instruction on aggravated assault, specifying it as the same offense, and used interchangeably with assault with a deadly weapon, declaring it a misdemeanor, and then citing the same statute, Ark. Stats. 41-605 (1964 Repl.) included in the requested instruction by appellant. The court also gave a statutory definition of assault with intent to kill, murder, voluntary manslaughter, along with a recital of distinctions between these offenses. Of course, we have said that it is proper to give instructions which follow the wording of the statute and are applicable to the facts in the particular case, Graham v. State, 202 Ark. 981, 154 S.W.2d 584. It is also contended that the court’s instruction places excessive and unfair emphasis on the crime of murder, of which appellant, of course, could not be charged (Frederick not having died); that the court emphasized the relationship between assault with intent to kill and murder, mentioning this connection three different times. Here, appellant has reference to the following portions of the instructions appearing on three different pages, as follows:

“You will observe from the reading of this that if the circumstances were such that if death had resulted from the assault it would have been murder in the first or murder in the second degree, and he had the specific intent to kill at the time of the assault, he would be guilty of assault with intent to kill. . .
“In order to constitute assault with intent to kill it is necessary, as I have told you, that if death had resulted from it the defendant would have been guilty of murder in one degree or the other. . .
“You are told to give the defendant the benefit of a reasonable doubt. If he would not have been guilty of either murder in the first or second degree, had death resulted, but would only have been guilty of manslaughter, then he would be guilty at most only of aggravated assault, but if it would have been murder in either the first or second degree, had death resulted, and he had the specific intent to kill at the time, he would be guilty of assault with intent to kill.”

We do not agree with appellant’s argument. Instruction No. 8 is rather lengthy, covering several pages, and the portions just copied were all given in connection with some other phase of the instruction. Actually, we cannot possibly see, even if there were an emphasis, how same could be prejudicial to appellant. To the contrary, the jury was being forcefully told that it could not convict Doyle of the offense of assault with intent to kill unless the offense would have been murder had Frederick died. Jerry Kennedy, a friend of Doyle’s and the person who had given Doyle the knife which was used by the latter, testified that the stabbing of Frederick was an accident and that Bobby was concerned after the stabbing over Frederick’s condition. He also indicated that Doyle, in using the knife, was only interested in making an escape,. “Well, I believe that if Doyle had wanted to he could have stabbed real easy a bunch more times.” The instruction, of course, correctly stated the law and we have so held numerous times. See Acuff v. State, 253 Ark., September 25, 1972, 484 S.W.2d 698, and cases cited therein.

Finally, it is also contended that the trial court erred in not giving appellant’s requested instruction No. 9 which embraced reasonable doubt, it being asserted that the court’s instruction did not sufficiently inform the jury as to the benefit of reasonable doubt in connection with the felonious intent required to convict on the charge of assault with intent to kill. The trial court refused this instruction, and noted that the question of reasonable doubt was covered in its own instruction. We agree that no error was committed, the court telling the jury “You must give the defendant the benefit of a reasonable doubt on the degree of assault and, also, the facts of the whole case”.

“You are told to give the defendant the benefit of reasonable doubt.”

These statements were included in instruction No. 8 and in the state’s requested instruction No. 2, given as the court’s instruction No. 2, the jury was instructed as follows:

“The defendant is presumed to be innocent at the commencement of the ‘ trial, and this presumption follows him throughout the trial, or until the evidence convinces you of his guilt beyond a reasonable doubt. The effect of this presumption is to cast the burden of proof on the State to prove to your satisfaction all the material allegations in the information.”

Appellant’s requested instruction No. 13, which properly defined “reasonable doubt” was also given as the court’s instruction No. 3.

Finding no reversible error, the judgment is affirmed.

It is so ordered.

       Frederick was stabbed as he was escordng Doyle back to the jail from the circuit courtroom where he had just been sentenced to three years imprisonment for grand larceny. Doyle, in escaping, stabbed Frederick with a knife which had been earlier slipped to him by Kennedy.


author: George Rose Smith, Justice. John A. Fogleman, Justice, George Rose Smith, Justice, John A. Fogleman, Justice,

text:
    SYSTEMATICS, INC v. Don B. MITCHELL
    5-6157
    491 S.W. 2d 40
    Opinion delivered January 29, 1973
    [Rehearing denied March 5, 1973.]

      Smith, Williams, Friday, Eldredge ér Clark, by: Jerry T. Light and Lewis H. Mathis, for appellant.

      Niblock ir Hipp, for appellee.
   George Rose Smith, Justice.

On June 30, 1969, the appellant, Systematics, Inc., a comparatively young company supplying services based upon data processing, issued to the appellee, an employee, 15,000 shares of Systemati.cs stock at a price of ten cents a share. The stock was issued pursuant to a restrictive agreement by which Mitchell was required to offer to resell the stock to Systematics, at the same price, if he were discharged for cause.

About eleven months later Systematics discharged Mitchell for cause, but he refused to resell the stock to the company at the agreed price. Systematics brought this suit for specific performance of the contract. The chancellor found that the price of ten cents a share was not “a fair price” within the terms of the controlling statute. Instead, the chancellor found the fair market value of the stock to be fifty cents a share. This appeal is from a decree giving Systematics the option of repurchasing the stock at a price of fifty cents a share. The one issue argued here is the validity of the restriction upon Mitchell’s right to sell his stock to third persons.

The exact language of both the contract and the statute must be considered. The contract, which was executed by the company with a dozen of its employees, contained the following provisions:

”2. A Stockholder shall not have the right to transfer, assign, pledge, encumber or otherwise dispose of the shares subject hereto.
"3. On June 30, 1970, ten (10%) percent of the stock originally subject hereto owned by each Stockholder shall be relieved of and released from the restrictions imposed herein. A like number of shares shall be relieved of and released from the restrictions imposed herein on June 30 of each succeeding year until June 30, 1977, at which time all of the remaining stock shall be relieved of and released from such restrictions.
“4. In the event of the termination of a Stockholder’s employment with the Corporation, except by reason of death or mental or physical disability, then the Stockholder shall offer all of his shares of stock then subject hereto for sale to the Corporation at a price of $.10 per share. The Corporation shall exercise its option to purchase by paying the purchase price to such Stockholder in cash within thirty (30) days after such offer. If such option is not exercised by the Corporation, then the Stockholder’s stock shall remain subject to all the terms and provisions hereof. These provisions shall not apply when a Stockholder’s employment is terminated by action of the Corporation without cause [in which event the stock is released from the restrictions].”

Systematics argues, in effect, that despite the statutory reference to “a fair price,” the parties were free to agree upon any price that was fair in the light of the agreement as á whole, without regard to the fair market value of the stock at the time of the exercise of the company’s option to repurchase. To support its argument Systematics cites cases from other jurisdictions sustaining the validity of agreements such as this one. It is conceded, however, that all the cases cited were decided without reference to, and in the absence of, pertinent statutes.

The relevant statute is part of our comprehensive Business Corporation Act, adopted in 1965, and reads as follows:

"A corporation may provide, in respect to any of its shares which are to be issued, that the future transfer (whether inter vivos, by inheritance or testamentary gift), hypothecation or other disposition of such shares shall be subject to restrictions (including purchase options) that do not unreasonably restrain alienation — which restrictions, among other things, may require a prior offering to the corporation or to one or more of its shareholders, at a fair price, before the shares may be otherwise transferred or hypothecated.” Ark. Stat. Ann. § 64-211 (Repl. 1966).

The appended Committee Note to this section is especially enlightening with respect to the legislative intent:

“The above is original draftmanship. Lawyers are often asked to prepare by-law provisions creating these restrictions; and it seems that there might as well be some statutory authority therefor. This section permits such restrictions on transfer as do not ‘unreasonably restrain alienation.’ This leaves considerable room for interpretation; but the committee did not want to attempt to spell out in detail what restrictions would unreasonably restrain alienation. As to such restrictions see Fletcher, Cyclopedia of Corporations, Permanent Edition, Section 5456. Vol. 12, Page 309; also Sections 5457, 5458.”

The statute and the committee’s note, when read together, make it clear that the draftsmen of the act had at least two points in mind: First, such restrictions upon the transfer of stock must not unreasonably restrain alienation. That such an unreasonable restraint may be invalid is stated in Fletcher’s Cylopedia, § 5456, and in Ward v. City Drug Co., 235 Ark. 767, 362 S.W. 2d 27 (1962), also cited by the committee. Secondly, the restriction must provide a fair price for the repurchase of the stock. That point is discussed by Fletcher in § 5457, cited by the committee: “The determination of the price to be paid on the transfer of restricted shares is one of the most troublesome questions. . . . The methods most often used in the valuation of restricted shares are: (1) flat price; (2) book value; (3) a formula expressed as a multiple of average net earnings; (4) par value of shares.”

The committee obviously decided to reject the “flat price” and the “par value” methods of price-fixing, because “a fair price” was selected as the approved standard. Moreover, in a law review article discussing the proposed corporation code before its enactment, the author had this to say, almost as if the case at bar had been before him:

“A leading New York case, Allen v. Biltmore Tissue Corp., 2 N.Y. 2d 534, 141 N.E. 2d 812 (1957), held that a first option restriction is valid even though the price to be paid by the corporation exercising the option is fixed at the price the selling shareholder originally paid for his shares [the exact fact situation now before us]. Query whether this would be ‘a fair price’ within the meaning of the Arkansas statute if the shares have appreciated markedly in value. In order to be certain that first option provisions are not declared invalid because the price at which the shares are to be transferred is unfair, some provision may have to be made for adjusting the price from time to time as the shares change in value.” O’Neal, The Small Corporation and the Proposed Arkansas Corporation Code, 17 Ark. L. Rev. 356, 360 (1963).

We are convinced by our study of the statute that (a) the restriction agreed upon must not unreasonably restrain alienation of the stock, and (b) the price agreed upon must be fair at the time of the repurchase, for the statute explicitly refers to “the future transfer” of the stock. Hence a price that was fair when the contract was executed may not necessarily be fair some years later.

In our opinion the restrictive agreement now before us runs counter to both requirements of the statute. That is: First, the restriction unreasonably restrains alienation.. Counsel for Systematics argue that the corporation was required to repurchase Mitchell’s stock when he was discharged, but we do not so read the contract. Paragraph 4, governing the matter of repurchase, vests the decision to repurchase or not to repurchase in the corporation, with this added language: “If such option is not exercised by the Corporation, then the Stockholder’s stock shall remain subject to all the terms and provisions hereof.” We see no reasonable interpretation of that language except to take it to mean that if the company decides not to repurchase the stock at ten cents a share, the stockholder still cannot sell the stock to anyone else until the restrictions ultimately expire under Paragraph 3 of the agreement. Thus the stockholder may be compelled for years to retain an investment in Systematics even though he has been discharged and has no desire to be connected with the company. We can only regard such a restriction as an unreasonable restraint upon the alienability of the stock.

Secondly, the price is not fair with respect to future sales of the stock, which is what the statute is talking about. The chancellor found the fair value of the stock at the time of trial to be fifty cents a share. That finding is not questioned by Systematics, which elected not to abstract the proof with respect to market value (its position being that that issue is not involved here). It is plain enough that a resale price of only 20% of the market value of the stock is not a fair price and for that reason tends to restrain the alienability of the property. Thus the second requirement of the statute, that the price be fair, is also wanting in the contract under consideration.

In affirming the decree we do not imply that the chancellor was right in fixing the fair market price at which Systematics may repurchase the stock. As we pointed out in Rector-Phillips-Morse v. Vroman, 253 Ark. 750, 489 S.W. 2d 1 (1973), it is not the province of the courts to make contracts for the parties. The decree should have gone no farther than to declare the contractual option to be invalid, leaving the parties to their own devices. Mitchell, however, has not cross-appealed from the decree and is accordingly bound to abide by its provisions if Systematics elects to exercise the option recognized by the chancellor’s decree.

Affirmed.

Harris, C. J., and Fogleman, J., dissent.

John A. Fogleman, Justice,

dissenting. I must respectfully dissent because I do not agree that the statute rejected either of the four means of valuation of shares on an option to repurchase. The wide latitude of interpretation relates to the question whether the restraint on alienation is unreasonable, not on the question of ascertainment of a “fair price.” Par value or flat price may, under appropriate circumstances, be a fairer price to all parties in a closely held corporation than book value or a multiple of average net earnings. The price paid by the purchaser to the corporation may be a fairer price to all concerned than either of the four other methods of valuation. In this case this was the par value, because the company was new and no other value had been established.

The agreement afforded employees entering into these contracts the opportunity to share in the profits of the company, if it was successful, and to have certain rights of ownership which could give them a voice in management. This agreement permitted the free alienation of 10% of this stock every year and thus was no unduly restrictive if the market value turned out to be in excess of the purchase price.

In the revised text of Vol. 12, Fletcher, Cyclopedia Corporations, Perm. Ed., § 5461.8 seems to have replaced the section quoted in the majority opinion and points up the reason why the closely held corporation and its stockholder should have great freedom in agreeing upon the method of valuation. The first paragraph of that section reads:

The determination of the price to be paid on the transfer of restricted shares is one of the most troublesome questions. The difficulty, of course, arises from the fact that the shares of a close corporation are not traded in the market and hence their fair market value cannot be readily ascertained. But such contracts as these under consideration usually provide a method for arriving at the value of the stock. In order to induce desired individuals into investing their capital in closely held corporations with stock restrictions often imposed, the price must be attractive as well as the prospects of future earnings. While a precise method of evaluating the stock might be desirable, restrictive agreements often allow a lot of leeway.

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

Supplemental Opinion on Denial of Rehearing delivered March 5, 1975

1. Corporations — restrictions upon alienation of stock — statutory provisions. — In the statute providing for restrictions upon alienation of stock, restrictions are permitted that do not unreasonably restrain alienation, and the requirement of a fair price is merely an incident to the permissible restrictions.

2. Appeal & error — remand for further proof — review.—Remand for the taking of proof could not be granted in view of the Supreme Court’s policy against piece-meal trial of cases since appellant had developed the issue of the purpose of the restrictive agreement to the extent it thought best.

Appeal from Washington Chancery Court; Thomas F. Butt, Chancellor; affirmed.

Smith, Williams, Friday, Eldredge & Clark, by: Jerry T. Light and Lewis H. Mathis, for appellant.

Niblock ér Hipp, for appellee.

George Rose Smith, Justice,

on rehearing. Systematics, in a petition for rehearing, argues that we based our opinion solely upon the unreasonableness of the contractual restraint on alienation. It is then contended that this involves a question of fact which was not really in issue between the parties. Upon that reasoning we are asked to remand the case for the taking of additional proof.

We do not find this argument convincing. In its original brief Systematics elected to abstract hardly any of the testimony contained in the 548-page record and to argue almost as a matter of law that the contract price was fair even though it had no relation to market value. It is impossible, however, to consider the issue of fair price, which was argued, without also considering the matter of restraint upon alienation, because the two are so inseparably tied together in the statute as to constitute a single issue. Omitting irrelevant words, here is the language of the statute:

“A corporation may provide, in respect to any of its shares which are to be issued, that the future transfer. . . of such shares shall be subject to restrictions (including purchase options) that do not unreasonably restrain alienation — which restrictions, among other things, may require a prior offering to the corporation. . . at a fair price.” Ark. Stat. Ann. § 64-211 (Repl. 1966).

It is at once apparent that the matter of a fair price cannot be considered in a vacuum. What the statute actually does is to permit restrictions that do not unreasonably restrain alienation. The matter of a fair price is mentioned only in a subordinate clause explaining possible permissible restrictions. But the thrust of the statute is directed against unreasonable restraints on alienability, the requirement of a fair price being merely an incident to the dominant legislative intention.

Systematics was put on notice from the outset that the statute was involved. Mitchell’s counterclaim contained this assertion: “That said first option agreement is void in that under Ark. Stat. Anno. Section 64-211, the prior offering to the corporation [or] a stockholder must be made 'at a fair price’ . . .” As we have indicated, the fairness of the price involves its effect upon alienability; the two cannot be separated. Consequently, the question of a restraint upon alienation was so inherently a part of the dispute from the very beginning that it would not have been possible for us to decide the controversy without taking it into account.

In connection with the petition for rehearing we granted a motion to allow several attorneys to file a supporting brief as amici curiae. That brief raises two issues that are not really involved, but since the opinion might otherwise be misunderstood we think it best to touch upon those issues.

First, counsel point out that Subsections A and B of the statute (§ 64-211) have to do with restraints that are contained either in the articles of incorporation or in the bylaws. It is then asserted that since the restraints in the case at bar were not so authorized, our decision threatens the validity and enforceability of many agreements made under Subsection C of the statute.

It is enough to say that this argument is based upon counsel’s unfamiliarity with the record. At the beginning of the case Mitchell pleaded the statute and directed interrogatories to Systematics, asking whether provisions had been made in the articles of incorporation for the restrictions on the transfer of outstanding shares of stock. Systematics answered that the restrictions were contained in by-laws approved June 15, 1967. (Record, pp. 23-24.) Hence our opinion related only to Subsections A and B of the statute, with no reference to Subsection C.

Secondly, the amici curiae brief echoes Systematics’ insistence that the factual issue of restraints upon alienability has not been fully developed. In that connection counsel say: “The Record is totally silent with respect to Appellant’s motive for this transaction. Depending upon Appellant’s motive, these restrictions could well be regarded as ‘reasonable’ under Ark. Stats. § 64-211C.”

Apart from the fact that § 64-211C is not involved, this second argument also indicates counsel’s unfamiliarity with the record. Far from being “totally silent,” the record contains much proof about the background for the contract. The terms of the agreement itself pretty well explain its purpose. Mr. Gattis, one of Systematics’ executives, testified that the company used the contract as a “motivator” to show key employees “our intentions to make them a sincere part of our company.” Mr. Smiley, another witness for Systematics, gave similar testimony, stating that the plan allowed the company to compensate executives in a fair manner and that it was made available to “the fourteen key people.” Smiley also volunteered the information that the plan was no longer available, it having become illegal in July, 1970, under an IRS ruling with reference to capital gains.

In its original brief Systematics elected not to abstract the foregoing testimony, but that omission obviously does not entitle it to argue that the issue was not developed. The opportunity to develop it not only was presented but also was availed of to the extent that Systematics thought best. Our policy against the piece-meal trial of cases rebuts the suggestion that another opportunity for the taking of proof should be afforded.

The petition for rehearing is denied.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I respectfully dissent not only for the reason stated in my original dissent, but because I do not believe that the fact that the type of restriction involved here was authorized by bylaws of the corporation prevents the operation of Ark. Stat. Ann. § 64-211C (Repl. 1966). That subsection starts off with the words “Nothing in this section is intended to prevent the holder or holders of any or all shares of a corporation from subjecting their shares, by their own personal contract or agreement, to restrictions * * *.” The words "Nothing in this section” obviously refer to subsections A and B, and the appellee definitely subjected his shares to the restrictions by his personal contract.

I adhere to the position taken on the original disposition of this case regardless of the matters set out in the supplemental opinion.


author: Lyle Brown, Justice.

text:
    John Martin CONNOR v. STATE of Arkansas
    5790
    490 S.W. 2d 114
    Opinion delivered January 29, 1973
    [Rehearing denied March 5, 1973.]

      James E. Davis, for appellant.

      Ray Thornton, Atty. Gen., by: Lonnie Powers, Asst. Atty. Gen., for appellee.

      Morton Gitelman, for American Civil Liberties Union of Arkansas, Inc., Amicus Curiae.
   Lyle Brown, Justice.

Appellant was charged with sodomy by an act of fellatio (oral stimulation of penis) under Ark. Stat. Ann. § 41-815 (Repl. 1964). He appeals from his conviction on the grounds that no statute makes fellatio a public offense; that § 41-815 is so vague and broad as to deprive appellant of his federal constitutional rights; and the section establishes a religion and invades the right of privacy.

The cited statute reads: “Every person convicted of sodomy, or buggery shall be imprisoned in the penitentiary for a period of not less than one (1) nor more than twenty-one (21) years.”

The allegation that the statute does not cover the act of fellatio is without merit. In Strum v. State, 168 Ark. 1012, 272 S.W. 559 (1925), we approved this definition: “The crime of sodomy, broadly and comprehensively speaking, consists of unnatural sexual relations between persons of the same sex, or with beasts, or between persons of different sex, but in an unnatural manner.” In Mangrum v. State, 227 Ark. 381, 299 S.W. 2d 80, Mangrum was charged with sodomy by an act of fellatio and we specifically held: “Such information charged an offense denounced by Ark. Stats. Anno. § 41-815.” In at least one other case we sustained a conviction for the same offense. Havens v. State, 217 Ark. 153, 228 S.W. 2d 1003 (1950).

Neither do we find any merit in the contention that the statute is vague and too broad in scope. The crime of sodomy has long been recognized by a host of jurisdictions as consisting of unnatural sex relations. Smith v. State, 150 Ark. 265, 234 S.W. 32 (1921). Likewise, the same authority points out that the crime has always been referred to as the crime against nature. It is so referred to in Ark. Stats. Ann. § 41-814 (Repl. 1964). In Smith it is said that the common law furnishes a definition of sodomy and that it corresponds to our present definition. Whether it is called sodomy, buggery, or crime against nature — as it is often called interchangeably — it boils down to a simple definition that it is an unnatural sex act which is condemned. It is the opposite of a natural sex act; the manner of a natural sex act is well known, even to the young and the uneducated.

Of the allegation that sodomy should not be regulated because such acts are regarded as sinful by some religious groups, little need be said. If that theory were adopted then many of our criminal statutes would be emasculated. This brings us to the final argument, namely that § 41-813 invades the constitutional right of privacy. That question is not before us because the act was not committed in privacy. It occurred between the adult appellant and a fourteen year old boy, seated in an automobile on a public road adjacent to Interstate 30.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Robert T. ROGERS, d/b/a ROGERS HARDWARE AND LUMBER COMPANY v. FRANK LYON COMPANY
    5-6082
    489 S.W. 2d 506
    Opinion delivered January 29, 1973

      Wommack ér Lineberger, for appellant.

      Rose, Barron, Nash, Williamson, Carroll & Clay, for appellee.
   John A. Fogleman, Justice.

Frank Lyon Company recovered judgment for $2,207.94 in a suit on open account against Robert T. Rogers doing business as Rogers Hardware and Lumber Company. Appellant contends that the judgment is not supported by substantial evidence and that the circuit judge erred in overruling his motion for new trial. We find no reversible error.

Appellee offered numerous appliance shipping orders to sustain its allegations that Rogers was indebted to it in the total sum of $5,679.22 for merchandise sold and delivered to the Rogers Hardware and Lumber Company during 1969 and 1970. These were introduced through Owen Morrow, Manager of Credit Sales for appellee. Appellant argues that appellee failed to meet its burden of proof because the witness had no personal knowledge of the transactions purportedly reflected by those records. The records showed that some of the merchandise was sold to another party, and no proof of actual delivery of the merchandise was offered.

Morrow was the custodian of the records introduced, and stated that he was familiar with the account, which had originated in 1966 or 1967. He testified that the records introduced were kept in the regular course of business. Morrow explained the process followed by appellee in reference to this and other accounts as follows: Each invoice originates from a phone call from Rogers or one of his employees or from Lyon’s representative in the territory, and orders were filled by shipping merchandise from Lyon’s Fort Smith or Little Rock branch to Rogers Hardware Company. The invoices were supported by “appliance shipping orders” based on these orders and were prepared on multi-copy forms, the original being kept in the Lyon Company files, the first copy accompanying the shipment to the customer, the second kept in the credit files and the third kept in the accounting files. The company’s computer then posted each invoice to the purchaser’s account and billed the customer at the end of each month. An IBM copy of the invoice was transmitted to the customer on the day following its processing.

Morrow identified an IBM summary of the Rogers account, a copy of which he said was mailed to the customer. Copies of appellee’s shipping orders and the computer print-out of the Rogers account showing a balance due amounting to $5,679.22 were admitted into evidence. The last date the records of the Rogers account indicated shipment of merchandise to Rogers was July 7, 1970, and the last credit appearing on the account was for $82.96 entered on March 16, 1971. Morrow also identified a memo from Rogers dated September 15, 1970, and testified that he had no recollection of any item of the account having been questioned by any Rogers employee and that the files did not indicate any such question. One invoice for $1,799.55 dated November 24, 1969, for merchandise shipped to Hiwasse Homes was originally charged to Rogers’ account, but for some reason Morrow could not readily explain was transferred to an account of Hiwasse Homes, established February 9, 1970. Other invoices of $199.95 and $1,920. Morrow said, were also transferred to Hiwasse Homes. Morrow stated that Charles E. Simms was credit manager of Frank Lyon Company, and, as such, in charge of the overall extension of credit and collections at the time of the transactions with Rogers, and that he (Morrow) handled distressed accounts and had nothing to do with this account during 1969 and 1970.

Five of the orders totalling $4,665.10 indicated upon their faces that they were for goods sold to Borg-Warner Acceptance Corporation. Morrow had no connection with the shipping department and no personal knowledge of the shipping of the merchandise represented by any of the written orders. His entire testimony was based upon company records. A statement of the account showing a balance due of $2,329.14 was exhibited on cross-examination of Morrow, who said that it was prepared by Sims on August 27, 1970. During cross-examination Morrow also identified a copy of a letter of November 17, 1970, addressed to Rogers, stating that the account amounted to $2,133.40; a computerized statement dated December 24, 1970, reflecting a balance of $1,885.05; and a statement of May 26, 1971, showing a credit balance of $21.20. Morrow explained that one of the Borge-Warner invoices (for $1,265.55) was for merchandise to be sold to Borg-Warner and shipped to Rogers by agreement among the parties, but charged to Rogers when Borg-Warner refused to accept it.

Rogers denied owing appellee for invoices for $203.83, $1,265.55, $404.90 and $169.95, totalling $2,044.23, saying that he had paid Borg-Warner for them but could not say whether he actually received the merchandise or not. Morrow testified that Borg-Warner refused to finance these purchases by Rogers on a floor plan and that the records showed that the merchandise was then charged to Rogers and a corrected billing sent to him.

He explained that the three merchandise orders for a total of $3,919.50 were charged to Hiwasse Homes, after he advised Sims that the refrigerators listed on them had actually been shipped to Hiwasse Homes. He said that Sims left trade acceptances dated July 15, 1970, for this merchandise for signature by Hiwasse Homes and transferred the items to the Hiwasse Homes account in 1969, but it is admitted that the acceptances were never signed and returned to appellee. Morrow testified that the transfer of these charges to the Hiwasse Homes account was made when the trade acceptances were prepared. Rogers stated that these invoices were not again charged to his account until after the suit was filed and denied that he had ever agreed to pay for this merchandise. According to Rogers he was the owner of 54% of the stock of Hiwasse Homes, organized in November of 1969, and Rogers Hardware Company made some sales to Hiwasse Homes in 1970. Each appliance shipping order reflected a date of shipment, and a bill of lading number. Most orders indicated the identity of the carrier.

The records introduced through Morrow were properly admitted in evidence under Ark. Stat. Ann. § 28-928 (Repl. 1962). See Walker v. State, 241 Ark. 300, 408 S.W. 2d 905, appeal dismissed, 386 U.S. 682, 87 S. Ct. 1325, 18 L. Ed. 2d 403 (1967); Swafford Ice Cream Company v. Sealtest, 252 Ark. 1182, 483 S.W. 2d 202. Morrow’s lack of personal knowledge might have affected the weight given his testimony, but not its admissibility. The jury might well have found for appellant on the testimony offered, or returned a verdict for appellee in some lesser amount, but we cannot say that there was no substantial evidence to support the verdict. While we cannot say how the jury arrived at its verdict, it is obvious that it found for Rogers on items totalling $3,471.28, since the verdict was that much less than the amount indicated by the statement on which appellee sought to recover.

Judgment on the jury verdict rendered December 3, 1971, was entered on January 13, 1972. On February 8, 1972, appellant filed a motion for new trial on account of newly discovered evidence. He alleged that on January 31, 1972, he discovered that appellee had filed a verified complaint to institute a suit in the Circuit Court of Benton County against Hiwasse Homes, Inc., alleging that it had sold and delivered goods and appliances listed on invoices attached to the complaint to Hiwasse Homes; that on May 25, 1971, judgment by default had been entered for the amount sought in this complaint; that, thereafter, appellee altered four invoices for merchandise priced at a total of $3,919.60, which had formed a basis for the judgment against Hiwasse Homes, to make it appear that Rogers was the debtor; that this judgment barred the action against Rogers on these invoices; that had he discovered the Hiwasse Homes judgment prior to the trial of this case, the result of the trial would have been different; that the alteration of the invoices constituted a fraud upon him and upon the court as well.

Appellee’s response denied these allegations and alleged that none of the matters alleged by appellant would materially affect his substantial rights and that appellant, with reasonable diligence, could have discovered the judgment against Hiwasse Homes. This motion for new trial was denied after the court heard evidence. The trial court found that the judgment could have been discovered by appellant and produced at the trial by the exercise of reasonable diligence, that the newly discovered evidence did not materially affect the substantial rights of appellant and that there was no evidence that appellee had wrongfully or unlawfully altered any of the invoices upon which its cause of action against Rogers had been based or that appellee had practiced a fraud upon appellant or the court.

The granting or denial of a motion for new trial on account of newly discovered evidence, or in any case, is a matter lying within the wide latitude of the sound judicial discretion of the trial judge, whose exercise of that discretion will not be reversed in the absence of manifest abuse. Dorey v. McCoy, 246 Ark. 1244 (Supp. Op. Reh. 1248A), 442 S.W. 2d 202; Arkansas State Highway Commission v. Owen, 241 Ark. 1012, 411 S.W. 2d 304; Davis v. Ralston Purina Company, 248 Ark. 1128, 455 S.W. 2d 685. Newly discovered evidence is one of the least favored grounds for a new trial. Gross v. State, 242 Ark. 142, 412 S.W. 2d 279. See also, Arkansas State Highway Commission v. Owen, supra. The burden is upon the movant to establish that he could not with reasonable diligence have discovered and produced the evidence at the time of the trial, that the evidence is not merely impeaching or cumulative and that the additional testimony would probably change the result of the trial. Halbrook v. Halbrook, 232 Ark. 850, 341 S.W. 2d 29.

The circuit judge, in denying the motion, stated that the exercise of the required diligence by appellant was questionable, that there was no fraud on the part of appellee, and that evidence to support the contention that the items covered in the Hiwasse Homes judgment had been charged by appellee to that corporation, rather than to appellant, was before the jury, and that the jury for some reason gave credit in its verdict for $3,471.28 against the amount appellee claimed tobe due.

Rogers testified that he discovered the Hiwasse Homes judgment on January 31, 1972, when he went to the courthouse to obtain a photostatic copy of the court’s docket in this case (No. 72-71 in the circuit court) and accidentally noted the case of Frank Lyon Company v. Hiwasse Homes (No. 73-71). The complaint in that case was dated March 18, 1971. Charles E. Sims testified that the invoice for these items was originally on Rogers’ account and charged to Hiwasse Homes at Rogers’ request upon the understanding that trade acceptances covering the items would be forwarded to appellee and then retransferred to Rogers’ account and were included in statements sent him after the trade acceptances were not received and after the judgment against Hiwasse had been entered. Sims said that the charge of the items to Hiwasse Homes was made in order that the account would be in accord with the trade acceptances. Sims also testified that statements of the Hiwasse account showing these items had been sent to Rogers, who had agreed to send the trade acceptances in the first place. There was no evidence of any payment or satisfaction of the Hiwasse judgment.

When we consider that evidence that went to the jury disclosed the fact that the items in question had been transferred from the Rogers account to that of Hiwasse Homes and back again, that the jury did not return a verdict for the full amount sued for, that there is evidence indicating statements showing the transfer and retransfer of the charges had been sent to Rogers, and that he had requested the transfer on the basis of an agreement he failed to keep, we cannot say that the “newly discovered” evidence would be more than cumulative or impeaching or that it was probable, rather than just possible, that the evidence would change the result of the trial or that an abuse of discretion is indicated.

Furthermore, the fact that the Hiwasse judgment was a matter of public record for more than six months before the trial in this case could properly be considered as indicative of a lack of diligence. See Stockton v. Baker, 213 Ark. 918, 213 S.W. 2d 896. While it may well be said that every person sued is not charged with the responsibility of searching all the court dockets, even in the county in which he is sued, to see if someone else has been sued on the same cause of action by the same plaintiff, the contentions made by Rogers that Hiwasse Homes was liable for the particular items with which he was charged might well have prompted some inquiry on his part. We reiterate that the complaint against Hiwasse is not a totally new admission on the part of Lyon, for it is consistent with that evidenced by statements of account by Lyon said to have been sent to Rogers before and after the transfer, before and after the Hiwasse judgment and before and after the retransfer of the charges.

When we view the total picture portrayed by the evidence on the original trial and that on motion for a new trial, we are unable to say that the trial court abused its discretion. We are not now concerned with the possibility of double collection of these items by Lyon, which appellant fears. It does not appear that either party has paid anything on either judgment. That will be a matter for consideration when payments are made and appropriate credit not given.

The judgment is affirmed.


text:
    Tommy Edward THACKER v. STATE of Arkansas
    5798
    489 S.W. 2d 500
    Opinion delivered January 29, 1973

      Appellant Pro Se.

      Ray Thornton, Atty. Gen., by: Julie W. McDonald, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Thacker appeals from a conviction of the crime of burglary and his sentencing under the habitual criminal act. He asserts that the trial court erred in denying him a continuance. His motion for continuance was based upon the absence from the trial of Leon Garner, Ruthe Doe and Jo Ann Roe. In the subpoena issued to the sheriff of Garland County for these witnesses, Garner was described as "operator of Cliff’s Drive Inn,” and the other two were stated to be persons who worked at that establishment. This subpoena for attendance at the trial on April 18, 1972, was issued on April 10. The return, dated April 13 and signed by a deputy sheriff, stated that, after a diligent search, he failed to find the witnesses named in Garland County. Appellant asserted that these witnesses would establish an alibi defense, i.e., that he was in Hot Springs at the time of the burglary with which he was charged.

The circuit judge, before conducting a hearing on the oral motion, observed that notice had been given on March 31, 1972, that the case would be tried on April 18. The appellant declined to testify in support of his motion, after his request for a hearing in camera was granted. No evidence was offered in support of appellant’s motion. Thacker’s principal argument here is that, since the subpoena was in the hands of the Garland County sheriff, who had placed a detainer against him on a charge pending in Garland County, for only one day, a diligent search for the missing witnesses could not possibly nave been made.

Our statutes provide that, if the opposite party requires it, a motion to postpone a trial on account of the absence of a witness snail be made only upon affidavit, stating the facts to be proved by the witness and the affiant’s belief in their truth, showing the materiality of the anticipated testimony, due diligence on the part of the party asking postponement, the lack of connivance at, consent to, or procurement of, the absence by the movant. Ark. Stat. Ann. §§ 27-1403, 43-1706 (Repl. 1964). These statutes also permit the opposing party to controvert these statements by evidence.

We have consistently held that the matter of granting or denying a continuance on account of the absence of a witness in a criminal case is within the sound judicial discretion of the trial court and that its action will be disturbed on appeal only in case of abuse. Brown v. State, 252 Ark. 846, 481 S.W. 2d 366; Nash v. State, 248 Ark. 323, 451 S.W. 2d 869; Striplin v. State, 100 Ark. 132, 139 S. W. 1128; Walker v. State, 100 Ark. 180, 139 S.W. 1139. Among the matters to be considered by the court in exercising this discretion are the diligence of the movant, the probable effect of the testimony at the trial and the likelihood of procuring the attendance of the witness in the event of a postponement. Striplin v. State, supra. The purpose of the requirement of an affidavit is to permit the trial judge to evaluate the adverse party to controvert the movant’s statements in regard thereto. The failure to file such an affidavit is a significant factor in appellate review of the trial court’s denial of such a motion. Leach v. State, 229 Ark. 802, 318 S.W. 2d 617. Here, there was neither affidavit nor testimony to show what the witnesses would testify, appellant’s belief in the truth of their testimony, what appellant had done to assure timely issuance and service of the subpoena, or to show that their absence was not the result of an act or omission on his part, or that there was any probability that these witnesses would ever be available. Under these circumstances we cannot say that there was any abuse of the circuit judge’s discretion. See Cathev v. State. 194 Ark. 1074, 110 S.W. 2d 17; Davis v. State, 155 Ark. 245, 244 S.W. 750.

Appellant then asserts that the circuit judge erred in failing to direct a verdict of acquittal. His argument is that the testimony of Shirley Kimbrough, an alleged accomplice, was not corroborated by other evidence tending to show his connection with the crime as required by Ark. Stat. Ann. § 43-2116 (Repl. 1964). The test of sufficiency is whether, if the testimony of the accomplice should be eliminated, the remaining evidence would establish the commission of the offense and the connection of the accused with it. Petron v. State, 252 Ark. 945, 481 S.W. 2d 722; Froman v. State, 232 Ark. 697, 339 S.W. 2d 601. Corroborating evidence which only raises a suspicion of guilt is not enough. Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304. But it need not be sufficient, for conviction, standing alone. It need only tend to connect the defendant with the commission of the offense. Strout v. State, 249 Ark. 24, 458 S.W. 2d 42.

The corroborating evidence here is clearly sufficient. It is admitted that the Custom Woods Products Building in Fort Smith had been burglarized on the night of February 10, 1972. Carl Leding, the owner of the business, testified that a number of blank checks bearing the name of his business were taken from the building on that occasion and gave the numbers that these checks bore. Some of these checks were found in a plastic bag under some clothing in an automobile owned by a Miss Shelby which had been occupied by Thacker and his codefendant, Ronald Dunn, a former employee of Leding. Thacker’s fingerprints were found on these checks. The innkeeper at Holiday Inn South in Fort Smith testified that Thacker registered at the inn under the name “Eddie T. Madden” at 2:35 p.m. on February 10, 1972.

Evidence that an accused was found in possession of property stolen as a result of a burglary, or that it was found in an automobile in which he is a passenger, is sufficient to support a conviction of the burglary. Johnson v. State, 251 Ark. 291, 473 S.W. 2d 155; Lee v. State, 200 Ark. 1189, 141 S.W. 2d 845; Kelley v. State, 191 Ark. 674, 87 S.W. 2d 400. Certainly evidence of possession of the stolen checks by Thacker tended to connect him with the burglary charged and constituted sufficient corroboration of the testimony of the accomplice. Jones v. State, 205 Ark. 806, 171 S.W. 2d 298.

Appellant also contends that error was committed by permitting the introduction of evidence under the habituál criminal act. The constitutionality of this act has been sustained by this court several times. Brown v. State, 252 Ark. 846 (1972), 481 S.W. 2d 366; Ridgeway v. State, 251 Ark. 157, 472 S.W. 2d 108; Poe v. State, 251 Ark. 35, 470 S.W. 2d 818. The second count of the information charged that the punishment lay within the purview of Ark. Stat. Ann. § 43-2328 (Supp. 1971) because appellant and his codefendant had been previously convicted, at least once, of a crime punishable by confinement in the Arkansas State Penitentiary. The procedure set out by Ark. Stat. Ann. § 43-2330.1 (Suppl. 1971) was substantially followed. The jury returned a verdict finding appellant guilty, which was the only question submitted to it at the conclusion of the trial. The prosecuting attorney then requested permission to offer evidence of previous convictions ana offered certified copies of three such convictions. Only a general objection to their introduction was made. The court instructed the jury upon the application of the habitual criminal act. The jury retired, deliberated and arrived at appellant’s sentence. Appellant, when asked if there was any reason why the sentence thus fixed should not then be imposed, only renewed his profession of innocence and complained of the absence of witnesses, particularly of some relatives for whom no subpoena was issued. We find no reversible error on this point.

The judgment is affirmed.